China - Revision of PRC Patent Law

Charles Feng
Partner Attorney-at-Law
East&Concord Partners

On October 17 2020, Xinhua News Agency revealed the progress of the revision of eight laws, which includes the fourth revision of the PRC Patent Law (the “Law”). The revision attracted huge attention from international IP communities as it addressed multiple issues that has been awaited by international and domestic IP owners.
According to the disclosed information, the revision will substantially strengthen the protection in multiple aspects.

I. Enhancement of Protection for Interests of Patentee
1. Increase of damages against patent infringements
2. Perfection of the system of burden of proof
3. Addition of principle of honesty and trust in patent law
4. Perfection of the administrative protective mechanism against patents
5. Addition of patent term compensation system as well as patent infringement solution mechanism in earlier stage

II. Promotion of implementation of patents
1. Perfection of employment invention system
2. Addition of open licensing system for patents
3. Perfection of system for grant of design patents
4. Addition of situation of grace period of novelty
5. Perfection of patent evaluation report system

III. Enhancement of protection of patents
1. Addition of punitive damages
Chinese courts are authorized to rule the punitive damages as much as one to five times of amount as calculated on basis loss of right owner, profits made by infringer as well as multiplies of royalties.
2. Increase of statutory damages
The statutory damages are increased from CNY 3 million to CNY 5 million, the minimum amount of damages is increased to CNY 30 thousand

IV. Perfection of Design patent system
1. Addition of protection against partial design
2. Extension of term of design patent protection from 10 years to 15 years
3. Addition of domestic priority system against design patents

V. Addition of situation for exception of loss of novelty
In order to deal with emergent situation including control of pandemic as well as promote the timely use of invention and creation to solve the public health issue, the revision added the situation “when the situation of emergency or specialty occur, the first publication for the public interests” as an “exception for loss of novelty”.

Mr. Feng is an IP Specialist with substantial experience on intellectual property and anti-trust law. Mr. Feng was ranked as one of Top 15 China IP Lawyers by Asian Legal Business under Thomson Reuters as well as ranked as Top IP Attorney by WTR in 2020. Mr. Feng was also recommended by LegalBand as Leading IP litigator and Leading non-litigation lawyer consecutively from 2016 through 2020. A case represented by Mr. Feng was ranked as one of 50 Model IP Cases by Supreme People’s Court of China in 2013.

Email:   Charlesfengecp-ip [dot] com (Charlesfeng[at]ecp-ip[dot]com) ; fchao7847hotmail [dot] com (fchao7847[at]hotmail[dot]com)

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