Patent Law of the People's Republic of China (2020 Amendment)

Patent Law of the People's Republic of China (2020 Amendment) Patent Law of the People's Republic of China (Adopted at the 4th Session of the Standing Committee of the Sixth National People's Congress on March 12, 1984; amended for the first time by the Decision on Amending the Patent Law of the People's Republic of China adopted at the 27th Session of the Standing Committee of the Seventh National People's Congress on September 4, 1992; amended for the second time by the Decision on Amending the Patent Law of the People's Republic of China , adopted at the 17th Session of the Standing Committee of the Ninth National People's Congress on August 25, 2000; amended for the third time by the Decision of the Standing Committee of the National People's Congress on Amending the Patent Law of the People's Republic of China adopted at the 6th Session of Standing Committee of the 11th National People's Congress of the People's Republic of China on December 27, 2008; and amended for the fourth time in accordance with the Decision of the Standing Committee of the National People's Congress to Amend the Patent Law of the People's Republic of China adopted at the 22nd Session of the Standing Committee of the Thirteenth National People's Congress of the People's Republic of China on October 17, 2020) Contents Chapter I General Provisions Chapter II Conditions for Granting Patents Chapter III Application for Patents Chapter IV Examination and Approval of Patent Applications Chapter V Duration, Termination and Invalidation of Patents Chapter VI Compulsory License for the Exploitation of Patents Chapter VII Protection of Patents Chapter VIII Supplementary Provisions Chapter I General Provisions Article 1 This law is enacted for the purpose of protecting the legitimate rights and interests of patentees, encouraging inventions, giving an impetus to the application of inventions, improving the innovative capabilities, and promoting scientific and technological progress as well as the economic and social development. Article 2 The “inventions” as used in this Law means inventions, utility models and designs. The term “invention” refers to any new technical solution relating to a product, a process or an improvement thereof. The term “utility model” refers to any new technical solution relating to a product's shape, structure, or a combination thereof, which is fit for practical use. “Design” means a new design of the shape, pattern, or a combination thereof, as well as a combination of the color, shape and pattern, of the entirety or a portion of a product, which creates an aesthetic feeling and is fit for industrial application. Article 3 The patent administrative department of the State Council shall be responsible for the administration of the patent work throughout China, uniformly accept and examine applications for patents, and grant patents in accordance with the law. The patent administrative department of the people's government of each province, autonomous region, or municipality directly under the Central Government shall take charge of the administration of patents within its own jurisdiction. Article 4 Where the invention for which a patent is applied for relates to the security or other vital interests of the State and is required to be kept confidential, the application shall be handled in accordance with the relevant provisions of the State. Article 5 No patent shall be granted for an invention that contravenes any law or social moral or that is detrimental to public interests. No patent will be granted for an invention based on genetic resources if the access or utilization of the said genetic resources is in violation of any law or administrative regulation. Article 6 An invention-creation made by a person in the execution of tasks of the entity employing the person or mainly by taking advantage of the entity's material and technical conditions is a service invention-creation. The right to apply for a patent for a service invention-creation belongs to the entity; and after the application is granted, the entity is the patentee. The entity may, in accordance with the law, dispose of its right to apply for the patent for the service invention-creation and the patent right, and promote the exploitation and application of the invention-creation. For any non-service invention, the right to apply for a patent shall remain with the inventor or designer. After the application is approved, the inventor or designer shall be the patentee. For an invention made by a person by taking advantage of the material and technical means of the entity where he works, if there is a contract between the entity and the inventor or designer regarding the right to apply for patent and the ownership of the patent, the contractual stipulations shall prevail. Article 7 No entity or individual shall prevent the inventor or designer from filing an application for patenting a non-service invention. Article 8 For an invention made through the joint work of two or more entities or individuals, or made by an entity or individual upon the authorization of another entity or individual, the right to apply for a patent shall, unless it is otherwise agreed upon, remain with the entity or individual which made the invention or with the entities or individuals which jointly made the invention. After the application is approved, the entity (or entities) or individual(s) that filed the application shall be the patentee. Article 9 One patent shall be granted to one invention. However, if a same applicant applied for both a patent for utility model and a patent for invention on a same day, if the patent for the utility model it has previously applied for has not terminated yet and if the applicant declares to waive the patent for utility model, the patent for invention can be granted. Where two or more applicants file applications for a patent for an identical invention, the patent shall be granted to the applicant who is the first to file an application. Article 10 The right to apply for a patent and the patent rights may be assigned. Where a Chinese entity or individual is to assign the right to apply for a patent or a patent right to a foreigner or foreign enterprise or any foreign organization, it or he shall go through the formalities under relevant laws and administrative regulations. Where the right to apply for a patent or a patent right is assigned, the parties concerned shall conclude a written contract, and have the contract registered in the patent administrative department of the State Council. The said contract shall be announced by the patent administrative department of the State Council. The assignment of the right to apply for the patent or the patent right shall come into force as of the date of registration. Article 11 After the granting of patent for an invention or utility model, unless it is otherwise prescribed by this Law, no entity or individual is entitled to, without permission of the patentee, exploit the patent, that is, to make, use, promise the sale of, sell or import the patented product, or use the patented process and use, promise the sale of, sell or import the product directly obtained from the patented process, for production or business purposes. After the granting of a patent for a design, no entity or individual shall, without permission of the patentee, exploit the patent, that is to say, they shall not make, promise to sell, sell, or import the product incorporating its or his patented design, for