The main principles of the third revision of the Patent Law

From an online interview on the website of the State Intellectual Property Office on January 16, it was learned that the State Intellectual Property Office has revised the Patent Law for the third time. Mainly follow three principles. First, the organic unity of safeguarding the interests of patentees and safeguarding public interests. The revision of the Patent Law should not only fully safeguard the legitimate rights and interests of patentees, so that patent rights can be protected in a more timely and effective manner; it should also effectively safeguard the legitimate rights and interests of the public, better regulate the exercise of patent rights, and prevent the abuse of patent rights. . Second, the organic unity of adapting to international development trends and being based on the national conditions of the country. The revision of the patent law must not only consider the development trend of international patent rules and reasonably draw on the successful experiences of relevant countries; it must also fully grasp my country's specific national conditions so that the revised patent law can adapt to the development stage and practical needs of our country. Third, maintain the organic unity of legal stability and improve legal adaptability. The draft submitted for review maintains the basic characteristics of my country's existing patent system and the overall structure of the current patent law. It does not propose revisions to the provisions that are slightly outdated or inaccurately expressed but do not affect the actual understanding and implementation; only the provisions Suggestions for revision were made for provisions that would be difficult to solve practical problems or would lead to inconsistency if left unchanged.

What modification suggestions have been made by the State Intellectual Property Office

Song Jianhua, deputy director of the Treaty and Law Department of the State Intellectual Property Office, revealed that the relevant modification suggestions are considered from seven major aspects: first, Considered from the legislative purpose of the patent law. Currently, building an innovative country is one of our country's current strategic goals. In order to achieve this goal, we need to fully demonstrate this demand in our legislation. Therefore, appropriate modifications have been made to Article 1 of the Patent Law to promote economic and social development and adapt to the needs of innovative nation building as the purpose of the Patent Law. Write the first entry. Second, consider measures to deepen the reform of administrative examination and approval and build a service-oriented government, including canceling the designation of foreign-related agencies and increasing regulations on the responsibilities of the patent administration department of the State Council and local patent administration departments in disseminating patent information. Third, the rights to apply for patents, the ownership and management of patent application rights were considered. Firstly, it involves the ownership of state-funded scientific research projects and the definition of rights and obligations among patent holders in the country; secondly, it involves the improvement of the review and approval process for inventions and creations completed in China to apply for patents abroad. Fourth, regarding the standards for granting patent rights. This includes the adoption of the absolute novelty standard, that is, the elimination of geographical restrictions on existing technologies and existing designs, and the addition of requirements for the protection of genetic resources and disclosure requirements for the source of genetic resources. Fifth, further improve the design system. This involves further limiting the scope of design authorization, improving the substantive conditions for granting design patent rights, issues related to joint design application, and establishing a design search report system. Sixth, patent protection is further expanded, patent administrative enforcement is improved, and the calculation method of infringement compensation and statutory compensation are further improved, and pre-litigation evidence preservation measures are added. Seventh, some considerations are mainly made to protect the rights and interests of the public and prevent the abuse of intellectual property rights, including further improving the compulsory licensing system, adding additional provisions on the defense of existing technology and the statute of limitations to stop malicious litigation.

The difference between the draft for review and the draft for comments on the third revision of the Patent Law

During the preparation process for the third revision of the Patent Law, the Articles and Laws Department of the State Intellectual Property Office has done a lot Work. In August 2006, a draft of more than 70,000 words was released to the public on the website of the State Intellectual Property Office. In less than 20 days, 8,000 people submitted more than 600 suggestions for revision. Yin Xintian, director of the Treaty and Law Department of the State Intellectual Property Office, said that compared with the draft submitted to the State Council for review and the draft submitted to the public for comments in August, we have made adjustments in many aspects. We absorb and adopt various opinions at home and abroad, conduct in-depth analysis and research, and then propose more complete measures, which fully reflects the importance of listening to public opinions and will play a very important role in improving the law.

Although there are some regulations in the current law regarding the publication and announcement of patent application documents, there is no positioning of the dissemination of patent information from the perspective of government functions. With the improvement of my country's market economy and economic system and the gradual strengthening of the status of enterprises and institutions as the main players in market competition, their demand for patent information is also growing. In this case, our government departments are required to serve enterprises in this aspect and provide them with practical, timely and convenient patent information.

At present, our country’s current laws do not have very clear provisions, so there are some problems in information dissemination that need to be stipulated in law. We have learned from the practices of relevant foreign laws and put forward some suggestions in this draft, that is, the patent administration department of the State Council should be responsible for publishing patent announcements and transmitting patent information in a timely manner. From the perspective of responsibilities, local patent administration departments are also required to promote the dissemination of patent information.

