Patent Law of the People's Republic of China (Revised in 2020)‍  中华人民共和国专利法（2020修正）‍

Patent Law of the People's Republic of China (Revised in 2020)

Patent Law of the People's Republic of China (Revised in 2020)‍

中华人民共和国专利法（2020修正）‍

(Adopted at the 4th Session of the Standing Committee of the Sixth National People's Congress on 12 March 1984, amended for the first time pursuant to the Decision on Revising the Patent Law of the People's Republic of China adopted at the 27th Session of the Standing Committee of the Seventh National People's Congress on 4 September 1992, amended for the second time pursuant to the Decision on Revising the Patent Law of the People's Republic of China adopted at the 17th Session of the Standing Committee of the Ninth National People's Congress on 25 August 2000, amended for the third time pursuant to the Decision on Revising the Patent Law of the People's Republic of China adopted at the 6th Session of the Standing Committee of the Eleventh National People's Congress on 27 December 2008, and amended for the fourth time pursuant to the Decision on Revising the Patent Law of the People's Republic of China adopted at the 22nd Session of the Standing Committee of the Thirteenth National People's Congress on 17 October 2020)

Chapter I General Provisions

Article 1
This Law is enacted for the purposes of protecting the legitimate rights and interests of patentees, encouraging invention-creations, promoting application of invention-creations, raising innovation ability and driving scientific and technological advancements and economic and social development.

Article 2
An invention-creation referred to in this Law shall mean an invention, utility model or design.

An invention shall mean a new technical scheme proposed for a product, a process or the improvement thereof.

A utility model shall mean an applicable and practical new technical scheme proposed for the shape or structure of a product or a combination thereof.

A design shall mean a new design of the whole or partial shape or pattern of a product or a combination thereof as well as a combination of color with shape or pattern, which creates an aesthetic feeling and is fit for industrial application.

Article 3
The patent administrative department under the State Council shall be responsible for administration of patent matters nationwide, accept and examine patent applications on a unified basis and grant patent rights pursuant to the law.

The patent administrative departments of the people's governments of provinces, autonomous regions and municipalities directly under the Central Government shall be responsible for patent administration matters within their respective administrative regions.

Article 4
Where the invention-creation in a patent application involves national security or significant interests and is required to be kept confidential, the matter shall be governed by the relevant provisions of the State.

Article 5
For invention-creations which violate the laws and social ethics or harm public interest, patent rights shall not be granted.

For invention-creations which are completed by reliance on genetic resources obtained or used in violation of the provisions of laws and administrative regulations, patent rights shall not be granted.

Article 6
An invention-creation, made by a person in performance of the tasks of his employer, or made by him mainly by using the material and technical means of his employer is a service invention-creation. For a service invention-creation, the right to apply for a patent belongs to the employer. After the application is approved, the employer shall be the patentee. The employer may, in accordance with the law, dispose of its right to apply for a patent and the patent right for a service invention-creation and promote the implementation and application of the relevant invention-creation.

The inventor or designer shall have the rights to apply for patent for a non-service invention-creation;
upon approval of the application, the inventor or designer shall be the patentee.

Where the employer and the inventor or designer have entered into a contract for an invention-creation completed using the material and technical conditions of the employer which stipulates the ownership of the right to apply for patent and of patent right, such agreement shall prevail.

Article 7
No organisation or individual may inhibit a patent application by the inventor or designer for a non-service invention-creation.

Article 8
In the event that two or more organisations or individuals cooperate in the completion of an invention-creation or an organisation or individual has been entrusted by another organisation or individual to complete an invention-creation, unless otherwise agreed, the organisation(s) or individual(s) that has/have completed or jointly completed the invention-creation shall have the right to apply for patent for the invention-creation;
upon approval of the application, the organisation or individual that has filed the application shall be the patentee.

Article 9
Only one patent right shall be granted for the same invention-creation. However, where the same applicant also applies for patent for utility model for the same invention-creation on the same day as the application for patent for the invention, and the patent rights for utility model granted first have not been terminated yet and the applicant declares that it/he waives such patent rights for utility model, the patent rights for the invention may be granted.

Where two or more applicants have made their respective application for patent for the same invention-creation, the patent rights shall be granted to the applicant who has filed first.

Article 10
The rights to apply for patent and patent rights may be transferred.

A Chinese organisation or individual proposing to transfer the rights to apply for patent or transfer patent rights to a foreigner, foreign enterprise or any other foreign organisation shall process the formalities pursuant to the provisions of the relevant laws and administrative regulations.

