LAWS AND REGULATIONS

(Adopted at the fourth meeting of the Standing Committee of the Sixth National People's Congress on March 12, 1984 in accordance with the Decision of the Standing Committee of the Seventh National People's Congress on Amending the Patent Law of the People's Republic of China at the 27th meeting of the Standing Committee of the Seventh National People's Congress on September 4, 1992, the first amendment was made in accordance with the Standing Committee of the Ninth National People's Congress on August 25, 2000 The 17th Meeting of The State Council of the People's Republic of China "Decision on Amending the Patent Law of the People's Republic of China" the second amendment in accordance with the Decision on Amending the Patent Law of the People's Republic of China adopted at the Sixth Meeting of the Standing Committee of the 11th National People's Congress on December 27, 2008 The third amendment in accordance with the 13th National People's Congress on October 17, 2020 Fourth amendment to the Decision on Amending the Patent Law of the People's Republic of China adopted at the 22nd Meeting of the Standing Committee of the National Congress)

Catalogue

Chapter I General provisions

Chapter II Conditions for grant of patent right

Chapter III Application for Patent

Chapter IV Examination and approval of patent applications

Chapter V Term, termination and invalidity of patent right

Chapter VI Special License for Exploitation of Patent

Chapter VII Protection of Patent Right

Chapter VIII Supplementary Provisions

Chapter I General provisions

Article 1 This Law is enacted with a view to protecting the lawful rights and interests of the patentee, encouraging invention-creation, promoting the application of invention-creation, enhancing innovation capacity, and promoting scientific and technological progress and economic and social development.

Article 2 For the purposes of this Law, invention-creations refer to inventions, utility models and designs.

"Invention" means a new technical solution to a product, method or improvement thereof.

Utility model means a new technical scheme which is suitable for practical use and which relates to the shape, structure or combination of the product.   

Appearance design refers to the overall or partial shape, pattern or their combination of the product and the combination of color and shape, pattern made of aesthetic and suitable for industrial application of the new design.

Article 3 The patent administration department under The State Council shall be responsible for the patent work throughout the country. We accept and examine patent applications and grant patent rights according to law.

The administrative departments for patent affairs of the people's governments of provinces, autonomous regions and municipalities directly under the Central Government shall be responsible for patent administration within their respective administrative areas.

Article 4 Where an invention-creation for which a patent is applied involves national security or major interests and requires confidentiality, it shall be handled in accordance with the relevant provisions of the State.

Article 5 No patent right shall be granted for any invention-creation that violates law or social morality or is detrimental to the public interest.

No patent right shall be granted for any invention-creation that is obtained or made use of genetic resources in violation of the provisions of laws or administrative regulations and relies on such genetic resources.

Article 6 A service invention-creation shall be deemed as a service invention-creation made by performing the tasks of the unit or mainly by using the material and technical conditions of the unit. The right to apply for a patent for a service invention-creation belongs to that entity. After the application is approved, that entity shall be the patentee. The unit may dispose of the right and patent right of its service invention-creation to apply for patent according to law, and promote the implementation and application of the relevant invention-creation.

For a non-service invention-creation, the right to apply for a patent belongs to the inventor or creator; After the application is approved, the inventor or designer shall be the patentee.

For an invention-creation made using the material and technical resources of the entity, where a contract is concluded between the entity and the inventor or creator, and where the right to apply for a patent and the ownership of the patent right are agreed upon, such agreement shall apply.

Article 7 No entity or individual may suppress an inventor or creator's application for a patent for a non-service invention-creation.

Article 8 For an invention-creation made jointly by two or more entities or individuals, or made by an entity or individual on the commission of another entity or individual, the right to apply for a patent belongs to the entity or individual that made the invention-creation or made it jointly, unless otherwise agreed upon. After the application is approved, the entity or individual that applied for it shall be the patentee.

Article 9 Only one patent right may be granted for the same invention-creation. However, where 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 expired, and the applicant declares that it renounces the utility model patent right, the invention patent right may be granted.

Where two or more applicants separately apply for a patent for the same invention-creation, the patent right shall be granted to the person who filed the application first.

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

Where a Chinese entity or individual transfers the right to apply for a patent or the patent right to a foreigner, a foreign enterprise or any other foreign organization, it shall go through the formalities in accordance with the relevant laws and administrative regulations.

