China Enhances Protection of Patent Rights

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China Enhances Protection of Patent Rights

The 22nd session of the 13th Standing Committee of the National People’s Congress of the PRC adopted the decision on amending the Patent Law of the PRC on 17 October 2020. The revised Patent Law will come into force on 1 June 2021. The key amendments to the Patent Law are as follows:

 

  1. Increase Compensations for Patent Infringement

 

According to the new Patent Law, the statutory damage is raised to a range of RMB30,000 to RMB5 million when the loss suffered by the patentees, the benefits gained by the infringers or the patent license fees is hard to be calculated. The current range is from RMB10,000 to RMB1 million.

 

  1. Introduce Punitive Damages

 

According to the new Patent Law, the court may determine the amount of damage within one to five times the amount calculated based on the loss suffered by the patentee, the benefits gained by the infringer or the patent license fees for wilful patent infringement with serious circumstances. The introduction of punitive damages system will further increase the cost of infringement and strengthen the protection of patent rights.

 

  1. Improve the System of Burden of Proof

 

According to the new Patent Law, the court may order the accused infringer to provide books of account and materials related to the infringement when the foregoing materials are mainly under the control of the infringer, which will reduce the burden of proof of the patentee.

 

  1. Enhance the Protection of Appearance Design

 

The new Patent Law adds patent protection for partial design of a product. And the patent terms for appearance design is extended to from 10 years to 15 years.

  

  1. Introduce a Special Patent Term Compensation System

 

A special patent term compensation system is introduced by the new Patent Law. The term of invention patents may be extended upon the request of the patentee if the approving process has been unreasonably delayed. And the term of the innovative pharmaceutical patents that are synchronously applied for market launch in China may be extended to make up the time used for approval upon the request of the patentee.

 

  1. Introduce Open License

 

According to the new Patent Law, a patentee may voluntarily declare in writing that he is willing to license any party to exploit his patent and specifies the payment methods and standards of the license fees. The party that intends to exploit the patent only has to pay in accordance with the payment methods and standards declared by the patentee. No prior permission of the patentee is required.

 

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