The parties concerned shall enter into a contract in writing for transfer of the rights to apply for patent or transfer of patent rights, and go through registration formalities with the patent administrative department under the State Council, and the patent administrative department under the State Council shall make a public announcement. The transfer of the rights to apply for patent or transfer of patent rights shall be effective from the date of registration.

Article 11
Following the grant of patent rights for an invention or a utility model, unless otherwise stipulated in this Law, no organisation or individual shall implement the patent without licensing from the patentee, i.e. shall not manufacture, use, offer to sell, sell or import such patented products for manufacturing and business purposes, or use the patented method and use, offer to sell, sell or import products obtained directly according to the patented method.

Following the grant of design patent rights, no organisation or individual shall implement the patent without licensing from the patentee, i.e. shall not manufacture, offer to sell, sell or import the design patented products for manufacturing and business purposes.

Article 12
Any organisation or individual proposing to implement the patent of others shall enter into a licensing contract with the patentee for implementation and pay royalties to the patentee. A licensee shall have no right to allow any organisation or individual that is not stipulated in the contract to implement such patent.

Article 13
Upon announcement of a patent application for invention, an applicant may request the organisation or individual that implements the invention to pay the appropriate expenses.

Article 14
Where the co-owners of rights to apply for patent or of patent rights have an agreement in exercising rights, such agreement shall prevail. Where there is no agreement, the co-owners may implement the patent solely or license others to implement the patent through a general licensing method;
where others are licensed to implement the patent, the royalties collected shall be distributed among the co-owners.

Except for the circumstances stipulated in the preceding paragraph, the exercise of co-owned rights to apply for patent or co-owned patent rights shall be consented by all the co-owners.

Article 15
The organisation which has been granted patent rights shall reward the inventor or designer of a service invention-creation;
upon implementation of the patent for the invention-creation, the inventor or designer shall be given reasonable remuneration according to the scope of promoted applications and economic benefits received.

The State encourages organisations to which the patent rights are granted to implement property right incentives to enable the inventors or designers to reasonably share the benefits from innovation by means of equity, options, dividends, etc.

Article 16
An inventor or a designer shall have the right to state that he/she is the inventor or designer in the patent documents.

A patentee shall have the right to affix patent marking on the patented products or the packaging of such products.

Article 17
Where a foreigner, foreign enterprise or any other foreign organisation that does not have a habitual residence or place of business in China files a patent application in China, the application shall be processed in accordance with the agreement entered into between the home country and China or an international treaty participated by both the home country and China or under the reciprocity principle, and pursuant to this Law.

Article 18
A foreigner, foreign enterprise or any other foreign organisation that does not have a habitual residence or place of business in China shall entrust a patent agency established pursuant to the law to apply for patent and handle other patent matters in China.

Chinese organisations or individuals may entrust a patent agency established pursuant to the law to apply for patent and handle other patent matters in China.

A patent agency shall comply with the laws and administrative regulations and handle patent applications or other patent matters as entrusted by its client;
the patent agency shall have the obligation to keep contents of invention-creations of a client confidential, except where the patent application has been announced or promulgated. The specific administrative measures for patent agencies shall be stipulated by the State Council.

Article 19
Any organisation or individual applying for patent in a foreign country for an invention or a utility model completed in China shall first notify the patent administrative department under the State Council for confidential examination. The procedures, duration, etc. for confidential examination shall comply with the provisions of the State Council.

Chinese organisations or individuals may file international patent applications pursuant to the relevant international treaties participated by the People's Republic of China. An applicant for international patent application shall comply with the provisions of the preceding paragraph.

The patent administrative department under the State Council shall handle international patent applications pursuant to the relevant international treaties participated by the People's Republic of China, this Law and the relevant provisions of the State Council.

Where an application for patent for an invention or a utility model submitted in a foreign country in violation of the provisions of the first paragraph of this Article is filed in China, patent rights shall not be granted.

Article 20
Applications for patent and exercise of patent rights shall comply with the principle of good faith. No one may abuse the patent rights to harm public interest or the legitimate rights and interests of others.

Abuse of patent rights to eliminate or restrict competition which constitutes a monopolistic act, shall be punished in accordance with the Anti-monopoly Law of the People's Republic of China.

Article 21
The patent administrative department under the State Council shall handle the relevant patent applications and requests pursuant to the law and under the principles of objectivity, fairness, accuracy and timeliness.

