Decision Regarding the Revision of 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 August 25, 2000.)

1. Article 1 is amended as follows: "For the purposes of protecting patent rights for inventions, encouraging inventions, facilitating their spreading and application, promoting the development and innovation of science and technology, and meeting the needs of socialist modernization, this Law is hereby enacted."

2. Article 3 is amended as follows: "The Patent Administrative Department of the State Council is in charge of all national patent affairs, accepts and examines patent applications, and grants patent rights for inventions that are in compliance with the provisions of this Law.

The administrative authority for patent affairs of provinces, municipalities directly under the central government, or autonomous regions is in charge of the patent administration affairs in their respective administrative region. "

3. Article 6 is amended as follows: "An invention made by a person in carrying out the tasks of the entity to which he belongs or made by him primarily by using the technical resources of an entity is a service invention. The right to apply for a patent for a service invention resides in the entity. After the application is approved, the patent right shall be owned by the entity.

For any non-service invention, the right to apply for a patent resides in the inventor or designer. After the application is approved, the patent right shall be owned by the inventor or designer.

For any invention made by using material resources of an entity, the right to apply for a patent and the right to hold the patent right may be determined in compliance with the contract concluded between the entity and the inventor or designer."

4. Article 8 is amended as follows: "For an invention made jointly by two or more persons or entities, or made by an entity or person commissioned by another entity or person to conduct research or design tasks, the right to apply for a patent resides, unless otherwise agreed upon, in the entity or person making, or to the entities or persons jointly making, the invention. After the application is approved, the patent right shall be owned by the entity(s) or person(s) filing the application."

5. Article 10, paragraph two is deleted, paragraph three is renumbered paragraph two, and paragraph four is renumbered paragraph three, and amended as follows: "Where the right to apply for a patent or the patent right is assigned, the parties concerned must entered into a written contract, which must be registered with and announced by the Administrative Authority for Patent Affairs of the State Council. The assignment of the right to apply for a patent or the patent right will come into force from the date on which it is registered."

6. Article 11 is amended as follows: " After the grant of a patent right for an invention or a utility model, except as otherwise provided for in the law, no entity or individual may, without the permission of the patent holder, exploit the patent, namely, manufacture, use, offer for sale, sell or import the patented product, use the patented process, or use, offer for sale, sell or import the product directly obtained by such patented process, for production and operation purposes.

After the grant of the patent right for a design, except as otherwise provided for in the law, no entity or individual may, without the permission of the patent holder, exploit the patent, namely, manufacture, sell or import the product, incorporating the patented design, for production and operation purposes."

7. Article 14 is amended as follows: "The concerned competent departments of the State Council and the governments of provinces, autonomous regions and municipalities directly under the Central Government have the power, after approval by the State Council, to allow designated entities to use important invention patents, which are of great significance to the interests of the State or the public, owned by entities under ownership of the State, to the extent approved; and the using entities shall pay a fee for this use to the patent holders.

Any patent of a Chinese entity under collective ownership or an individual, which is of great significance to the interests of the State or the public and needs to be widely spread and applied, may be treated alike according to the provisions of the preceding paragraph."

8. Article 16 is amended as follows: "The entity granted a patent right shall give a reward to the inventor or designer of the service invention; and after use of the patented invention, shall give a reasonable reward to the inventor or designer in proportion to the extent of the invention's prevalence and application, and the economic benefits yielded."

9. Article 19, paragraph one is amended as follows: "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, he or it shall appoint a patent agency designated by the Administrative Authority of the State Council of the People's Republic of China to act as his or its agent."

One paragraph is added as paragraph three: "A patent agency should abide by the law and administrative rules, deal with patent applications or other patent affairs according to the instructions of its clients, and keep the contents of inventions secret until they are published. The regulations governing the patent agencies shall be drawn up by the State Council."

10. Article 20 is amended as follows: "Where any Chinese entity or individual intends to file a patent application in a foreign country for an invention made in China, it or he shall file first a patent application with the Administrative Authority of the State Council, appoint a designated patent agency, and abide by the provisions of Article 4 of the law.

A Chinese entity or individual may file an international patent application according to international treaties to which China is a party. When filing an international patent application, the applicant shall abide by the provisions of the preceding paragraph.

The Administrative Authority for Patent Affairs of the State Council shall handle international patent applications according to the treaties to which China is a party, this law and relevant regulations enacted by the State Council."

11. Article 21 is amended as follows: "The Administrative Authority for Patent Affairs of the State Council and its Patent Reexamination Board shall handle patent applications and other related requests objectively, fairly, accurately and timely, according to the law.

Prior to the publication or public announcement of a patent application, staff members of the Administrative Authority for Patent Affairs of the State Council and other persons involved have the duty to keep its contents secret."

12. Article 23 is amended as follows: "Any design for which a patent right may be granted must not be identical with, or similar to, any design which has been publicly disclosed in domestic or foreign publications or has been publicly used in the country prior to the filing date, and shall not conflict with other previously-existing legal rights."