Where the right to apply for a patent or the patent right is assigned, the parties shall conclude a written contract and register it with the patent administration department under The State Council, which shall publish it. The assignment of the right to apply for a patent or the patent right shall become effective as of the date of registration.

Article 11. After the grant of the patent right for invention or utility model, except as otherwise provided for in this Law, no entity or individual may, without the permission of the patentee, exploit the patent, that is, make, use, offer to sell, sell or import the patented product for production or business purposes. Or use the patented process and use, offer to sell, sell or import products directly obtained under the patented process.

After the grant of the patent right for a design, no entity or individual may, without the permission of the patentee, exploit the patent, that is, make, offer to sell, sell or import the product patented for the purpose of production or business.

Article 12 Where any entity or individual exploits the patent of another person, it shall conclude a license contract for exploitation with the patentee and pay the patentee a royalty. The Licensee shall not have the right to allow any entity or individual other than those stipulated in the contract to exploit the patent.

Article 13. After the publication of the application for a patent for invention, the applicant may require the unit or individual exploiting the invention to pay an appropriate fee.

Article 14 Where the co-owners of the right to apply for a patent or the patent right agree on the exercise of the right, such agreement shall prevail. Where there is no such agreement, the co-owner may exploit the patent alone or license another person to exploit the patent by ordinary license; Where another person is licensed to exploit the patent, the royalties collected shall be distributed among the co-owners.

In addition to the circumstances provided for in the preceding paragraph, the exercise of the right to apply for a patent or the patent right shall obtain the consent of all the co-owners.

Article 15. An entity that is granted a patent right shall award the inventor or designer of a service invention-creation. After the exploitation of a patent for invention-creation, a reasonable remuneration shall be paid to the inventor or creator according to the scope of popularization and application and the economic benefits obtained.

The State encourages the entity granted a patent right to exercise property right incentives and to share the benefits of innovation reasonably by means of equity, options, dividends, etc.

Article 16 The inventor or creator shall have the right to state in the patent document that he is the inventor or creator.

The patentee shall have the right to mark the patent mark on the patented product or on the package of the product.

Article 17 Where a foreigner, foreign enterprise or other foreign organization having no habitual residence or business establishment in China files an application for a patent in China, the application shall be handled in accordance with this Law in accordance with any agreement concluded between the country to which the applicant belongs and China or any international treaty to which both countries are parties, or in accordance with the principle of reciprocity.

Article 18 Where a foreigner, foreign enterprise or other foreign organization having no habitual residence or business establishment in China applies for a patent or handles other patent matters in China, it shall entrust a lawfully established patent agency to handle the matter.

Where a Chinese entity or individual applies for a patent or handles other patent matters in China, it may entrust a lawfully established patent agency to handle the matter.

A patent agency shall abide by laws and administrative regulations and handle patent applications or other patent matters as entrusted by its principal. The principal shall be liable to keep confidential the contents of the invention-creation, except where the patent application has been published or announced. Specific measures for the administration of patent agencies shall be formulated by The State Council.

Article 19 Where any entity or individual files an application for a patent in a foreign country for an invention or utility model made in China, the application shall be submitted in advance to the patent administration department under The State Council for confidential examination. The procedures and time limits for confidential examination shall be governed by the provisions of The State Council.

A Chinese entity or individual may file an international application for a patent in accordance with the relevant international treaties to which the People's Republic of China is party. An applicant filing an international application for patent shall comply with the provisions of the preceding paragraph.

The patent administration department under The State Council shall handle international patent applications in accordance with the relevant international treaties to which the People's Republic of China is a party, this Law and the relevant provisions of The State Council.

No patent right shall be granted to an invention or utility model for which a patent has been filed in China in violation of the provisions of paragraph 1 of this Article.

Article 20 The principle of good faith shall be followed in applying for a patent and exercising a patent right. The patent right shall not be abused to harm the public interest or the legitimate rights and interests of others.

Where abuse of patent right, exclusion or restriction of competition constitutes monopoly, it shall be dealt with in accordance with the Anti-Monopoly Law of the People's Republic of China.

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

The patent administration department under The State Council shall strengthen the construction of a public service system for patent information, publish patent information in a complete, accurate and timely manner, provide patent basic data, publish patent bulletins on a regular basis, and promote the dissemination and utilization of patent information.

Before the publication or announcement of an application for a patent, the personnel of the patent administration department under The State Council and other relevant personnel shall be obliged to keep its contents confidential.

