Patent Law

Tuo Yannan reported in yesterday's (September 8, 2008) China Daily:

The formal adoption of the National Intellectual Property Strategy has quickened the amendment of the Chinese Patent Law that seeks to enhance IPR protection and to revamp the application process.

Less than three months after the State Council put its stamp on the patent law reform blueprint, the government, on August 25, submitted the draft amendment to the National People's Congress (NPC) Standing Committee, the top legislative agency, for first reading. A draft law requires three readings before it can be adopted.

If passed, this amendment will be the third revision to the law that was promulgated 25 years ago.

One change involves the adoption of the so-called "absolute novelty" standard that is applied internationally. Under this standard, patent examiners are required to consider public use evidence both inside and outside China when processing patent applications. Adoption of an absolute novelty standard will have the effect of reducing patent infringements, legal experts say.

Another important change is the proposed removal of the statutory requirement for all Chinese individuals and entiles them to first file applications in China for inventions made in China. The revision would allow Chinese individuals and entities to file their patents for the first time in other countries, not necessarily China. In other words, under the draft amendments, applicants could apply for foreign patents even before obtaining Chinese patents.

The draft amendment increased the penalty for IPR infringement from 300 percent to 400 percent of the illicit profits and raised the damage payment from 50,000 yuan to 200,000 yuan even if there is no profit from infringement. And the draft for the first time makes a definitive statute that the People's Court can order the infringer to pay from 10,000 yuan to 1,000,000 yuan in compensation when the damage cannot specifically identified.

Read the full article here.