How Can I Learn about Patent Law?

Patent law is the sum of laws and regulations that regulate certain social relationships resulting from inventions and promote technological progress and economic development. By its nature, patent law is both domestic law and foreign-related law; it is both a substantive law establishing the rights and obligations of patentees, and a procedural law that provides a series of procedural systems for patent application, examination, and approval; It is a law that adjusts the vertical relationship in patent application, examination, approval, and patent implementation management, and a law that adjusts the horizontal relationship of patent ownership, patent transfer, and license; it is both a law adjusting the personal relationship of patents and a patent property. Relationship law. It mainly includes the following contents: qualifications of applicants for invention patents, objects protected by patent law, patent application and examination procedures, conditions for obtaining patents, patent agency, patent ownership, occurrence and extinction of patent rights, protection period of patent rights, patents Rights and obligations of rights holders, patent implementation, transfer and license, protection of patent rights, etc. ^[1]

Patent law

Within the time limit prescribed by law, the patentee who has been granted a patent right by the state

In the west

Generally involves the following issues:

Inventions that violate public order and morals generally do not grant patents. However, the application of this provision is closely related to the class essence of the state.

The patent laws of different countries are different. China and most countries require that inventions granted with patent rights should be novel, advanced and industrially practical.

Novelty refers to

According to whether the invention belongs to an individual's achievement in performing his duties, the invention can be divided into

PCT

The provisions of patent laws vary from country to country. The shortest is less than 5 years, such as Iran and Venezuela. Most countries require between 10 and 20 years, such as 16 years in the United Kingdom, 17 years in the United States, 18 years in the Federal Republic of Germany, and 20 years in France. In other countries, there are several deadlines that applicants can choose, such as Argentina and Chile. The time limit for the start of the period is calculated in some countries from the date of filing the application, and in some countries from the date of grant of the patent right. China's "Patent Law" stipulates that the duration of patent rights for inventions is 20 years. Utility models and

Some countries (such as the United States) do not require patents to be enforced, but most countries, especially many developing countries, require the patentee to oblige to implement their invention in that country. Implementation is generally understood to mean that a product patent refers to the manufacture of the invention product, and a method patent refers to the use of the invention method in manufacturing. Only through the implementation of patents can a real positive effect on the development of industry and technology in the country. It is generally believed that patentees are allowed to implement their patented inventions, but imports are not.

The patent laws of many countries stipulate that if the invention that has obtained the patent right expires 4 years from the date of application or 3 years from the date of approval, and has not been implemented or not fully implemented without justification, the competent authority may grant implementation based on the application. The invention

Patent law generally also provides for patent infringement and litigation. Many countries also have detailed rules for the implementation of patent laws. In order to avoid international patent rights

In Western countries, the earliest patent is generally considered to be the King of England

Decree of the President of the People's Republic of China

Number eight

The Decision of the Standing Committee of the National People's Congress on Amending the Patent Law of the People's Republic of China was adopted by the Sixth Meeting of the Standing Committee of the Eleventh National People's Congress of the People's Republic of China on December 27, 2008, and is now available , Effective October 1, 2009.

Hu Jintao, President of the People's Republic of China

December 27, 2008

Patent Law of the People's Republic of China

(Adopted at the fourth meeting of the Standing Committee of the Sixth National People's Congress on March 12, 1984. The First Amendment of the Decision of the Patent Law was based on the 2008 Decision of the Seventeenth Meeting of the Ninth National People's Congress Standing Committee on August 25, 2000. The Second Amendment was based on 2008. (The Third Amendment to the "Decision on Amending the" Patent Law of the People's Republic of China "of the Sixth Session of the Standing Committee of the Eleventh National People's Congress on December 27, 2014)

table of Contents

Chapter I General Provisions

Chapter II Conditions for Granting Patent Rights

Chapter III Application for Patents

Chapter IV Examination and Approval of Patent Applications

Chapter V Duration, Termination and Invalidation of Patent Rights

Chapter VI Compulsory License for Patent Implementation

Chapter VII Protection of Patent Rights

Chapter VIII Supplementary Provisions

Chapter I General Provisions

Article 1 This Law is enacted in order to protect the legitimate rights and interests of patentees, encourage inventions and creations, promote the application of inventions and creations, enhance innovation capabilities, promote scientific and technological progress and economic and social development.

Article 2 The term "inventions and creations" as used in this Law refers to inventions, utility models and designs.

Invention refers to a new technical solution to a product, method, or improvement.

A utility model refers to a new technical solution suitable for the shape, structure or combination of products.

