"Patent Law of the People's Republic of China"

Article 1 This Law is formulated in order to protect the legitimate rights and interests of patent owners, encourage inventions and creations, promote the application of inventions and creations, enhance innovation capabilities, and promote scientific and technological progress and economic and social development.

Article 2 Inventions and creations as referred to in this Law refer to inventions, utility models and designs.

An invention refers to a new technical solution proposed for a product, method or its improvement.

A utility model refers to a new technical solution that is suitable for practical use and is proposed for the shape, structure or combination of a product.

Appearance design refers to a new design that is aesthetically pleasing and suitable for industrial application, made on the overall or partial shape, pattern or a combination of these, as well as the combination of color, shape and pattern of a product.

Article 3 The patent administrative department of the State Council is responsible for managing patent work throughout the country; it shall uniformly accept and examine patent applications and grant patent rights in accordance with the law.

The patent management department of the people's government of a province, autonomous region or municipality directly under the central government is responsible for patent management within its administrative area.

Article 4 If the invention or creation for which a patent is applied for involves national security or major interests and needs to be kept confidential, it shall be handled in accordance with relevant national regulations.

Article 5 Patent rights shall not be granted for inventions or creations that violate the law, social morality or harm the public interest.

Patent rights shall not be granted for inventions and creations that are obtained or utilized in violation of the provisions of laws and administrative regulations and rely on genetic resources.

Article 6 Inventions and creations completed in the execution of the unit's tasks or mainly using the unit's material and technical conditions are work-related inventions and creations. The right to apply for a patent for a work-related invention and creation belongs to the unit, and after the application is approved, the unit is the patent owner. The unit may dispose of its right to apply for a patent for its work-related invention and creation and the patent right in accordance with the law to promote the implementation and application of the relevant invention and creation.

For non-work-related inventions and creations, the right to apply for a patent belongs to the inventor or designer; after the application is approved, the inventor or designer is the patent owner.

For inventions and creations completed using the material and technical conditions of the unit, if the unit has entered into a contract with the inventor or designer and made an agreement on the right to apply for a patent and the ownership of the patent right, the agreement shall be followed.

Article 7 No unit or individual may suppress an inventor or designer's application for a patent for non-work-related inventions or creations.

Article 8: For inventions and creations completed by cooperation of more than two units or individuals, or inventions and creations completed by a unit or individual on behalf of other units or individuals, unless otherwise agreed, the right to apply for a patent belongs to the units or individuals that completed or jointly completed the invention and creation; after the application is approved, the applying unit or individual shall be the patent owner.

Article 9 Only one patent right can be granted for the same invention-creation. However, if the same applicant applies for both a utility model patent and an invention patent for the same invention-creation on the same day, and the utility model patent right obtained earlier has not yet been terminated, and the applicant declares to give up the utility model patent right, the invention patent right may be granted.

If two or more applicants apply for patents for the same invention, the patent right shall be granted to the person who applied first.

Article 10 The right to apply for a patent and the patent right may be transferred.

If a Chinese entity or individual transfers patent application rights or patent rights to a foreigner, foreign enterprise or other foreign organization, it shall go through the procedures in accordance with the relevant laws and administrative regulations.

When transferring patent application rights or patent rights, the parties shall enter into a written contract and register with the patent administration department of the State Council, which shall make an announcement. The transfer of patent application rights or patent rights shall take effect from the date of registration.

Article 11 After the patent right for an invention or utility model is granted, except as otherwise provided in this Law, no unit or individual may implement the patent without the permission of the patent owner, that is, no unit or individual may manufacture, use, promise to sell, sell, or import the patented product for production or business purposes, or use the patented method, or use, promise to sell, sell, or import the product directly obtained by the patented method.

After the patent right for a design is granted, no unit or individual may implement the patent without the permission of the patent owner, that is, they may not manufacture, promise to sell, sell, or import the patented design product for production and business purposes.

Article 12 Any entity or individual that implements another person's patent shall enter into an implementation license contract with the patent owner and pay patent royalties to the patent owner. The licensee has no right to allow any entity or individual other than those specified in the contract to implement the patent.