Patent rights protection has been further improved

Wu Ningyan, inspector of the Treaty and Law Department of the State Intellectual Property Office, said that strengthening patent rights protection has been a major issue in the revision process of previous patent law revisions. Among the revision suggestions put forward by the State Intellectual Property Office this time, the protection of patent rights mainly involves three aspects: first, strengthening the rights of design patent rights. In 2000, there were no additional regulations on appearance design. You can only request to stop the infringement after the product is sold, and it cannot be stopped during exhibitions and advertising. In order to protect the legitimate rights and interests of design rights holders, in the draft for review, we recommend that no one can offer to sell products with design patents without permission. Second, further strengthen protection through judicial channels. Increase the provisions on pre-litigation evidence preservation and statutory compensation, etc. Third, improve administrative law enforcement. In this regard, our suggestions in the patent law draft for review include: 1. It is recommended that intentional infringers not only bear civil liability, but also be punished. 2. Provisions on investigation and evidence collection methods.

Ownership of patent rights in state-invested scientific research projects

Song Jianhua, deputy director of the Department of Articles and Laws, pointed out that Article 14 of the current Patent Law reflects the promotion and application of inventions and creations of state-owned enterprises. , implementation requirements. Regarding the issue of ownership of results produced by state-invested scientific research projects, although Articles 6 and 8 of our current Patent Law have corresponding provisions on the ownership of rights in inventions and creations and the ownership of inventions and creations completed through cooperation or entrustment, And the provisions are relatively clear. However, it is not very clear from the perspective of legal certainty whether the patent rights in state-invested scientific research projects belong to the scientific research unit or generally belong to the state. In practice, national affiliation is often emphasized. Therefore, the enthusiasm and initiative of scientific research units to encourage innovation, especially the marketization and industrialization of completed inventions and creations, have been affected to a certain extent. In order to solve this problem, we have put forward corresponding suggestions in the third revision. Of course, for this suggestion, we also refer to the relevant regulations issued by the relevant competent departments of the State Council. On this basis, we combine the current laws with the patent rights in national investment scientific research projects, that is to say, in addition to those involving national security and major interests. It belongs to the scientific research undertaking unit. After obtaining the patent right, you can go through certain approval procedures. That is to say, after the patent right is approved, the relevant departments of the State Council and various regional departments will promote and apply it within the approved scope after going through the approval process. The application of this regulation not only solves the problem of patent rights ownership for invention-creation applicants of national scientific research projects, but also plays a normative role in the promotion, application, and implementation of inventions and creations after they obtain patent rights.

Introducing the absolute novelty standard for the first time

Yin Xintian, Director of the Legal Affairs Department of the State Intellectual Property Office, pointed out that our country’s current patent regulations adopt a mixed standard for novelty. Judging from the situation, there are some disadvantages: First, it is not conducive to the production of inventions and creations.

Because inventions and utility models protect technology, they are in a more important position than appearance designs. Because in the early days, everyone focused their learning, research, and energy on inventions and utility models, which is understandable.

The patent law legislation, the first revision and the second revision mainly focus on inventions and utility models. Of course, some adjustments have also been made to the appearance design, but they are not the focus of the revision. As the situation develops, our country's understanding of the patent system is improving. Now China has the largest number of design patents in the world, and everyone's feelings are getting deeper and deeper. From this perspective, the third revision of our patent law should improve the system and amend the law in terms of design, so that the three aspects of our patent law: inventions, utility models, and designs can receive further balanced development.

Suggestions on modifications in appearance design

Director Yin said that appearance design is a prominent content in the third revision of the Patent Law. We recommend taking relevant measures in five aspects. Modifications: First, appropriately limit the scope of granted design patents. Judging from the current design applications accepted by the State Intellectual Property Office, a certain number of them only involve improvements in graphics, color or combinations of flat printed matter. The design of such flat prints mainly serves as a logo, rather than improving the appearance of the product. If there are too many such designs, it will not be conducive to promoting domestic designers to improve the appearance design level of products.

In addition, designs that only serve as logos will increase unnecessary overlap and overlap with trademark rights and copyrights. In order to allow designers to focus more on the design of the product itself, we have to make some restrictions. Design patent rights are not granted for the graphics, colors or combined designs of flat printed matter that serve only as a logo.