Appearance design refers to a new design that is rich in aesthetics and suitable for industrial applications for the shape, pattern or combination of products and the combination of color and shape and pattern.

Article 3 The patent administration department of the State Council is responsible for managing patent work across the country; uniformly accepting and examining patent applications, and granting patent rights in accordance with law.

The patent administration departments of the people's governments of provinces, autonomous regions, and municipalities directly under the Central Government are responsible for patent administration in their respective administrative regions.

Article 4 Where the invention of a patent application involves national security or significant interests and needs to be kept confidential, it shall be handled in accordance with relevant state regulations.

Article 5 Patent rights are not granted for inventions that are in violation of law, social morality, or hinder public interest.

Patent rights are not granted for inventions that are acquired or used in violation of the laws and administrative regulations and rely on the genetic resources.

Article 6 Inventions and creations that are performed by performing the tasks of the unit or mainly by using the material and technical conditions of the unit are service inventions. The right to apply for a patent for a service invention creation belongs to the unit; after the application is approved, the unit is the patentee.

For non-service inventions, the right to apply for a patent belongs to the inventor or designer; after the application is approved, the inventor or designer is the patentee.

For inventions and creations made using the material and technical conditions of the unit, if the unit has a contract with the inventor or designer to make an agreement on the right to apply for a patent and the ownership of the patent right, such agreement shall prevail.

Article 7 No unit or individual may suppress an application for a non-service invention-creation patent by an inventor or designer.

Article 8 The inventions and creations completed by the cooperation of two or more units or individuals, or the inventions and creations made by one unit or individual upon the commission of other units or individuals, unless otherwise agreed, the right to apply for a patent belongs to the unit that completed or jointly completed the or Individual; after the application is approved, the applying unit or individual is the patentee.

Article 9 Only one patent right can be granted for the same invention. However, if the same applicant applies for both the utility model patent and the invention patent for the same invention and creation on the same day, and the utility model patent right obtained first has not ended, and the applicant declares to waive the utility model patent right, the invention patent right may be granted.

Where two or more applicants apply for patents on the same invention, the patent right is granted to the first applicant.

Article 10 Patent application rights and patent rights may be transferred.

Where a Chinese entity or individual transfers a patent application right or patent right to a foreigner, foreign enterprise, or other foreign organization, it shall go through the formalities in accordance with the relevant laws and administrative regulations.

Where a patent application right or patent right is transferred, the parties shall conclude a written contract and register with the patent administration department of the State Council, which shall be announced by the patent administration department of the State Council. The patent application right or the assignment of the patent right becomes effective from the date of registration.

Article 11 After the invention and utility model patent right is granted, except as otherwise provided in this Law, no unit or individual may implement its patent without the permission of the patentee, that is, it may not manufacture, use, Promises to sell, sell, or import its patented products, or uses its patented method and uses, promises to sell, sell, or import products obtained directly in accordance with the patented method.

After the design patent right is granted, no unit or individual may implement its patent without the permission of the patentee, that is, it may not manufacture, promise to sell, sell, or import its design patent products for production and business purposes.

Article 12 Any unit or individual who implements another person's patent shall conclude an implementation license contract with the patentee and pay the patentee a fee for the use of the patent. The licensee has no right to allow any unit or individual outside the contract to implement the patent.

Article 13 After the publication of an application for an invention patent, the applicant may require the entity or individual implementing the invention to pay an appropriate fee.

Article 14 Where the invention patents of state-owned enterprises and institutions are of great significance to the national or public interest, the relevant competent department of the State Council and the people's governments of provinces, autonomous regions, and municipalities directly under the Central Government may apply for approval within the scope of approval. Designated units are allowed to implement, and the implementing units shall pay royalties to patentees in accordance with national regulations.

Article 15 Where the co-owner of a patent application right or a patent right has an agreement on the exercise of the right, such agreement shall prevail. If there is no agreement, the co-owners may implement the patent separately or in a general license; if the other person is authorized to implement the patent, the royalties collected shall be distributed among the co-owners.

Except in the circumstances specified in the preceding paragraph, the exercise of joint patent application rights or patent rights shall require the consent of all co-owners.

Article 16 The unit granted the patent right shall reward the inventor or designer of the service invention-creation; after the invention-creation patent is implemented, the inventor or designer shall be given a reasonable amount according to the scope of its application and economic benefits. Pay.

Article 17 The inventor or designer has the right to indicate in the patent document that he or she is the inventor or designer.