Article 13 After the publication of an invention patent application, the applicant may require the entity or individual that implements his invention to pay appropriate fees.

Article 14 Where the co-owners of the patent application right or patent right have an agreement on the exercise of the right, the agreement shall prevail. If there is no agreement, the co-owners may implement the patent alone or authorize others to implement the patent in the form of ordinary license; if others are authorized to implement the patent, the royalties collected shall be distributed among the co-owners.

Except for the circumstances stipulated in the preceding paragraph, the exercise of the right to apply for a patent or patent right held in common shall require the consent of all co-owners.

Article 15 The unit that is granted the patent right shall reward the inventor or designer of a service-related invention or creation; after the invention or creation patent is implemented, the inventor or designer shall be given reasonable remuneration based on the scope of its promotion and application and the economic benefits achieved.

The state encourages entities granted patent rights to implement property rights incentives, and adopt methods such as equity, options, and dividends to enable inventors or designers to reasonably share the benefits of innovation.

Article 16 The inventor or designer has the right to state in the patent document that he or she is the inventor or designer.

The patent owner has the right to mark the patent symbol on his patented product or on the packaging of the product.

Article 17 Where a foreigner, a foreign enterprise or other foreign organization that does not have a permanent residence or place of business in China applies for a patent in China, the application shall be handled in accordance with this Law, in accordance with the agreement concluded between the country of which the foreigner is a national and China or the international treaty to which both countries are parties, or in accordance with the principle of reciprocity.

Article 18 Foreigners, foreign enterprises or other foreign organizations that do not have a permanent residence or place of business in China and who apply for patents or handle other patent matters in China shall entrust a patent agency established in accordance with the law to handle the application.

Chinese entities or individuals applying for patents and handling other patent matters in China may entrust a patent agency established in accordance with the law to handle the application.

Patent agencies shall abide by laws and administrative regulations and handle patent applications or other patent matters in accordance with the instructions of the principal. They shall be responsible for keeping confidential the contents of the principal's inventions and creations, except for those whose patent applications have been published or announced. The specific management measures for patent agencies shall be formulated by the State Council.

Article 19: Any unit or individual who applies for a patent in a foreign country for an invention or utility model completed in China shall submit a confidentiality review to the patent administration department of the State Council in advance. The procedures and time limit for confidentiality review shall be implemented in accordance with the provisions of the State Council.

Chinese entities or individuals may file international patent applications in accordance with relevant international treaties to which the People's Republic of China is a party. Applicants who file international patent applications shall comply with the provisions of the preceding paragraph.

The patent administrative department of the State Council handles international patent applications in accordance with the relevant international treaties to which the People's Republic of China is a party, this Law and relevant regulations of the State Council.

Patent rights will not be granted to inventions or utility models that have been applied for patents in foreign countries in violation of the provisions of the first paragraph of this Article if they are applied for patents in China.

Article 20: The application for patents and the exercise of patent rights shall comply with the principle of honesty and trustworthiness. Patent rights shall not be abused to harm the public interest or the legitimate rights and interests of others.

Abuse of patent rights, exclusion or restriction of competition, and monopolistic behavior shall be dealt with in accordance with the Anti-Monopoly Law of the People's Republic of China.

Article 21 The patent administrative department of the State Council shall handle applications and requests for patents in accordance with the law and in accordance with the requirements of objectivity, fairness, accuracy and timeliness.

The patent administrative department of the State Council shall strengthen the construction of the public service system for patent information, release patent information in a complete, accurate and timely manner, provide basic patent data, publish the Patent Gazette regularly, and promote the dissemination and use of patent information.

Before a patent application is published or announced, the staff of the patent administration department of the State Council and other relevant personnel shall be responsible for keeping its contents confidential.

Article 22 Inventions and utility models granted patent rights shall possess novelty, creativity and practicality.