13. Article 36, paragraph two is amended as follows: "Where an application for a patent has been filed in a foreign country, the Administrative Authority for Patent Affairs of the State Council may ask the applicant to submit documents concerning any search made for the purpose of examining that application, or concerning the results of any examination made, in that country, within a prescribed time limit. If, without any justified reason, the said documents are not submitted within the time limit, the application is deemed to have been withdrawn."

14. Article 39 is amended as follows: "Where it is found after substantive examination that there is no reason for rejection of the application for a patent for invention, the Administrative Authority for Patent Affairs of the State Council shall make a decision to grant the patent for invention, issue the certificate of the patent for invention, and register and announce it. The patent right comes into force from the date of the announcement."

15. Article 40 is amended as follows: "Where it is found after a preliminary examination that there is no reason for rejection of the application for a patent for a utility model or design, the Administrative Authority for Patent Affairs of the State Council shall make a decision to grant the patent right for the utility model or design, issue the certificate of patent for the utility model and design, and register and announce it. The patent right comes into force from the date of the announcement."

16. Articles 41, 42 and 44 are deleted.

17. Article 43 is renumbered Article 41, and is amended as follows: "The Administrative Authority for Patent Affairs of the State Council shall set up a Patent Reexamination Board. Where the applicant is not satisfied with the decision of the Administrative Authority for Patent Affairs of the State Council to reject the application, he or it may, within three months from the date of receiving the rejection, request the Patent Reexamination Board to make a reexamination. After completing the reexamination, the Patent Reexamination Board shall make a decision and notify the applicant. Where the applicant is not satisfied with the decision of the Patent Reexamination Board, he or it may, within three months from the date of receiving the notification, institute legal proceedings in the people's court."

18. Article 48 is renumbered Article 45, and is amended as follows: "From the date of the announcement of the grant of a patent right by the Administrative Authority for Patent Affairs of the State Council, any entity or individual believing that the grant of the said patent right does not comply with the relevant provisions of this Law, may request the Patent Reexamination Board to declare the patent right invalid."

19. Article 49 is renumbered Article 46 and is amended as follows: "The Patent Reexamination Board shall timely examine the request for an invalidation of the patent right, make a decision, and notify the person who made the request and the patent holder. A decision declaring the patent right invalid shall be registered and announced by the Administrative Authority for Patent Affairs of the State Council.

Where any party is not satisfied with the decision of the Patent Reexamination Board declaring the patent right invalid or upholding the patent right, he or it may, within three months from the date of receiving the notification, institute legal proceedings in the people's court. The court shall notify the opposing party in the invalidation procedure who would take part in the suit as a third party."

20. Article 50 is renumbered Article 47 and is amended as follows: "Any patent right that has been declared invalid shall be deemed to be non-existent from the beginning.

The decision of invalidation shall have no retroactive effect on any judgment or order on patent infringement that has been pronounced and enforced by the people's court, or on a decision concerning the handling of a patent infringement which has been performed or enforced, or on a contract of license for use of the patent and a contract of assignment of the patent which has been performed prior to the declaration of invalidation. However, damages caused to other persons in bad faith on the part of the patent holder shall be compensated.

If, pursuant to the provisions of the preceding paragraph, no repayment, by the patent holder or the assignor of the patent right to the licensee or the assignee of the patent right, of the fee for use of the patent or the price for assignment of the patent right, is obviously contrary to the principle of equity, the patent holder or the assignor of the patent right shall repay the whole or part of the fee for the use of the patent or the price for the assignment of the patent right to the licensee or the assignee of the patent right."

21. Article 53 is renumbered Article 50. The first paragraph of this article is amended as follows: "Where the invention or utility model for which the patent right was granted is technically and prominently more advanced than another invention or utility model for which a patent right has been granted earlier, and is of great economic benefit, and the use of the later invention or utility model depends on the use of the earlier invention or utility model, the Administrative Authority for Patent Affairs of the State Council may, upon the request of the later patent holder, grant a compulsory license to exploit the earlier invention or utility model."

22. Article 55 is renumbered Article 52, and is amended as follows: "The decision made by the Administrative Authority for Patent Affairs of the State Council granting a compulsory license for use shall be registered and announced, and the patent holder shall be notified of the grant promptly.

In a decision granting a compulsory license for use, the extent and the period of the use shall be prescribed according to the reasons for granting the compulsory license. If the reasons for granting the compulsory license disappear and do not occur again, the Administrative Authority for Patent Affairs of the State Council may, upon the request of the patent holder, decide to terminate the compulsory license."

23. Article 58 is renumbered Article 55 and is amended as follows: "Where a patent holder is not satisfied with the decision of the Administrative Authority for Patent Affairs of the State Council granting a compulsory license for use, or where a patent holder or an entity or individual is not satisfied with the adjudication of the Administrative Authority for Patent Affairs of the State Council regarding the use fee payable for use, he or it may, within three months from the receipt of notification, institute legal proceedings in the people's court.

