The Revised Draft of the Patent Law of the People's Republic of China (Draft for Review) is seeking for public comments

On 2 December, 2015, the Legislative Affairs Office of the State Council has published the Revised Draft of the Patent Law of the People’s Republic of China (Draft for Review) (hereinafter referred to the ‘Revision’), and sought for public comments. The Revision has covered 33 articles, in which it has amended 18 articles, added 14 articles and deleted 1 article. The following aspects shall be paid attention to.

To amend several articles related to the Design Patent

The partial designs shall be protected. The current definition of the ‘Design’ is that any new design of the shape, pattern or their combination, or the combination of the color with shape or pattern, of a product. And the Revision has expanded the ‘product’ into ‘the whole or partial of the product’.

The duration of the Design Patent shall be changed from 10 years to 15 years.

To establish the domestic priority system for the Design Patent. Within six months from the date on which any applicant first filed in mainland China an application for a Design Patent, he or it files in mainland China an application for a patent for the same subject matter, he or it may enjoy a right of priority.

To adjust the management of the service invention-creation

The service invention is restricted as which is made by a person in execution of the tasks of the entity to which he belongs.

The principal of “Agreement in Advance” shall be applied in deciding the patent application right of the invention-creation made by him mainly by using the material means of this entity. In other words, under such circumstance, if the entity fails to make the agreement on the ownership with the employee in advance, then the patent application right shall belong to the inventor or the designer.

To rise the punishment to the patent torts

The Revision has adjusted the punishment for compensation from 1 million to 5 million. If the Revision would be approved, then the highest punishment is higher than 3 million which has been stipulated in the ‘Trademark Law’ for the trademark torts.

Like the ‘Trademark Law’, the Revision has stipulated the special principle on shifting the burden of proof when determining the damages. Article 68 of the Revision has stipulated, where the right-holder has tried its best to collect evidence, and the tort related accounting books and documents are controlled by the infringer, the people’s court could order the infringer to provide these accounting books and documents; if the infringer refuses to provide, or provides the false ones, the people’s court could decide the amount of compensation based on the claim of and evidence provided by of the right-holder.

To stipulate that the patent administrative department could impose administrative penalties on the group willful infringement and repetitive infringement.

To stipulate while the internet service provider shall undertake the joint liability while it fails to deal with the internet users who have taken advantage of the internet service to infringe or counterfeit the others’ patent.

In addition, the Revision has stipulated the principle on prevention of patent abuse, in which it has stipulated that the exercise of the patent right shall comply with the good faith principle, and shall not prejudice public interests, unjustifiably exclude or restrict competition. This is a step forward, but it still needs more implementation regulations, and it shall match the other laws and regulations smoothly.