Novelty means that the invention or utility model does not belong to the existing technology; no unit or individual has applied to the patent administration department of the State Council for the same invention or utility model before the application date, and it is recorded in the patent application documents published after the application date or the published patent documents. ★

Creativity means that compared with the prior art, the invention has outstanding substantive features and significant progress, and the utility model has substantive features and progress. ★

Practicality means that the invention or utility model can be manufactured or used and can produce positive effects.

The existing technology referred to in this Law refers to the technology that is known to the public at home and abroad before the application date.

Article 23 The appearance design granted a patent right shall not be an existing design; nor shall any unit or individual have submitted an application to the patent administration department of the State Council for the same appearance design before the application date, and the application shall be recorded in the patent document published after the application date.

The appearance design granted a patent right should be obviously different from existing designs or combinations of existing design features.

The appearance design granted a patent right shall not conflict with the legitimate rights and interests obtained by others before the application date.

Existing designs as referred to in this Law mean designs that are known to the public at home and abroad before the application date.

Article 24 An invention or creation for which a patent is applied for shall not lose its novelty if any of the following circumstances occurs within six months before the date of application:

(1) when the country is in a state of emergency or extraordinary circumstances and the information is disclosed for the first time for the purpose of public interest;

(2) exhibited for the first time at an international exhibition sponsored or recognized by the Chinese government;

(3) published for the first time at a prescribed academic conference or technical conference;

(4) Other persons disclose the contents without the consent of the applicant.

Article 25 Patent rights shall not be granted for the following:

(1) scientific discoveries;

(2) rules and methods of intellectual activities;

(3) methods of diagnosis and treatment of diseases;

(iv) animal and plant varieties;

(5) Nuclear transformation methods and substances obtained by using nuclear transformation methods;

(6) Designs that primarily serve as identification for patterns, colors, or a combination of the two on printed matter.

Patents may be granted for the production methods of the products listed in item (4) of the preceding paragraph in accordance with the provisions of this Law.

Article 26 When applying for an invention or utility model patent, an applicant shall submit such documents as an application, a description and its abstract, and claims.

The written request shall state the title of the invention or utility model, the name of the inventor, the name and address of the applicant, and other matters.

The specification shall give a clear and complete description of the invention or utility model, which shall be capable of being implemented by a person skilled in the art; when necessary, drawings shall be provided. The abstract shall briefly describe the technical highlights of the invention or utility model.

The claims should be based on the description and clearly and concisely define the scope of the patent protection required. ★

For inventions and creations that rely on genetic resources, the applicant shall state the direct and original sources of the genetic resources in the patent application documents; if the applicant is unable to state the original source, he or she shall state the reasons.

Article 27 When applying for a design patent, an applicant shall submit such documents as a written application, pictures or photographs of the design and a brief description of the design.

The relevant pictures or photos submitted by the applicant shall clearly show the appearance design of the product for which patent protection is sought.

Article 28 The date on which the patent administration department under the State Council receives the patent application documents shall be the application date. If the application documents are sent by mail, the date of the postmark shall be the application date.

Article 29 If an applicant files a patent application in China for the same subject matter within twelve months from the date of first filing a patent application for invention or utility model in a foreign country, or within six months from the date of first filing a patent application for design in a foreign country, he or she may enjoy priority in accordance with the agreement concluded between that foreign country and China or the international treaty to which both countries are parties, or in accordance with the principle of mutual recognition of priority.

An applicant who files a patent application for the same subject matter with the patent administration department of the State Council within twelve months from the date of first filing a patent application in China for invention or utility model, or within six months from the date of first filing a patent application in China for design, may enjoy the right of priority.

Article 30 If an applicant claims priority for an invention or utility model patent, he or she shall make a written statement at the time of application and, within sixteen months from the date of the first application, submit a copy of the patent application document filed for the first time.

If an applicant claims priority for a design patent, he or she shall make a written statement at the time of application and submit a copy of the patent application document filed for the first time within three months.

If the applicant fails to make a written statement or fails to submit a copy of the patent application documents within the prescribed time limit, it shall be deemed that no priority is claimed.

