On May 29th 2015, China announced the Amended Measures for Patent Administrative Law Enforcement (hereinafter referred to as the “Amended Measures”) that was put into effect on July 1st, 2015.
To emphasize the legislative purpose, the following statement is included in Article 1 of the Amended Measures: “To further a law-based administration, regulate patent administrative law enforcement, protect the lawful rights and interests of patent holders and the public, and maintain the order of the socialist market economy, these Measures are developed in accordance with the Patent Law of the People's Republic of China, the Detailed Rules for the Implementation of the Patent Law of the People's Republic of China, and other relevant laws and regulations.”
The original Measures for Patent Administrative Law Enforcement (hereinafter referred to as the “Measures”) were implemented since February 2011. However, with the continuing evolution of technology and increasing market competition, the original Measures are no longer sufficient to address the new issues. Therefore, it is necessary to strengthen and improve the patent administrative enforcement and make the Measures more comprehensive.
Compared to the judicial enforcement, patent administrative law enforcement is preferable due to simpler and faster process. The Amended Measures further shorten the duration of investigation for patent infringement disputes from four (4) months to three (3) months, while a one-month extension will be allowed for a complicated case. Cases involving mediation in patent infringement disputes or investigation against counterfeiting will have a definite deadline for file opening, namely, five (5) or ten (10) working days, instead of an indefinate time before the amendment. Also, the administrative decisions ordering to cease infringement or issuing panelty will be publicly available within 20 working days.
The Amended Measures also aims to enhance the administrative law enforcement on exhibition IPR protection and e-commerce platforms. With the advancement of internet and increasing use of e-commerce, it would be necessary for the administrative law enforcement to be modified in order to address the newly developed issues, not to mention that owners of e-commerce and online shops are often desperate in resolving patent infringement disputes.
The Amended Measures prescribe that the counterfeiting or infringing products should be immediately removed from the exhibition by the patent administrative department, and the related propaganda should be destroyed. Once the patent administrative department received complaints and confirmed patent infringement upon investigation, any e-commerce platforms that promote infringing or counterfeiting patent goods should be deleted or removed immediately.