The patent administrative department under the State Council shall strengthen development of a public service system for patent information, release the patent information in a complete, accurate and timely manner, provide basic patent data, publish patent gazettes on a regular basis, and promote dissemination and utilisation of patent information.

Prior to announcement or promulgation of patent applications, the staff and relevant personnel of the patent administrative department under the State Council shall have the obligation to keep the contents of patent applications confidential.

Chapter II Criteria for Grant of Patent Rights

Article 22
Inventions and utility models for which patent rights are granted shall possess novelty, creativity and practicality.

Novelty shall mean that an invention or a utility model does not fall under the prior art;
and no organisation or individual has submitted an application to the patent administrative department under the State Council for an identical invention or utility model prior to the filing date, and record shall be made in the announced patent application documents or promulgated patent documents after the filing date.

Creativity shall mean that, when compared to the prior art, an invention possesses substantive characteristics which are distinctive and eminent improvements, or a utility model has substantive characteristics and improvements.

Practicality shall mean that an invention or a utility model can be manufactured or used and can generate positive effects.

Prior art referred to in this Law shall mean technologies well known in the public domain in China or overseas prior to the filing date.

Article 23
A design for which patent rights are granted shall not fall under the existing designs;
and no organisation or individual has submitted an application to the patent administrative department under the State Council for an identical design prior to the filing date, and record shall be made in the promulgated patent documents after the filing date.

A design for which patent rights are granted, when compared to the existing designs or a combination of characteristics of the existing designs, shall possess a clear distinction.

A design for which patent rights are granted shall not have conflict with the legitimate rights obtained by others prior to the filing date.

Existing designs referred to in this Law shall mean designs well known in the public domain in China or overseas prior to the filing date.

Article 24
Where an invention-creation for patent application encounters any of the following circumstances within six months before the filing date, the novelty factor shall not be affected:

(1) the invention-creation is first made public for the purpose of public interest during a national emergency or extraordinary state of affairs;

(2) the invention-creation was first shown in an international exhibition organised or recognised by the Chinese Government;

(3) the invention-creation was first published at a stipulated academic or technological conference;
or

(4) the contents of the invention-creation were divulged by others without the consent of the applicant.

Article 25
Patent rights shall not be granted to the following items:

(1) scientific discovery;

(2) rules and methods of intellectual activities;

(3) diagnosis and treatment methods of illnesses;

(4) animal and plant varieties;

(5) methods of nuclear transformation and substances obtained through the methods of nuclear transformation;
and

(6) a design which has major marking effect on the patterns or colors of graphic print products or a combination of both patterns and colors.

Patent rights may be granted pursuant to the provisions of this Law to the manufacturing methods for products listed in Item (4) of the preceding paragraph.

Chapter III Patent Applications

Article 26
Documents such as a request, the specification and its abstract and claims, etc. shall be submitted for a patent application for an invention or a utility model.

The request shall state the title of the invention or utility model, the name of the inventor, the name and address of the applicant and other matters.

The specification shall provide a clear and complete explanation of the invention or utility model to the extent which can be materialised by technical personnel in the relevant technical field;
drawings shall be attached where necessary. The abstract shall include a brief explanation of the technical points of the invention or utility model.

The claims shall be based on the specification and shall stipulate the scope of patent protection claimed clearly and briefly.

For an invention-creation which is completed by reliance on genetic resources, an applicant shall state the direct source and original source of such genetic resources in the patent application documents;
where the applicant is unable to state the original source, the reason shall be stated.

Article 27
Documents such as a request, pictures or photographs of the design and a brief explanation of the design, etc. shall be submitted for a design patent application.

The relevant pictures or photographs submitted by an applicant shall clearly show the design of the products in which patent protection is claimed.

Article 28
The filing date shall be the date of receipt of the patent application documents by the patent administrative department under the State Council. Where the application documents are submitted by post, the filing date shall be the date of postmark for sending mails.

Article 29
Where an applicant, within twelve months from the date of first-filed patent application for an invention or utility model in a foreign country or within six months from the date of the first-filed patent application for a design in a foreign country, also files a patent application for the same subject in China, he/it may enjoy priority in accordance with the agreement entered into between the foreign country and China or the international treaty participated by both the foreign country and China or under the principle of mutual recognition of priority.

Where an applicant, within twelve months from the date of the first submission in China of an application for a patent for invention or utility model, or within six months from the date of the first submission in China of an application for a patent for design, also files an application for a patent for the same subject with the patent administrative department under the State Council, he/it may enjoy priority.