Article 31 An application for a patent for invention or utility model shall be limited to one invention or utility model. Two or more inventions or utility models belonging to a general inventive concept may be filed as one application.

An application for a design patent shall be limited to one design. Two or more similar designs for the same product, or two or more designs for products of the same category and sold or used as a set, may be filed as one application.

Article 32 An applicant may withdraw his or her patent application at any time before being granted a patent right.

Article 33. An applicant may modify his or her patent application documents. However, the modification of invention and utility model patent application documents shall not exceed the scope recorded in the original description and claims, and the modification of design patent application documents shall not exceed the scope represented by the original drawings or photographs.

Article 34: After receiving an invention patent application, if the patent administration department of the State Council finds that it meets the requirements of this Law after preliminary examination, it shall publish the application within 18 months from the date of application. The patent administration department of the State Council may publish the application at an earlier date at the request of the applicant.

Article 35 Within three years from the date of filing of an invention patent application, the Patent Administration Department of the State Council may conduct substantive examination of the application upon request of the applicant at any time; if the applicant fails to request substantive examination within the prescribed time limit without justifiable reasons, the application shall be deemed to be withdrawn.

When the patent administration department of the State Council deems it necessary, it may conduct substantive examination of invention patent applications on its own.

Article 36 When an applicant for an invention patent requests substantive examination, he or she shall submit reference materials related to his or her invention before the date of application.

If an invention patent has been applied for in a foreign country, the patent administration department of the State Council may require the applicant to submit the information that that country searched for or the results of the examination within a specified time limit; if the applicant fails to submit the information within the time limit without a justifiable reason, the application shall be deemed to be withdrawn.

Article 37 If the patent administration department of the State Council, after conducting substantive examination of an invention patent application, finds that it does not comply with the provisions of this Law, it shall notify the applicant and require him to state his opinions within a specified time limit or to amend his application; if he fails to respond within the time limit without justifiable reasons, the application shall be deemed to be withdrawn.

Article 38 If the Patent Administration Department of the State Council still considers that an invention patent application does not comply with the provisions of this Law after the applicant has stated his opinions or made amendments, it shall reject the application.

Article 39 Where no grounds for rejection are found after substantive examination of an invention patent application, the patent administration department of the State Council shall make a decision to grant the invention patent right, issue an invention patent certificate, and register and announce it at the same time. The invention patent right shall take effect from the date of announcement.

Article 40 Where no grounds for rejection are found after preliminary examination of a utility model or design patent application, the patent administration department of the State Council shall make a decision to grant a utility model patent or design patent, issue the corresponding patent certificate, and register and announce it at the same time. The utility model patent or design patent shall take effect from the date of announcement.

Article 41 If a patent applicant is dissatisfied with the decision of the Patent Administration Department of the State Council to reject an application, he or she may request a review from the Patent Administration Department of the State Council within three months from the date of receipt of the notice. After review, the Patent Administration Department of the State Council shall make a decision and notify the patent applicant.

If a patent applicant is dissatisfied with the review decision of the patent administration department of the State Council, he or she may file a lawsuit with the people's court within three months from the date of receipt of the notice.

Article 42 The term of an invention patent is 20 years, the term of a utility model patent is 10 years, and the term of a design patent is 15 years, all calculated from the date of application.

If an invention patent is granted four years after the application of the invention patent and three years after the request for substantive examination, the patent administration department of the State Council shall, at the request of the patent right holder, provide patent term compensation for the unreasonable delay in the authorization process of the invention patent, excluding unreasonable delay caused by the applicant.

In order to compensate for the time taken for the review and approval of new drug marketing, the State Council Patent Administration Department shall, upon the request of the patentee, grant patent term compensation to the invention patents related to new drugs that have obtained marketing authorization in China. The compensation period shall not exceed five years, and the total effective patent term after the new drug is approved for marketing shall not exceed fourteen years.

Article 43 The patent owner shall pay annual fees starting from the year in which the patent right is granted.

