(Adopted at the Sixth Meeting of the Standing Committee of the Eleventh National People's Congress on December 27, 2008)

The following amendments to the Patent Law of the People's Republic of China were adopted at the Sixth Meeting of the Standing Committee of the Eleventh National People's Congress:

1. Amend Article 1 to “This Law is enacted to protect the legal rights of the patentee, to encourage inventions-creations, to impulse the application of inventions-creations, to enhance the capability of innovation, and to promote the advancement of science and technology and the development of economy and society”.

2. Add paragraphs 2, 3 and 4 to Article 2: “Invention means any new technical solution relating to a product, a process or improvement thereof.
Utility model means any new technical solution relating to the shape, the structure, or their combination, of a product, which is fit for practical use.
Design means any new design of the shape, the pattern or their combination, or the combination of the color with shape or pattern, of a product, which creates an aesthetic feeling and is fit for industrial application”.

3. Amend Article 5 to: “No patent right shall be granted for any invention-creation that is contrary to the laws of the State or social morality or that is detrimental to public interest.
No patent right shall be granted for any invention-creation which is accomplished depending on the genetic resources whose acquisition or use violates the relevant laws or administrative regulations of the State”.

4. Add the first paragraph to Article 9: “For any identical invention-creation, only one patent right shall be granted. However, where the same applicant(s) apply for both a patent for invention and a patent for utility model for the same invention-creation on the same day, if the previously granted patent for utility model has not been expired and the applicant(s) declares to abandon the patent for utility model, then the patent right for invention may be granted”.

5. Amend paragraph 2 of Article 10 to: “Any assignment of the right to apply for a patent, or of the patent right by a Chinese entity or individual to a foreigner, a foreign entity, or other foreign organization must go through formalities in accordance with provisions of related laws and administrative regulations”.

6. Amend paragraph 2 of Article 11 to: “After the grant of the patent right for a design, no entity or individual may, without the authorization of the patentee, exploit the patent, that is, make, offer to sell, sell or import the product incorporating its or his patented design, for production or business purposes”.

7. Amend Article 12 to: “Any entity or individual exploiting the patent of another shall conclude with the patentee a license contract for exploitation and pay the patentee a fee for the exploitation of the patent. The licensee has no right to authorize any entity or individual, other than that referred to in the contract for exploitation, to exploit the patent”.

8. Delete paragraph 2 of Article 14.

9. Add one Article as new Article 15: “Where the co-owners of a right to apply for a patent or a patent right have an agreement with respect to the exploitation of the patent, the co-owners shall follow the agreement. Otherwise, any co-owner may exploit the patent alone and grant others a non-exclusive license to exploit the patent. Where the patent is licensed to others, the exploitation fee received shall be allocated among all the co-owners.

Except as provided in the preceding paragraph, any co-owned patent application right or any co-owned patent right shall not be exploited without consent of all the co-owners”.

10. Combine Article 15 and Article 17 to form new Article 17: “The inventor or creator has the right to be named as such in the patent document.

The patentee has the right to affix a patent marking and to indicate the number of the patent on the patented product or on the packing of that product”.

11. Amend paragraph 1 of Article 19 to: “Where any foreigner, foreign enterprise or other foreign organization having no habitual residence or business office in China applies for a patent, or has other patent matters to attend to, in China, it or he shall appoint a patent agency established in accordance with law to act as his or its agent”.

Amend paragraph 2 thereof to: “Where any Chinese entity or individual applies for a patent or has other patent matters to attend to in the country, it or he may appoint a patent agency established in accordance with law to act as its or his agent”.

12. Amend paragraph 1 of Article 20 to: “Where any entity or individual intends to file an application in a foreign country for a patent for invention-creation or utility model made in China, it or he shall be subject to a prior secrecy examination by the Patent Administration Department Under the State Council. The procedure and duration of the secrecy examination are prescribed by relevant provisions of the State Council”.

Add paragraph 4 of Article 20: “For any invention-creation or utility model, for which an application is filed in a foreign country in contrary to the provision of the first paragraph of this Article, no patent right shall be granted for it if the patent is applied for in China”.

13. Add one paragraph to Article 21 to be paragraph 2: “The Patent Administration Department Under the State Council shall disclose the patent related information completely, accurately and timely, and shall publish the Patent Gazette periodically”.

14. Amend paragraph 2 of Article 22 to: “Novelty means that, the invention or utility model shall neither belong to the prior art, nor has any entity or individual filed before the date of filing with the Patent Administration Department Under the State Council an application which describes the identical invention or utility model and was published in patent application documents or disclosed in patent documents announced after said date of filing”.

Amend paragraph 3 thereof to: “Inventiveness means that, as compared with the prior art, the invention has prominent substantive features and represents a notable progress and that the utility model has substantive features and represents progress”.

