1. Regarding the necessity of the fourth revision of the Patent Law and the revision process.
Song Jianhua, Director of the Treaty and Law Department of the State Intellectual Property Office, introduced the basic situation of the revision of the Patent Law. China's patent system was established in 1984 and came into effect in 1985. It has been comprehensively revised three times. The patent system has been implemented for more than 30 years and has achieved world-renowned achievements. As China strengthens the construction of an intellectual property power and implements the national intellectual property strategy in depth, there are still some problems in the process of achieving results. For example, new contradictions and new problems have emerged in the field of patent protection, mainly in the protection and application of patents, as well as the construction of innovation subject capabilities and government service capabilities. In particular, innovative entities face some difficulties, such as long protection cycles, difficulty in obtaining evidence, low compensation, and poor results, which affect the enthusiasm of enterprises for innovation. It is necessary to further regulate from the legal level.
In order to implement the new requirements put forward by the Central Committee and the State Council for strengthening the protection of intellectual property rights in recent years, we should combine the needs of the situation and the requirements of the spirit of the documents of the Party Central Committee and the State Council to solve the difficulties and problems currently faced by innovative entities. , it is necessary to further improve this patent law. In 2015, the State Intellectual Property Office submitted the proposed draft of the fourth comprehensive revision of the Patent Law to the State Council, and the Legislative Affairs Office of the State Council is currently collecting opinions and reviewing the submitted draft for review. The State Intellectual Property Office fully cooperates with the Legal Affairs Office of the State Council in carrying out relevant work.
II. Administrative penalties for group infringement and repeated infringement
Deputy Director of the Patent Management Department Zhao Meisheng said that for a certain patentee who infringes at the same time within a period of time, , which has a huge impact on the patentee’s enthusiasm for innovation. Repeat infringement means that a certain patentee's patent rights have been infringed once by the same subject within a certain period of time and in a certain area, and after being determined to be infringed by the judicial authorities, the infringement is repeated and discovered again. These two infringements not only infringe upon the legitimate rights and interests of the right holders, but also seriously undermine the market economic order and harm the interests of the public. It is necessary to increase government supervision and impose certain administrative penalties on repeated infringements and group infringements, so as to effectively maintain the operating order of the patent system and give confidence to patentees and innovators.
3. Regarding Internet patent protection, the legal liability of network service providers
Deputy Director of the Patent Management Department Zhao Meisheng said that with the development of China’s e-commerce, in recent years, electronic There are also more and more infringements in business. Although Article 36 of the Tort Liability Law stipulates in principle the legal liability of network service providers, including the corresponding liability for infringement of intellectual property rights, it is not specific and detailed enough when it comes to patent infringement. The Patent Law currently does not have clear legal provisions in this regard, so it is necessary to make corresponding specific provisions when revising it. For e-commerce platforms, if they do not take necessary measures after receiving a "notification" from the right holder or interested party, Clearly define their corresponding legal responsibilities. Clarify the rights and obligations of e-commerce platforms, rights holders and operators on e-commerce platforms, promote the faster and healthier development of e-commerce, and effectively curb infringements on the Internet.
IV. Regarding the investigation and evidence collection methods used by the patent administration department in cases of patent infringement disputes
Zhao Meisheng, deputy director of the Patent Management Department, said that patent rights are intangible property rights, and the collection of infringement evidence is very important. It is difficult and highly concealable, and relevant infringement evidence is often in the hands of the infringer. Infringement is an illegal act, and government agencies should perform their duties of supervision during and after the event, actively collect evidence according to the request of the right holder, and ensure the principles of fairness, neutrality, objectivity and comprehensiveness when collecting evidence. At present, the regulations in this area are not perfect enough, and the means of investigation and evidence collection are lacking. It is hoped that this revision of the Patent Law will refine the methods used by government agencies to investigate and collect evidence, which will help improve the strength and fairness of patent protection. This is also the necessity of legislative amendments.
5. Regarding partial design protection and the scope of protection of application documents
Lin Xiaoyue, director of the Design Examination Department, said that partial design protection is an important step in strengthening design protection when submitting drafts for review. Revise. With the development of economy and society, appearance design plays an important role in promoting the market competitiveness of products and the transformation and upgrading of enterprises. There are relatively few cases of disruptive or brand-new designs for a product. Most design innovations are partial changes based on existing products.
