At the State Council executive meeting held on December 5, 2018, the Bill amending the Patent Law of China (Draft) was passed. Mr. Yin Xintian, former director of the Division of Law of CNIPA said that the draft of the Bill of Amendment to the Patent Law was expected to be passed in 2019. The main highlights of the draft are as follows:
(1)A maximum fine of 5 million will be imposed for intentional patent infringement
It is stipulated in the draft that for any severe patent infringements with serious circumstances, the damage for patent infringement shall be one to five times of the loss of the patent owner, the profit of the infringer, or the royalties. Where it is difficult to determine the damages from the three methods, the court may award statutory damages according to circumstances, which is increased from the current “RMB10,000 - 1,000,000” to “RMB100,000- 5,000,000”(around USD15,000– 750,000).
(2)An employer shall have the right to dispose of service invention or creation.
It is stipulated in the draft that “an employer shall have the right to dispose of any rights for patent application or patent rights to any service invention or creation according to law, implement property rights incentives, and make the inventor or designer share benefits from the innovation by means of equity, option, dividend, etc. to promote the implementation and usage of relevant inventions and creations.”
(3)A network service provider may assume joint liabilities
As there are more and more network infringements, it is added to the draft that a patent owner or interesting party may request network service provider to take necessary measures such as deleting, blocking or disconnecting the link to the infringing products based on effective judgment, ruling, mediation agreement issued by the court or an administrative decision to cease infringement made by the IP offices. If the network service provider fails to comply with the aforesaid request timely, it shall assume joint liabilities.
(4)The design patent protection period is extended to 15 years
In order to accommodate China’s joining the Hague Agreement related to design patent protection, in the draft, the design patent protection period is extended from the ten years under the current patent law to fifteen years.