production and business purposes. Article 12 Where an entity or individual exploits the patent of anyone else, it or he shall conclude a licensing contract with the patentee and pay a patent royalty to the patentee. The licensee has no right to license any entity or individual other than the entity or individual as stipulated in the licensing contract to exploit the said patent. Article 13 After the publication of an application for a patent for invention, the applicant may require the entity or individual exploiting the invention to pay an appropriate fee. Article 14 If there is any agreement between the joint owners of the right to apply for a patent or a patent right regarding the exercise of the relevant right, the agreement shall be followed. If there is no such agreement, any of the joint owners may exploit the patent independently or license others to exploit the patent by means of ordinary license. In the case of licensing others to exploit the patent, royalties charged shall be distributed among the joint owners. Except for the circumstance as described in the preceding paragraph, the exercise of the right to apply for a patent or a patent right shall be based on the consensus of all joint owners. Article 15 The entity to whom a patent is granted shall give to the inventor or designer of the service invention a reward and shall, after exploitation of the patented invention, pay the inventor or designer a reasonable remuneration on the basis of the scope of popularization and application as well as the economic benefits yielded. The state encourages entities to which patent rights are granted to implement property right incentives, and enable inventors or designers to rationally share the innovation benefits in a form such as equities, options, and dividends. Article 16 An inventor or designer has the right to expressly indicate in the patent documents that he is the inventor or designer. A patentee has the right to label the patent on its patented product or on the package of the said product. Article 17 Where any foreigner, foreign enterprise or other foreign organization that has no habitual residence or business office in China files an application for a patent in China, the application shall be treated under this Law in accordance with the agreement, if any, concluded between the country to which the applicant belongs and China, or in accordance with any international treaty to which both countries are a party, or on the basis of the principle of reciprocity. Article 18 Where a foreigner, foreign enterprise or any other foreign organization that has no habitual abode or business office in China intends to apply for a patent or handle other patent-related matters in China, he or it shall authorize a legitimately formed patent agency to act on his or its behalf. To apply for a patent or handle other patent-related matters in China, a Chinese entity or individual may authorize a legitimately formed patent agency to act on its or his behalf. A patent agency shall abide by the laws and administrative regulations when filing applications for patents or handling other patent affairs as entrusted by the principal. It shall also be obligated to keep confidential the contents of the principal's invention, unless the application for patent has been published or announced. The specific measures for the administration of patent agencies shall be formulated by the State Council. Article 19 Where an entity or individual intends to file an application in a foreign country for patenting an invention or utility model accomplished in China, it or he shall report in advance to the patent administrative department of the State Council for confidentiality review. The provisions of the State Council shall be followed in regard to the procedures and time limit for the confidentiality review. A Chinese entity or individual may, in accordance with the relevant international treaties acceded to by the People's Republic of China, file an international application for patent. An applicant who files an international application for patent shall abide by the provisions of the preceding paragraph. The patent administrative department of the State Council shall handle international applications for patent in accordance with the relevant international treaties acceded to by the People's Republic of China, this Law, and the relevant provisions of the State Council. As to an invention or utility model for which a patent application is filed in a foreign country by violating the provision of paragraph 1 of this Article, no patent will be granted to it if a patent application has been filed in China. Article 20 Patent applications and the exercise of patent rights shall adhere to the principle of good faith. Patent rights shall not be abused to damage the public interest or the lawful rights and interests of any other person. Any abuse of patent rights to preclude or restrict competition, which constitutes a monopolistic act, shall be handled in accordance with the Anti-monopoly Law of the People's Republic of China . Article 21 The patent administrative department of the State Council shall, pursuant to the requirements of objectivity, impartiality, accuracy and timeliness, handle the relevant patent applications and appeals. The patent administrative department of the State Council shall strengthen the construction of the patent information public service system, release patent information in a complete, accurate, and timely manner, provide basic patent data, publish patent gazettes on a periodical basis, and promote the dissemination and utilization of patent information. Before an application for patent is published or announced, the functionaries and other relevant persons of the patent administrative department of the State Council shall keep confidential the contents therein. Chapter II Conditions for Granting Patents Article 22 An invention or utility model for which a patent is to be granted shall be novel, inventive and practically applicable. Novelty means that the invention or utility model is not an existing technology, and prior to the date of application, no entity or individual has filed an application heretofore with the patent administrative department of the State Council for the identical invention or utility model and recorded it in the patent application documents or patent documents released after the said date of application. Inventiveness means that, as compared with the technology existing before the date of application the invention has prominent substantive features and represents a notable progress and that the utility model has substantive features and represents progress. Practical applicability means that the invention or utility model can be made or used and can produce effective results. The term “existing technology” as mentioned in this Law refers to the technologies known to the general public both at home and abroad prior to the date of application. Article 23 Any design for which a patent is granted shall not be attributed to the existing design, and no entity or individual has, before the date of application, filed an application with the patent administrative department of the State Council on the identical design and recorded it in the patent documents published after the date of application. As compared with the existing design or combination of the existing design features, the design for which a patent is granted shall have distinctive features. The patented design may not conflict with the lawful rights that have been......