However, the protection of the whole in the current law is based on the principle of "overall observation and comprehensive judgment", that is, a design must be compared comprehensively to see whether it is patentable. This situation weakens the protection of local parts, so this revision gives more important protection to local distinctive parts. For designers, the rights protection is enhanced. This modification is very important.
The requirements for application documents and the scope of protection will be further detailed in the future Implementing Rules of the Patent Law and Patent Examination Guidelines. For example, when applying, you can use a combination of dotted lines and solid lines to distinguish the overall product from local designs, and submit applications through color block distinctions or through means such as lightness and darkness. In addition, in terms of the scope of protection, it is necessary to consider which category this partial design belongs to in terms of the overall product category. In addition, various factors such as the proportion of the local design and the relationship between locations must be considered to comprehensively consider the scope of protection.
6. Regarding the extension of design patent protection period from ten years to fifteen years
Lin Xiaoyue, director of the Design Examination Department, said that on the one hand, compared with several major international Among countries and regions with design patents, my country’s current design protection period is relatively the shortest, while other countries have fifteen or twenty-five years; on the other hand, some high-level design product cycles are relatively longer; other classics Design has such a need to obtain longer-term protection and let the public have a longer-term understanding of its product image. This is very effective for the brand, image, and continuation of its design DNA, so for The protection period has been adjusted based on the needs of the public in this regard. Our country is also actively considering joining the Hague Agreement. The Hague Agreement is a very good channel for enterprises to apply abroad. The Hague Agreement stipulates that the minimum protection period for industrial designs is 15 years. The adjustment of the protection period is also to adapt to the needs of the Hague Agreement.
7. Regarding the punitive damages system for patent infringement
Song Jianhua, Director of the Treaty and Law Department of the State Intellectual Property Office, said that the cost of patent infringement in my country is currently very low, and the cost of patent rights protection is very high. High, resulting in the fact that some corporate patent holders won the lawsuit and lost the market during the process of safeguarding their rights. As an intangible property, patent rights require a lot of costs in both the initial investment and the later maintenance process. This revision of the law proposes punitive damages. For intentional infringement of patent rights, compensation is not only required to provide compensatory and filling compensation to the right holder, but also to provide warning, disciplinary and punitive damages to the infringement. Regarding the amount of compensation, it is recommended that the court can impose a penalty of 1 to 3 times for such intentional infringement. This increases the intensity of punishment and also greatly supplements the cost of rights holders' rights protection. The punitive damages system is currently reflected in the Trademark Law and is also being considered in other intellectual property legislation.
8. Regarding the patent right evaluation report
Lin Xiaoyue, director of the Design Examination Department, said that under the current law, only the patentee and interested parties can request an evaluation report. Currently, the state The Intellectual Property Office issues an evaluation report. This revision adds the subject of submitting a patent right evaluation report. In addition to the patentee, the accused infringing party can also proactively apply for the issuance of an evaluation report. In infringement litigation, if the applicant feels that the evaluation report is unfavorable to him, he may not take the initiative to submit an evaluation report, which will have a certain impact on the court's timely or accurate ruling; if the accused infringer takes the initiative to request an evaluation report , which is very beneficial for the court to make timely and accurate judgments.
The role of the patent right evaluation report will be used in litigation and infringement. In addition, this revision has added a new ex officio license system. When declaring an ex officio license, a patent right evaluation report must be provided. Patent right evaluation reports are not limited to designs. Requests for evaluation reports can be made for both utility model and design patents under the preliminary examination system.
9. About the patent ex-officio license system
Zhao Meisheng, deputy director of the Patent Management Department, said that the patent ex-officio license system is, in layman’s terms, an open patent licensing system. After the patent right is authorized, the right holder can request the State Intellectual Property Office to put the patent right on the bulletin board and disclose it to the whole society through the Internet or paper and electronic means. Anyone in the whole society is eligible to obtain a license during the patent open license period and pay licensing fees to the rights holder.
