The State Intellectual Property Office of the P.R.C made a decision to amend the 《Patent Administrative Enforcement Law》(decision No. 60 issued on December 29, 2010 by the State Intellectual Property of the P.R.C). The amended 《Patent Administrative Enforcement Law》 comes into force on July 1, 2015.
1. Background of the amendments
The current version of the 《Patent Administrative Enforcement Law》 (“Enforcement Law” as a short form in the following content) came into force in February 2011. With rapid development of the economy and society in China, the technical development and the fierce market competition brought new situations and new problems to the field of patent protection. With the development of the virtual economy and the growth of electronic commerce, the public must pay close attention to the problem of protecting patents in the online environment. Therefore, 《The Chinese Communist Party Central Committee's decision on a number of important issues in relation to comprehensively implementing governing the country by law》(“decision” as a short form in the following content) insists clearly “to push the administration based on law deeply forward, to establish a government by law”, through strict implementation of “Certificates and qualification management systems”, “Administrative enforcement responsibility systems”, and other specific requirements of law enforcement.
In order to solve the outstanding problems in the practice of patent protection in China, 《decision》, making amendments to 《Patent Administrative Enforcement Law》, is put in force to better guide local parties to improve and regulate patent administrative enforcement behaviours.
2. Main amendment points
1. Clarify the purpose of administrative law to perform official duties in accordance with this administrative law
《decision》 clearly states the requirement of administration based on law. The amendments in the 《Enforcement Law》 clearly state as the legislative purpose to “push administration based on law deeply forward” (First Article).
2. Consummate enforcement procedures and standardize enforcement behaviour
《decision》further emphasizes strict implementation of “Certificates and qualification management systems”, “Administrative enforcement responsibility systems”, and “Information technology and information sharing” of law enforcement. For these purposes, the amendment states clearly to “enforce the establishment of the patent administration system, enforce officer qualification management, and carry out administrative enforcement responsibility” (Fourth Article), “enforce information technology and information sharing via the patent management department” (Ninth Article), and publish administrative decisions and enforcement information in good time (Forty-Six Article).
3. Shorten handling time of circumstances of trade fairs and internet
As special occasion showcases demand efficient use of time, trade fairs require rapid investigation and handling of patent infringement disputes. The current version of Patent Law stipulates the right to promise sale of design application tp the patentee, but the rules of intellectual property protection in trade fairs does not reflect this point. Meanwhile, with the rapid development of the internet and other new technologies, issues on patent protection in electronic commerce area are growing. Corresponding to this, administrative enforcement means should also be changed and innovated. The practice in Zhejiang area proves that the providers of E-commerce platforms, such as managers of internet stores, have large demand for the improvement of patent administrative enforcement, and require answers to patent infringement disputes in the E-commerce area. For this purpose, the amendment stipulates that patent management parties should improve administrative enforcement of trade fairs in the E-commerce area; mediate and handle rapidly patent infringement disputes during trade fairs and on E-commerce platforms; investigate the passing off patents in good time (Eighth Article); and instruct exhibitors to evacuate the infringed exhibits, destroy or seal up the corresponding promotion materials, change or cover the corresponding display boards, and inform the providers of the E-commerce platform to take measures, such as delete, shield, or cut off connections, regarding related internet pages of the infringed products to restrain the amount of infringement (Article Forty-three and Forty-five).
4. Shorten the handling time of patent infringement disputes
The patent administrative enforcement has special features, such as simple procedures, rapid handling etc. In order to make full use of the benefits to patent protection, the new amendment shortens the handling time of patent infringement disputes, from closing a case within 4 months to closing a case within 3 months (Article Twenty-one). Its state clearly that the time limit for registering a case is within 5 working days of receiving the relevant observations (Article Twenty-four). It also clearly states that the time limit for investigation of a patent is within 5 working days after finding or within 5 working days of receiving the report or complaint (Article Twenty-eight). Finally, it states that the time limit for publishing any related administrative decisions is within 20 working days of making the decision (Article Forty-sixth).