Patent Law of the People’s Republic of China （2008 Revision）
Amended for the third time in accordance with the Decision of the Standing Committee of the Eleventh National People's Congress on Amending the Patent Law of the People's Republic of
Chapter I General Provisions
Article 1
This law is enacted to protect the legitimate rights and interests of the patentees, to encourage invention-creations, to promote the application of invention-creations, enhance innovative capacity, and to promote the progress of science and technology and the development of economy and society.
Article 2
In this Law the "invention-creation" means inventions, utility models and designs.
The "Invention" refers to a new technical solution developed for a product, process or the improvement thereof.
The "utility model" refers to a new practically applicable technical solution developed for the shape, structure, or the combination thereof of a product.
The "design" refers to a new design of a product's shape, pattern or the combination thereof, or the combination of its colour and shape and/or pattern, which is aesthetically appealing and industrially applicable.
Article 3
The patent administration department under the State Council is responsible for the patent work throughout the country. It receives and examines patent applications and grants patent rights for inventions-creations in accordance with law.
The administrative authority for patent affairs under the people's governments of provinces, autonomous regions and municipalities directly under the Central Government are responsible for the administrative work concerning patents in their respective administrative areas.
Article 4
Where an invention-creation for which a patent is applied for relates to the security or other vital interests of the State and is required to be kept secret, the application shall be treated in accordance with the relevant prescriptions of the State.
Article 5
No patent right shall be granted for any invention-creation that is contrary to the laws of the State or social morality or that is detrimental to public interests.
No patent right shall be granted for any invention-creation which is completed on the basis of genetic resources the acquisition or use of which breaches the stipulations of the laws and administrative regulations.
Article 6
An invention-creation, made by a person in execution of the tasks of the entity to which he belongs, or made by him mainly by using the material and technical means of the entity is a service invention-creation. For a service invention-creation, the right to apply for a patent belongs to the entity. After the application is approved, the entity shall be the patentee.
For a non-service invention-creation, the right to apply for a patent belongs to the inventor or creator. After the application is approved, the inventor or creator shall be the patentee.
In respect of an invention-creation made by a person using the material and technical means of an entity to which he belongs, where the entity and the inventor or creator have entered into a contract in which the right to apply for and own a patent is provided for, such a provision shall apply.
Article 7
No entity or individual shall prevent the inventor or creator from filing an application for a patent for a non-service invention-creation.
Article 8
For an invention-creation jointly made by two or more entities or individuals, or made by an entity or individual in execution of a commission given to it or him by another entity or individual, the right to apply for a patent belongs, unless otherwise agreed upon, to the entity or individual that made, or to the entities or individuals that jointly made, the invention-creation. After the application is approved, the entity or individual that applied for it shall be the patentee.
Article 9
Where one applicant files, on the same day, applications for both the utility model patent and the invention patent relating to the identical invention-creation and the applicant declares to disclaim the utility model patent right which does not expire, the invention patent may be granted.
Where two or more applicants file applications for patent for the identical invention-creation, the patent right shall be granted to the applicant whose application was filed first.
Article 10
The right to apply for a patent and the patent right itself may be assigned.
Any assignment, by a Chinese entity or individual, of the right to apply for a patent, or of the patent right, to a foreigner, a foreign enterprise or any other foreign organization, shall proceed by going through the formalities under the relevant laws and administrative regulations.
Where the right to apply for a patent or the patent right is assigned, the parties shall conclude a written contract and register it with the patent administration department under the State Council. The patent administration department under the State Council shall announce the registration. The assignment shall take effect as of the date of registration.
Article 11
After the grant of the patent right for an invention or utility model, except where otherwise provided for in this Law, no entity or individual may, without the authorization of the patentee, exploit the patent, that is, make, use, offer to sell, sell or import the patented product, or use the patented process, and use, offer to sell, sell or import the product directly obtained by the patented process, for production or business purposes.
After the grant of the patent right for a design, no entity or individual may, without the authorization of the patentee, exploit the patent, that is, make, offer for sale, sell or import the product incorporating its or his patented design, for production or business purposes.
Article 12
Any entity or individual exploiting the patent of another party shall conclude with the patentee a license contract for exploitation, and pay the patentee royalties. The licensee has no right to authorize any entity or individual, other than that referred to in the contract for exploitation, to exploit the patent.
