Amendment of the China Patent Law & It’s Significance

After revision by the Standing Committee of the National People’s Congress of the PRC, Draft Amendments to the Chinese Patent Law were released for public comment on 4 January 2019. Major aims of the proposed revision are strengthening patent protection, fostering innovation and improving the legal framework. In the view of the China patent lawyers, the new draft includes many important changes when compared with the previous version of the draft amendment.

Highlighting 3 Changes Main of the Chinese Patent Law

Amendment No 1– The amount of statutory damages (i.e. lump sum damages granted by a court if the claimant cannot provide sufficient evidence of their actual damages) are significantly raised from a current range of RMB10 000- 1 million to the proposed range of RMB100 000 – 5 million.

Amendment No 2– The concept of punitive damages for “serious” willful infringement is introduced. Under the draft, such severe infringements would be punishable with up to five times the determined amount of damages.

Amendment No 3– According to the China patent lawyers, the draft contains a provision allowing for the shifting of the burden of proof for damages in some cases. If the evidence needed to calculate the damages (e.g. accounting books and other materials) is held by the infringer, and the infringer refuses to submit them to the court when ordered to do so, or submits fabricated evidence, the court can determine the amount of damages based on the initial evidence and calculations of the patent owner and the failure of the infringer to satisfy their burden of supplying contrary evidence.

Key amendments proposed in the current Draft cover the following areas:

  • Employee Inventions
  • Patent Licensing
  • Patent Term Extension
  • Liability For Isps
  • Patent Infringement
  • Abuse Of Patent Rights
  • Patent Administrative Enforcement

In the view of the Chinese business lawyers, one of the major objectives of the fourth amendment of the China Patent Law is to strengthen the patent protection against infringement. The application for patent and exercise of the patent right shall follow the principle of good faith, and shall not harm the public interest, unfairly exclude or limit competition. In order to better understand the new structure, it is suggested to seek assistance from the professional China patent lawyers.

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