The Third Revision of the Chinese Patent Law State Intellectual Property Office of P.R.C Dec. 2009

2 Part I General Introduction

3 Historical Development of the Chinese Patent Law

4 The patent system of China has been established with the adoption of the reform- open policy in China. The Standing Committee of the National People’s Congress approved the Chinese Patent Law on March 12, This law took effect on April 1, 1985.

5 The Patent Law has been revised twice in the past, firstly on September 4, 1992 to further promote the economic reform. The revision entered into force on January 1, 1993.

6 The Main Points of the first Revision ： Enlarging the scope of patentable subject matter to cover pharmaceuticals and materials obtained by chemical process. Prolonging the term of patent protection, for invention to 20 years ， for utility model or industrial design to 10 years.

Strengthening the protection of patent right by conferring the patentee with the right to prohibit others from importing patented products without his permission and extending the legal effect for patented process to the products obtained directly by the patented process. Replacing the pre-granting opposition procedure by the post-granting revocation procedure.

8 In order to meet the needs of establishing market economic system, and aligning the patent system with the provisions of TRIPs prior China’s accession to the WTO, China revised the Patent Law secondly on Aug. 25, The revision entered into force on July 1, 2001.

9 The Main Points of the second Revision ： Cancelling the revocation procedure to eliminate its conflicts with the procedure of invalidation Putting the decisions made by the Reexamination Board on utility model and design application and patent to be subject to judicial review Adding search report for utility model patent as reference for court trial of infringement cases

Empowering administrative authority to order infringers immediately stop infringement and to punish counterfeit patent Adding provision on methods for calculation of damages

11 Ever since the enactment and implementation of the Patent Law, it has played a significant role in encouraging the inventions and creations, protecting the achievements made in them, promoting the scientific advancement and technological innovation, and boosting the overall economic and social development of China.

12 In 2008, SIPO received 8.2 million applications for the three types of patents, wherein 2.8 million for invention patents, 2.3 million for utility model patents, and 3.1 million for design patents. From January to June 2009, SIPO has received 4.2 million applications for the three types of patents, wherein 1.4 million for invention patent, increasing by 12.2% compared with the same period of previous year. The growth rate for utility model and design are 47.2% and 16.4% respectively.

13 The Background, Procedure and the Main Points of the third Revision of the Chinese Patent Law

14 The third revision of the Chinese Patent Law aimed at further improving the patent system based on the practice experience, Chinese specificities and international developments, fulfilling the goal raised by the National Intellectual Property Strategy, and promoting the construction of the innovative nation and securing the sustainable development of China.

The Declaration concerning the TRIPs Agreement and Public Health and the Protocol to Amend the TRIPs Agreement permit the WTO members to grant compulsory licenses according to certain requirements and the Convention on Biological Diversity has made stipulations regarding protecting genetic resources through patent system. Therefore, It is necessary to amend the Patent law to exercise the rights granted by international treaties.

16 In Jan. 2005, SIPO officially launched the preparations for the third revision of the Patent Law. Through extensive collection of relevant materials, comprehensive comparative argument, and fully consideration of China’s specific situations, 40 research reports (2.6 million words total) had been finished. Based on these reports and conferences and consultation meetings with experts and representatives from various fields, SIPO submitted the proposed draft of revision to the State Council for its approval by the end of 2006.

17 The review on SIPO’s proposal by the State Council began in Jan On the basis of receiving opinions from 72 central departments and units, 35 local people’s governments, 14 local courts, more than 20 enterprises and public institutions and experts and scholars, the bill of revising the Patent Law was submitted to the Standing Committee of the National People’s Congress for its approval in August 2008.

18 The National People’s Congress began its review on the Bill of revising the Patent Law in August Based on researches and a number of consultations with domestic and foreign experts, the Standing Committee of NPC adopted the revision on Dec The amended Patent Law took effect on Oct

19 During the revising procedure of the Patent Law, the legislators solicited comments and suggestions from various fields, including the comments from foreign governments agencies, industry associations and international organizations, which fully reflected the democracy and transparency in the legislation.

20 Major Changes in the Patent Law 1. Clarify the ownership of patent rights: Exploitation of the co-owner’s right 2. Enhance the quality and stability of patent right: Absolute novelty Protecting genetic resources and indicating the source of GR Confidentiality examination for filling patent abroad

21 3. Improve the design patent system: Requirement of “Brief description ” and adjustment on the protection scope of the patent right for design Exclusion of the plane presswork of logo design Increase criteria for granting design patent Allow filing a single application for similar designs

22 4. Strengthen the protection of patent right: The calculation method for the amount of compensations for infringement Preservation of evidence before litigation Administrative enforcement against patent infringement Prohibition of offering for sale of patented designs

23 5. Safeguard the legitimate rights and interests of the public: Provisions on compulsory license Allow “Parallel import” Add “Bolar exception” Add “Defense of prior art”

24 6. Build up service orientated government: Cancel the designation of foreign-related patent agencies Add distributing patent information as a responsibility of the patent authority under the State Council

25 For the purpose to better implement the third revision of the Patent Law, The Implementing Regulation of the Patent Law and the Patent Examination Guideline are under revising.