Article 13
After the publication of the application for a patent for invention, the applicant may require the entity or individual exploiting the invention to pay an appropriate fee.
Article 14[1]
Where any patent for invention, belonging to any State-owned enterprise or institution, is of great significance to the interest of the State or to the public interest, the competent departments concerned under the State council and the people's governments of provinces, autonomous regions or municipalities directly under the Central Government may, after approval by the State Council, decide that the patented invention be spread and applied within the approved limits, and allow designated entities to exploit that invention. The exploiting entity shall, according to the regulations of the State, pay a fee for exploitation to the patentee.
Article 15[2]
If the co-owners of a right to apply for patent or a patent right have concluded an agreement on the exercise of the right, the agreement shall apply. In the absence of such agreement, any co-owner may independently exploit or license another party to exploit the patent through ordinary license; any royalties obtained from licensing the other party to exploit the patent shall be distributed amongst all the co-owners.
Except the circumstance provided for in the above paragraph, a jointly-owned right to apply for patent or patent right shall be exercised with consent from all co-owners.
Article 16
The entity that is granted a patent right shall award to the inventor or creator of a service invention--creation a reward and, upon exploitation of the patented invention-creation, shall pay the inventor or creator a reasonable remuneration based on the extent of spreading and application and the economic benefits yielded.
Article 17[3]
The inventor or designer has the right to be named as such in the patent document.
The patentee has the right to affix a patent indication on the patented product or on the package of that product.
Article 18
Where any foreigner, foreign enterprise or other foreign organization having no habitual residence or business office in China files an application for a patent in China, the application shall be treated under this Law in accordance with any agreement concluded between the country to which the applicant belongs and China, or in accordance with any international treaty to which both countries are party, or on the basis of the principle of reciprocity.
Article 19
Where any foreigner, foreign enterprise or any other foreign organization having no habitual residence or business office in China applies for a patent, or has other patent matters to attend to, in China, he or it shall appoint a legally incorporated patent agency to act on its or his behalf.
Where any Chinese entity or individual applies for a patent or has other patent matters to attend to in the country, it or he may appoint any legally incorporated patent agency to act as its or his agent.
The patent agency shall comply with the provisions of laws and administrative regulations, and handle patent applications and other patent matters according to the instructions of its clients. In respect of the contents of its clients' inventions-creations, except for those that have been published or announced, the agency shall bear the responsibility of keeping them confidential. The administrative regulations governing the patent agency shall be formulated by the State Council.
Article 20
Any entity or individual intending to file an application for a patent in a foreign country for an invention-creation developed in
Any Chinese entity or individual may file an international application for patent in accordance with any international treaty concerned to which
The patent administration department under the State Council shall handle any international application for patent in accordance with the international treaty concerned to which
For a foreign patent application filed in violation of the provision of the first paragraph of this Article, no patent right shall be granted to an application filed for a patent in
Article 21
The patent administration department under the State Council and its Patent Reexamination Board shall handle any patent application and patent-related request according to law and in conformity with the requirements for being objective, fair, correct and timely.
The patent administration department under the State Council shall release patent information, in a complete, correct and timely manner, and publish the patent gazette on a regular basis.
Until the publication or announcement of the application for a patent, staff members of the patent administration department under the State Council and other persons involved have the duty to keep its contents secret.
Chapter II Conditions for the Grant of Patent Rights
Article 22
Any invention or utility model for which patent right may be granted must possess novelty, inventiveness and practical app1icability.
The Novelty means that an invention or utility model is not an existing technology, nor has any entity or individual previously filed before the date of filing with the Patent Administration Department under the State Council an application relating to the identical invention or utility model, nor was it recorded in the patent application documents or other patent documents published after the said date of filing.
"Inventiveness" means that, compared with the existing technology, the invention has prominent substantive features and represents a notable progress and that the utility model has substantive features and represents progress.
Practical applicability means that the invention or utility model can be made or used and can produce effective results.
The "existing technology" mentioned in this Law refers to any technology known to the public before the filing date of the patent application in
Article 23
Any design for which patent right may be granted shall not be an prior design; nor has any entity or individual filed before the date of filing with the patent administration department under the State Council an application relating to the identical design, nor was it presented in the patent documents published after the date of filing.
The design for which a patent right may be granted shall be substantially different from a prior design or a combination of the features of prior designs.