Article 30
An applicant claiming priority of a patent for invention or utility model shall submit a written declaration at the time of application and submit the duplicate copy of the patent application documents for the first submission within 16 months from the date of the first application.

An applicant claiming priority of a patent for design shall submit a written declaration at the time of application and submit the duplicate copy of the patent application documents for the first submission within three months.

Where an applicant fails to submit a written declaration or fails to submit the duplicate copy of the patent application documents within the stipulated period, he/it shall be deemed to have not claimed the priority.

Article 31
A patent application for an invention or a utility model shall be limited to one invention or one utility model. One application may be submitted for two or more inventions or utility models which fall under an overall inventive concept.

A design patent application shall be limited to one design. One application may be submitted for two or more similar designs for the same product or two or more designs used on the same type of products which are sold or used as a package.

Article 32
An applicant may withdraw its/his patent application at any time before the patent rights are granted.

Article 33
An applicant may amend its/his patent application documents, provided that the amendments to the patent application documents for an invention and a utility model shall not exceed the scope stated in the original specification and claims, and the amendments to the patent application documents for a design shall not exceed the scope illustrated in the original pictures or photographs.

Chapter IV Examination and Approval of Patent Applications

Article 34
After the patent administrative department under the State Council has received a patent application for an invention and deems upon preliminary examination that the application meets the requirements of this Law, an announcement shall be made once the period of 18 months from the filing date has expired. The patent administrative department under the State Council may announce the application earlier upon request by the applicant.

Article 35
The patent administrative department under the State Council may, within three years from the date of patent application for an invention, conduct substantive examination of the application upon request by an applicant at any time;
where an applicant fails to request for substantive examination within the stipulated period without any justified reason, the application shall be deemed as withdrawn.

The patent administrative department under the State Council may, when it deems necessary, conduct substantive examination of a patent application for an invention voluntarily.

Article 36
An applicant for patent for an invention shall, at the time of request for substantive examination, submit the reference materials which are related to the invention before the filing date.

Where a patent application for an invention was previously filed in a foreign country, the patent administrative department under the State Council may require the applicant to submit within a stipulated period the materials of search conducted by the foreign country for examination of the application or examination outcome materials;
where the applicant fails to submit the materials within the stipulated period without any justified reason, the application shall be deemed as withdrawn.

Article 37
After the patent administrative department under the State Council has conducted substantive examination of a patent application for an invention and deems that the application fails to meet the provisions of this Law, an applicant shall be notified and required to state its/his opinions within a stipulated period or make amendments to the application;
where the applicant fails to reply within the stipulated period without any justified reason, the application shall be deemed as withdrawn.

Article 38
Where the patent administrative department under the State Council still finds the application not to comply with the provisions of this Law after an applicant has stated its/his opinions or made amendments to the patent application for an invention, the application shall be rejected.

Article 39
Where a patent application for an invention has undergone substantive examination and no reason for rejection is found, the patent administrative department under the State Council shall decide to grant patent rights to the invention, issue a patent certificate for the invention, and concurrently carry out registration and announcement. The patent rights for an invention shall be effective from the date of announcement.

Article 40
Where a patent application for a utility model or a design has undergone preliminary examination and no reason for rejection is found, the patent administrative department under the State Council shall decide to grant patent rights to the utility model or the design, issue the corresponding patent certificate, and concurrently carry out registration and announcement. The patent rights for a utility model or a design shall be effective from the date of announcement.

Article 41
Where an applicant for patent disagrees with the decision of the patent administrative department under the State Council on rejection of his/its application, he/it may submit a request for reexamination to the patent administrative department under the State Council within three months from the date of receipt of notification. The patent administrative department under the State Council shall make a decision after reexamination and notify the applicant for patent.

Where an applicant for patent disagrees with the reexamination decision of the patent administrative department under the State Council, he/it may file a lawsuit with a people's court within three months from the date of receipt of notification.

Chapter V Duration, Termination and Invalidity of Patent Rights

Article 42
The duration of patent rights for an invention shall be 20 years, the duration of patent rights for a utility model shall be 10 years and the duration of patent rights for a design shall be 15 years, commencing from the filing date.

Where a patent right for invention is granted after three years from the date of request for substantive examination of a patent for invention and after four years from the filing date, the patent administrative department under the State Council shall grant compensation for duration of patent right due to any unreasonable delay in grant of patent rights at the request of the patentee, except for any unreasonable delay caused by the applicant.

