Beijing YOUQI Law Firm

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Beijing youqi Law Firm

  北京友骐律师事务所 中文版 Beijing YOUQI Law Firm English
 

 

 

The draft of fourth revision for Chinese Patent Law has been open for public comments
 

The main purpose of the fourth revision is to greatly enhance the power of the patent administrative authority and the people’s court in handling the patent infringement cases. And the infringer, especially the intentional infringer may face more penalty.
 

 Attachment: the main amendmenets to the Patent Law

 

Article 46. The Patent Reexamination Board shall examine the request for invalidation of the patent right promptly, make a decision on it and notify the person who made the request and the patentee.

The decision declaring the patent right invalid or upholding the patent right shall be registered and announced timely by the patent administration department under the State Council after the decision is made. The decision come into force when it is announced.

Where the patentee or the person who made the request for invalidation is not satisfied with the decision of the Patent Reexamination Board declaring the patent right invalid or upholding the patent right, such party may, within three months from receipt of the notification of the decision, institute legal proceedings in the people's court. The people's court shall notify the person that is the opponent party of that party in the invalidation procedure to appear as a third party in the legal proceedings.

 

Article 47. Any patent right which has been declared invalid shall be deemed to be non-existent from the beginning.

The decision declaring the patent right invalid shall have no retroactive effect on any judgment or mediation decision of patent infringement which has been pronounced and enforced by the people's court, on any decision concerning the handling of a dispute or penalty over patent infringement which has been complied with or compulsorily executed, or on any contract of patent license or of assignment of patent right which has been performed prior to the declaration of the patent right invalid; however, the damage caused to other persons in bad faith on the pat of the patentee shall be compensated.

If, pursuant to the provisions of the preceding paragraph, the monetary damage for patent infringement, the fees for exploitation of the patent or fees for the assignment of the patent right is not returned, but such non-return is obviously contrary to the principle of equity, all or part of the preceding payments shall be returned.

 

Article 60. Where a dispute arises as a result of the exploitation of a patent without the authorization of the patentee, that is, the infringement of the patent right of the paten­tee, it shall be settled through consultation by the parties. Where the parties are not willing to consult with each other or where the consultation fails, the patentee or any interested par­ty may institute legal proceedings in the people's court, or request the administrative author­ity for patent affairs to handle the matter.

 

When the administrative authority for patent af­fairs handling the matter considers that the infringement is establishedit may order the in­fringer to stop the infringing act immediately, and compensate for the losses. If the infringer is not satisfied with the order, he may, within 15 days from the date of receipt of the notification of the order, institutes le­gal proceedings in the people's court in accordance with the Administrative Procedure Law of the People’ s Republic of China. If, within the said time limit, such proceedings are not instituted and the order is not complied with, the administrative authority for patent affairs may approach the people's court for compulsory execution.

 

To the infringement of the patent allegedly disrupting the market order, the patent administrative authority has the right to investigate and punish; for those that have significant impact in the country, the patent administration department under the State Council organizes the investigation. If the patent administrative authority regards that the patent infringement and the disruption of the market order are established, they can order to stop the infringement, confiscate the illegal income, and can confiscate, destruct the infringing products or special equipment for the implementation of the violations, and can order a penalty of four times the illegal income, and impose a fine of not more than 200,000 yuan if there is no illegal income or the illegal income is difficult to calculate,

After the Decision of declaring the patent right invalid or upholding the patent right enters into force, the patent administrative authority and the people's court shall timely handle the patent infringement case, according to the decision.

 

Article 61. Where any infringement dispute relates to a patent for invention for a process for the manufacture of a new product, any entity or individual manufacturing the identical product shall furnish proof to show that the process used in the manufacture of its or his product is different from the patented process.

Where any infringement dispute relates to a patent for utility model or design, the people's court or the administrative authority for patent affairs may ask the patentee or any interested party to furnish an evaluation report of patent made by the patent administration department under the State Council after having conducted search, analysis and evaluation of the relevant utility model or design, and use it as evidence for hearing or handling the patent infringement dispute.

 

In the patent infringement litigation, for the alleged infringement products as well as account books, materials, and other evidence held by the accused infringer, the people's court shall, in accordance with the application of the plaintiff or his legal agent, survey and collect. If the accused infringer does not provide or transfers, forges, destructs the evidence, the people's court, in accordance with the law, shall take compulsory measures to stop the obstruction of proceedings; if the behavior constitutes a crime, the infringer may have criminal responsibility.

 

Article 63. Where any person passes off a patenthe shall, in addition to bearing his civil liability according to law, be ordered by the administrative authority for patent affairs to correct his act, and the order shall be announced. His illegal earnings shall be confiscated and, in addition, he may be imposed a fine of not more than four times his illegal earnings and, if there is no illegal earnings or the illegal income is difficult to calculate, a fine of not more than RMB 200, 000 Yuan. Where the infringement constitutes a crime, he shall be prosecuted for his criminal liability.

 

Article 64. When investigating and prosecuting the suspected act of passing off a pa­tent or infringing a patent, the administrative authority for patent affairs may, based on the evidence obtained, query the parties concerned, and investigate the relevant circumstances of the suspected illegal act; carry out an on-the-spot inspection of the site where the party’ s suspected illegal acts took place; review and reproduce the contracts, invoices, account books and other rele­vant materials related to the suspected illegal act; examine the products relevant to the sus­pected illegal act and may seal up or withhold the products proved to be passing off the pa­tented product or infringing the patent.

When the administrative authority for patent affairs performs its functions and duties specified in the preceding paragraph in accordance with the law, the interested party shall assist and cooperate and shall not refuse or interfere the performance. If the investigated party refuses or obstructs the exercise of the powers as the patent administrative authority, he shall be given a warning by the administrative authority for patent affairs; if the circumstances are severe, he shall be given administrative penalties for public security.

 

Article 65. The amount of compensation for the damage caused by the infringement of the patent right shall be assessed on the basis of the actual losses suffered by the right holder because of the infringement; where it is difficult to determine the actual losses, the amount may be assessed on the basis of the profits the infringer has earned because of the infringement. Where it is difficult to determine the losses the right holder has suffered or the profits the infringer has earned, the amount may be assessed by reference to the appro­priate multiple of the amount of the exploitation fee of that patent under a contractual li­cense. The amount of compensation for the damage shall also include the reasonable expen­ses of the right holder incurred for stopping the infringing act.

Where it is difficult to determine the losses suffered by the right holder, the profits the infringer has earned and the exploitation fee of that patent under a contractual license, the people's court or the administrative authority for patent affairs may award the damages of not less than RMB 10000 Yuan and not more than RMB 1000000 Yuan in light of such factors, as the type of the patent right, the na­ture and the circumstances of the infringing act.

For intentional patent infringement, the patent administrative authority or the People's Court shall, according to the circumstances of the infringement, the damage scale and damage results, will increase the amount of compensation determined in accordance with the preceding two paragraphs up to three times.

 

 

 

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