Second, we need to improve the conditions for design authorization. The current patent law only stipulates that the patent right granted for a design cannot be the same as or similar to the previous design. We now suggest that the draft be further improved by first adding creative requirements similar to those for inventions and utility models. To grant a design patent right, there should be obvious differences compared with existing designs or combinations of existing designs. The addition of this article has significantly improved the standards for design authorization.

Third, we will allow applications for associated designs. In reality, after making a basic design, a series of design plans that are relatively close and similar to it will be formed around the design. If we stipulate that only design applications can be filed individually and one by one for this set of design plans. , which is a huge burden for the applicant and is not conducive to him obtaining protection in a timely manner. In order to make it easier for applicants to obtain protection, we recommend that for complete sets of design products, in addition to filing one application, one application for similar and related design plans is allowed.

Fourth, we establish a search reporting system. Like utility models, appearance designs are only subject to preliminary review rather than actual review. Without substantive examination, it is unclear in many cases whether the grant of this right complies with the provisions of the patent law. Under such circumstances, the patentee is not clear about whether the status of his or her design meets this condition, and is often blind. It will have an adverse impact on both the patentee and the public. In order to overcome this problem, we recommend the introduction of a search report system, which stipulates that for utility model and design patents, if the patentee exercises its rights and files an infringement lawsuit, the utility model must be provided to the relevant judicial authorities and patent administration departments. Or design search report.

Fifth, this time we suggest that in the design application document, the original brief description, which may or may not be optional, should be turned into a necessary application document. Make some necessary text descriptions of the appearance design in the brief description. Article 56 of the current law only stipulates that the scope of protection of a design patent shall be reflected in the design product in pictures or photos.

The draft patent law submitted for review not only contains such a provision, but also stipulates that a brief description should be used to explain and illustrate pictures and photos, which provides a more scientific and reliable way to determine the scope of protection of design patent rights.

In short, measures to improve the design system have been proposed from all aspects. In our entire patent law submission for review this time, the improvement of the design system is in a very prominent position.

The issue of compulsory licensing deserves attention

Some netizens asked that Article 49 of the draft for comments and the Doha Ministerial Declaration of the World Trade Organization also stipulate that in the event of a public health crisis, Compulsory licensing is provided for. It is also one of the manifestations of paying attention to the interests of the public, but it is limited to special diseases and types. Is there any adjustment in the manuscript for review?

Director Yin said that compulsory licensing is a feature that must be highlighted in this revision of the patent law. Chapter Six makes relatively substantial adjustments to compulsory licensing, including an article on the implementation of the Doha Ministerial Declaration of the World Trade Organization. If an epidemic disease occurs or spreads, posing a life safety or threat to the country's public, a compulsory license may be granted in accordance with this article to produce a certain drug to meet the needs of the public.

Also, when a public health crisis occurs in this country, for humanitarian reasons, international agreements allow other countries to issue compulsory licenses to manufacture relevant drugs and export relevant drugs to other countries. This article is not only a reflection of international agreements, but also reflected in the legislation of many countries. It is necessary for our country's patent law to reflect the development of international laws from domestic laws.

Netizens observed very carefully. The problem is that our country promulgated a regulation in 2005, which stipulated compulsory licensing involving public health issues. In that regulation, we proposed some scope. This time when the patent law was revised, we re-examined the relevant wording of international agreements and the practices adopted by other countries. We changed the original infectious disease to an epidemic.

The State Intellectual Property Office put forward three suggestions for improving administrative enforcement

Administrative enforcement issues are also an important aspect of this patent law revision. Wu Ningyan, deputy inspector of the Department of Treaty and Law, said that administrative enforcement is our A feature of the national legal system is that our patent law protection implements judicial protection and administrative protection. Administrative protection is in line with the development needs of national conditions. Since this system meets the needs of our current national conditions, in this draft of the Patent Law for review, we have put forward some content on improving administrative enforcement of patents. This content mainly includes three aspects:

First, intentional infringers not only bear civil liability but also receive administrative penalties. Infringement, especially intentional infringement, will not only infringe on the interests of the patentee, but also damage the social and legal order to a certain extent. As far as administrative law enforcement is concerned, intentional infringements must be punished.

Secondly, counterfeiting and patent counterfeiting are illegal. In our country's current laws, the administrative penalties for these two behaviors are different. This time, the penalties for the two behaviors in the draft for review have been revised to be the same, which means they are consistent.

Third, the patent administrative department lacks the necessary means to detect patent counterfeiting, which is also a problem that has not been solved by the two revisions of our patent law. In order to better strengthen patent administrative law enforcement, adjust evidence collection methods and administer according to law, the patent law has been submitted for review by adding necessary means for the patent administrative department to handle infringements and investigate and deal with patent counterfeiting.

