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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 64 The scope of protection of the patent right for an invention or utility model shall be determined by the terms of the claims. The description and the appended drawings may be used to interpret the claims.
The scope of protection of the patent right for design shall be determined by the product incorporating the patented design as shown in the drawings or photographs.

Article 65 In the event that a dispute arises out of any exploitation of a patent without permission of the patentee, that is, the infringement upon a patent right, the parties shall settle the dispute through negotiations. If they are not willing to negotiate or fail to reach an agreement through negotiations, the patentee or any interested party may either bring a lawsuit with the people's court, or request the patent administrative department, for settlement. If the patent administrative department ascertains at the time of settlement that infringement exists, it may order the infringer to immediately stop the infringement act. The party dissatisfied may, within 15 days as of receipt of the notification, bring a lawsuit with the people's court in accordance with the Administrative Procedural Law of the People's Republic of China . If the infringer neither brings a lawsuit within the time limit nor stops the infringement act, the patent administrative department may apply to the people's court for compulsory enforcement. The patent administrative department that settles the dispute may, upon request of the parties may hold a mediation regarding the compensation amount for infringement upon the patent right. If no agreement is reached through mediation, either party may bring a lawsuit with the people's court in accordance with the Civil Procedural Law of the People's Republic of China .

Article 66 Where any dispute over patent infringement involves a patent for invention for the manufacturing process of a new product, the entity or individual manufacturing the identical product shall provide proof on the difference of its own process used in the manufacture of its product from the patented process.
Where a dispute over patent infringement involves a utility model patent or a design patent, the people's court or the department charged with the administration of patents may require the patentee or interested party to present a patent evaluation report prepared by the patent administrative department of the State Council after retrieval, analysis, and evaluation of the relevant utility model or design, as evidence for adjudicating or handling the dispute over patent infringement. The patentee, the interested party, or the alleged infringer may also voluntarily present the patent evaluation report.

Article 67 In a dispute over patent infringement, if the accused infringer has evidence to prove that the technology or design it or he exploits is an existing technology or design, no patent infringement is constituted.

Article 68 Whoever counterfeits a patent shall, in addition to being held civilly liable in accordance with the law, be ordered by the department charged with patent law enforcement to take corrective action, which shall be announced, with the illegal income confiscated, and may be fined not more than five times the illegal income or if there is no illegal income or the illegal income is not more than 50,000 yuan, fined not more than 250,000 yuan; and if it is criminally punishable, the offender shall be held criminally liable in accordance with the law.

Article 69 In investigating and handling suspected patent counterfeiting acts based on evidence already obtained, the departments charged with patent law enforcement shall have the authority to take the following measures:

(1) Interviewing the relevant parties and investigating information related to the suspected violations of law.

(2) Conducting on-site inspection of places where the parties are suspected of violations of law.

(3) Consulting and duplicating the contracts, invoices, account books, and other relevant materials related to the suspected violations of law.

(4) Inspecting the products related to the suspected violations of law.

(5) Placing under seal or impounding the products with a counterfeited patent as proved by evidence.
The department charged with the administration of patents may take the measures set forth in subparagraphs (1), (2) and (4) of the preceding paragraph to handle patent infringement disputes at the request of the patentee or the interested party.
When the department charged with patent law enforcement or the department charged with the administration of patents performs the functions prescribed in the preceding two paragraphs in accordance with the law, the parties shall provide assistance and cooperation, and shall not reject or obstruct it.

Article 70 The patent administrative department of the State Council may handle patent infringement disputes that have significant influence nationwide at the request of the patentee or interested party.
In handling patent infringement disputes at the request of the patentee or interested party, the department charged with the administration of patents of a local people's government may concurrently handle cases in which the same patent is infringed upon within its administrative region; and may request the department charged with the administration of patents of the local people's government at a higher level to handle cases in which the same patent is infringed upon across different administrative regions.

Article 71 The damages for a patent infringement shall be determined according to the actual loss suffered by the right holder due to the infringement or the benefits obtained by the infringer from the infringement; or if it is difficult to determine the loss suffered by the right holder or the benefits obtained by the infringer, the damages shall be reasonably determined by reference to the multiple of the royalty for this patent. In the case of an intentional patent infringement with serious circumstances, the damages may be determined as not less than one nor more than five times the amount determined in the aforesaid method.
Where it is difficult to determine the loss suffered by the right holder, the benefits obtained by the infringer, and the patent royalty, the people's court may, by taking into account factors such as the type of the patent and the nature and circumstances of the infringement, determine the damages as not less than 30,000 yuan nor more than five million yuan.
The damages shall also include the reasonable disbursements of the right holder for preventing the infringement.
Where the right holder has made best efforts to adduce evidence but the account books and materials relating to the infringement are mainly in the possession of the infringer, in order to determine the damages, the people's court may order the infringer to provide such account books and materials; and if the infringer fails to provide them or provides any false ones, the people's court may award damages by reference to the claims of and the evidence provided by the right holder.