The patentee has the right to mark the patent mark on its patented product or its packaging.

Article 18 If a foreigner, foreign enterprise, or other foreign organization that does not have a permanent residence or business place in China to apply for a patent in China, it shall be in accordance with the agreement signed between the country to which it belongs and China or an international treaty to which it is a party, or in accordance with the principle of reciprocity. This law deals.

Article 19 Any foreigner, foreign enterprise, or other foreign organization that does not have a permanent residence or business place in China to apply for a patent and handle other patent matters in China shall entrust a patent agency established in accordance with the law.

Chinese units or individuals applying for patents and handling other patent matters in China may entrust a patent agency established in accordance with the law to handle them.

Patent agencies shall abide by laws and administrative regulations and handle patent applications or other patent affairs in accordance with the entrustment of the principal; the contents of the inventions and creations of the principal shall be held confidential unless the patent application has been published or announced. The specific administrative measures for patent agencies shall be formulated by the State Council.

Article 20 Any unit or individual who applies for a patent for an invention or utility model completed in China shall report to the patent administration department under the State Council for confidential review in advance. The procedures and time limit for confidential review shall be implemented in accordance with the provisions of the State Council.

Chinese units or individuals may file international patent applications in accordance with relevant international treaties to which the People's Republic of China is a party. Where an applicant files an international patent application, it shall comply with the provisions of the preceding paragraph.

The patent administration department of the State Council processes international patent applications in accordance with the relevant international treaties to which the People's Republic of China is a party, this law and the relevant provisions of the State Council.

The patent right shall not be granted to an invention or utility model that has been applied for in a foreign country in violation of the provisions of the first paragraph of this Article.

Article 21 The patent administrative department of the State Council and its Patent Reexamination Board shall, in accordance with objective, fair, accurate and timely requirements, process applications and requests for related patents in accordance with law.

The patent administration department under the State Council shall release patent information in a complete, accurate and timely manner, and regularly publish patent bulletins.

Prior to the publication or announcement of a patent application, the staff and related personnel of the patent administration department under the State Council shall be held responsible for keeping their contents confidential.

Chapter II Conditions for Granting Patent Rights

Article 22 The inventions and utility models for which patent rights are granted shall be novel, creative and practical.

Novelty means that the invention or utility model does not belong to the prior art; nor has any unit or individual filed an application for the same invention or utility model with the patent administration department of the State Council before the filing date, and records that it was announced after the filing date. Patent application documents or published patent documents.

Inventiveness means that compared with the prior art, the invention has outstanding substantive features and significant progress, and the utility model has substantive features and progress.

Practicality means that the invention or utility model can be manufactured or used and can produce positive effects.

The prior art referred to in this law refers to the technology known to the public at home and abroad before the filing date.

Article 23 The design granted with a patent right shall not belong to the existing design; no unit or individual has applied for the same design to the patent administration department of the State Council before the filing date, and shall record the announcement after the filing date. Patent document.

Compared with the existing design or the combination of existing design features, the patented design shall have obvious differences.

The design granted with the patent right shall not conflict with the legal rights already obtained by others before the filing date.

The existing design referred to in this Law refers to the design known to the public at home and abroad before the filing date.

Article 24 Within six months before the filing date of an application for a patent, if there is one of the following circumstances, the novelty shall not be lost:

(1) exhibited for the first time at an international exhibition hosted or recognized by the Chinese government;

(2) first published at a prescribed academic conference or technical conference;

(3) Others have leaked their content without the consent of the applicant.

Article 25 No patent right shall be granted for the following items:

(1) scientific discoveries;

(2) rules and methods of intellectual activities;

(3) methods of diagnosis and treatment of diseases;

(4) varieties of animals and plants;

(5) Substances obtained by nuclear transformation methods;

(6) Designs that are mainly used for logos on the patterns, colors, or a combination of the two printed products.

For the production methods of the products listed in item (4) of the preceding paragraph, patent rights may be granted in accordance with the provisions of this Law.

Chapter III Application for Patents

Article 26 When applying for an invention or utility model patent, a request, a description, its abstract, and a claim shall be submitted.

The request shall specify the name of the invention or utility model, the name of the inventor, the name or address of the applicant, the address, and other matters.

The description shall make a clear and complete description of the invention or utility model, which can be realized by those skilled in the technical field to which it belongs; when necessary, drawings shall be provided. The abstract should briefly explain the technical points of the invention or utility model.

The claims should be based on the description and clearly and briefly define the scope of patent protection.