Chapter II Conditions for grant of patent right

Article 22 An invention or utility model for which a patent right is granted shall possess novelty, inventiveness and practicality.

Novelty means that the invention or utility model does not belong to the prior art; Nor has any entity or individual filed an application with the patent administration department under The State Council before the date of filing for the same invention or utility model, which is recorded in the patent application documents published or published after the date of filing.

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 term "prior art" as used in this Law refers to the technology known to the public at home and abroad before the date of application.

Article 23 A design for which a patent right is granted shall not belong to an existing design; Nor has any entity or individual filed an application with the patent administration department under The State Council for the same design before the filing date, and it is recorded in the patent documents published after the filing date.

The design for which a patent right is granted shall be markedly different from the existing design or from the combination of features of the existing design.

The design for which the patent right is granted shall not conflict with the legal rights acquired by others before the date of filing.

The term "existing design" as used in this Law refers to a design known to the public at home and abroad before the date of application.

Article 24 An invention-creation for which a patent is applied for does not lose its novelty where, within six months before the date of filing, any of the following occurs:

(1) when a state of emergency or extraordinary circumstances arise, it is made public 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)it was first published at a prescribed academic or technical conference;

(4) others disclose its contents without the consent of the applicant.

Article 25 No patent right shall be granted for any of the following:

(1) scientific discoveries;

(2) rules and methods for intellectual activities;

(3) methods of diagnosis and treatment of diseases;

(4) animal and plant varieties;

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

(6) the design of the pattern, color or the combination of the two of the flat printed matter, which mainly plays the role of identification.

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

Chapter III Application for Patent

Article 26 Where an application is filed for a patent for invention or utility model, documents such as a request, a description and its abstract, and a claim shall be submitted.

The request shall state the name 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 to the extent that a person skilled in the technical field of the invention or utility model can realize it; Where necessary, drawings shall be attached. The abstract shall briefly state the technical essentials of the invention or utility model.

The claims shall be based on the specification and clearly and briefly define the scope of the patent protection claimed.

For an invention-creation that relies on genetic resources, the applicant shall state in the patent application documents the direct source and original source of the genetic resources; If the applicant is unable to explain the original source, it shall state the reasons.

Article 27 Where an application for a patent for design is filed, a request, drawings or photographs of the design and a brief description of the design shall be submitted.

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

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

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

Where, within twelve months from the date the application for a patent for invention or utility model was first filed in China, or within six months from the date the application for a patent for design was first filed in China, the applicant files with the patent administration department under The State Council another application for a patent on the same subject matter, it may enjoy the right of priority.

Article 30. Where an applicant claims the priority of a patent for invention or utility model, he or it shall make a written declaration at the time of filing the application, and, within 16 months from the date the application was first filed, submit a copy of the patent application document that was first filed.

Where an applicant claims the right of priority for a patent for design, a written declaration shall be made at the time of application and a copy of the patent application document first filed shall be submitted within three months.

Where the applicant fails to make a written declaration or fails to submit a copy of the patent application document within the time limit, it shall be deemed that the right of priority has not been 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 one general invention idea may be submitted as one application.

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

Article 32 An applicant may withdraw his application for a patent at any time before the patent right is granted.

Article 33 An applicant may amend its patent application documents; however, the amendment to the application document for a patent for invention or utility model may not go beyond the scope indicated in the original description and claims, and the amendment to the application document for a patent for design may not go beyond the scope indicated in the original drawings or photographs.

Chapter IV Examination and approval of patent applications

Article 34. Where, after receiving an application for a patent for invention, the patent administration department under The State Council finds, after preliminary examination, that it meets the requirements of this Law, it shall publish it immediately after the expiration of 18 months from the date of filing. The patent administration department under The State Council may, upon the request of the applicant, publish the application at an early date.

Article 35. The patent administration department under The State Council may, at the request of the applicant at any time within three years from the date of filing of an application for a patent for invention, conduct substantive examination of the application. If the applicant fails to request a substantive examination within the time limit without justifiable reasons, the application shall be deemed to have been withdrawn.

The patent administration department under The State Council may, on its own initiative, conduct substantive examination of an application for a patent for invention when it deems it necessary.

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

Where an application for a patent for invention has been filed in a foreign country, the patent administration department under The State Council may require the applicant to submit, within a specified time limit, information on the searches conducted for the purpose of examining the application or the information on the results of examination in that country; If the application is not submitted within the time limit without good reason, the application shall be deemed to have been withdrawn.

