The Legislative Affairs Office of the State Council recently released the new draft of the revised Patent Law for public advices. This draft is made for the State Council for review and approval.
The new amended draft further consummate patent protection system by specifying evidence rules, clearing the effectiveness of the administrative mediation agreement, introducing intentional tort of punitive damages system, adding provisions about online counterfeit, etc.
The draft also provides a further definition of service invention and advises companies to implement service invention reporting and management policies, and highlights the method for calculating compensation and award for inventors. In addition to pay reasonable remuneration to employee inventors upon obtaining patent rights or exploitation of the patented invention-creation, the draft also adds remuneration need to be paid upon licensing or an implied license.
As to compensation, the current law stipulates that compensation must be decided based on actual losses by the obligee or gains by the infringer. The new draft allows for compensation of up to three times the losses or gains; if losses cannot be confirmed, the amounts can be set at as up to 5 million yuan.
The draft is also revised to facilitate the connection between administrative law enforcement and judicial protection, to improve efficiency of law enforcement, to reduce the cost of patent rights, and to build the rule of law and a fair marketing environment.