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15 July 2015

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Patent Law of the People's Republic of China

(Adopted at the 4th Meeting of the Standing Committee of the Sixth National People's Congress on March 12, 1984.
Amended for the 1st time in accordance with the Decision of the Standing Committee of the Seventh National People's Congress on Amending the Patent Law of the People's Republic of China at its 27th Meeting on September 4, 1992.
Amended for the 2nd time in accordance with the Decision of the Standing Committee of the Ninth National People's Congress on Amending the Patent Law of the People's Republic of China at its 17th Meeting on August 25, 2000.
Amended for the 3rd time in accordance with the Decision of the Standing Committee of the Eleventh National People's Congress on Amending the Patent Law of the People's Republic of China at its 6th Meeting on December 27, 2008.
The revised Law comes into force on Oct. 1, 2009.)

 

Contents

Chapter I  General Provisions
Chapter II  Requirements for Grant of Patent Right
Chapter III  Application for Patent
Chapter IV Examination and Approval of Application for Patent
Chapter V Duration, Cessation and Invalidation of Patent Right
Chapter VI  Compulsory License for Exploitation of Patent
Chapter VII Protection of Patent Right
Chapter VIII  Supplementary Provisions

 

Chapter I  General Provision 

Article 1.This Law is enacted to protect lawful rights of patentees, to encourage invention-creation, to spread application of inventions-creations, to enhance creativity and to promote the progress of science and technology and development of the social economy.

 

Article 2.In this Law, "inventions-creations" mean inventions, utility models and designs.
"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.

 

Article 3.The Patent Administration Department under the State Council is responsible for the patent work throughout the country. It receives and examines patent applications and grants patent rights for inventions-creations in accordance with law.
The administrative authority for patent affairs under the people's governments of provinces, autonomous regions and municipalities directly under the central government are responsible for the administrative work concerning patents in their respective administrative areas.

 

Article 4.Where an invention-creation for which a patent is applied for relates to the security or other vital interests of the State and is required to be kept secret, the application shall be treated in accordance with the relevant prescriptions of the State.

 

Article 5.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 an invention-creation that is made relying on the genetic resources which are obtained or utilized in the way violating relevant laws or administrative regulations.

 

Article 6.An invention-creation, made by a person in execution of the tasks of the entity to which he belongs, or made by him mainly by using the material and technical means of the entity is a service invention-creation. For a service invention-creation, the right to apply for a patent belongs to the entity. After the application is approved, the entity shall be the patentee.
For a non-service invention-creation, the right to apply for a patent belongs to the inventor or creator. After the application is approved, the inventor or creator shall be the patentee.
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.

 

Article 7.No entity or individual shall prevent the inventor or creator from filing an application for a patent for a non-service invention-creation.


Article 8.For an invention-creation jointly made by two or more entities or individuals, or made by an entity or individual in execution of a commission given to it or him by another entity or individual, the right to apply for a patent belongs, unless otherwise agreed upon, to the entity or individual that made, or to the entities or individuals that jointly made, the invention-creation. After the application is approved, the entity or individual that applied for it shall be the patentee.


Article 9.For any identical invention-creation, only one patent right shall be granted. But where one applicant has filed applications for both patent for invention and patent for utility model for the identical invention-creation on the same day, the patent right for utility model has not yet been terminated and the applicant makes a statement to abandon the patent right for utility model, the patent right may be granted for the application for patent for invention.
Where two or more applicants file applications for patent for the identical invention-creation, the patent right shall be granted to the applicant whose application was filed first.

 

Article 10.The right to apply for a patent and the patent right may be assigned.
Any assignment, by a Chinese entity or individual, of the right to apply for a patent, or of the patent right, to a foreigner, foreign enterprises or other foreign organizations, shall be handled in accordance with relevant laws and administrative regulations.
Where the right to apply for a patent or the patent right is assigned, the parties shall conclude a written contract and register it with the patent administration department under the State Council. The patent administration department under the State Council shall announce the registration. The assignment shall take effect as of the date of registration.

Article 11.After the grant of the patent right for an invention or utility model, except where otherwise provided for in this Law, no entity or individual may, without the authorization of the patentee, exploit the patent, that is, make, use, offer to sell, sell or import the patented product, or use the patented process, and use, offer to sell, sell or import the product directly obtained by the patented process, for production or business purposes.
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.

 

Article 12.Any entity or individua1 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.

Article 13.After the publication of the application for a patent for invention, the applicant may require the entity or individual exploiting the invention to pay an appropriate fee.