Add paragraph 5 to Article 22: “The prior art referred to in the Patent Law means any technology known to the public in the country or abroad before the date of filing”.

15. Amend Article 23 to: “Any design for which patent right may be granted shall neither belong to the prior design, nor has any entity or individual filed before the date of filing with the Patent Administration Department Under the State Council an application which describes the identical design and was disclosed in a patent document announced after said date of filing.

Any design for which patent right may be granted shall be obviously different from the prior design or the combination of features of the prior design.

Any design for which patent right may be granted must not be in conflict with any legal right of any other person that was acquired before the date of filing.

The prior design referred to in the Patent Law means any design known to the public in the country or abroad before the date of filing”.

16. Add item (6) to the first paragraph of Article 25: “designs of patterns, colors or their combination, of two-dimensional printed matter, mainly for the purpose of identification”.

17. Amend paragraph 2 of Article 26 to: “The request shall state the title of the invention or utility model, the name of the inventor, the name and the address of the applicant and other related matters”.
Amend paragraph 4 thereof to: “The claims shall be supported by the description and shall define clearly and concisely the extent of the patent protection asked for”.

Add paragraph 5 to Article 26: “For an invention-creation accomplished by depending on generic resources, the applicant shall indicate in the patent application document the direct source and original source of the generic resources. The applicant shall state the reasons if the original source of said genetic resources cannot be indicated”.

18. Amend Article 27 to: “Where an application for a patent for design is filed, a request, drawings or photographs of the design, as well as a brief description of the design shall be submitted.

The related drawings or photographs filed by the applicant shall clearly show the design of the product which the protection is asked for”.

19. Amend paragraph 2 of Article 31 to: “An application for a patent for design shall be limited to one design incorporated in one product. Two or more than two similar designs for the same product, or more designs which are incorporated in products belonging to the same class and are sold or used in sets may be filed as one application”.

20. Amend paragraph 2 of Article 47 to: “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 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 part of the patentee shall be compensated”.

Amend paragraph 3 thereof to: “If, pursuant to the provisions of the preceding paragraph, the compensation for patent infringement, the exploitation of the patent, or the price for the assignment of the patent right is not repaid, which is obviously contrary to the principle of equity, the whole or part of the fee shall be repaid”.

21. Amend Article 48 to: “In any of the following cases, the Patent Administration Department Under the State Council may, upon the request of an entity or individual that is qualified to exploit the invention or utility model, grant a compulsory license to exploit the patent for invention or utility model:

(1) where the patentee, after the expiration of three years from the grant of the patent right and of the expiration of four years from the filing date of patent application, has not exploited or has not sufficiently exploited its or his patent without any justified reason;

(2) To eliminate or reduce disadvantageous effect to competition, where the patentee’s exercise of the patent right is determined according to relevant laws as monopolistic act”.

22. Add Article 50: “For the sake of the public health, the Patent Administration Department Under the State Council may grant a compulsory license to manufacture and export a medication which has been granted patent rights in China to the countries or areas stipulated by relevant international treaties, which the People’s Republic of China affiliated”.

23. Add Article 52: “Where the invention-creation involved in the compulsory license relates to the semi-conductor technology, the exploitation under the compulsory license shall be limited to the public interests or the reason stipulated by item (2) of Article 48 of the Patent Law”.

24. Add Article 53: “Except for the compulsory license for exploitation prescribed by item (2) of Article 48 and Article 50 of the Patent Law, the exploitation of the compulsory license shall be limited to be predominately for the supply of the domestic market”.

25. Change Article 51 to Article 54 and amend it to: “The entity or individual requesting, in accordance with the provisions of item (1) of Article 48 and Article 51 of this Law, a compulsory license for exploitation shall furnish proof that it or he has requested the patentee for a license for exploitation on reasonable conditions but was not able to obtain the license within reasonable period of time”.

26. Change Article 54 to Article 57 and amend it to: “The entity or individual that is granted a compulsory license for exploitation shall pay to the patentee a reasonable exploitation fee, or the exploitation fee may be determined in accordance with relevant international conventions applying to the Peoples’ Republic of China. The amount of the paid exploitation fee shall be fixed by both parties in consultations. Where the parties fail to reach an agreement, the Patent Administration Department Under the State Council shall adjudicate”.

27. Change Article 56 to Article 59 and amend it to: “The extent of protection of the patent right for invention or utility model shall be determined by the terms of the claims. The description and the appended drawings may be used to interpret the content of the claims.

The extent of protection of the patent right for design shall be determined by the product incorporating the patented design as shown in the drawings or photographs. The brief explanation may be used to interpret the design of a product shown by drawings or photographs”.

