Encouraging the improvement of innovation ability and strengthening the protection of patent rights is the main theme of this revision of the Patent Law, which runs through the whole process of the Patent Law. In the second revision of the Patent Law in 2, it was stipulated: "This Law is formulated in order to protect the patent right of invention and creation, encourage invention and creation, facilitate the popularization and application of invention and creation, promote scientific and technological progress and innovation, and meet the needs of socialist modernization." Compared with the previous Patent Law, this article mainly highlights the important significance and role of "scientific and technological innovation", which makes "innovation" gain an unprecedented position in the Patent Law of China for the first time. This revision of the Patent Law has further enhanced the great significance and mission of patent legislation to promote innovation. Provisions: "This Law is formulated in order to protect the legitimate rights and interests of patentees, encourage inventions and creations, promote the application of inventions and creations, improve innovation ability, and promote scientific and technological progress and economic and social development". Compared with the Patent Law of 2, it mainly emphasizes "improving innovation ability", and at the same time, it changes "popularization and application beneficial to invention and creation" to "application promoting invention and creation", which strengthens the function and role of the Patent Law in promoting invention and creation, and is in line with "improving innovation ability". This revision has profound practical reasons and forward-looking significance, which proves that China has taken improving its own innovation ability and building an innovative country as a national policy and strategic move.

(II) Pay attention to improving the quality of patents

At the initial stage of the implementation of the Patent Law, based on the relatively backward level of economic, scientific and social development at that time and the insufficient ability of invention and independent innovation, in order to encourage invention and creation and ensure the original accumulation and later growth of patent applications and authorizations, lower standards were adopted for patent authorization conditions. For example, in the novelty standard of invention, utility model and design patent, the absolute novelty standard of most countries is not adopted, but a more relaxed relative novelty standard is adopted, that is, different geographical scope is stipulated for existing technology and existing design. This standard of relative novelty not only reduces the burden of examining patent applications in Patent examiners, but also appropriately increases the number of patents, which improves the enthusiasm of patent applications to a certain extent and increases the stability of patent rights.

with the continuous improvement of the patent system and the continuous enhancement of innovation ability, the number of patent applications in China is increasing significantly year by year. As of March 29, the total number of patent applications accepted by * * * exceeded 5 million. The number of patents granted has also maintained a high growth rate. As of December 28, * * * granted more than 2.5 million patents, and the number of patents granted in the past five years accounted for nearly 6% of the total number granted in the 23 years since the implementation of the Patent Law. While the absolute number of patent applications and authorizations in China ranks among the top in the world, there is still a big gap between China and the world's patent powers in terms of patent quality measurement indicators such as the number of effective patents and the mastery of key technology patents. The problems faced by the Patent Law have changed to how to improve the quality of patents and how to give full play to the patent system to promote independent innovation. Therefore, it is necessary to promote the optimization of patent quality through strict patent authorization standards and other measures.

in the third revision of the patent law, the standard of patent novelty was changed from relative novelty to absolute novelty. At the same time, the design patent system has been reformed, and the "creativity" standard of similar inventions and utility model patents has been added, so as to avoid obtaining patents for designs formed by imitating existing designs or simply piecing together existing design features. It is stipulated that "the design that mainly plays the role of logo on the pattern, color or combination of the two of plane printed matter" shall not be granted a patent right; Introduced the patent application system for related designs. By fully protecting the legitimate rights and interests of applicants for design patents, we can encourage them to engage in design innovation, and then promote the overall level of design in China.

(III) Strengthening the protection of patent rights

As a kind of private right to protect the achievements of inventions and creations, patent rights, with their exclusivity and exclusiveness, make related inventions and creations exclusively owned by the obligee in accordance with the law within a certain period of time, and make the innovation contribution rewarded by implementing the patent by themselves or licensing others. The patent legal system protects this exclusive right from the level of national legislation, which is helpful to stimulate people's enthusiasm for innovation and promote the development of science and technology. The third revision of the Patent Law expanded the scope of patent protection, increased the intensity of administrative punishment and improved the protection measures for patentees.

1. Expand the scope of patent protection

Paragraph 2 of Article 11 of the new Patent Law stipulates: "After the design patent right is granted, no unit or individual may exploit the patent without the permission of the patentee, that is, it shall not manufacture, promise to sell, sell or import its patented product for production and business purposes." The "promised sales right" of the design patentee is increased, so that the three kinds of patent protection are balanced and the rights and interests of the design patentee are better safeguarded.

2. The intensity of administrative punishment has been improved

Patent protection in China adopts two ways: administrative protection and judicial protection. Practice has proved that patent administrative law enforcement conforms to China's national conditions and plays an important role in stopping patent infringement in time, safeguarding the legitimate rights and interests of patentees and maintaining the stability of social and economic relations. Because patent administrative enforcement has always played an important role in patent protection in China, the new Patent Law not only retains this model, but also raises the standard of administrative punishment, and strengthens the patent administrative enforcement authority with reference to the provisions of the Trademark Law, Copyright Law and other intellectual property laws. Specifically, it is embodied in the following two aspects:

First, it integrates the punishment of counterfeiting other people's patents and counterfeiting patents, and improves the standard of administrative punishment. The Patent Law of 28 merged Articles 58 and 59 of the Patent Law of 2 into Article 63, which was amended as: "In addition to bearing civil liability according to law, the patent administrative department shall order it to make corrections and make a public announcement, confiscate its illegal income, and may concurrently impose a fine of less than four times its illegal income; If there is no illegal income, a fine of less than 2, yuan may be imposed; If it constitutes a crime, criminal responsibility shall be investigated according to law. "