 

Article 14.Where any patent for invention, belonging to any State-owned enterprise or institution, is of great significance to the interest of the State or to the public interest, the competent departments concerned under the State council and the people's governments of provinces, autonomous regions or municipalities directly under the Central Government may, after approval by the State Council, decide that the patented invention be spread and applied within the approved limits, and allow designated entities to exploit that invention. The exploiting entity shall, according to the regulations of the State, pay a fee for exploitation to the patentee.

 

Article 15.Where the co-owners of the right in regards to a patent application or a patent conclude an agreement on exercise of the right, the agreement shall apply. Where there is no such an agreement, each of the co-owners may individually exploit, or grant a non-exclusive license to others, to exploit the patent. In case of such a license, the license fee collected shall be distributed by all the co-owners.
Excepting the preceding paragraph, the exercise of the right in regard to a patent application or a patent shall be subject to the unanimous consent by all the co-owners.

 

Article 16.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.

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 on the patented product or on the packing of that product.

 

Article 18.Where any foreigner, foreign enterprise or other foreign organization having no habitual residence or business office in China files an application for a patent in China, the application sha1l be treated under this Law in accordance with any agreement concluded between the country to which the applicant belongs and China, or in accordance with any international treaty to which both countries are party, or on the basis of the principle of reciprocity.

 

Article 19.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 that is legally established to act as his or its agent.
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 that is legally established to act as its or his agent.
The patent agency shall comply with the provisions of laws and administrative regulations, and handle patent applications and other patent matters according to the instructions of its clients. In respect of the contents of its clients' inventions-creations, except for those that have been published or announced, the agency shall bear the responsibility of keeping them confidential. The administrative regulations governing the patent agency shall be formulated by the State Council.

 

Article 20.Where any entity or individual intends to file an application in a foreign country for a patent for invention or utility model made in China, it or he shall report in advance to the patent administration department under the State Council for examination of secrecy. The procedures and time limits of the examination of secrecy shall conform to the provisions set forth by the State Council.
Any Chinese entity or individual may file an international application for patent in accordance with any international treaty concerned to which China is party. The applicant filing an international application for patent shall comply with the provisions of the preceding paragraph.
The Patent Administration Department under the State Council shall handle any international application for patent in accordance with the international treaty concerned to which China is party, this Law and the relevant regulations of the State Council.
Where an application for patent for invention or utility model is filed abroad in violation of the provisions of the first paragraph of this Article, no patent right shall be granted for the same invention or utility model in China.

 

Article 21.The Patent Administration Department under the State Council and its Patent Reexamination Board shall handle any patent application and patent-related request according to law and in conformity with the requirements for being objective, fair, correct and timely.
The Patent Administration Department shall publicize completely, correctly and timely patent information and publish periodically patent gazettes.
Until the publication or announcement of the application for a patent, staff members of the patent administration department under the State Council and other persons involved have the duty to keep its contents secret.

 

Chapter II  Requirements for Grant of Patent Right
Article 22.Any invention or utility model for which patent right may be granted must possess novelty, inventiveness and practical applicability.
Novelty means that, an invention or utility model does not belong to the prior art; and neither has any entity or individual filed before the filing date with the Patent Administration Department under the State Council an application which described the identical invention or utility model and was published after the said date of filing in the patent application documents or patent documents.
Inventiveness means that, as compared with the prior art, the invention possesses prominent substantive features and represents a notable progress and that the utility model has substantive features and represents progress.
Practical applicability means that the invention or utility model can be made or used and can produce effective results.
The prior art as termed in this law refers to the technology that is known to the public before the filing date in the country and abroad.

 

Article 23.Any design for which patent right may be granted must not belong to any prior design; neither has any entity or individual filed before the filing date with the Patent Administration Department under the State Council an application which described the identical design and was published in the patent documents after the said date of filing.
Any design for which patent right may be granted shall be obviously distinguished from any prior design or combination of the features of the prior designs.
Any design for which patent right may be granted must not be in conflict with any prior right obtained by any other person before the filing date.
The prior design as termed in this law refers to the design that is known to the public in the country and abroad before the filing date.

 

Article 24.An invention-creation for which a patent is applied for does not lose its novelty where, within six months before the date of filing, one of the following events occurred:
(1) where it was first exhibited at an international exhibition sponsored or recognized by the Chinese Government;
(2) where it was first made public at a prescribed academic or technological meeting;
(3) where it was disc1osed by any person without the consent of the applicant.