Article 37 Where, after examination of the substance of an application for a patent for invention, the patent administration department under The State Council finds that the application for a patent for invention is not in conformity with the provisions of this Law, it shall notify the applicant and request it to state its views or amend the application within a specified time limit. If a reply is not made within the time limit without justifiable reasons, the application shall be deemed to have been withdrawn.

Article 38 Where an application for a patent for invention is still considered by the patent administration department under The State Council to be incompatible with the provisions of this Law after the applicant has stated his opinions or made amendments, it shall be rejected.

Article 39 Where it is found after examination of substance that there is no reason for rejection of an application for a patent for invention, the patent administration department under The State Council shall make a decision to grant the patent right for invention, issue a certificate of patent for invention, and register and announce it at the same time. The patent right for invention shall take effect as of the date of announcement.

Article 40 Where it is found after preliminary examination that there is no reason for rejection of an application for a patent for utility model or design, the patent administration department under The State Council shall make a decision to grant the patent right for utility model or the patent right for design, issue the corresponding patent certificate, and register and announce it. The patent right for utility models and the patent right for designs shall become effective as of the date of announcement.

Article 41 Where an applicant for patent is not satisfied with the decision of the patent administration department under The State Council rejecting the application, it may, within three months from the date of receipt of the notification, request the patent Administration Department under The State Council for reexamination. After re-examination, the patent Administration Department under The State Council shall make a decision and notify the applicant of the decision.

Where the applicant for patent is not satisfied with the decision of the patent administration department under The State Council for reexamination, it may, within three months from the date of receipt of the notification, institute legal proceedings in the people's court.

Chapter V Term, termination and invalidity of patent right

Article 42 The term of patent right for invention shall be twenty years, the term of patent right for utility model shall be ten years and the term of patent right for design shall be fifteen years, counted from the date of filing.

Where a patent right for invention is granted four years after the date of application for a patent for invention, and three years after the date of request for substantive examination, the patent administration department under The State Council shall, at the request of the patentee, compensate the patent right for unreasonable delay in the granting of the patent for invention, except for unreasonable delay caused by the applicant.

In order to compensate for the time taken for the examination and approval of new drugs for marketing, the patent administration department under The State Council shall, at the request of the patentee, grant compensation for the duration of the patent for a new drug related invention patent that has been granted marketing authorization in China. The compensation period shall not exceed five years, and the total effective patent right period after the new drug is approved for marketing shall not exceed fourteen years.

Article 43 The patentee shall pay an annual fee starting from the year in which the patent right is granted.

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

(1) Failing to pay the annual fee as required;

(2) Where the patentee renounces his or her patent right by a written declaration.

Where a patent right terminates before its expiration, it shall be registered and announced by the patent administration department under The State Council.

Article 45. Where, from the date of the announcement of the grant of the patent right by the patent administration department under The State Council, any entity or individual considers that the grant of the said patent right is not in conformity with the relevant provisions of this Law, it may request the patent administration department under The State Council to declare the patent right invalid.

Article 46 The patent administration department under The State Council shall promptly examine and make a decision on the request for invalidation of the patent right, and notify the applicant and the patentee of the request. The decision declaring the patent right invalid shall be registered and announced by the patent administration department under The State Council.

Where any party is dissatisfied with the decision of the patent administration department under The State Council declaring the patent right invalid or maintaining the patent right, it may, within three months from the date of receipt of the notification, institute legal proceedings in a people's court. The people's court shall notify the other party to the invalidation request procedure to participate in the proceedings as a third party.

Article 47 An invalidated patent right shall be deemed to have ceased to exist from the very beginning.

The decision to declare the patent right invalid shall not have retroactive effect on the judgments and conciliation statements of patent infringement made and executed by the people's court before the declaration of the patent right invalid, the decisions on the settlement of patent infringement disputes that have been performed or enforced, and the patent licensing contracts and patent right assignment contracts that have been performed. However, compensation shall be paid for any loss caused to others by the patentee's malice.

Where the patent infringement compensation, patent royalty or patent right transfer fee is not returned in accordance with the provisions of the preceding paragraph, and the principle of fairness is obviously violated, it shall be returned in whole or in part.

