New patent marking measures came into operation on 1st May 2012.
Patent marking is not mandatory, but if a patentee wishes to include a patent marking on its product or the package or description of such product, it must comply with the requirements set out by the new measures. Under the new measures, the marking must be in Chinese and must specify the type of patent right granted (eg, whether it is an invention patent, utility model or design patent) and the patent number. The patentee may also include other wordings or logos, provided that such wordings or logos are not misleading. For products produced using a patented process, in addition to the basic information the patentee should specify that the product was produced using a patented process.
Before the introduction of the new measures, the patentee of a product that was the subject of a pending application could simply mark the product with the patent application number. Now the patentee must also include, in Chinese, the wording “patent application filed, patent right not yet been granted”.
The patentee should ensure that the marking indicated on its products or the package or description of such products is accurate and not misleading. Otherwise, not only will it incur civil liability, but it may also attract administrative and even criminal liability. Under the existing Patent Law and its implementing regulations, the following will be considered to be acts of false patent marking:
- Failing to include the wording “patent application filed, patent right not yet been granted” on a product which is the subject of a pending patent application.
- Misrepresenting a non-patented technology as patented.
- Continuing to use a patent marking despite the expiry or termination of the patent right.
Any patentee found to have applied a false patent marking may be ordered by the patent administrative authority to rectify the improper marking. In addition, the improper act may be publicised, illegal profits may be confiscated and a fine of up to four times the illegal profits made or up to a maximum of Rmb200,000 may be imposed.
This article first appeared in IAM magazine. For further information please visit www.iam-magazine.com.