The State Intellectual Property Office of China (SIPO) has recently published the Amendments to the Patent Law of China (Draft for Comments) to invite feedback from different sectors of the society. The deadline of the public consultation is 28 April 2015.
This latest draft of the fourth revision of the Chinese Patent Law since its first promulgation in 1984 focuses on improving the existing patent protection mechanism of China in five aspects, namely, protection of legal rights of patent owners, exploitation and application of patent rights, roles of patent administration departments, patent examination, and patent agency.
The draft amendments involve 30 articles of substantive changes, of which 18 relate to revision, 11 to new addition, and 1 to deletion. Noteworthy among the changes is the creation of a Chapter 8 on exploitation and application of patents, which includes the following content:
- specify exploitation and application of patents as responsibilities of patent administrative departments of various levels;
- grant a service inventor the right to enter into agreement with the entity he serves on exploitation of the patent for his service invention-creation;
- provide for license of right;
- provide for implied licensing of standard essential patents; and
- establish the legal status of patent pledges by registration.
In respect of patent protection, another focus of the draft amendments, Chapter 7 contains the following changes:
- establish the legal effect of mediation agreements;
- entitle the patent administration departments to the right of compulsory execution of confiscating and destroying infringing products;
- extend administrative penalties to wilful infringing acts of group infringement and repeated infringement;
- specify the procedures subsequent to the publication of an examination decision on the request for invalidation;
- specify patent evaluation reports as mandatory evidence for adjudication and disposition of patent infringement disputes;
- introduce rules on proof of evidence to facilitate determination of the amount of damages;
- increase the penalties of patent passing off, and
- apply punitive compensation to patent infringement.
In addition, the draft amendments also make some changes related to design patent protection to prepare for China's accession to Hague Agreement Concerning International Registration of Industrial Designs, such as providing for the protection of partial designs, allowing for claims of priority to prior domestic design applications, and extending the protection term of design patents in China from 10 years to 15 years from the date of filing.