 

Article 25.For any of the following, no patent right shall be granted:
(1) scientific discoveries;
(2) rules and methods for mental activities;
(3) methods for the diagnosis or for the treatment of diseases;
(4) animal and plant varieties;
(5) substances obtained by means of nuclear transformation.
(6) any design of pattern, color or their combination on plane printed articles and mainly have labeling functions.
For processes used in producing products referred to in items (4) of the preceding paragraph, patent right may be granted in accordance with the provisions of this Law.


Chapter III  Application for Patent

Article 26.Where an application for a patent for invention or utility model is filed, a request, a description and its abstract, and claims shall be submitted.
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.
The description shall set forth the invention or utility model in a manner sufficiently clear and complete so as to enable a person skilled in the re1evant field of technology to carry it out; where necessary, drawings are required. The abstract shall state briefly the main technical points of the invention or utility model.
The claims shall be supported by the description and shall define clearly and concisely the extent of the patent protection asked for.
For the invention-creation made depending on genetic resources, the applicant shall state in the patent application documents the direct and original sources of the genetic resources. If the applicant can not state the original sources, explanations shall be provided.

 

Article 27.Where an application for a patent for design is filed, a request, drawings or photographs and brief description of the design shall be submitted.
The drawings or photographs submitted by the applicant shall clearly show the design of a product for which patent protection is sought.

 

Article 28.The date on which the Patent Administration Department under the State Council receives the application shall be the date of filing. If the app1ication is sent by mail, the date of mailing indicated by the postmark shall be the date of filing.

 

Article 29.Where, within twelve months from the date on which any applicant first filed in a foreign country an application for a Patent for invention or utility model, or within six months from the date on which any applicant first filed in a foreign country an application for a patent for design, he or it files in China an application for a patent for the same subject matter, he or it may, in accordance with any agreement concluded between the said foreign country and China, or in accordance with any international treaty to which both countries are party, or on the basis of the principle of mutual recognition of the right of priority, enjoy a right of priority.
Where, within twelve months from the date on which any applicant first filed in China an application for a patent for invention or utility model, he or it files with the Patent Administration Department under the State Council an application for a patent for the same subject matter, he or it may enjoy a right of priority.

 

Article 30.Any applicant who claims the right of priority shall make a written declaration when the application is filed, and submit, within three months, a copy of the patent application document which was first filed; if the applicant fails to make the written declaration or to meet the time limit for submitting the patent application document, the claim to the right of priority shall be deemed not to have been made.

 

Article 31.An application for a patent for invention or utility model shall be limited to one invention or uti1ity model. Two or more inventions or utility models belonging to a single general inventive concept may be filed as one application.
An application for a patent for design shall be limited to one design incorporated in one product. Two or more similar designs of the same product or two 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.

 

Article 32.An applicant may withdraw his or its application for a patent at any time before the patent right is granted.

 

Article 33.An applicant may amend his or its application for a patent, but the amendment to the application for a patent for invention or utility model may not go beyond the scope of the disclosure contained in the initial description and claims, and the amendment to the application for a patent for design may not go beyond the scope of the disclosure as shown in the initial drawings or photographs.

 

Chapter IV  Examination and Approval of Application for Patent

Article 34.Where, after receiving an application for a patent for invention, the Patent Administration Department under the State Council, upon preliminary examination, finds the application to be in conformity with the requirements of this Law, it shall publish the application promptly after the expiration of eighteen months from the date of filing. Upon the request of the applicant, the Patent Administration Department under the State Council publishes the application earlier.

 

Article 35.Upon the request of the applicant for a patent for invention, made at any time within three years from the date of filing, the Patent Administration Department under the State Council will proceed to examine the application as to its substance. If, without any justified reason, the applicant fails to meet the time limit for requesting examination as to substance, the application shall be deemed to have been withdrawn.
The Patent Administration Department under the State Council may, on its own initiative, proceed to examine any application for a patent for invention as to its substance when it deems it necessary.

 

Article 36.When the applicant for a patent for invention requests examination as to substance, he or it shall furnish pre-filing date reference materials concerning the invention.
For an application for a patent for invention that has been already filed in a foreign country, the Patent Administration Department under the State Council may ask the app1icant to furnish within a specified time limit documents concerning any search made for the purpose of examining that application, or concerning the results of any examination made, in that country. If, at the expiration of the specified time limit, without any justified reason, the said documents are not furnished, the application shall be deemed to have been withdrawn.