Any design for which a patent right may be granted must not be in conflict with any prior legal rights obtained by any other person before the date of filing.
The prior design referred to in this Law means any design known to the public before the filing date of the patent application in
Article 24
An invention-creation for which a patent is applied for does not lose its novelty where, within six months before the date of filing, one of the following events occurred:
(l) where it was first exhibited at an international exhibition sponsored or recognized by the Chinese Government;
(2) where it was first made public at a prescribed academic or technological meeting;
(3) where it was disc1osed by any person without the consent of the applicant.
Article 25
For any of the following, no patent right shall be granted:
(1) scientific discoveries;
(2) rules and methods for mental activities;
(3) methods for the diagnosis or for the treatment of diseases;
(4) animal and plant varieties;
(5) substances obtained by means of nuclear transformation.
(6) two-dimensional designs of device, colour or combination of the two that mainly serve as indicators.
For processes used in producing products referred to in items (4) of the preceding paragraph, patent right may be granted in accordance with the provisions of this Law.
Chapter III Application for Patents
Article 26
Where an application for a patent for invention or utility model is filed, a request, a description and its abstract, and claims shall be submitted.
The request shall state the title of the invention or utility model, the name of the inventor, the name and address of the applicant and other related matters.
The description shall set forth the invention or utility model in a manner sufficiently clear and complete so as to enable a person skilled in the re1evant field of techno1ogy to carry it out; where necessary, drawings are required. The abstract shall state briefly the main technical points of the invention or utility model.
The claims sha1l be supported by the description and shall clearly and briefly define the extent of the patent protection claimed.
An applicant who files application for a patent for an invention-creation developed on the basis of genetic resources shall indicate, in the patent application documents, the direct and original source of the genetic resources. The applicant who is unable to indicate the original source of the genetic resource shall explain the reason.
Article 27
Where an app1ication for a patent for design is filed, a request, drawings or photographs of the design, and a brief explanation of the design shall be submitted.
The drawings or photographs submitted by the applicant shall clearly indicate the design for which patent protected is sought.
Article 28
The date on which the Patent Administration Department under the State Council receives the application shall be the date of filing. If the app1ication is sent by mail, the date of mailing indicated by the postmark shall be the date of filing.
Article 29
Where , within twelve months from the date on which any applicant first filed in a foreign country an application for a Patent for invention or utility model, or within six months from the date on which any applicant first filed in a foreign country an application for a patent for design, he or it files in China an application for a patent for the same subject matter, he or it may, in accordance with any agreement concluded between the said foreign country and China, or in accordance with any international treaty to which both countries are party, or on the basis of the principle of mutual recognition of the right of priority, enjoy a right of priority.
Where, within twelve months from the date on which any applicant first filed in China an application for a patent for invention or utility model, he or it files with the Patent Administration Department under the State Council an application for a patent for the same subject matter, he or it may enjoy a right of priority.
Article 30
Any applicant who claims the right of priority shall make a written declaration when the application is filed, and submit, within three months, a copy of the patent application document which was first filed; if the applicant fails to make the written declaration or to meet the time limit for submitting the patent application document, the claim to the right of priority shall be deemed not to have been made.
Article 31
An application for a patent for invention or utility model shall be limited to one invention or utility model. Two or more inventions or utility models belonging to a single general inventive concept may be filed as one application.
An application for a patent for design shall be limited to one design. Two or more similar designs incorporated in one product, or two or more designs incorporated in the products of one category and sold or used in sets may be filed as one application.
Article 32
An applicant may withdraw his or its application for a patent at any time before the patent right is granted.
Article 33
An applicant may amend his or its application for a patent, but the amendment to the application for a patent for invention or utility model may not go beyond the scope of the disclosure contained in the initial description and claims, and the amendment to the application for a patent for design may not go beyond the scope of the disclosure as shown in the initial drawings or photographs.
Chapter IV Examination and Approval of Patent Applications
Article 34
Where, after receiving an application for a patent for invention, the Patent Administration Department Under the State Council, upon preliminary examination, finds the application to be in conformity with the requirements of this Law, it shall publish the application promptly after the expiration of eighteen months from the date of filing. Upon the request of the applicant, the Patent Administration Department under the State Council publishes the application earlier.