28. Change paragraph 2 of Article 57 to Article 61and amend it to: “Where any patent 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 the patent infringement dispute relates to a patent for utility model or a patent for design, the people's court or the administrative authority for patent affairs may ask the patentee or interested party to furnish an evaluation report of patent right made by the Patent Administration Department Under the State Council after searching, analyzing and evaluating the patent for the utility model or design, so that it may be used as an evidence for the trial and handle of the infringement dispute”.

29. Add Article 62: “In a patent infringement dispute, if the accused infringer can furnish evidence to prove that the technique or design he exploited belongs to the prior art or prior design, the said exploiting act shall not be considered as constituting an infringing act”.

30. Combine Article 58 and Article 59 to be Article 63 and amend it to: “Where any person passes off the patent of another person as his own, he shall, in addition to bearing his civil liability according to law, be ordered by the administrative authority for patent affairs to amend 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, a fine of not more than RMB 200,000 yuan. Where the infringement constitutes a crime, he shall be prosecuted for his criminal liability”.

31. Add Article 64: “When handling an act suspected to pass off the patent of another person based on the acquired evidences, the administrative authority for patent affairs has right to inquire the interested parties to investigate the facts related to the suspected illegal act, to carry out an inspection of the site where the party’s illegal act took place, to inspect and duplicate the contacts, invoices, account books and other relevant data related to the suspected illegal act, to examine the products related to the suspected illegal act, and to seal up or seize the products which are proved by evidences to pass off the patent of another person.

When the administrative authority for patent affairs exercises the functions and authorities prescribed in the previous paragraph, the concerned parties shall assist and cooperate with it and shall not refuse or impede them”.

32. Change Article 60 to Article 65 and amend it to: “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 patentee. Where it is difficult to determine the actual losses, the amount of compensation may be assessed on the basis of the profits which the infringer has earned through the infringement. If it is difficult to determine the losses which the patentee has suffered or the profits which 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 contractual license. The amount of compensation shall further include reasonable expenses which the patentee has incurred in order to stop the infringement act.

If it is difficult to determine the losses which the patentee has suffered, the profits which the infringer has earned, or the amount of the exploitation fee of that patent under contractual license, the people’s court may decide an amount of compensation ranging from RMB 10,000 yuan to RMB 1,000,000 yuan on the basis of the type of patent, the nature and circumstances of the infringement”.

33. Change Article 61 to Article 66 and amend it to: “Where any patentee or interested party has evidence to prove that another person is infringing or will soon infringe its or his patent right and that if such infringing act is not checked or prevented from occurring in time, it is likely to cause irreparable harm to it or him, it or he may, before any legal proceedings are instituted, request the people's court to adopt measures for ordering the suspension of relevant acts.

When filing a request, the requester shall provide a bond. If the requester fails to provide a bond, the request shall be rejected.

The people’s court shall render a ruling within 48 hours from the reception of the request. It may be prolonged for another 48 hours if necessary for some special reasons. If the court rules to grant the suspension of the relevant act, the execution thereof shall be started immediately. Where the interested party is not satisfied with the ruling, he can request for reconsideration once. The execution of the ruling is not suspended during the reconsideration procedure.

Where the requester fails to institute legal proceedings within 15 days after the people’s court has ruled the suspension of relevant acts, the people’s court shall terminate the measure.

Where the request is wrong, the requester shall pay compensation for the losses that the respondent suffered by the suspension of relevant acts”.

34. Add Article 67: “A patentee or an interested party may, in order to stop infringing act, apply to a people's court for the preservation of evidence prior to instituting legal proceedings, if such evidence might be destroyed, lost or difficult to obtain later.

When taking preservation measures, the people's court may order the requester to provide a bond. If the requester fails to provide a bond, the request shall be rejected.

The people's court must render a ruling within 48 hours of receipt of the request. The implementation of a ruling to adopt preservation measures shall commence immediately after it is rendered.

If the requester fails to institute legal proceedings within 15 days after the people's court has adopted the preservation measures, the people's court shall terminate the preservation measures”.

35. Change the first paragraph of the original Article 63 to Article 69 and amend item (1) to: “Where, after the sale of a patented product that was made or imported by the patentee or with the authorization of the patentee, or of a product that was directly obtained by using the patented process, any other person uses, offers to sell or sells that product”.

Add item (5): “Where a patented medication or patented medical apparatus is made, used, imported in order to provide information necessary for administrative examination and approval, and a patented medication or patented medical apparatus is made or imported particular for the same purpose”.

36. Change paragraph 2 of Article 63 to Article 70 and amend it to: “Any person who, for production and business purpose, uses, offers to sell, or sells an infringing patented product, without knowing that it was made and sold without the authorization of the patentee, shall not be liable to compensate for the damage of the patentee if he can prove that he obtains the product from a legitimate source”.
This Decision comes into force on October 1, 2009.

The Patent Law of the People's Republic of China is correspondingly revised and the order of the Articles is adjusted in accordance with this Decision, and announced.