 

Article 37.Where the Patent Administration Department under the State Council, after it has made the examination as to substance of the application for a patent for invention, finds that the application is not in conformity with the provisions of this Law, it shall notify the applicant and request him or it to submit, within a specified time limit, his or its observations or to amend the application. If, without any justified reason, the time limit for making response is not met, the application shall be deemed to have been withdrawn.

 

Article 38.Where, after the applicant has made the observations or amendments, the Patent Administration Department under the State Council finds that the application for a patent for invention is still not in conformity with the provisions of this Law, the application shall be rejected.

 

Article 39.Where it is found after examination as to substance that there is no cause for rejection of the application for a patent for invention, the Patent Administration Department under the State Council shall make a decision to grant the patent right for invention, issue the certificate of patent for invention, and register and announce it. The patent right for invention shall take effect as of the date of the announcement.

 

Article 40.Where it is found after preliminary examination that there is no cause for rejection of the application for a patent for utility model or design, the patent administration department under the State Council shall make a decision to grant the patent right for utility model or the patent right for design, issue the relevant patent certificate, and register and announce it. The patent right for utility model or design shall take effect as of the date of the announcement.

 

Article 41.The Patent Administration Department under the State Council shall set up a Patent Reexamination Board. Where an applicant for patent is not satisfied with the decision of the said department rejecting the application, the applicant may, within three months from the date of receipt of the notification, request the Patent Reexamination Board to make a reexamination. The Patent Reexamination Board shall, after reexamination, make a decision and notify the applicant for patent.
Where the applicant for patent is not satisfied with the decision of the Patent Reexamination Board, it or he may, within three months from the date of receipt of the notification, institute legal proceedings in the people's court.

 

Chapter V  Duration, Cessation and Invalidation of Patent Right

Article 42.The duration of patent right for inventions shall be twenty years, the duration of patent right for utility models and patent right for designs shall be ten years, counted from the date of filing.

 

Article 43.The patentee shall pay an annual fee beginning with the year in which the patent right was granted.

 

Article 44.In any of the following cases, the patent right shall cease before the expiration of its duration:
(1) where an annual fee is not paid as prescribed;
(2) where the patentee abandons his or its patent right by a written declaration.
Any cessation of the patent right shall be registered and announced by the Patent Administration Department under the State Council.

 

Article 45.  Where, starting from the date of the announcement of the grant of the patent right by the Patent Administration Department under the State Council, any entity or individual considers that the grant of the said patent right is not in conformity with the relevant provisions of this Law, it or he may request the Patent Reexamination Board to declare the patent right invalid.

 

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 shall be registered and announced by the Patent Administration Department under the State Council.
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 document on 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.
If, pursuant to the provisions of the preceding paragraph, no repayment to the fee for compensation for the patent infringement, to the fee for the exploitation of the patent or to the price for the assignment of the patent right is made, which is obviously contrary to the principle of equity, the whole or part of the fee shall be repaid.

 

Chapter VI  Compulsory License for Exploitation of Patent

Article 48.Under one of the circumstances as follows, the Patent Administration Department under the State Council may, upon the request of an entity or an individual who 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 has failed to exploit or sufficiently exploit its patent without justified reasons, upon expiration of three years from the date of grant of the patent right and expiration of four years from the date on which the application for patent was filed;
(2) where the act of exercise of the patent right by the patentee is determined according to the laws as an act of monopoly, the adverse effect on the competition caused by the act is to be eliminated or reduced.

 

Article 49.Where a national emergency or any extraordinary state of affairs occurs, or where the public interest so requires, the Patent Administration Department under the State Council may grant a compulsory license to exploit the patent for invention or utility model.

 

Article 50.For the purposes of public health, the Patent Administration Department under the State Council may, grant a compulsory license for manufacturing a patented drug and exporting it to the countries or regions in compliance with the relevant international treaties to which China is a party.

 

Article 51.Where the invention or utility model for which the patent right has been granted involves important technical advance of considerable economic significance in relation to another invention or utility model for which a patent right has been granted earlier and the exploitation of the later invention or utility model depends on the exploitation of the earlier invention or utility model, the Patent Administration Department under the State Council may, upon the request of the later patentee, grant a compulsory license to exploit the earlier invention or utility model.
Where, according to the preceding paragraph, a compulsory license is granted, the Patent Administration Department under the State Council may, upon the request of the earlier patentee, also grant a compulsory license to exploit the later invention or utility model.

 

Article 52.Where the compulsory license relates to invention-creation of semiconductor technology, its exploitation shall be limited to serve public interest and to the situations as set forth by Paragraph 2 of Article 48 of this Law.

