Key amendments in China’s Patent LawAAA IPRIGHT2
On 17 October 2020, the Standing Committee of the National People’s Congress of China had approved the fourth amendment to China’s Patent Law which is an immense development to this Law and the country’s IP system since the last amendment was passed in 2008.
This advancement in the IP system is believed to be highly welcomed by foreign IP owners and businesses. They would be thrilled to see and adapt the new reforms relating to designs, patent term extensions, patent linkage, dispute resolution, increased statutory damages, codification of punitive damages, evidentiary burden-shifting, and technology transfer.
These amendments took effect on 1 June 2021.
Important changes in the amendments
The fourth amendment also addresses some of the patent protection measures drafted in the US-China Phase One Trade Agreement signed in January 2020. The amendments arrive just in time for other many long-awaited changes. An additional purpose of these revisions is to bring portions of the Chinese Patent Law into better alignment with US and European laws and hence, be more approachable to International businesses.
Since the approval of the fourth amendment to the Patent Law, China also amended or will soon amend the judicial interpretations, rules, and guidelines relating to patent practice. Subsequently, China’s patent practice landscape is reshaping promptly following the fourth amendment to the Patent Law.
On 27 November 2020, the China Intellectual Property Administration (CNIPA, formerly SIPO) published draft amendments to the Implementing Regulations of the Patent Law for public comment. The draft amendments provide extra details on the growing landscape of China’s patent practice.
Furthermore, the CNIPA also amended the Guidelines for Patent Examination (the “Guidelines”). These new amendments took effect on 15 January 2021.
The amendments to the Guidelines include many new modifications such as confirmation of the use of post-filing data for proving inventiveness. However, the amendments do not address the changes in patent practice brought about by the fourth amendment to the Patent Law.
Key amendments in the new Chinese Patent Law
- Design patents: term extended to 15 years from 10 years and partial designs allowed.
- Statutory damages increased to 5 million – in line with the new Trademark and Copyright laws.
- Punitive damages introduced – up to 5 times the damages awarded.
- The limitation period is now 3 years – matches the new Civil Code.
- Changes to rules regarding evidence making it easier to prove cases.
- New provision regarding patent abuse – to be dealt with as part of Anti-Monopoly Law.
The changes to the protection for pharmaceuticals
- Patent term extensions to be allowed.
- Patent linkage system is to be introduced.
The changes fit in with the many improvements in the system
- Establishment of IP Courts and Tribunals in 2014.
- Establishment of the SPC IP Chamber in 2019.
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