Chinese Patent Law-Protection of Patent Rights

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Release time:2016-07-19

Chapter VII Protection of Patent Right

Article 59 The scope of protection of the patent right for an invention or utility model shall be subject to the content of the claims, and the specification and drawings may be used to interpret the content of the claims.

The scope of protection of the design patent right is based on the design of the product shown in the picture or photo, and the brief description can be used to explain the design of the product shown in the picture or photo.

Article 60 Any dispute arising from the exploitation of a patent without the permission of the patentee, that is, the infringement of his patent right, shall be settled by the parties concerned through consultation; if he is unwilling to negotiate or fails to negotiate, the patentee or the interested party may bring a suit in a people's court or request the department in charge of patent work to deal with it. If the department in charge of patent work determines that the infringement is established, it may order the infringer to stop the infringement immediately, and if the party concerned is not satisfied, he may, within 15 days from the date of receiving the notice of handling, bring a lawsuit to the people's court in accordance with the the People's Republic of China Administrative procedure Law; if the infringer does not sue and does not stop the infringement at the expiration of the term, the department in charge of patent work may apply to the people's court for compulsory enforcement. At the request of the parties, the administrative department for patent work may mediate on the amount of compensation for infringement of patent rights; if the mediation fails, the parties may bring a suit in a people's court in accordance with the the People's Republic of China Civil Procedure Law.

Article 61 Where a patent infringement dispute involves an invention patent for a new product manufacturing method, the unit or individual manufacturing the same product shall provide proof that the product manufacturing method is different from the patented method.

Where 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 patentee or interested party to issue a patent evaluation report made by the patent administration department under the State Council after searching, analyzing and evaluating the relevant utility model or design, as evidence for hearing and handling the patent infringement dispute.

Article 62 In a patent infringement dispute, if the alleged infringer has evidence to prove that the technology or design implemented by him belongs to the existing technology or existing design, it does not constitute an infringement of the patent right.

Article 63 Where a patent is counterfeited, in addition to bearing civil liability according to law, the department in charge of patent work shall order it to make corrections and make a public announcement, confiscate the illegal income and may concurrently impose a fine of not more than four times the illegal income; if there is no illegal income, it may be imposed A fine of not more than 200,000 yuan; if a crime is constituted, criminal responsibility shall be investigated according to law.

Article 64 when investigating and dealing with suspected counterfeiting of patents on the basis of the evidence already obtained, the administrative department of patent work may ask the parties concerned to investigate the situation related to the suspected illegal act; conduct on-site inspection of the places where the parties are suspected of illegal acts; consult and copy the contracts, invoices, account books and other relevant materials related to the suspected illegal acts; inspect the products related to the suspected illegal acts, products for which there is evidence to prove that they are counterfeit patents may be sealed up or detained.

When the administrative department for patent affairs exercises the functions and powers specified in the preceding paragraph in accordance with the law, the parties concerned shall assist and cooperate with them, and shall not refuse or obstruct them.

Article 65 The amount of compensation for the infringement of the patent right shall be determined in accordance with the actual loss suffered by the right holder as a result of the infringement; if the actual loss is difficult to determine, it may be determined in accordance with the benefits obtained by the infringer as a result of the infringement. If 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 patent license fee. The amount of compensation should also include the reasonable expenses paid by the right holder to stop the violation.

If it is difficult to determine the losses of the obligee, the benefits obtained by the infringer and the royalties of the patent license, the people's court may determine to give compensation of not less than 10,000 yuan but not more than 1 million yuan according to the type of patent right, the nature and circumstances of the infringement and other factors.

Article 66 If the patentee or the interested party has evidence to prove that another person is committing or is about to commit an act of infringement of the patent right, and if it is not stopped in time, it will cause irreparable damage to its legitimate rights and interests, it may apply to the people's court before filing a lawsuit to take measures to order the cessation of the relevant act.

When applying, the applicant shall provide security; if no security is provided, the application shall be rejected.

