The Chinese patent law is undergoing its fourth amendment to better protect and enforce patents, thus encouraging their use and quality. A third draft amendment (“the Draft”) was released on December 2, 2015, for public comment. The solicitation period ends January 1, 2016.
Key proposed changes:
To keep pace with international standards, the Draft proposes exten ding the design protection from 10 years to 15 years. It also recognizes partial product designs for the first time (currently only complete product designs are protected).
Broader scope of patent infringement
The Draft introduces three new types of patent infringement, in line with criteria already adopted by Chinese courts:
- Contribution: if a person is clearly aware that certain raw materials, intermediates, parts and components, or equipment, are used exclusively to exercise a patent, and provides these to others for production and operation purposes, that person will be jointly and severally liable.
- Inducement: if a person is clearly aware that certain products or methods are patented and induces others to infringe the patent rights for production and operation purposes, that person will be jointly and severally liable.
- Infringements by network service provider: if a network service provider knows (or should have known) a user is infringing patents through its network and fails to stop the infringement, it will be jointly and severally liable. The patent holder, the patent administrative department or any interested party can provide the network service provider with proof of the infringement.
Calculation of damages
The Draft increases the maximum statutory damages from RMB 1,000,000 to RMB 5,000,000 and introduces the concept of treble or increased damages, but it does not define the willful patent infringement that would cause these damages.
Standard essential patents and service invention
If a patent holder participates in enacting a national standard without disclosing its patents that are essential to it, this will imply that the patent holder allows the user of the national standard to use patent-related technologies. However, compensation must be agreed.
If an entity that provides material and technical resources does not reach an agreement with the inventor on the right to apply for or own the resulting invention, the inventor will own the patent right.
Date of issue: December 2, 2015. Deadline for public comments: January 1, 2016