24. Article 60 is renumbered Article 57 and is amended as follows: "For any use of a patent, without the authorization of the patent holder, which constitutes an infringing act, the parties concerned may resolve the dispute through consultation; if the parties do not want to resolve the dispute through consultation, or cannot reach an agreement, the patent holder 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. The administrative authority for patent affairs handling the matter shall have the power to order the infringing party to stop the infringing acts immediately, and if the infringing party is not satisfied, he or it may, within three months from the receipt of notification, institute legal proceedings in the people's court pursuant to the Administrative Procedural Law of the People's Republic of China; if the infringing party does not stop the infringing acts and the legal proceedings are not instituted within the time limit, the Administrative Authority for Patent Affairs of the State Council may request the people's court to enforce its decision. The administrative authority for patent affairs handing the matter may, upon the request of the parties concerned, mediate between the parties regarding the amount of damages to be paid by the infringing party; if the mediation is not successful, the parties may institute legal proceedings in the people's court pursuant to the Civil Procedural Law of the People's Republic of China.

When any infringement dispute arises, if the patent for invention is a process for the manufacture of a new product, any entity or individual manufacturing the identical product shall furnish proof to establish that the process used in the manufacture of its or his product is different from the patented process; when the dispute involves a utility model, the people's court or the administrative authority for patent affairs may request the patent holder to furnish a search report made by the Administrative Authority for Patent Affairs of the State Council."

25. Article 63, paragraph one is renumbered Article 58 and is amended as follows: "Where any person passes off the patent of another person, apart from bearing civil liabilities, the administrative authority for patent affairs may order such person to correct it publicly, confiscate any profit illegally earned, and impose a fine not exceeding treble his profit illegally earned or, if no profit was earned, not exceeding 50,000 RMB; if such passing off violates the Criminal Law, he shall be prosecuted for his criminal liability."

26. Article 63, paragraph two is renumbered Article 59 and is amended as follows: "Where any person passes any unpatented product off as a patented product, or passes any unpatented process off as a patented process, such person shall be ordered by the administrative authority for patent affairs to stop the passing off, correct it publicly, and pay a fine not exceeding 50,000 RMB."

27. Article 60 is added, which provides: "The damages awarded to a patent holder shall be determined according to the loss that the patent holder suffered due to the infringement, or the profit earned by the infringer through the infringement; when the loss suffered by the patent holder or the profit earned by the infringer cannot easily be determined, the damages shall be determined according to a reasonable royalty."

28. Article 61 is added, which provides: "If the patent holder or any interested party has proof that its or his patent is being infringed or will be infringed, and the loss suffered by it or him would be irreparable if the infringement were not stopped, it or he may request the people's court to order the infringer to stop the infringing act, or to take property preservation measures.

The people's court shall handle such a request under the preceding paragraph according to Articles 93 to 96 and Article 99 of the Civil Procedural Law of the People's Republic of China."

29. Article 61 is renumbered Article 62, with a second paragraph added: "The statute of limitations for the patent holder's instituting legal proceedings concerning the payment of an appropriate fee by the entity or individual using the patent after the publication of the application for the patent and before the patent has been granted for two years is counted from the date on which the patent holder obtains or should have obtained knowledge of the use. However, if the patent holder obtains or should have obtained knowledge of the use before the patent is granted, the two years shall be counted from the date on which the patent is granted."

30. Article 62 is renumbered Article 63 and is amended as follows: "None of the following shall be deemed an infringement of a patent right: (1) Where, after the sale of a patented product or a product directly obtained by a patented process that was made or imported by the patent holder or with the authorization of the patent holder, any other person uses, offers for sale or sells that product; (2) Where, before the date of filing of the application for a patent, any person who has already made the identical product, used the identical process, or makes necessary preparation for its making or use, continues to make or use it within the original scope; (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.

Where, for production or business purposes, any person uses or sells a patented product or a product directly obtained by a patent process not knowing that it was made and sold without the authorization of the patent holder, the person shall not bear the liability for compensation if he can prove that product is from legal resources."

31. Article 67 is added, which provides: "The administrative authority for patent affairs shall not participate in recommending a patented product to the public for business purposes.

Where the administrative authority for patent affairs violates the directive of the preceding paragraph, the competent authority at the higher level or the censorial authority shall have the power to order it to correct the violation and eliminate any negative effect, and may confiscate any profit illegally earned. If the circumstances are serious, persons in charge and persons who are directly responsible shall be subject to disciplinary sanctions."

32. Article 66 is renumbered Article 67 and is amended as follows: "Where any staff member of the administrative authority or any staff member concerned of the State ignores his duty, abuses his power, acts wrongfully out of personal considerations or commits fraudulent acts, he shall be prosecuted for his criminal liability. If the circumstances are not serious, he shall be subject to disciplinary sanctions."

33. Article 68 is deleted.

34. "The Patent Office" contained in the text of the Law shall be changed to "the Administrative Authority for Patent Affairs of the State Council."

In addition, the wording of some articles of the Law have been amended, and the articles renumbered correspondingly.

This Decision shall enter into force on July 1, 2001.

The Patent Law of the People's Republic of China shall be amended in line with this Decision and re-promulgated.

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