Article 44 A patent right shall terminate before the expiration of its term in any of the following circumstances:

(1) Failure to pay annual fees in accordance with regulations;

(2) The patent owner abandons his patent right in a written statement.

If a patent right is terminated before the expiration of its term, it shall be registered and announced by the patent administrative department of the State Council.

Article 45. From the date on which the patent administrative department of the State Council announces the grant of a patent right, any unit or individual that believes that the grant of the patent right does not comply with the relevant provisions of this Law may request the patent administrative department of the State Council to declare the patent right invalid.

Article 46 The patent administration department of the State Council shall promptly examine and make a decision on a request for invalidation of a patent right and notify the applicant and the patent right holder. The decision to invalidate a patent right shall be registered and announced by the patent administration department of the State Council.

If a person is dissatisfied with the decision of the Patent Administration Department of the State Council to declare a patent right invalid or to maintain a patent right, he or she may file a lawsuit with the People's Court within three months from the date of receipt of the notice. The People's Court shall notify the other party to the invalidation request procedure to participate in the lawsuit as a third party.

Article 47 A patent right that has been declared invalid shall be deemed to have never existed.

The decision to declare a patent invalid shall not have retroactive effect on the judgments and mediation documents on patent infringement made and executed by the people's court before the patent was declared invalid, the decisions on handling patent infringement disputes that have been performed or enforced, and the patent implementation license contracts and patent transfer contracts that have been performed. However, the patentee shall be compensated for the losses caused to others by malicious acts.

If the patent infringement compensation, patent usage fees, and patent transfer fees are not returned in accordance with the provisions of the preceding paragraph and it is obviously in violation of the principle of fairness, they shall be returned in full or in part.

Article 48 The patent administrative department of the State Council and the department in charge of patent affairs of local people's governments shall, together with relevant departments at the same level, take measures to strengthen patent public services and promote the implementation and use of patents.

Article 49 If an invention patent of a state-owned enterprise or institution is of great significance to the national interest or the public interest, the relevant competent departments of the State Council and the people's governments of provinces, autonomous regions, and municipalities directly under the Central Government may, with the approval of the State Council, decide to promote and apply the invention within the approved scope and allow designated units to implement it. The implementing units shall pay royalties to the patent owner in accordance with national regulations.

Article 50 Where a patentee voluntarily declares in writing to the patent administration department of the State Council that he is willing to license any unit or individual to implement his patent and specifies the payment method and standard of the license fee, the patent administration department of the State Council shall make an announcement and implement open licensing. Where an open licensing declaration is made for utility model or design patents, a patent right evaluation report shall be provided.

If a patentee withdraws an open license declaration, it shall be submitted in writing and announced by the patent administration department of the State Council. If an open license declaration is withdrawn by announcement, it will not affect the validity of the open license granted previously.

Article 51 Any unit or individual that intends to implement a patent under open license shall obtain a patent implementation license after notifying the patent owner in writing and paying the license fee in accordance with the announced license fee payment method and standards.

During the implementation of the open license, the patent owner will be given corresponding reductions or exemptions in the annual patent fees.

A patent owner who implements open licensing may grant a general license after negotiating with the licensee on the license fee, but may not grant an exclusive or exclusive license for the patent.

Article 52 If a dispute arises between the parties regarding the implementation of an open license, the dispute shall be resolved through consultation between the parties. If they are unwilling to consult or fail to reach an agreement through consultation, they may request the Patent Administration Department of the State Council to mediate or bring a lawsuit to the People's Court.

Article 53 Where any of the following circumstances occurs, the Patent Administration Department of the State Council may, upon application by an entity or individual that meets the conditions for implementation, grant a compulsory license to implement an invention patent or utility model patent:

(1) The patentee has not implemented or fully implemented the patent without justifiable reasons within three years from the date of grant of the patent right and four years from the date of filing the patent application;

(2) The patent holder's exercise of patent rights is legally recognized as monopolistic behavior, and the purpose is to eliminate or reduce the adverse impact of such behavior on competition.