Chapter VI Special License for Exploitation of Patent

Article 48 The patent administration department under The State Council and the administrative department for patent affairs under the local people's government shall, together with the relevant departments at the same level, take measures to strengthen public services for patents and promote the exploitation and application of patents.

Article 49 Where a patent for invention of a state-owned enterprise or institution is of great significance to the interests of the State or the public, the competent department concerned under The State Council and the people's government of a province, autonomous region or municipality directly under the Central Government may, after approval by The State Council, decide to promote and apply it within the approved scope and allow designated units to exploit it. The exploiting unit shall pay a royalty to the patentee in accordance with State regulations.

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

Where the patentee withdraws the declaration of opening license, it shall make a request in writing, and the patent administration department under The State Council shall make a public announcement. Where the declaration of open license is withdrawn by public announcement, the validity of the open license previously granted shall not be affected.

Article 51. Any entity or individual that wishes to exploit a patent for open license shall be granted a license for exploitation after notifying the patentee in writing and paying the royalty in accordance with the published method and standard for the payment of the royalty.

During the period of implementation of the open license, the annual patent fee paid by the patentee shall be reduced or waived accordingly.

The patentee under an open license may grant a general license after consultation with the licensee on the license fee, but may not grant an exclusive or exclusive license to the patent.

Article 52 Any dispute between the parties concerning the implementation of an open license shall be settled by the parties through consultation. Where a party is unwilling to negotiate or fails to negotiate, it may request the patent administration department under The State Council for mediation, or it may bring a suit before a people's court.

Article 53 Under any of the following circumstances, the patent administration department under The State Council may grant a compulsory license to exploit a patent for invention or utility model upon the application of an entity or individual qualified for exploitation:

(1) where the patentee fails to exploit or fully exploit his or her patent without good reason for a period of three years from the date on which the patent right is granted and four years from the date on which the patent application is filed;

(2) the exercise of the patent right by the patentee is recognized as a monopoly act in accordance with the law, in order to eliminate or reduce the adverse effects of the act on competition.

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

Article 55 For the purpose of public health, the patent administration department under The State Council may grant a compulsory license for the manufacture and export of a drug to a country or region that complies with the provisions of the relevant international treaties to which the People's Republic of China is a party.

Article 56 Where an invention or utility model for which a patent right has been obtained represents a major technological advance of significant economic significance over an invention or utility model for which a patent right has been obtained previously, and the exploitation of which depends on the exploitation of the previous invention or utility model, the patent administration department under The State Council shall, upon the application of the later patentee, A compulsory license may be granted to exploit the preceding invention or utility model.

Where a compulsory license for exploitation is granted in accordance with the provisions of the preceding paragraph, the patent administration department under The State Council may, upon the application of the previous patentee, also grant a compulsory license for exploitation of the later invention or utility model.

Article 57 Where the invention-creation involved in a compulsory license is a semiconductor technology, its exploitation shall be limited to the purpose of public interest and the circumstances provided for in item (2) of Article 53 of this Law.

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

Article 59 Any entity or individual applying for a compulsory license in accordance with the provisions of Article 53 (1) and Article 56 of this Law shall provide evidence to prove that it has requested permission from the patentee to exploit the patent on reasonable terms and conditions, but has failed to obtain permission within a reasonable time.

Article 60 The decision made by the patent administration department under The State Council granting a compulsory license for exploitation shall be promptly notified to the patentee, registered and announced.

The decision granting a compulsory license for exploitation shall specify the scope and time of exploitation according to the reasons for the compulsory license. Where the reasons for the compulsory license are eliminated and do not recur, the patent administration department under The State Council shall, at the request of the patentee, make a decision to terminate the compulsory license after examination.

Article 61 A unit or individual that has obtained a compulsory license for exploitation shall not enjoy the exclusive right of exploitation, and shall not have the right to permit others to exploit it.

Article 62 A unit or individual that has obtained a compulsory license for exploitation shall pay the patentee a reasonable royalty, or settle the issue of royalty in accordance with the provisions of the relevant international treaties to which China is a party. If a fee is paid, the amount shall be negotiated by both parties; Where no agreement can be reached between the two parties, the patent administration department under The State Council shall make a ruling.

Article 63 Where the patentee is not satisfied with the decision made by the patent administration department under The State Council concerning the exploitation of a compulsory license, or where the patentee or the entity or individual that has obtained a compulsory license for exploitation is not satisfied with the decision made by the patent administration Department under The State Council concerning the exploitation of a compulsory license, he or she may, within three months from the date of receipt of the notification, institute legal proceedings before the People's Court.