Article 72 Where a patentee or interested party has evidence to prove that another person is committing or will commit an infringement upon the patent or an act of interfering with the patentee's or interested party's realization of rights, and irreparable harm will be caused to the lawful rights and interests of the patentee or interested party if the infringement is not stopped in a timely manner, the patentee or interested party may, before instituting an action, apply to the people's court for attachment of property, ordering certain conduct, or prohibiting certain conduct, in accordance with the law.

Article 73 In order to stop a patent infringement, a patentee or interested party may, before instituting an action, apply to the people's court for the preservation of evidence if any evidence may be destroyed or lost or difficult to obtain at a later time.

Article 74 The prescriptive period for instituting an action against a patent infringement shall be three years, commencing from the date when the patentee or interested party knows or should have known the infringement and the infringer.
Where any other person uses an invention after an application for the invention patent is published and before the patent is granted without paying appropriate royalties, the prescriptive period for the patentee to claim the payment of such royalties shall be three years, commencing from the date when the patentee knows or should have known the use by the other person; however, if the patentee knows or should have known the use prior to the grant date of the patent, the prescriptive period shall commence from the grant date of the patent.

Article 75 None of the following circumstances shall be deemed an infringement upon a patent right:

(1) using, promising to sell, selling or importing any patented product or product directly obtained under the patented process after the said product is sold by the patentee or by its (his) licensed entity or individual;

(2) having made identical product or having used the identical process or having made necessary preparations for making such a product or using such a process prior to the date of application, and continuing making such product or using such a process only within the original scope;

(3) for any foreign means of transport which temporarily passes through the territory, territorial waters or territorial airspace of China, its using the relevant patents in accordance with any agreement concluded between China and that country to which the foreign means of transport belongs, or in accordance with any international treaty to which both countries have acceded, or on the basis of the principle of reciprocity, for its own needs, in its devices and installations;

(4) using relevant patents solely for the purposes of scientific research and experiment; and

(5) producing, using or importing patented medicine or patented medicinal equipment for the purpose of providing the information as required for administrative examination and approval, and producing and importing the patented medicine or patented medicinal equipment exclusively for the said purpose.

Article 76 Where, in the process of assessment and approval for the marketing of a drug, any dispute arises between the applicant for the marketing of a drug and the relevant patentee or interested party over the patent right related to the drug of which an application for registration is filed, the relevant party may file a lawsuit with the people's court, requesting a judgment as to whether the relevant technical solution of the drug of which an application for registration is filed falls within the scope of protection of any other person's patent on a drug. The medical products administration of the State Council may, within the prescribed time limit, make a decision on whether to suspend the approval of marketing of the relevant drug according to the effective judgment of the people's court.
The applicant for the marketing of a drug and the relevant patentee or interested party may also apply to the patent administrative department of the State Council for an administrative adjudication on any patent dispute related to the drug of which an application for registration is filed.
The medical products administration of the State Council shall, in conjunction with the patent administrative department of the State Council, develop specific connecting measures for the resolution of patent disputes in the stages of approval of drug marketing and application for the marketing of a drug, report such measures to the State Council, and implement them upon consent of the State Council.

Article 77 Whoever uses or sells a patented product without knowing that the product was produced and sold without permission of the patentee or a product directly obtained from a patented process for the purpose of production and business operation is not required to bear the liabilities for compensation provided that it or he can prove that the product is obtained from a legal source.

Article 78 Whoever, in violation of the provisions of Article 19 of this Law, files in a foreign country an application for a patent, if it or he has divulged any state secret, he shall be subject to an administrative sanction by the entity where he works or by the competent authority at the higher level. If any crime is constituted, he shall be subject to the criminal liabilities.

Article 79 No patent administrative department shall participate in the business activities such as recommending patented products to the public.
Where a patent administrative department violates the provisions of the preceding paragraph, it shall be ordered by its superior organ or its supervision organ to make a correction and eradicate the ill effects. The illegal proceeds, if any, shall be confiscated. If the circumstance is serious, the directly liable person-in-charge and other directly liable persons shall be subject to a disciplinary action in accordance with the law.

Article 80 Where any staff member of a state organ for patent administration or of any other relevant state organ neglects his duties, abuses his powers, practices favoritism for himself or his relative, if any crime is constituted, he shall be subject to criminal liabilities according to law. If no crime is constituted, he shall be given a disciplinary action according to law.