Article 54 In the event of a national emergency or extraordinary situation, or for the purpose of public interest, the patent administration department of the State Council may grant a compulsory license to implement an invention patent or utility model patent.

Article 55 For the purpose of public health, the Patent Administration Department of the State Council may grant compulsory licenses for the manufacture of patented drugs and their export to countries or regions that comply with the provisions of relevant international treaties to which the People's Republic of China is a party.

Article 56 If an invention or utility model that has obtained a patent right has a major technological advancement with significant economic significance compared to an invention or utility model that has already obtained a patent right, and its implementation depends on the implementation of the previous invention or utility model, the Patent Administration Department of the State Council may, upon application by the latter patent right holder, grant a compulsory license to implement the previous invention or utility model.

Where a compulsory license for implementation is granted in accordance with the provisions of the preceding paragraph, the Patent Administration Department of the State Council may also grant a compulsory license for implementation of a subsequent invention or utility model upon application by the previous patent owner.

Article 57 If the invention or creation involved in the compulsory license is semiconductor technology, its implementation shall be limited to the purpose of public interest and the circumstances specified in Article 53(2) of this Law.

Article 58 Except for compulsory licenses granted in accordance with Article 53(2) and Article 55 of this Law, the implementation of compulsory licenses shall be mainly for supplying the domestic market.

Article 59. An entity or individual applying for a compulsory license in accordance with Article 53(1) and Article 56 of this Law shall provide evidence to prove that it has requested the patent owner to grant it a license to implement the patent on reasonable terms but has failed to obtain the license within a reasonable time.

Article 60 The decision made by the patent administration department of the State Council to grant compulsory license shall be notified to the patent owner in a timely manner, and shall be registered and announced.

The decision to grant a compulsory license shall specify the scope and time of implementation based on the reasons for the compulsory license. When the reasons for the compulsory license are eliminated and no longer occur, the patent administration department of the State Council shall, based on the request of the patent owner, make a decision to terminate the compulsory license after examination.

Article 61: An entity or individual that obtains a compulsory license does not enjoy exclusive implementation rights and does not have the right to allow others to implement it.

Article 62 The entity or individual that obtains a compulsory license shall pay the patentee a reasonable royalty, or handle the royalty issue in accordance with the provisions of the relevant international treaties to which the People's Republic of China is a party. If a royalty is paid, the amount shall be negotiated by both parties; if the two parties cannot reach an agreement, the Patent Administration Department of the State Council shall make a ruling.

Article 63 If ​​a patent owner is dissatisfied with the decision of the patent administration department of the State Council on the implementation of compulsory licensing, or if a patent owner and an entity or individual that has obtained a compulsory license is dissatisfied with the ruling of the patent administration department of the State Council on the usage fee for compulsory licensing, they may file a lawsuit with the people's court within three months from the date of receipt of the notice.

Article 64 The scope of protection of a patent right for an invention or utility model shall be based on the contents of its claims. The description and drawings may be used to explain the contents of the claims.

The scope of protection of the patent right for design shall be based on the design of the product represented in the picture or photograph, and the brief description can be used to explain the design of the product represented in the picture or photograph.

Article 65: Implementation of a patent without the permission of the patentee is an infringement of the patent right. If a dispute arises, it shall be resolved through negotiation by the parties. If the parties are unwilling to negotiate or fail to reach an agreement through negotiation, the patentee or interested party may file a lawsuit in the people's court or request the administrative department for patent affairs to handle the case. When the administrative department for patent affairs handles the case, if it finds that the infringement is established, it may order the infringer to immediately stop the infringement. If the parties are dissatisfied, they may file a lawsuit in the people's court within 15 days from the date of receipt of the handling notice in accordance with the "Administrative Litigation Law of the People's Republic of China". If the infringer does not file a lawsuit or stop the infringement after the expiration of the time limit, the administrative department for patent affairs may apply to the people's court for compulsory execution. The administrative department for patent affairs handling the case may mediate the amount of compensation for infringement of patent rights at the request of the parties. If the mediation fails, the parties may file a lawsuit in the people's court in accordance with the "Civil Procedure Law of the People's Republic of China".