Chapter VII Protection of Patent Right

Article 64 The scope of protection of the patent right for invention or utility model shall be subject to the contents of the claims. The description and the appended drawings may be used to interpret the contents of the claims.

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

Article 65 Where a dispute arises from exploitation of the patent without the permission of the patentee, that is, infringement of the patent right of the patentee, it shall be settled by the parties through consultation. Where consultation is unwilling or fails, the patentee or an interested party may bring a suit before a people's court or request the administrative department for patent affairs to handle the matter. If the administrative authority for patent affairs determines that the infringing act is established, it may order the infringer to stop the infringing act immediately. If the party refuses to accept the decision, it may, within 15 days of receiving the notice of disposition, institute legal proceedings in a People's court in accordance with the Administrative Procedure Law of the People's Republic of China. Where the infringer neither brings a suit nor stops the infringing act within the time limit, the administrative authority for patent affairs may apply to the people's court for compulsory execution. At the request of the parties concerned, the administrative department for patent affairs that handles the matter may mediate the amount of compensation for the infringement of the patent right; If mediation fails, the parties may bring a suit in a people's court in accordance with the Civil Procedure Law of the People's Republic of China.

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

Where a patent infringement dispute involves a patent for utility model or a patent for design, the people's court or the administrative department for patent affairs may require the patentee or an interested party to produce a patent right evaluation report made by the patent administration department under The State Council after searching, analyzing and evaluating the relevant utility model or design, which shall serve as evidence for hearing and handling the patent infringement dispute. The patentee, the interested party or the accused infringer may also take the initiative to produce a patent evaluation report.

Article 67 In a patent infringement dispute, where the accused infringer has evidence to prove that the technology or design it has implemented belongs to the prior art or design, it does not constitute an infringement of the patent right.

Article 68 Where a person counterfeits a patent, in addition to bearing civil liability according to law, the department responsible for patent law enforcement shall order him to make corrections and make a public announcement, confiscate his illegal income, and may be imposed a fine of not more than five times his illegal income; If there are no illegal gains or the illegal gains are not more than 50,000 yuan, a fine of not more than 250,000 yuan may be imposed; If the case constitutes a crime, criminal responsibility shall be investigated according to law.

Article 69 The department responsible for patent law enforcement has the right to take the following measures when investigating suspected acts of patent counterfeiting on the basis of the evidence it has obtained:

(1) to question the parties concerned and investigate the circumstances related to the suspected illegal act;

(2) carry out on-site inspection of the places where the parties are suspected of illegal acts;

(3) to consult and copy contracts, invoices, account books and other relevant materials related to suspected illegal acts;

(4) inspect products related to suspected illegal acts;

(5) a product that has been proved by evidence to be a counterfeit patent may be sealed up or seized.

The administrative authority for patent affairs may, at the request of the patentee or an interested party, take the measures listed in items (1), (2) and (4) of the preceding paragraph when dealing with a patent infringement dispute.

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

Article 70 The patent administration department under The State Council may, at the request of the patentee or any interested party, settle any patent infringement dispute which has major national impact.

The administrative department for patent affairs of the local people's government shall, at the request of the patentee or an interested party, handle patent infringement disputes and may, in its own administrative area, handle cases of infringement of the same patent right. A case of cross-regional infringement of the same patent right may be handled by the administrative department for patent affairs of the local people's government at a higher level.

Article 71 The amount of compensation for the infringement of the patent right shall be determined on the basis of the actual losses suffered by the right holder as a result of the infringement or the profits obtained by the infringer as a result of the infringement. Where it is difficult to determine the loss of the right holder or the benefit obtained by the infringer, it shall be reasonably determined by reference to the multiple of the license fee of the patent. Where a patent right is intentionally infringed and the circumstances are serious, the amount of compensation may be determined at not less than one time but not more than five times the amount determined in accordance with the above-mentioned methods.

Where it is difficult to determine the loss of the right holder, the benefits gained by the infringer, and the royalty of the patent license, the people's court may, in the light of such factors as the type of patent right, the nature and circumstances of the infringing act, determine the compensation of not less than 30,000 yuan but not more than 5 million yuan.

The amount of compensation shall also include the reasonable expenses paid by the right holder to stop the infringing act.