For the purpose of compensating for the time taken to evaluate and approve a new drug to be put on market, the patent administrative department under the State Council shall grant compensation for duration of patent rights for invention of a new drug approved to be put on market in China upon request of the patentee. The compensation period shall not exceed five years, and the total validity period of patent rights for a new drug approved to be put on market shall not exceed 14 years.

Article 43
A patentee shall commence payment of annual fee for a patent from the year in which patent rights are granted.

Article 44
Under any of the following circumstances, the patent rights shall terminate before expiry of the validity period:

(1) where the patentee fails to pay annual fee pursuant to the provisions;
or

(2) where the patentee has declared in writing on waiving the patent rights.

Where the patent rights have terminated before expiry of the validity period, the patent administrative department under the State Council shall carry out registration and announcement.

Article 45
With effect from the date of announcement by the patent administrative department under the State Council on grant of patent rights, any organisation or individual that holds the view that the grant of such patent rights does not comply with the relevant provisions of this Law may request the patent administrative department under the State Council to declare that such patent rights are invalid.

Article 46
The patent administrative department under the State Council shall promptly examine the request for declaring the patent rights to be invalid and notify the applicant and the patentee of the decision made. The patent administrative department under the State Council shall carry out registration and announcement for a decision to declare the patent rights to be invalid.

Any party that disagrees with the decision of the patent administrative department under the State Council on declaring the patent rights to be invalid or upholding the patent rights may file a lawsuit with a people's court within three months from the date of receipt of notification. The people's court shall notify the counterparty in the procedures for request to declare the patent rights to be invalid to participate in the lawsuit as a third party.

Article 47
Patent rights which are declared to be invalid shall be deemed to be non-existent.

A decision on declaring the patent rights to be invalid shall not have retrospective effect on a ruling or written mediation on patent infringement made and enforced by a people's court before the patent rights are declared to be invalid, a decision on handling patent infringement dispute which has been performed or mandatorily enforced or a licensing contract for patent implementation or a contract for transfer of patent rights which has been performed. However, compensation shall be paid for losses caused to others as a result of the patentee's malice.

Where a non-refund of patent infringement compensation, royalties and transfer fee for patent rights pursuant to the provisions of the preceding paragraph is evidently in violation of the principle of fairness, all or part of the sum shall be refunded.

Chapter VI Special Licensing for Exploitation of Patent

Article 48
The patent administrative department under the State Council and the patent administrative department of a local people's government shall, jointly with the relevant departments at the corresponding level, adopt measures to strengthen public patent services and promote patent exploitation and utilisation.

Article 49
For a patent for invention of a State-owned enterprise or public institution which has significant bearing on national interest or public interest, the relevant competent departments of the State Council and the people's government of the province, autonomous region or municipality directly under the Central Government may, upon obtaining approval of the State Council, decide to promote application of the patent for invention within the approved scope, and permit implementation by designated organisation(s), and the implementing organisation(s) shall pay royalties to the patentee pursuant to the provisions of the State.

Article 50
Where a patentee voluntarily declares in writing to the patent administrative department under the State Council that he/it intends to license any organisation or individual to implement the patent, and specifies the payment method and standard for royalties, the patent administrative department under the State Council shall make a public announcement and implement an open licensing. Where an open licensing statement for utility model or design patent is made, a patent rights evaluation report shall be provided.

Where a patentee withdraws an open licensing statement, the withdrawal shall be made in writing and announced by the patent administrative department under the State Council. Where the open licensing statement is withdrawn by announcement, the validity of the open licensing previously granted shall not be affected.

Article 51
Any organisation or individual wishing to implement a patent for which open licensing is granted shall notify the patentee in writing and obtain the license to implement the patent after payment of royalties in accordance with the announced payment method and standard for royalties.

During the period of open licensing, reduction or exemption of payment of annual fee for patent by the patentee shall be granted correspondingly.

A patentee implementing open licensing may negotiate with the licensee over royalties and grant a general licensing but shall not grant a sole or exclusive licensing in respect of such patent.

Article 52
Disputes over implementation of open licensing between the parties concerned shall be resolved by the parties upon negotiation;
where the parties concerned are unwilling to negotiate or the negotiation fails, they may request for mediation by the patent administrative department under the State Council, or may also file a lawsuit with a people's court.