Article 35
Upon the request of the applicant for a patent for invention, made at any time within three years from the date of filing, the Patent Administration Department Under the State Council will proceed to examine the application as to its substance. If, without any justified reason, the applicant fails to meet the time limit for requesting examination as to substance, the application shall be deemed to have been withdrawn.
The Patent Administration Department Under the State Council may, on its own initiative, proceed to examine any application for a patent for invention as to its substance when it deems it necessary.
Article 36
When the applicant for a patent for invention requests examination as to substance, he or it shall furnish pre-filing date reference materials concerning the invention.
For an application for a patent for invention that has been already filed in a foreign country, the patent administration department under the State Council may ask the app1icant to furnish within a specified time limit documents concerning any search made for the purpose of examining that application, or concerning the results of any examination made, in that country. If, at the expiration of the specified time limit, without any justified reason, the said documents are not furnished, the application shall be deemed to have been withdrawn.
Article 37
Where the Patent Administration Department Under the State Council, after it has made the examination as to substance of the application for a patent for invention, finds that the application is not in conformity with the provisions of this Law, it shall notify the applicant and request him or it to submit, within a specified time limit, his or its observations or to amend the application. If, without any justified reason, the time limit for making response is not met, the application shall be deemed to have been withdrawn.
Article 38
Where, after the applicant has made the observations or amendments, the Patent Administration Department under the State Council finds that the application for a patent for invention is still not in conformity with the provisions of this Law, the application shall be rejected.
Article 39
Where it is found after examination as to substance that there is no cause for rejection of the application for a patent for invention, the patent administration department under the State Council shall make a decision to grant the patent right for invention, issue the certificate of patent for invention, and register and announce it. The patent right for invention shall take effect as of the date of the announcement.
Article 40
Where it is found after preliminary examination that there is no cause for rejection of the application for a patent for utility model or design, the patent administration department under the State Council shall make a decision to grant the patent right for utility model or the patent right for design, issue the relevant patent certificate, and register and announce it. The patent right for utility model or design shall take effect as of the date of the announcement.
Article 41
The patent administration department under the State Council shall set up a Patent Reexamination Board. Where an applicant for patent is not satisfied with the decision of the said department rejecting the application, the applicant may, within three months from the date of receipt of the notification, request the Patent Reexamination Board to make a reexamination. The Patent Reexamination Board shall, after reexamination, make a decision and notify the applicant for patent.
Where the applicant for patent is not satisfied with the decision of the Patent Reexamination Board, it or he may, within three months from the date of receipt of the notification, institute legal proceedings in the people's court.
Chapter V Term, Termination and Invalidation of Patent Rights
Article 42
The duration of patent right for inventions shall be twenty years, the duration of patent right for utility models and patent right for designs shall be ten years, counted from the date of filing.
Article 43
The patentee shall pay an annual fee beginning with the year in which the patent right was granted.
Article 44
In any of the following cases, the patent right shall cease before the expiration of its duration:
(1) where an annual fee is not paid as prescribed;
(2) where the patentee abandons his or its patent right by a written declaration.
Any cessation of the patent right shall be registered and announced by the Patent Administration Department under the State Council.
Article 45
Where, starting from the date of the announcement of the grant of the patent right by the patent administration department under the State Council, any entity or individual considers that the grant of the said patent right is not in conformity with the relevant provisions of this Law, it or he may request the Patent Reexamination Board to declare the patent right invalid.
Article 46
The Patent Reexamination Board shall examine the request for invalidation of the patent right promptly, make a decision on it and notify the person who made the request and the patentee. The decision declaring the patent right invalid shall be registered and announced by the patent administration department under the State Council.
Where the patentee or the person who made the request for invalidation is not satisfied with the decision of the Patent Reexamination Board declaring the patent right invalid or upholding the patent right, such party may, within three months from receipt of the notification of the decision, institute legal proceedings in the people's court. The people's court shall notify the person that is the opponent party of that party in the invalidation procedure to appear as a third party in the legal proceedings.
Article 47
Any patent right which has been declared invalid shall be deemed to be non-existent from the beginning.
The decision declaring the patent right invalid shall have no retroactive effect on any judgement or mediation decision of patent infringement which has been pronounced and enforced by the people's court, on any decision concerning the handling of a dispute over patent infringement which has been complied with or compulsorily executed, or on any contract of patent license or of assignment of patent right which has been performed prior to the declaration of the patent right invalid; however, the damage caused to other persons in bad faith on the part of the patentee shall be compensated.
