Chinese Patent Law 2021: An Overview
The incoming fourth amendment to the Chinese patent law 2011 will become effective on June 1, 2021. China originally established the patent law in 1985, based on most developed countries’ regulations. The last amendment took place in 2008. Though still undergoing implementation and clarification, the fourth amendment signals that Chinese is moving towards harmonization with the laws of most major markets. Below are some notable changes in the revision.
Pharmaceutical Patents
The revised patent law introduces a patent linkage system. This allows the pharmaceutical patent’s applicant to challenge a generic drug for patent infringement; this can be done by initiating a declaratory judgement (DJ) action of patent infringement against the generic during its regulatory approval process with the China Food and Drug Administration (CDFA). The DJ action may suspend the regulatory approval process of the generic. This establishment is similar to the “Orange Book” in the United States. The patent linkage systems is regulated in the Amended Article 76.
Within the upcoming changes, an applicant of a pharmaceutical patent can obtain the patent term adjustment of up to 5 years to compensate for the regulatory approval process. For these 5-year extended patents, the total effective term of the patent shall not exceed 14 years from the date of issuance. This is in the Article 42 of the revision.
Design Patents
Most notably, the Chinese Patent Law 2021 allows the design application for partial designs. Thus propels the Chinese patent law closer to most major jurisdictions, namely the US, EU, UK, Japan and Korea. The allowance of partial design can also include the application for invisible part(s) of the industrial design. However, it is unclear whether China will allow the use of broken lines, which is immensely helpful to applications such as GUI in the mobile phone. Since China has made such a movement, it is very likely that China will also allow use of broken lines.
Another notable change is that the term of industrial protection has increased to 15 years from 10 years.
Chinese Patent Law 2021: Changes in Infringement damages
The new revision of the Chinese Patent Law 2021 promises a result of steady patentee-friendly law changes. According to the Amended article 71, these changes include: increasing statutory damages (to 30.000-5.000.000 yuan from 10.000-1.000.000 yuan); introducing punitive damages for willful infringements of serious circumstances, up to five times the damages determined; shifting the burden of providing damages in patent infringement actions (should the infringer fails to provide acceptable evidence, then the court may refer to the claims and evidence from the patentee to determine damages).
Other Notable Changes in the new Chinese Patent Law 2021
Amended article 70 enables the China National Intellectual Property Administration to determine patent infringement disputes of significant national impact.
Amended article 24 allows a 6-month disclosure grace period for non-novelty destroying publications that covers early publications made for the public interest in a national emergency; for extraordinary situations that occurs in China.
Amended article 50-51 allows the filing of a withdrawable declaration to implement open license with the benefit of reduction or exemption of patent annuities.
Amended article 47 extends the statute of limitation for patent infringement lawsuits from 2 years to 3 years.
Changes for the better?
Until the day this revision takes effect, which is nearly one month away, the new Chinese law is still pending for any improvement or clarification. This means that any of the changes above is subjected to change should there be any new revision. However, this changes seem to be a sign of harmonization towards the major markets’ law system.
