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China Patent Law Amendment:further promote the protection and use of patent

As the amendment of the new draft of the revised Patent Law has been sent to the State Council of PRC for approval, recently, Legislative Affairs Office of the State Council recently released the amendment for public advices. According to an official of the State Intellectual Property Office, the amendment is focused on increased protection, patent commercialization and administrative services.

According to the official, the main purpose of the new amended draft is to further consummate patent protection system with Chinese characteristics as well as to promote the implement and utilization, to facilitate the connection between administrative law enforcement and judicial protection, to improve efficiency of law enforcement, to reduce the cost of patent rights, and to build the rule of law and a fair marketing environment. To strengthen patent protection, the new amended draft perfected the relevant evidence rules, cleared the effectiveness of the administrative mediation agreement, added rules of intentional tort of punitive damages system, etc. The amended draft also added regulations about online counterfeit cases. Amid a period of booming e-commerce, Internet service providers need to shoulder obligations to prevent and control illegal dealings online.

Besides, to stimulate creativeness of investors and protect the inventor’s interest and benefit from their inventions and to enhance the IP management by companies, the draft detailed the definition of service invention and advises companies to implement service invention reporting and management policies internally, and highlighted the method for calculating compensation and award for inventors. In respect of an invention-creation made by a person using the material and technical means of an entity to which he belongs, where the entity and the inventor or creator have entered into a contract in which the right to apply for and own a patent is provided for, such a provision shall apply. The entity that is granted a patent right shall award to the inventor or creator of a service invention-creation a reward and, upon exploitation of the patented invention-creation, shall pay the inventor or creator a reasonable remuneration based on the extent of spreading and application and the economic benefits yielded. The amended draft also added regulations about license of right and implied license.

In fact, many of China’s enterprises and innovative entrepreneurs have high expectations of the Patent Law for the fourth time to revise, hoping that the relevant Patent Law would be perfected, and strengthening the protection of intellectual property rights, making enterprise get fewer detours in development, reducing risk of research and development. Some expert believed that, the amended draft would aim to resolve important issues in China’s patent Law implementation, build strict system of patent protection, protect the legitimate rights and interests of innovators, promote patent implementation and utilization, fully stimulate the creativity of the whole society, promote the implement of the strategy of innovation driven development in China, and provide legal protection to build an innovation-oriented country.

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