Second, the administrative departments in charge of patent work are given the necessary administrative law enforcement means to investigate and deal with patent counterfeiting. In 28, one article was added to the Patent Law as Article 64: "When the administrative department for patent affairs investigates and deals with the suspected patent counterfeiting according to the obtained evidence, it may ask the relevant parties to investigate the situation related to the suspected illegal act; On-site inspection of places where the parties are suspected of illegal acts; Consult and copy contracts, invoices, account books and other relevant materials related to suspected illegal acts; Check products related to suspected illegal acts, and seal up or detain products that are proved to be counterfeit patents. When the administrative department for patent affairs exercises the functions and powers prescribed in the preceding paragraph according to law, the parties concerned shall assist and cooperate, and shall not refuse or obstruct it. " This article is similar to the provisions of Article 55 of the current Trademark Law of China, aiming at strengthening patent administrative law enforcement and further strengthening the protection of patent rights by giving the administrative department for patent affairs the administrative authority to investigate and deal with counterfeiting.

3. Improve the measures to protect the patentee

This revision clearly includes the rights protection cost of the obligee in the scope of tort compensation, and improves the protection of the patentee's property. At the same time, the provisions on interim measures and evidence preservation before litigation are added, which further adds legal protection to actively protect the rights and interests of patentees.

First, it is clear that the compensation for patent infringement should include the cost of the right holder's rights protection, and the provisions on statutory compensation have been added. Article 6 of the Patent Law in 2 stipulates: "The amount of compensation for infringement of patent rights shall be determined according to the losses suffered by the obligee due to infringement or the interests gained by the infringer due to infringement; If it is difficult to determine the loss of the infringer or the benefit obtained by the infringer, it shall be reasonably determined with reference to the multiple of the patent license fee. " There are two problems in this provision: first, it is not clear which one should be chosen as the preferred calculation method for the losses suffered by the obligee or the benefits gained by the infringer due to infringement; Second, how to determine the amount of compensation for patent infringement damage is not considered when the three methods stipulated in it are difficult to calculate. In order to solve the above problems, the new Patent Law stipulates that the amount of compensation for patent infringement shall be determined according to the actual loss suffered by the obligee due to infringement; If the actual loss is difficult to determine, it can be determined according to the interests obtained by the infringer due to the infringement. If it is difficult to determine the loss of the obligee or the benefit of the infringer, it shall be reasonably determined by referring 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 infringement. If it is difficult to determine the loss of the obligee, the benefits obtained by the infringer and the patent license fee, the people's court may determine to pay compensation ranging from 1, yuan to 1 million yuan according to the type of patent right, the nature and circumstances of the infringement, and other factors. In this way, on the one hand, it increases the operability of determining the amount of damages in patent infringement disputes; On the other hand, the legal compensation system for patent infringement damage has been clearly established, which is consistent with the provisions of the Copyright Law and the Trademark Law.

Second, the provisions on interim measures before litigation and evidence preservation before litigation have been added. In practice, sometimes there will be acts that infringe the patentee's patent right, which will cause irreparable damage to the patentee's legitimate rights and interests if not stopped in time. However, according to the usual litigation procedure, it is necessary to sue first, and only when the judgment of the people's court becomes legally effective can the infringer's infringement of patent rights be completely stopped. At this time, the infringement has occurred and even caused serious consequences. Therefore, in order to fully protect the legitimate rights and interests of the patentee, many countries' patent legislation stipulates "temporary measures" before litigation, that is, applying to the court for an order to stop the relevant behavior before litigation. This system was added to the Patent Law when it was revised for the second time in 2. In 28, the Patent Law specifically regulated the procedure of ordering to stop relevant acts before litigation, which is convenient for operation in practice. In addition, in order to prevent the infringer from transferring or destroying the evidence before the patentee files a lawsuit, it is added that in order to stop the patent infringement, the obligee may apply to the people's court for evidence preservation before filing a lawsuit, if the evidence may be lost or difficult to obtain later.

(IV) Further promoting the application of technology

On the one hand, the new Patent Law stipulates that the owner of the patent right can exploit it alone or license others to exploit it by ordinary license. It not only guarantees the legitimate right of * * * people to have patents on * * *, but also promotes the implementation of * * * patents. Provisions to prevent the abuse of patent rights have been added, and compulsory licensing measures have been further defined for acts of not implementing or not fully implementing its patents and monopolistic acts caused by the exercise of patent rights. Promote the circulation, popularization and application of patented technology. On the other hand, in order to prevent malicious use of the known existing technology to apply for a patent, hinder the implementation of the existing technology, and help the implementer of the existing technology get rid of the patent infringement dispute in time, the defense principle of the existing technology is introduced, which stipulates that if the implemented technology belongs to the existing technology, it does not constitute patent infringement.

(V) Fulfilling international treaties

Abiding by international conventions and rules on intellectual property rights has always been one of the important principles of intellectual property legislation in China. China's Patent Law embodies the spirit of these international rules in a series of system designs, such as authorization standard, protection level and compulsory license. In order to meet the requirements of relevant international conventions on patents and fulfill foreign commitments, it is necessary and necessary to amend the relevant contents of the Patent Law in a timely manner according to the latest development of international intellectual property conventions and China's accession to international conventions. The third revision of the Patent Law embodies the connection with international treaties in terms of the protection of genetic resources and compulsory licensing of patented drugs for public health purposes, and stipulates that inventions and creations that rely on genetic resources should indicate the source of genetic resources, and inventions and creations that are illegally acquired or utilized on this basis are not granted patent rights; The provision of the exception of drug and medical device experiment (Bolar exception) has been added, so that the public can get cheaper generic drugs and medical devices in time after the expiration of the patent protection period of drugs and medical devices, which is of great significance to solving the public health problems.