Article 53
Under any of the following circumstances, the patent administrative department under the State Council may, pursuant to an application by an organisation or individual qualified for implementation, grant a mandatory licensing for implementation of the patent for an invention or a utility model:

(1) where a patentee has not implemented or fully implemented the patent without a valid reason after a three-year period has lapsed since the date of grant of patent rights or after a four-year period has lapsed since the date of patent application;
or

(2) where the acts of exercising patent rights by a patentee have been determined as monopolistic acts pursuant to the law, and the mandatory licensing is granted to eliminate or reduce the adverse impact of such acts on competition.

Article 54
During a national emergency situation or under exceptional circumstances, or for the purpose of public interest, the patent administrative department under the State Council may grant mandatory licensing for implementation of the patent for an invention or a utility model.

Article 55
For the purpose of public health, the patent administrative department under the State Council may grant mandatory licensing for patented drugs manufactured and exported to countries or regions which comply with the provisions of the relevant international treaty participated by the People's Republic of China.

Article 56
Where a patented invention or utility model possesses significant technological advancement with eminent economic significance when compared with a previously patented invention or utility model, and the implementation of such patented invention or utility model relies on the implementation of the previous invention or utility model, the patent administrative department under the State Council may, pursuant to an application by the patentee of the latter invention or utility model, grant mandatory licensing for implementation of the previous invention or utility model.

Under the circumstances where mandatory licensing is granted for implementation pursuant to the provisions of the preceding paragraph, the patent administrative department under the State Council may also, pursuant to an application by the patentee of the previous invention or utility model, grant mandatory licensing for implementation of the latter invention or utility model.

Article 57
Where an invention-creation involved in mandatory licensing falls under semiconductor technology, the implementation thereof shall be restricted to the purpose of public interest and the circumstances stipulated in Item (2) of Article 53 hereof.

Article 58
Except for mandatory licensing granted pursuant to the provisions of Item (2) of Article 53 and Article 55 hereof, the implementation of mandatory licensing shall mainly satisfy the purpose of supply to domestic market.

Article 59
An organisation or individual applying for mandatory licensing pursuant to the provisions of Item (1) of Article 53 and Article 56 hereof shall provide evidence to prove that it/he has reasonable conditions to request the patentee to license the implementation of patent but fails to obtain the licensing within a reasonable period.

Article 60
The patent administrative department under the State Council shall, upon making a decision to grant mandatory licensing for implementation, notify the patentee promptly and carry out registration and announcement.

A decision to grant mandatory licensing for implementation shall stipulate the scope and timing of implementation pursuant to the reason for mandatory licensing. When the reason for mandatory licensing is eliminated and will not occur again, the patent administrative department under the State Council shall, pursuant to a request of the patentee, decide on termination of mandatory licensing for implementation after examination.

Article 61
An organisation or individual that has obtained the mandatory licensing for implementation shall not have exclusive implementation rights and shall have no right to allow implementation by others.

Article 62
An organisation or individual to which mandatory licensing for implementation has been granted shall pay reasonable royalties to the patentee or solve the problems relating to the royalties pursuant to the provisions of the relevant international treaty participated by the People's Republic of China. Where the royalties are paid, the amount shall be negotiated between both parties;
where both parties cannot agree on the amount, the patent administrative department under the State Council shall make a ruling on such amount.

Article 63
Where a patentee disagrees with the decision of the patent administrative department under the State Council on mandatory licensing for implementation or where the patentee and the organisation or individual to which mandatory licensing for implementation has been granted disagree with the ruling of the patent administrative department under the State Council on amount of royalties for mandatory licensing for implementation, he/it may file a lawsuit with a people's court within three months from the date of receipt of notification.

Chapter VII Protection of Patent Rights

Article 64
The scope of protection of patent rights for an invention or a utility model shall be based on the contents of the claims;
the specification and drawings may be used to explain the contents of the claims.

The scope of protection of patent rights for a design shall be based on the design of the products illustrated in the pictures or photographs;
the brief explanation of the design may be used to explain the design of the products illustrated in the pictures or photographs.

Article 65
Implementation of a patent without licensing of the patentee shall constitute an infringement of patent rights;
a dispute arising therefrom shall be negotiated and resolved by the parties concerned;
where the parties concerned are not willing to negotiate or the negotiation is unsuccessful, the patentee or an interested party may file a lawsuit with a people's court, or may request the patent administrative authority to handle the matter. Where the patent administrative authority concludes that a patent infringement is constituted when handling the matter, the infringer may be ordered to stop the infringement act forthwith;
where any party concerned disagrees, it/he may file a lawsuit with a people's court pursuant to the Administrative Procedure Law of the People's Republic of China within 15 days from the date of receipt of notification pertaining to handling of the matter;
where the infringer fails to file a lawsuit within the stipulated period and does not stop the infringement act, the patent administrative authority may apply to a people's court for mandatory enforcement. The patent administrative authority which handles the matter may, at the request of the parties concerned, mediate on the compensation amount in respect of infringement of patent rights;
where the mediation fails, any party may file a lawsuit with a people's court pursuant to the Civil Procedure Law of the People's Republic of China.