The people's court shall make a ruling within 48 hours from the time of accepting the application; if there are special circumstances that require an extension, the extension may be extended for 48 hours. Where a ruling is made to order the cessation of the relevant acts, it shall be executed immediately. If the parties are not satisfied with the ruling, they may apply for reconsideration once; the execution of the ruling shall not be suspended during the reconsideration period.

If the applicant does not bring a suit within 15 days from the date the people's court takes the measure to order the cessation of the relevant act, the people's court shall lift the measure.

If there is an error in the application, the applicant shall compensate the respondent for the losses suffered as a result of the cessation of the relevant acts.

Article 67 In order to stop the patent infringement, the patentee or the interested party may apply to the people's court for the preservation of evidence before filing a lawsuit under the circumstances that the evidence may be destroyed or lost or difficult to obtain later.

If the people's court takes preservation measures, it may order the applicant to provide security; if the applicant fails to provide security, the application shall be rejected.
 
The people's court shall make a ruling within 48 hours from the time of accepting the application; if the ruling is to take protective measures, it shall be executed immediately.

If the applicant does not bring a suit within 15 days from the date the people's court takes the protective measure, the people's court shall lift the measure.

Article 68 The limitation of action for infringement of the patent right shall be two years, which shall be counted from the date on which the patentee or the interested party learns or should have learned of the infringement.

If the application for a patent for invention does not pay the appropriate royalties for the use of the invention after the publication of the application for a patent for invention and before the grant of the patent right, the limitation of action for the payment of the royalties shall be two years, calculated from the date on which the patentee learns or should have learned of the use of the invention by others, but if the patentee has learned or should have learned of the invention before the date of the grant of the date of the date of the grant of the patent right, it shall be calculated from the date of the date.

Article 69 Any of the following circumstances shall not be deemed as an infringement of the patent right:

(I) a patented product or a product directly obtained by a patented method, and after being sold by the patentee or an entity or individual licensed by him, uses, promises to sell, sells or imports the product;

The (II) has manufactured the same product, used the same method, or made necessary preparations for manufacture and use before the date of application, and continues to manufacture and use only within the original scope;

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

(IV) the use of the patent concerned solely for the purpose of scientific research and experimentation;

In order to provide the information required for administrative examination and approval, the (V) manufactures, uses or imports patented drugs or patented medical devices, and specially manufactures or imports patented drugs or patented medical devices for them.

Article 70 Whoever uses, promises to sell or sells for the purpose of production and business operations a patent-infringing product that is not known to have been manufactured and sold without the permission of the patentee shall not be liable for compensation if he can prove the lawful origin of the product.

Article 71 Anyone who, in violation of the provisions of Article 20 of this Law, applies for a patent in a foreign country and 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 72 Where an inventor or designer's right to apply for a patent for a non-service invention-creation or other rights and interests stipulated in this Law are infringed upon, administrative sanctions shall be imposed by the unit to which he belongs or by the competent authority at a higher level.

Article 73 The administrative department of patent work shall not participate in business activities such as recommending patented products to the public.

If the administrative department for patent work violates the provisions of the preceding paragraph, it shall be ordered by its superior organ or the supervisory organ to make corrections and eliminate the effects, and the illegal income shall be confiscated; if the circumstances are serious, the person in charge directly responsible and other persons directly responsible shall be given administrative sanctions according to law.

Article 74 Any functionary of a state organ or other relevant functionary of a state organ engaged in patent administration who neglects his duty, abuses his power or engages in malpractices for personal gain, if the case constitutes a crime, shall be investigated for criminal responsibility according to law; if the case does not constitute a crime, he shall be given administrative sanctions according to law.

Chapter VIII Supplementary Provisions
 
Article 75 The application for a patent and other formalities with the administrative department for patent under the State Council shall be subject to the payment of fees as prescribed.

Article 76 This Law shall come into force as of April 1, 1985.