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Patent Law of the People's Republic of China (2020 Amendment)[Effective]

Issuing authority:

Standing Committee of the National People's Congress,Standing Committee of the National People's Congress

Document Number:

Order No. 55 of the President of the People's Republic of China

Date issued:

10-17-2020

Effective date:

06-01-2021

Level of Authority:

Laws

Area of Law:

Patent

Patent Law of the People's Republic of China
(Adopted at the 4th Session of the Standing Committee of the Sixth National People's Congress on March 12, 1984; amended for the first time by the Decision on Amending the Patent Law of the People's Republic of China adopted at the 27th Session of the Standing Committee of the Seventh National People's Congress on September 4, 1992; amended for the second time by the Decision on Amending the Patent Law of the People's Republic of China, adopted at the 17th Session of the Standing Committee of the Ninth National People's Congress on August 25, 2000; amended for the third time by the Decision of the Standing Committee of the National People's Congress on Amending the Patent Law of the People's Republic of China adopted at the 6th Session of Standing Committee of the 11th National People's Congress of the People's Republic of China on December 27, 2008; and amended for the fourth time in accordance with the Decision of the Standing Committee of the National People's Congress to Amend the Patent Law of the People's Republic of China adopted at the 22nd Session of the Standing Committee of the Thirteenth National People's Congress of the People's Republic of China on October 17, 2020) 

Article 48 The patent administrative department of the State Council and the departments charged with the administration of patents of the local people's governments shall, in conjunction with the relevant departments at the same level, take measures to enhance public services for patents and promote the exploitation and application of patents.

Article 49 Where any patent for invention owned by a state-owned enterprise or public institution is of great significance to the interests of the state or to the public interests, the relevant competent department of the State Council and the people's government of the province, autonomous region, or municipality directly under the Central Government may, upon approval of the State Council, decide to popularize and apply the patent within the approved scope, and allow designated entities to exploit the patent; and the exploiting entity shall, in accordance with the legal provisions of the state, pay royalties to the patentee.

Article 50 Where a patentee voluntarily files a written declaration with the patent administrative department of the State Council, indicating its willingness to permit any entity or individual to exploit its patent and specifying the royalty payment methods and rates, the patent administrative department of the State Council shall make an announcement and implement an open license. If an open license declaration is filed for a utility model or design patent, a patent evaluation report shall be provided.
A patentee withdrawing an open license declaration shall make the withdrawal in writing, and the patent administrative department of the State Council shall make an announcement. The announced withdrawal of an open license declaration shall not affect the validity of the open license granted earlier.

Article 51 Any entity or individual intending to exploit a patent under an open license shall obtain the patent exploitation license immediately after notifying the patentee in writing and paying the royalty according to the announced royalty payment methods and rates.
During the period of implementation of the open license, the patent annuity paid by the patentee shall be reduced or waived accordingly.
The patentee implementing an open license may grant an ordinary license after negotiating with the licensee over royalties, but shall not grant a sole license or exclusive license for the patent.

Article 52 Where any dispute arises over the implementation of an open license, the parties shall resolve the dispute through consultations; and if the parties are unwilling to consult or consultation fails, they may request the patent administrative department of the State Council to conduct mediation, or file a lawsuit with the people's court.

Article 53 Under any of the following circumstances, the patent administrative department of the State Council may, upon the application of an eligible entity or individual, grant it or him a compulsory license to exploit the patent for an invention or utility model:

(1) The patentee, after the lapse of 3 full years from the date when patent is granted and after the lapse of 4 full years from the date when a patent application is filed, fails to exploit or to fully exploit its or his patent without any justifiable reason; or

(2) The patentee's act of exercising the patent rights is determined as a monopolizing act and it is to eliminate or reduce the adverse consequences of the said act on competition.

Article 54 Where a national emergency or any extraordinary state of affairs occurs, or where the public interest so requires, the patent administrative department of the State Council may grant a compulsory license to exploit the patent for an invention or utility model.

Article 55 For the purpose of public health, the patent administrative department of the State Council may grant a compulsory license for a patented medicine so as to produce and export it to the country or region which conforms to the provisions of the relevant international treaty to which the People's Republic of China has acceded.

Article 56 Where an invention or utility model for which the patent was granted has seen any major technical progress of prominent economic significance when compared with another invention or utility model for which the patent has been granted earlier, and the exploitation of the later invention or utility model depends on the exploitation of the earlier one, the patent administrative department of the State Council may, upon the request of the later patentee, grant a compulsory license to exploit the earlier invention or utility model.
Where, according to the preceding paragraph, a compulsory license is granted, the patent administrative department of the State Council may, upon the request of the earlier patentee, also grant a compulsory license to exploit the later invention or utility model.

Article 57 Where the invention involved in the compulsory license is a semi-conductor technology, the exploitation of the compulsory license shall be limited only to public interests and the circumstance as described in Article 53 (2) of this Law.

Article 58 Besides the circumstances as described in Article 53 (2) and Article 55 of this Law in which a compulsory license is granted, the exploitation of a compulsory license shall be implemented primarily for supplying the domestic market.

Article 59 The entity or individual requesting, in accordance with the provisions of Article 53 (1) and Article 56 of this Law, a compulsory license for exploitation shall prove that it or he has not been able to conclude with the patentee a license contract for exploitation on reasonable terms within a reasonable timeframe.

Article 60 Where the patent administrative department of the State Council decides to grant a compulsory license for exploitation, it shall notify the patentee in time, and register it and make an announcement.
A decision on granting a compulsory license for exploitation shall, on the basis of the reasons for compulsory license, specify the scope and time of exploitation. When the reasons for compulsory license have been eliminated and will no longer occur, the patent administrative department of the State Council shall, upon request of the patentee, make a decision after examination on terminating the compulsory license.

Article 61 Any entity or individual who is granted a compulsory license for exploitation shall not have exclusive right to exploit the patent and shall not have the right to authorize anyone else to exploit the patent.

Article 62 The entity or individual that is granted a compulsory license for exploitation shall pay to the patentee a reasonable royalty or deal with the royalty issue under the relevant international treaties to which the People's Republic of China has acceded. If a royalty is to be paid, the amount of the royalty shall be decided by both parties upon negotiation. If the parties fail to reach an agreement, the issue shall be settled by the patent administrative department of the State Council.

Article 63 Where a patentee is dissatisfied with the decision of the patent administrative department of the State Council on granting a compulsory license for exploitation, or where a patentee, or an entity or individual to whom the compulsory license for exploitation is granted is dissatisfied with the ruling of the patent administrative department of the State Council on the royalties payable for compulsorily licensed exploitation, he or it may, within three months as of receipt of the notification, bring a lawsuit to the people's court.