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

Article 72 Where the patentee or an interested party has evidence to prove that another person is committing or is about to commit an act that infringes the patent right or interferes with the realization of its rights, and that its legitimate rights and interests will be irreparably harmed if it is not stopped in time, it may, before bringing a suit, apply to the people's court for property preservation, ordering certain acts or prohibiting certain acts according to law.

Article 73 In order to prevent an act of patent infringement, where the evidence may be lost or difficult to obtain later, the patentee or an interested party may, before bringing a suit, apply to the people's court for preservation of evidence according to law.

Article 74 The limitation of action for infringement of a patent right shall be three years, counted from the date on which the patentee or an interested party became aware or should have become aware of the infringing act and the infringer.

Where an appropriate royalty is not paid for the use of the invention between the publication of the application for a patent for invention and the grant of the patent right, the limitation of action for the patentee to claim payment of the royalty shall be three years, counting from the date on which the patentee knew or should have known that another person was using the invention; however, where the patentee knew or should have known before the grant of the patent right, counting from the date on which the patent right was granted.

Article 75 Any of the following circumstances shall not be deemed to infringe a patent right:

(1) where, after the sale of a patented product or a product directly obtained by means of a patented process, the patentee or any entity or individual authorized by the patentee uses, offers to sell, sell or import the product;

(2) where, before the date of filing for the patent, the same product has been manufactured, the same process has been used, or the necessary preparations have been made for the manufacture or use of the same product, and continues to manufacture or use the same product or use only within the original scope;

(3) where a foreign means of transport temporarily passing through China's territorial land, territorial waters or airspace, in accordance with an agreement concluded between the country to which it belongs and China or an international treaty to which it is a party, or in accordance with the principle of reciprocity, uses the relevant patent in its installations and equipment for its own needs;

(4) using the patent concerned exclusively for scientific research and experimentation;

(5) manufacturing, using or importing a patented drug or a patented medical device for the purpose of providing information required for administrative examination and approval, or specifically manufacturing or importing a patented drug or a patented medical device.

Article 76 In the process of examination and approval for the listing of a drug, where a dispute arises between the applicant for the listing of a drug and the relevant patentee or interested party over the patent right related to the drug for which registration has been applied, the relevant party may bring an action in a people's court to request a judgment on whether the technical scheme related to the drug for registration falls within the scope of protection of the drug patent right of another person. The drug regulatory department under The State Council may, within the prescribed time limit, make a decision on whether to suspend the approval of the marketing of the relevant drug on the basis of the effective ruling of the people's court.

The applicant for the marketing authorization of a drug and the relevant patentee or interested party may also request the patent administration department under The State Council for an administrative ruling on any dispute concerning the patent right of the drug for which registration has been applied.

The drug regulatory department under The State Council shall, in conjunction with the patent administration department under The State Council, formulate specific measures for linking the examination and approval of a drug marketing authorization with the settlement of patent rights disputes at the stage of application for a drug marketing authorization, which shall be submitted to The State Council for approval before implementation.

Article 77 Where a person uses, promises to sell or sells a patent infringing product for production or business purposes without knowing that it is manufactured and sold without the permission of the patentee, he shall not be liable for compensation if he can prove that the product is of lawful origin.

Article 78 Whoever, in violation of the provisions of Article 19 of this Law, directs a foreign country to apply for a patent or divulges state secrets shall be given administrative sanctions by the unit to which he belongs or by the competent authority at a higher level; If the case constitutes a crime, criminal responsibility shall be investigated according to law.

Article 79 The administrative authority for patent affairs shall not participate in any business activities such as recommending patented products to the public.

Where the administrative authority for patent affairs violates the provisions of the preceding paragraph, the administrative authority at a higher level or the supervisory organ shall order it to make corrections, eliminate the effects, and confiscate any illegal income; If the circumstances are serious, the persons directly in charge and other persons directly responsible shall be given sanctions according to law.

Article 80 Where any functionaries of State organs engaged in patent administration or any other functionaries of state organs concerned neglect their duties, abuse their power or engage in malpractices for personal gains, if the case constitutes a crime, they shall be investigated for criminal responsibility according to law; If the case does not constitute a crime, he shall be punished according to law.

Chapter VIII Supplementary Provisions

Article 81 Whoever applies for a patent and goes through other formalities with the patent administration department under The State Council shall pay fees in accordance with relevant provisions.

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