Article 66
Where a patent infringement dispute involves a patented invention for a manufacturing method of a new product, organisations or individuals manufacturing the same product shall provide evidence to prove that their product manufacturing method differs from the patented method.

Where a patent infringement dispute involves a patented utility model or patented design, a people's court or the patent administrative authority may require the patentee or an interested party to provide a patent rights evaluation report issued by the patent administrative department under the State Council after carrying out searches, analysis and evaluation of the relevant utility model or design as proof for trial or handling of the patent infringement dispute;
the patentee, the interested party or the alleged infringer may also voluntarily submit a patent rights evaluation report.

Article 67
In a patent infringement dispute where the accused infringer shows proof to prove that its/his technology or design implemented falls under the prior art or existing designs, it/he shall be deemed not to have infringed patent rights.

Article 68
In case of patent counterfeiting, an offender shall, in addition to bearing civil liability pursuant to the law, be ordered by the patent law enforcement authority to make corrections, a public announcement shall be made;
illegal income shall be confiscated and a fine of not more than five times the amount of illegal income may be imposed on it;
where there is no illegal income or the amount of illegal income is below 50,000 yuan, a fine of not more than 250,000 yuan may be imposed on it;
where the case constitutes a criminal offence, criminal liability shall be pursued in accordance with the law.

Article 69
The patent law enforcement authority shall, based on evidence obtained, have the right to adopt the following measures when investigating and handling alleged patent counterfeiting:

(1) questioning the parties concerned and investigating into the circumstances relating to the alleged illegal act;

(2) conducting on-site inspection of the premises where the parties concerned are alleged to have committed the illegal act;

(3) inspecting and making copies of contracts, invoices, account books and other relevant materials relating to the alleged illegal act;

(4) inspecting the products relating to the alleged illegal act;
and

(5) sealing up or seizing the products proved to be counterfeited patent products.

When handling a patent infringement dispute at the request of a patentee or an interested party, the patent administrative authority may adopt the measures stipulated in Item (1), Item (2) and Item (4) of the preceding paragraph.

When the patent law enforcement authority and the patent administrative authority exercise the official powers stipulated in the two preceding paragraphs pursuant to the law, the parties concerned shall render assistance and cooperation, and shall not refuse or hinder.

Article 70
The patent administrative department under the State Council may, at the request of a patentee or an interested party, handle patent infringement disputes of nation-wide impact.

The patent administrative department of a local people's government may, at the request of a patentee or an interested party, handle patent infringement disputes and conduct joint trial of separate cases of infringement upon the same patent right within its administrative region;
in the case of infringement upon the same patent right across different regions, a request may be made to the patent administrative department of a local people's government at a higher level to handle the case.

Article 71
The compensation amount for infringement of patent rights shall be determined according to the actual losses suffered by the patentee due to the infringement or the gains derived by the infringer from the infringement. Where it is difficult to ascertain the losses of the patentee or the gains derived by the infringer, the compensation amount shall be determined reasonably according to a multiple of the royalties of the said patent. For intentional infringement of patent rights, where the case is serious, the compensation amount shall be one to five times the amount determined pursuant to the aforesaid method.

Where it is difficult to ascertain the losses of the patentee, the gains derived by the infringer and the royalties of the patent, a people's court may determine a compensation amount ranging from 30,000 yuan to 5 million yuan according to the type of patent rights, as well as the nature and circumstances of the infringement act, etc.

The compensation amount shall also include reasonable expenses incurred by the patentee to stop the infringement act.

In the determination of compensation amount by a people's court, where the patentee has provided proof to its best effort, and the account books and materials relating to the infringement are held by the infringer, the people's court may order the infringer to provide account books and materials relating to the infringement;
if the infringer does not provide or provides false account books and materials, the people's court may determine the compensation amount with reference to the claims of the patentee and the evidence provided.