 

Article 53.A compulsory license shall be granted mainly to serve the domestic market, except the compulsory license granted according to Paragraph 2 of Article 48 and Article 50 of this Law.

 

Article 54.Any entity or individual, that applies for a compulsory license for exploitation in accordance with paragraph 1 of Article 48 or Article 51 of this Law, shall provide evidence to prove that he has requested the patentee for a license for exploitation of his patent on reasonable terms and conditions, but has not obtained the license within a reasonable period of time.

 

Article 55.The decision made by the Patent Administration Department under the State Council granting a compulsory license for exploitation shall be notified promptly to the patentee concerned, and shall be registered and announced.
In the decision granting the compulsory license for exploitation, the scope and duration of the exploitation shall be specified on the basis of the reasons justifying the grant. If and when the circumstances which led to such compulsory license cease to exist and are unlikely to recur, the Patent Administration Department under the State Council may, after review upon the request of the patentee, terminate the compulsory license.

 

Article 56.Any entity or individual that is granted a compulsory license for exploitation shall not have an exclusive right to exploit and shall not have the right to authorize exploitation by any others.

 

Article 57.The entity or individual that is granted a compulsory license for exploitation shall pay to the patentee a reasonable exploitation fee, or deal with the exploitation fee in accordance with the provisions of the relevant international treaties to which China is a party. For payment of the exploitation fee, the amount of which 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.

 

Article 58.Where the patentee is not satisfied with the decision of the Patent Administration Department under the State Council granting a compulsory license for exploitation, or where the patentee or the entity or individual that is granted the compulsory license for exploitation is not satisfied with the ruling made by the Patent Administration Department under the State Council regarding the fee payable for exploitation, it or he may, within three months from the receipt of the date of notification, institute legal proceedings in the people's court.

 

Chapter VII  Protection of Patent Right

Article 59.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 terms of the claims.
The extent of protection of the patent right for design shall be determined by the design of the product as shown in the drawings or photographs. The brief description of the design may be used to interpret the design of the product as shown in the drawings or photographs.

 

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 established, it may order the infringer to stop the infringing act immediately. 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. The said authority handling the matter may, upon the request of the parties, mediate in the amount of compensation for the damage caused by the infringement of the patent right. If the mediation fails, the parties may institute legal proceedings in the people's court in accordance with the Civil Procedure Law of the People's Republic of China.

 

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 the dispute of patent infringement 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 interested party to furnish an appraisal report of the patent right made by the Patent Administration Department under the State Council after conducting search, analysis and appraisal of the relevant utility model or design as an evidence for trial and handling of the patent infringement disputes.

 

Article 62.In a patent infringement dispute, where a person accused for infringement has evidence to prove that the

technology or design that he exploits belongs to prior art or prior design, no infringement of patent is constituted.

 

Article 63.Where any person passes off the patent, 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.

 

Article 64.In handling the act suspected of passing off of patent based on the evidence that has been obtained, administrative authority for patent affairs may make inquiries of the relevant persons, investigate into the matters pertinent to the act suspected of violation of laws; conduct on-spot inspection of the place where the act of the relevant persons is suspected of violation of laws; examine and make copy of the contract, invoices, accounting books and other materials relating to the act suspected of violation of laws; inspect the product relating to the act suspected of violation of laws, and may seal and detain the products as proved by evidence to pass off patent.
The relevant persons shall help and cooperate with the administrative authority for patent affairs exercising the authorities as provided in the preceding paragraph and must not make any rejection or obstacles.

 

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 patentee; where the actual losses are difficult to be determined, it 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 include the reasonable expenses incurred to the patentee for stopping the infringement.
In case it is difficult to calculate the losses of the patentee, the profits which the infringer has earned, and the amount of the exploitation fee of that patent under contractual license, the people's court may, on the basis of such factors as the type of the patent, nature and circumstances of the infringement etc., determine the amount of the compensation from RMB 10,000 yuan to RMB one million yuan.

 

Article 66.Where any patentee or interested party has evidence to prove that another person is infringing or will soon infringethe 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.
The petitioner shall, at the filing of the request, provide a surety, and if he fails to do so, his request shall be rejected.
The people's court shall, within 48 hours from receipt of the request, make a ruling; and in the particular circumstance when it shall be prolonged, an extension of another 48 hours may be made. Where a ruling is made to order to stop the relevant activities, it shall be enforced immediately. Where the party is not satisfied with the ruling, he may apply for reconsideration for once; and the enforcement of the decision shall not be suspended during the period of the reconsideration.
Where the petitioner fails to initiate legal proceedings within 15 days from the date when the court adopts the measures for ordering the suspension of relevant acts, the court shall cancel the measures.
Where the request is made in error, the petitioner shall compensate for the losses suffered by the counter party due to the suspension of relevant acts.