Article 66 If a patent infringement dispute involves an invention patent for a new product manufacturing method, the entity or individual that manufactures the same product shall provide proof that its product manufacturing method is different from the patented method.

If a patent infringement dispute involves a utility model patent or a design patent, the people's court or the department in charge of patent work may require the patent owner or interested party to produce a patent right evaluation report made by the patent administration department of the State Council after searching, analyzing and evaluating the relevant utility models or designs, as evidence for the trial and handling of the patent infringement dispute; the patent owner, interested party or alleged infringer may also proactively produce a patent right evaluation report.

Article 67 In a patent infringement dispute, if the alleged infringer has evidence to prove that the technology or design he implements is existing technology or existing design, it does not constitute infringement of patent rights.

Article 68 Anyone who counterfeits a patent shall, in addition to bearing civil liability in accordance with the law, be ordered by the department responsible for patent enforcement to correct the violation and make an announcement, and his illegal gains shall be confiscated. He may be fined up to five times the illegal gains. If there are no illegal gains or the illegal gains are less than RMB 50,000, he may be fined up to RMB 250,000. If a crime is constituted, criminal liability shall be pursued in accordance with the law.

Article 69: When investigating and handling suspected patent counterfeiting activities based on the evidence already obtained, the department responsible for patent enforcement has the right to take the following measures:

(1) Questioning relevant parties and investigating circumstances related to suspected illegal acts;

(2) Conduct on-site inspections of the places where the parties are suspected of illegal activities;

(3) Reviewing and copying contracts, invoices, account books and other relevant materials related to the suspected illegal activities;

(iv) inspect products related to suspected illegal activities;

(V) Products that are proven to be counterfeit patents may be sealed or seized.

When the department in charge of patent affairs handles a patent infringement dispute at the request of a patent owner or an interested party, it may take the measures listed in subparagraphs (1), (2) and (4) of the preceding paragraph.

When the departments responsible for patent enforcement and the departments responsible for patent management exercise the powers prescribed in the first two paragraphs in accordance with the law, the parties shall provide assistance and cooperation and shall not refuse or obstruct.

Article 70 The patent administrative department of the State Council may, at the request of a patent owner or an interested party, handle patent infringement disputes that have a major impact on the country.

The department in charge of patent affairs of the local people's government shall handle patent infringement disputes upon the request of the patent owner or interested party. Cases of infringement of the same patent right within the administrative region may be handled together; cases of infringement of the same patent right across regions may be handled by the department in charge of patent affairs of the higher-level local people's government.

Article 71 The amount of compensation for infringement of patent rights shall be determined according to the actual losses suffered by the right holder due to infringement or the profits obtained by the infringer due to infringement; if the losses of the right holder or the profits obtained by the infringer are difficult to determine, it shall be reasonably determined by referring to the multiples of the patent license fee. For intentional infringement of patent rights, if the circumstances are serious, the amount of compensation may be determined at not less than one times but not more than five times the amount determined in accordance with the above method.

If the losses of the right holder, the profits obtained by the infringer and the patent license fees are difficult to determine, the people's court may determine to give compensation of not less than RMB 30,000 yuan but not more than RMB 5 million yuan based on factors such as the type of patent right, the nature and circumstances of the infringement.

The amount of compensation should also include the reasonable expenses paid by the right holder to stop the infringement.

In order to determine the amount of compensation, the people's court may order the infringer to provide account books and materials related to the infringement if the right holder has tried his best to provide evidence and the account books and materials related to the infringement are mainly held by the infringer; if the infringer fails to provide or provides false account books and materials, the people's court may determine the amount of compensation with reference to the right holder's claims and the evidence provided.

Article 72 If a patent owner or an interested party has evidence that others are currently committing or are about to commit acts that infringe upon their patent rights or hinder the realization of their rights, and if such acts are not stopped in a timely manner, their legitimate rights and interests will suffer irreparable damage, they may, before filing a lawsuit, apply to the People's Court for measures such as property preservation, ordering certain acts to be performed, or prohibiting certain acts to be performed.