If, pursuant to the provisions of the preceding paragraph, it is obviously contrary to the principle of equity not to return the monetary damage for patent infringement, the fee for the exploitation of the patent or of the payment for the assignment of the patent right, it shall be returned in whole or in part.
Chapter VI Compulsory Licence for Patent Exploitation
Article 48
Under any one of the following circumstances, the patent administration department under the State Council may, at the application of an entity or individual that has the condition to exploit a patent, grant him or it a compulsory license to exploit the patent for the invention or utility model.
(1) where the patentee, after the expiration of three years from the date of grant of the patent right, and the expiration of four years from the date of filing, does not, or does not sufficiently, exploit his or its patent without justification; or
(2) where the enforcement of the patent right by the patentee has been legally determined as an act of monopoly, to eliminate or to reduce the adverse effects of the act on competition.
Article 49
Where a national emergency or any extraordinary state of affairs occurs, or where the public interest so requires, the Patent Administration Department Under the State Council may grant a compulsory license to exploit the patent for invention or utility model.
Article 50[4]
For the purpose of public health, the patent administration department under the State Council may grant a compulsory license to manufacture a drug which has been granted a patent right in China and to export it to the countries or regions specified in the relevant international treaties to which China is a party.
Article 51
Where the invention or utility model for which the patent right has been granted involves important technical advance of considerable economic significance in relation to another invention or utility model for which a patent right has been granted earlier and the exploitation of the later invention or utility model depends on the exploitation of the earlier invention or utility model, the patent administration department under 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 Administration Department Under 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 52[5]
Where the invention-creation covered by a compulsory license relates to the semi-conductor technology, the exploitation thereof under the compulsory license is limited to the use of it for the purpose of public interests and under the circumstances specified in Article 48 (2).
Article 53[6]
Except as otherwise provided for in Article 48(2) and Article 50 of this Law, the compulsory license is executed mainly for the supply of the domestic market.
Article 54[7]
Any entity or individual applying for a compulsory license under the provisions of Article 48(1) or Article 51 of this Law shall provide proof that he or it has requested the patentee for license to exploit the patent on reasonable conditions, but did not obtain one within a reasonable period of time.
Article 55
The decision made by the patent administration department under the State Council granting a compulsory license for exploitation shall be notified promptly to the patentee concerned, and shall be registered and announced.
In the decision granting the compulsory license for exploitation, the scope and duration of the exploitation shall be specified on the basis of the reasons justifying the grant. If and when the circumstances which led to such compulsory license cease to exist and are unlikely to recur, the patent administration department under the State Council may, after review upon the request of the patentee, terminate the compulsory license.
Article 56
Any entity or individual that is granted a compulsory license for exploitation shall not have an exclusive right to exploit and shall not have the right to authorize exploitation by any others.
Article 57[8]
The entity or individual that is granted a compulsory license for exploitation shall pay to the patentee a reasonable exploitation fee, or handle the issue of the exploitation fee under the relevant provisions of the international treaties to which China is a party. Where the exploitation fee is to be paid, the amount thereof shall be fixed by both parties in consultations. Where the parties fail to reach an agreement, the Patent Administration Department under the State Council shall adjudicate.
Article 58
Where the patentee is not satisfied with the decision of the patent administration department under the State Council granting a compulsory license for exploitation, or where the patentee or the entity or individual that is granted the compulsory license for exploitation is not satisfied with the ruling made by the patent administration department under the State Council regarding the fee payable for exploitation, it or he may, within three months from the receipt of the date of notification, institute legal proceedings in the people's court.
Chapter VII Protection of Patent rights
Article 59[9]
The extent of protection of the patent right for 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 extent 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. The brief explanation may be used to interpret the product incorporating the design as shown in the drawings or photographs.
Article 60
Where a dispute arises as a result of the exploitation of a patent without the authorization of the patentee, that is, the infringement of the patent right of the patentee, it shall be settled through consultation by the parties. Where the parties are not willing to consult with each other or where the consultation fails, the patentee or any interested party may institute legal proceedings in the people's court, or request the administrative authority for patent affairs to handle the matter. When the administrative authority for patent affairs handling the matter considers that the infringement is established, it may order the infringer to stop the infringing act immediately. If the infringer is not satisfied with the order, he may, within 15 days from the date of receipt of the notification of the order, institutes legal proceedings in the people's court in accordance with the Administrative Procedure Law of the People's Republic of
Article 61[10]
Where any infringement dispute relates to a patent for invention for a process for the manufacture of a new product, any entity or individual manufacturing the identical product shall furnish proof to show that the process used in the manufacture of its or his product is different from the patented process.