Most countries, including developed countries such as the United Kingdom, France, and Germany, have ex officio licensing systems. In the United Kingdom, the proportion of ex officio licenses in all patent licenses has reached as high as 40% in recent years; currently, except for China, BRICS Countries such as Brazil, India, South Africa, and Russia all have natural licensing systems; other developing countries, such as Malaysia and Thailand, also have natural licensing systems. Of course, the licensing system is a relatively common, open, and universally beneficial way to promote patent implementation. If China can introduce an ex officio licensing system in this revision of the law, it will solve the problem of information asymmetry, reduce transaction costs, improve transaction efficiency, speed up the implementation and use of domestic patents, and implement the strategy of strengthening the country in intellectual property rights. The effective operation of the patent system plays a very important role.
Song Jianhua, Director of the Treaty and Law Department of the State Intellectual Property Office, said that the patent system has been implemented for more than 30 years, and the number of patent applications and authorizations in China has grown rapidly in recent years, and the enthusiasm and ability of enterprises to innovate are exploding rapidly. in process. Due to the asymmetry in the dissemination of patent rights information, many patented technologies, especially valuable patented technologies applied by some colleges and universities and scientific research institutes, are in a dormant state. In order to enable patent holders to conveniently convey their technical information and at the same time allow demanders to quickly find the technology, a platform has been established from the perspective of government services through legal means, which increases the convenience for both parties to the technology transfer.
10. Regarding the implied license system for standard essential patents
Song Jianhua, Director of the Legal Affairs Department of the State Intellectual Property Office, said that the issues of standards and patents are actually in two legal systems. connection points. On the one hand, it is necessary to fully protect the contribution of the patentee in technological innovation, but at the same time, it is also necessary to take into account the proper resolution of the interest relationship between the standard implementer and the patentee when manufacturing products, as well as the role of the patentee in this regard. obligations to be fulfilled.
In practice, some standard solutions cover certain patented technologies, and patentees involve patented technologies in the process of formulating standards. Patentees participating in the formulation of standards are required to disclose information about their patents. And we must make a commitment to issue licenses fairly, reasonably and without discrimination. However, there are some individual phenomena in practice. The patentee does not fully disclose his patent information when participating in the formulation of standards, which may lead to patent infringement by subsequent implementers of the standard. This requires the patentee himself to bear the responsibility for disclosure and disclosure. obligations.
This revision of the "Patent Law" proposes that during the standard-setting process, if the patentee fails to honestly disclose the patent information of the design, his behavior will be flawed, and his own dishonesty will lead to the above consequences. In this regard, the patentee must exercise its rights on the one hand and fulfill its disclosure obligations at the same time. If there is no honest disclosure, the standard implementer is deemed to have an implicit license to implement the patent. However, the patent is not free to implement, and other companies and manufacturers still have to pay reasonable royalties to the patentee.
my country currently only requires patentees to disclose information in the process of formulating standards in the departmental regulations or normative documents of the Standardization Law. However, if they do not disclose, their legal liability is not clearly defined accordingly. The connection between the "Standardization Law" and the "Patent Law" is through the disclosure of information by the standard essential patent holders, and corresponding provisions are made on the legal consequences that the patent holders should bear if they fail to disclose in the Patent Law.
Song Jianhua, Director of the Legal Affairs Department of the State Intellectual Property Office, said that patentees must abide by the principle of good faith when exercising their rights and participating in the formulation of standards. There is a proper institutional connection between the national standardization laws and regulations and the Patent Law, and relevant regulations need to be further improved.
11. Regarding the establishment of patent agencies and the administrative approval of patent agent qualifications
Song Jianhua, director of the Treaty and Law Department of the State Intellectual Property Office, said that patent agents are important in the implementation of the patent system. An important part of the process, patent agents play a very important role in patent applications, corporate innovation, the use of patent documents, technology, and information, as well as patent rights protection, protection, transfer, implementation, and use after patent authorization. professional role. Patent attorneys provide very professional and technical legal services. Their qualifications involve the legal protection of important citizens’ property rights and interests, and they need to obtain corresponding administrative licenses to ensure that the rights and interests of innovative entities are effectively protected.
This time the "Patent Law" has revised some important provisions on the agency system. For example, engaging in patent agency business requires administrative permission.
Behavior without administrative permission will be punished accordingly. In practice, some people or institutions do not obtain administrative licenses for patent agencies, but solicit patent agency business in a way that deceives the public, seriously affecting the entire market order and directly harming the rights and interests of innovative entities.