Article 73 In order to stop patent infringement, if the evidence may be destroyed or difficult to obtain in the future, the patent owner or interested party may apply to the People's Court for preservation of evidence in accordance with the law before filing a lawsuit.

Article 74 The limitation period for litigation for infringement of patent rights is three years, calculated from the date on which the patent right holder or interested party knows or should have known of the infringing act and the infringer.

If the invention is used without paying appropriate royalties between the publication of an invention patent application and the grant of the patent right, the patent owner's statute of limitations for requesting payment of royalties is three years, calculated from the date on which the patent owner knew or should have known that others were using his invention. However, if the patent owner already knew or should have known before the grant of the patent right, the statute of limitations is calculated from the date of grant of the patent right.

Article 75 Any of the following circumstances shall not be deemed as infringement of patent rights:

(1) Using, promising to sell, selling or importing a patented product or a product directly obtained by a patented process after it has been sold by the patentee or an entity or individual authorized by the patentee;

(2) having manufactured the same product, used the same method, or having made necessary preparations for manufacturing or using the same product before the date of patent application, and continuing to manufacture or use the same product only within the original scope;

(3) foreign means of transport temporarily passing through China's land, territorial waters or airspace use the relevant patents in their devices and equipment for their own needs in accordance with the agreements signed between their country and China or the international treaties to which they are both parties, or in accordance with the principle of reciprocity;

(iv) using the relevant patent exclusively for scientific research and experiment;

(5) Manufacturing, using, or importing patented drugs or patented medical devices in order to provide information required for administrative examination and approval, or manufacturing or importing patented drugs or patented medical devices specifically for them.

Article 76 If, during the review and approval process for drug marketing, a dispute arises between the applicant for drug marketing authorization and the relevant patentee or interested party over the patent rights related to the drug for which registration is applied, the relevant party may file a lawsuit with the People's Court and request a judgment on whether the technical scheme related to the drug for which registration is applied falls within the scope of protection of the patent rights of others. The drug supervision and administration department of the State Council may, within the prescribed period, decide whether to suspend the approval of the relevant drug for marketing based on the effective judgment of the People's Court.

Applicants for drug marketing authorization and relevant patent owners or interested parties may also request administrative adjudication from the Patent Administration Department of the State Council regarding patent disputes related to the drugs for which they are applying for registration.

The drug supervision and administration department of the State Council shall, in conjunction with the patent administration department of the State Council, formulate specific coordination measures for the approval of drug marketing authorization and the resolution of patent disputes during the drug marketing authorization application stage, and implement them after approval by the State Council.

Article 77: If a person uses, promises to sell, or sells a patent infringing product for production or business purposes without knowing that the product was manufactured and sold without the permission of the patent owner, he shall not be liable for compensation if he can prove that the product has a legal source.

Article 78: Anyone who applies for a patent in a foreign country in violation of Article 19 of this Law and discloses state secrets shall be given administrative sanctions by his unit or the higher competent authority; if the act constitutes a crime, he shall be held criminally liable in accordance with the law.

Article 79: Departments in charge of patent work shall not participate in business activities such as recommending patent products to the public.

If the department in charge of patent work violates the provisions of the preceding paragraph, its superior authority or supervisory authority shall order it to correct the violation, eliminate the impact, and confiscate any illegal income. If the circumstances are serious, the directly responsible supervisor and other directly responsible persons shall be punished according to law.

Article 80: If a state organ staff member engaged in patent management or other relevant state organ staff member neglects his/her duties, abuses his/her power, or engages in malpractice for personal gain, and if such acts constitute a crime, he/she shall be investigated for criminal liability in accordance with the law; if such acts do not constitute a crime, he/she shall be punished in accordance with the law.

Article 81: Fees must be paid in accordance with regulations when applying for patents and handling other procedures with the patent administration department of the State Council.

Article 82 This Law shall come into force on April 1, 1985.

View original link