Regulate phenomena that harm the legitimate rights and interests of the public

At present, some experts and the public believe that there are some phenomena that harm the legitimate rights and interests of the public in practice and hope to regulate them. In response to this phenomenon, Director Yin pointed out that with regard to safeguarding the legitimate interests of the public and preventing the abuse of patent rights, during this revision of the Patent Law, there was a very lively discussion in all aspects. The following points in the manuscript submitted for review this time are related to this issue.

First, regarding compulsory licensing, under what circumstances can there be compulsory licensing?

We have further improved Article 48 of the current Patent Law. A situation has been added. If the patentee’s exercise of patent rights is considered to restrict competition, in this case, a compulsory license can be issued. What kind of behavior is considered to be a behavior that restricts competition is stipulated by the national anti-monopoly law and other laws. This other law plays a role in conjunction with the patent law.

Second, the issues of prior art defense and prohibition of malicious litigation have been added. In other words, during the litigation process of the patentee, if the evidence can prove that the technology and design implemented are existing technology or existing designs and can be freely used by the public, the people's court can directly determine that there is no infringement. This reduces some workload. This will greatly help reduce the cost of litigation and stabilize social relations as soon as possible. Once this is proven, the case can be terminated or closed. On the other hand, utility models and designs in our country do not pass substantive examination. Some applicants apply for patents even though they know that the technology for which they are applying for patents is restricted. Moreover, they also filed infringement lawsuits against other people's actions based on this patent, which caused certain interference to other people's economic activities. It is recommended to add an article. In such a situation, if the patentee knows that the patent right belongs to existing technology but still files a lawsuit in the people's court, the accused infringer can request the patentee to compensate for the losses, which can have a certain deterrent effect.

Third, the statute of limitations. The statute of limitations for patent infringement is two years, calculated from the date of knowledge. For patent infringements that occur in the form of continuous infringement, we have added that the amount of compensation can be pushed forward two years from the date of prosecution, and the behavior after the prosecution can be stopped. This is a very important addition. . This revision of the Patent Law has been further refined based on the relevant judicial interpretations of the Supreme People's Court. The second aspect of restrictions is that there are situations in real life where the patentee resorts to playing hard to get, allowing others to mislead others, and then waits for others to further expand the scope of investment before filing a lawsuit after a period of time, leaving the other party in a difficult position. A very passive position, this kind of behavior is not conducive to the establishment of our normal economic order. In response to this phenomenon, we suggest that the patent law add a provision. The silence of the patentee or interested parties will give the infringing unit reason to believe. The patentee or interested party will not claim rights for the implementation, but then files a lawsuit or requests settlement with the People's Court. If the claim clearly violates the principle of honesty and trustworthiness, the patentee or interested party will not have the right to receive compensation for the implementation, nor will it have the right to order the unit and The individual ceases use.

Fourth, according to the TRIPS Agreement, countries have sufficient space to address the issue of exhaustion of rights. We recommend that corresponding provisions be made in the patent law, such as allowing parallel imports.

Fifth, an article has been added, the "BOLAR" exception, which stipulates that manufacturing patented drugs and pharmaceutical machinery for the purpose of providing information for administrative review and approval will not be regarded as patent infringement. This is of great significance to safeguarding the interests of the public and making it easier for the public to obtain medicines and medical devices, which is of great significance to the interests of the public and people's lives and health.

The issue of patent rights management involves two points

Deputy Director Song Jianhua said that the third revision of the Patent Law has two suggestions for the management of patent rights: First, regarding ***The rules clearly stipulate the rights and obligations between patentees or applicants. For the patent holder, when transferring the patent, using the patent right as a pledge, or licensing others to implement it, in the absence of an agreement, the implementation must be subject to unanimous consent. Corresponding provisions are also made for the independent patentees to implement the patent rights independently. Unless otherwise stipulated in the agreement, the patentee can independently implement the patent rights.

There is also the issue of approval. When an invention-creation completed in China is applied for abroad, the application must first be submitted to the State Intellectual Property Office. This application is an obligatory clause, but regarding this clause itself, there is no liability clause in the current law. If the parties fail to fulfill such obligations, there is no legal restriction. We have revised and improved the relevant regulations this time.

If an invention-creation completed in China is directly applied to a foreign country without first being approved by the State Intellectual Property Office or filing a patent application with the State Intellectual Property Office, and then an application is made to China for the same invention-creation later, no patent will be granted for such patent application. right.