Where the infringement dispute involves a patent for utility model or design, the people's court or the administrative authority for patent affairs may ask the patentee to furnish a search report prepared by the patent administration department under the State Council after making search, analysis and evaluation of the relevant utility model or design as evidence for hearing and handling the patent dispute.
Article 62[11]
In a patent infringement dispute, if the alleged infringer has evidence proving that the technology or design he or it exploited is a prior technology or design, the exploitation does not constitute an infringement of the patent right.
Article 63
Where any person passes off the patent of another person as his own, he shall, in addition to bearing his civil liability according to law, be ordered by the administration authority for patent affairs to amend his act, and the order shall be announced. His illegal earnings shall be confiscated, and , in addition, he may be imposed a fine of not more than four times his illegal earnings and if there are no illegal earnings; a fine of not more than RMB 200,000 yuan may be imposed, and where the infringement constitutes a crime, he shall be prosecuted for his criminal liability.
Article 64[12]
The relevant patent administration authority may, based on the evidence it obtains, query the relevant party and investigate the relevant circumstances of the suspected illegal acts when investigating and handling the suspected acts of passing-off a patent; and may inspect the site where the suspected illegal acts took place; consult and reproduce any contracts, invoices, account books and other materials relevant to the suspected illegal acts; examine the products relevant to suspected illegal acts, and may seal up or withhold the products proved to be those passing off the patent right.
When the relevant patent administration authority performs its function and duty provided for in the preceding paragraph, the interested party shall assist and cooperate, and shall not refused to do so, nor interfere in the performance.
Article 65[13]
The amount of monetary damage for infringement of the patent right shall be determined on the basis of the loss actually suffered by the rightholder because of the infringement. If it is difficult to determine the actual losses, amount may be determined on the basis of the benefits the infringer has earned because of the infringement. If it is difficult to determine the rightholder’s losses or the infringer’s benefits, the amount may be determined by reference to the appropriate multiple of the amount of the exploitation fee of that patent under a license. The monetary damages shall include the reasonable costs incurred for stopping the infringement.
If it is difficult to determine the losses which the rightholder has suffered, the benefits which the infringer has earned, or the fee for the exploitation of the licenses patent, the people's court may award the monetary damage at the amount not less than RMB 10,000 yuan and not more than RMB 1,000,000 yuan depending on the factors, such as the type of patent right, the nature and gravity of the infringing act.
Article 66[14]
Where any patentee or interested party has evidence to prove that another person is infringing or will soon infringe its or his patent right and that if such infringing act is not checked or prevented from occurring in time, it is likely to cause irreparable harm to it or him, he or it may, before filing a lawsuit, apply the people's court for adopting measures to stop the relevant acts.
When filing an application, the applicant shall provide a guaranty; if the applicant does not provide guaranty, the application shall be rejected.
Upon receiving the application, the people's court shall make a ruling within 48 hours; where there are special circumstances that require a delayed ruling, the court may make a ruling after another 48 hours. If the ruling is made to stop an relevant act, the ruling shall be enforced immediately. If an interested party is not satisfied with the ruling, he or it may apply for reconsideration once; the enforcement of the ruling shall not be suspended during the reconsideration.
If the applicant does not file a lawsuit within 15 days from the date on which the people's court issues an order to stop a relevant act, the people's court shall lift the measures.
If the application is in error, the applicant shall compensate to the respondent for the losses caused by stopping the relevant act.
Article 67[15]
In order to cease patent infringement, under the circumstances where the evidence might be destroyed or it would be difficult to obtain it in the future, the patentee or an interested party may apply to the people's court for evidence preservation before bringing a lawsuit.
The people's court, which is to adopt the preservation measures, may order the applicant to provide a guaranty for the application. If the applicant fails to do so, the application shall be rejected.
The people's court shall make a ruling within 48 hours from accepting the application. If the court decides to adopt the preservation measures, the decision shall be enforced immediately.