Article 72
Where any patentee or interested party has evidence to prove that others are committing or will commit an act of infringement of patent rights or hindering the realisation of rights, and that his/its legitimate rights and interests will suffer irreparable harm if such act of infringement or impending infringement is not stopped promptly, he/it may, prior to filing a lawsuit, apply to a people's court pursuant to the law for adoption of property preservation measures, an order to undertake certain acts, or a prohibition from undertaking certain acts.

Article 73
For the purpose of curbing a patent infringement act and under the circumstances that evidence may be lost or become irrecoverable in the future, any patentee or interested party may, prior to filing a lawsuit, apply to a people's court pursuant to the law for preservation of evidence.

Article 74
The limitation of action for infringement of patent rights shall be three years, commencing from the date on which a patentee or interested party becomes or should become aware of the infringing act and the infringer.

Where the appropriate royalties are not paid for use of an invention during the period from the announcement of a patent application for the said invention to the grant of patent rights, the limitation of action for a patentee to claim such royalties shall be three years, commencing from the date on which the patentee becomes or should become aware of use of his/its invention by others. However, where the patentee becomes or should become aware prior to the date of grant of patent rights, the limitation of action shall commence from the date of grant of patent rights.

Article 75
The following circumstances shall not be deemed as infringement of patent rights:

(1) where the patented products or products obtained directly pursuant to the patented method are sold by the patentee or organisations or individuals licensed by the patentee before the use, offer for sale, sale and importation of such products;

(2) where identical products are manufactured or the same method is used before the date of patent application or where the requisite preparations for manufacturing or use are in place before the date of patent application, and the manufacturing or use continues only within the original scope;

(3) where the relevant patent is used in the device and equipment of foreign transportation vehicles which temporarily pass through China's territorial land, territorial waters and airspace for the needs of the transportation vehicles according to an agreement entered into between their home country and China or an international treaty participated by both their home country and China or under the principle of mutual benefits;

(4) where the relevant patent is used specifically for scientific research and experiment;
and

(5) manufacturing, use or importation of patented drugs or patented medical devices for the purpose of providing information required for administrative examination and approval, and manufacturing or importation of patented drugs or patented medical devices specifically for them.

Article 76
In the process of evaluation and approval of marketing of a drug, where a dispute arises over the patent rights relating to the drug for which registration is applied between a drug marketing authorization applicant and a relevant patentee or interested party, the relevant party may file a lawsuit with a people's court, requesting a ruling on whether the relevant technical solution of the drug for which registration is applied falls within the scope of protection of others' drug patent rights. The drug regulatory department under the State Council may, within the stipulated period, make a decision on whether to suspend the approval of marketing of the drug concerned based on the effective judgment made by the people's court.

A drug marketing authorization applicant and a relevant patentee or interested party may also request an administrative ruling from the patent administrative department under the State Council in respect of a dispute over patent rights relating to the drug for which registration is applied.

The drug regulatory department under the State Council shall, in concert with the patent administrative department under the State Council, formulate specific transition measures for resolving disputes over patent rights during the stages of examination and approval of drug marketing authorization and application for drug marketing authorization, which shall be effective upon approval by the State Council.

Article 77
Where an uninformed party which, for the purpose of manufacturing and business, uses, offers to sell or sells products of patent infringement manufactured and sold without licensing by a patentee can prove the legitimate source of such products, it/he shall not be liable for compensation.

Article 78
Whoever violates the provisions of Article 19 hereof by divulging State secrets when filing a patent application with a foreign country shall be subject to administrative punishment meted out by his employer or the higher-level authority;
where the case constitutes a criminal offence, criminal liability shall be pursued in accordance with the law.

Article 79
The patent administrative authority shall not participate in business activities such as promoting patented products to the public, etc.

The patent administrative authority which has violated the provisions of the preceding paragraph shall be ordered by its higher-level authority or the supervisory organ to make correction and eliminate impact;
illegal income shall be confiscated;
where the case is serious, the person(s)-in-charge who is/are directly accountable and other directly accountable personnel shall be subject to punishment pursuant to the law.

Article 80
Where State officials engaging in patent administration and other relevant State officials are guilty of practising dereliction of duty, abusing official powers or committing irregularities for personal gains, if the case constitutes a criminal offence, criminal liability shall be pursued in accordance with the law;
where the case does not constitute a criminal offence, punishment shall be meted out pursuant to the law.

Chapter VIII Supplementary Provisions

Article 81
Persons applying for patent and processing other formalities with the patent administrative department under the State Council shall pay fees pursuant to the provisions.

Article 82
This Law shall become effective 1 April 1985.