 

Article 67.In order to stop the patent infringement, the patentee or interested party may, under circumstances where there is a likely-hood that evidence may be destroyed, lost or too difficult to obtain later on, request the court to preserve evidence before any legal proceedings are instituted.
Where the people's court decides to adopt preservation measures, the people's court may order the petitioner to provide surety; and if he fails to do so, his request shall be rejected.
The people's court shall make a ruling within 48 hours from receipt of the request; and where a decision is made to order to adopt the preservation measures, it shall be enforced immediately.
Where the petitioner fails to initiate legal proceedings within 15 days from the date when the court adopts the preservation measures, the people' court shall cancel the measures

 

Article 68.Prescription for instituting legal proceedings concerning the infringement of patent right is two years counted from the date on which the patenee or any interested party obtains or should have obtained knowledge of the infringing act.
Where no appropriate fee for exploitation of the invention, subject of an application for patent for invention, is paid during the period from the publication of the application to the grant of patent right, prescription for instituting legal proceedings by the patentee to demand the said fee is two years counted from the date on which the patentee obtains or should have obtained knowledge of the exploitation of his invention by another person. However, where the patentee has already obtained or should have obtained knowledge before the date of the grant of the patent right, the prescription shall be counted from the date of the grant.

 

Article 69.None of the following shall be deemed an infringement of the patent right:
(1) Where, after the sale of a patented product or the product obtained directly by using the patented process by the patentee or any entity or individual with the authorization of the patentee, any other person uses, offers to sell , sells or imports that product;
(2) Where, before the date of filing of the application for patent, any person who has already made the identical product, used the identical process, or made necessary preparations for its making or using, continues to make or use it within the original scope only;
(3) Where any foreign means of transport which temporarily passes through the territory, territorial waters or territorial airspace of China uses the patent concerned, in accordance with any agreement concluded between the country to which the foreign means of transport belongs and China, or in accordance with any international treaty to which both countries are party, or on the basis of the principle of reciprocity, for its own needs, in its devices and installations;
(4) Where any person uses the patent concerned solely for the purposes of scientific research and experimentation.
(5) Where any person manufactures, uses or imports patented drug or patented medical device for the purpose of providing information that is necessary for regulatory approval, or any other person manufactures or imports patented drug or patented medical device solely for him to provide such information.

 

Article 70.Any person who, for production and business purposes, uses, offers to sell or sells a product of patent infringement, 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.

 

Article 71.Where any person, in violation of the provisions of Article 20 of this Law, files in a foreign country an application for a patent that divulges an important secret of the State, he shall be subject to disciplinary sanction by the entity to which he belongs or by the competent authority concerned at the higher level. Where a crime is established, the person concerned shall be prosecuted for his criminal liability according to the law.

 

Article 72.Where any person usurps the right of an inventor or creator to apply for a patent for a non-service invention-creation, or usurps any other right or interest of an inventor or creator, prescribed by this Law, he shall be subject to disciplinary sanction by the entity to which he belongs or by the competent authority at the higher level.

 

Article 73.The administrative authority for patent affairs may not take part in recommending any patented product for sale to the public or any such commercial activities.
Where the administrative authority for patent affairs violates the provisions of the preceding paragraph, it shall be ordered by the authority at the next higher level or the supervisory authority to correct its mistakes and eliminate the bad effects. The illegal earnings, if any, shall be confiscated. Where the circumstances are serious, the persons who are directly in charge and the other persons who are directly responsible shall be given disciplinary sanction in accordance with law.

 

Article 74.Where any State functionary working for patent administration or any other State functionary concerned neglects his duty, abuses his power, or engages in malpractice for personal gain, which constitutes a crime, shall be prosecuted for his criminal liability in accordance with law. If the case is not serious enough to constitute a crime, he shall be given disciplinary sanction in accordance with law.

 

Chapter VIII  Supplementary Provisions

Article 75.Any application for a patent filed with, and any other proceedings before, the Patent Administration Department under the State Council shall be subject to the payment of a fee as prescribed.

 

Article 76.This Law shall enter into force on April 1, 1985.