If the applicant does not bring a lawsuit within 15 days after the people's court adopts the preservation measures, the people's court shall lift the measures.
Article 68
Prescription for instituting legal proceedings concerning the infringement of patent right is two years counted from the date on which the patentee or any interested party obtains or should have obtained knowledge of the infringing act.
Where no appropriate fee for exploitation of the invention, subject of an application for patent for invention, is paid during the period from the publication of the application to the grant of patent right, prescription for instituting legal proceedings by the patentee to demand the said fee is two years counted from the date on which the patentee obtains or should have obtained knowledge of the exploitation of his invention by another person. However, where the patentee has already obtained or should have obtained knowledge before the date of the grant of the patent right, the prescription shall be counted from the date of the grant.
Article 69[16]
None of the following shall be deemed an infringement of the patent right:
(l) Where, after the sale by the patentee, or an entity or individual authorized by the patentee of a patented product or a product directly obtained with the patented process, the product is used, offered for sale, marketed or imported;
(2) Where, before the date of filing of the application for patent, any person who has already made the identical product, used the identical process, or made necessary preparations for its making or using, continues to make or use it within the original scope only;
(3) Where any foreign means of transport which temporarily passes through the territory, territorial waters or territorial airspace of China uses the patent concerned, in accordance with any agreement concluded between the country to which the foreign means of transport belongs and China, or in accordance with any international treaty to which both countries are party, or on the basis of the principle of reciprocity, for its own needs, in its devices and installations;
(4) Where any person uses the patent concerned solely for the purposes of scientific research and experimentation.
(5) For the purpose of providing the information needed for the regulatory examination and approval, manufacture, use or import of a patented drug or a patented medical apparatus, and exclusively for such manufacture or import of a patented drug or a patented medical apparatus.
Article 70[17]
Any person who, for production and business purposes, uses, offers for sale, or sells a patented product without knowing that it was made and sold without the authorization of the patentee, shall not be liable to compensate for the damage of the patentee if he can prove that he obtains the product from a legitimate source.
Article 71
Where any person, in violation of the provisions of Article 20 of this Law, files in a foreign country an application for a patent that divulges an important secret of the State, he shall be subject to disciplinary sanction by the entity to which he belongs or by the competent authority concerned at the higher level. Where a crime is established, the person concerned shall be prosecuted for his criminal liability according to the law.
Article 72
Where any person usurps the right of an inventor or creator to apply for a patent for a non-service invention-creation, or usurps any other right or interest of an inventor or creator, prescribed by this Law, he shall be subject to disciplinary sanction by the entity to which he belongs or by the competent authority at the higher level.
Article 73
The administrative authority for patent affairs may not take part in recommending any patented product for sale to the public or any such commercial activities.
Where the administrative authority for patent affairs violates the provisions of the preceding paragraph, it shall be ordered by the authority at the next higher level or the supervisory authority to correct its mistakes and eliminate the bad effects. The illegal earnings, if any, shall be confiscated. Where the circumstances are serious, the persons who are directly in charge and the other persons who are directly responsible shall be given disciplinary sanction in accordance with law.
Article 74
Where any State functionary working for patent administration or any other State functionary concerned neglects his duty, abuses his power, or engages in malpractice for personal gain, which constitutes a crime, shall be prosecuted for his criminal liability in accordance with law. If the case is not serious enough to constitute a crime, he shall be given disciplinary sanction in accordance with law.
Chapter VIII Supplementary Provisions
Article 75
Any application for a patent filed with, and any other proceedings before, the Patent Administration Department Under the State Council shall be subject to the payment of a fee as prescribed.
Article 76
This Law shall enter into force on April l, 1985.
Note: Revisions or additions made to the Patent Law are in bold font.
[1] The former Article 14 (2) is deleted.
[2] A newly added article.
[3] The combination of the former Articles 15 and 17.
[4] A newly added article.
[5] A newly added article.
[6] A newly added article.
[7] The former Article 51.
[8] The former Article 54.
[9] The former Article 56.
[10] The former Article 57 (2).
[11] A newly added article.
[12] A newly added article.
[13] The former Article 60.
[14] The former Article 61.
[15] A newly added.
[16] The former Article 63 (1).
[17] The former Article 63 (2).
Translation by China Patent Agent (H.K.) Ltd.