For inventions and creations that rely on genetic resources, the applicant should indicate the direct source and original source of the genetic resource in the patent application document; if the applicant cannot explain the original source, it should state the reason.

Article 27 When applying for a design patent, documents such as a request, a picture or photo of the design, and a brief description of the design shall be submitted.

The relevant picture or photo submitted by the applicant shall clearly show the design of the product for which patent protection is required.

Article 28 The date when the patent administration department of the State Council receives the patent application documents is the application date. If the application documents are sent by mail, the postmark date sent is the application date.

Article 29 Within twelve months from the date of the first foreign patent application for an invention or utility model, or within six months from the date of the first foreign patent application for a design, If a patent application is filed in China on the same subject, priority can be enjoyed in accordance with the agreement signed between the foreign country and China, or an international treaty to which the foreign country is a party, or the principle of mutual recognition of priority.

An applicant who has filed a patent application on the same subject with the patent administration department under the State Council within twelve months after the invention or utility model first filed a patent application in China may enjoy priority.

Article 30 An applicant claiming priority shall submit a written statement at the time of application, and submit a copy of the patent application document filed for the first time within three months; a written statement is not filed or a copy of the patent application document is not submitted after the deadline Is deemed not to have claimed priority.

Article 31 An application for an invention or utility model patent shall be limited to one invention or utility model. Two or more inventions or utility models that belong to one general inventive concept may be filed as one application.

An application for a design patent shall be limited to one design. Two or more similar designs for the same product, or two or more designs for products in the same category and sold or used in sets, may be filed as one application.

Article 32 The applicant may withdraw his patent application at any time before the patent right is granted.

Article 33 The applicant may amend its patent application documents, but the amendments to the invention and utility model patent application documents shall not exceed the scope described in the original description and claims, and the design patent application documents shall not be amended beyond The range indicated by the original picture or photo.

Chapter IV Examination and Approval of Patent Applications

Article 34 After the patent administrative department of the State Council receives an application for an invention patent, and upon preliminary examination and finds that it complies with the requirements of this Law, it shall be announced immediately after the 18th month from the date of application. The patent administration department under the State Council may publish its application as soon as possible at the request of the applicant.

Article 35 Within three years from the filing date, the patent administration department under the State Council may conduct a substantive examination of its application according to the request submitted by the applicant at any time; if the applicant does not request substantive examination without due time, the application shall be Considered withdrawn.

When the patent administration department under the State Council deems it necessary, it may conduct a substantive examination of the invention patent application by itself.

Article 36 When an applicant for an invention patent requests a substantive examination, he shall submit reference materials related to his invention before the filing date.

Where an invention patent has been filed in a foreign country, the patent administration department of the State Council may require the applicant to submit within the specified time period the materials for which the country has searched for examination or the results of the examination; if it is not submitted without due time, the application shall Considered withdrawn.

Article 37 After the patent administrative department of the State Council conducts a substantive examination of an invention patent application and finds that it does not comply with the provisions of this law, it shall notify the applicant and require it to state its opinion within a specified period or modify its application; without justification If the reason is not answered within the time limit, the application shall be deemed to be withdrawn.

Article 38 After the applicant has stated or commented on an invention patent application, if the patent administration department under the State Council still believes that it does not comply with the provisions of this Law, it shall reject it.

Article 39 If no reason for rejection is found after a substantive examination of an invention patent application, the patent administration department of the State Council shall make a decision to grant the invention patent right, issue an invention patent certificate, and register and publish it at the same time. The patent right for invention shall become effective on the date of announcement.

Article 40 If the application for a patent for utility model and design fails to find a reason for rejection after preliminary examination, the patent administration department of the State Council shall make a decision to grant a patent for utility model or a patent for design, issue a corresponding patent certificate, and register and announcement. Utility model patents and design patents are effective from the date of announcement.

Article 41 The Patent Administration Department under the State Council has established a Patent Reexamination Board. A patent applicant who refuses to accept the decision of the patent administration department of the State Council to reject the application may request a reexamination to the Patent Reexamination Board within three months from the date of receipt of the notice. After the Patent Reexamination Board reexamines, it makes a decision and informs the patent applicant.

A patent applicant who refuses to accept the reexamination decision of the Patent Reexamination Board may bring a suit in a people's court within three months of receiving the notice.

Chapter V Duration, Termination and Invalidation of Patent Rights

Article 42 The term of an invention patent right is twenty years, and the term of a utility model patent right and a design patent right is ten years, both of which are calculated from the date of application.

Article 43 The patentee shall pay the annual fee from the year the patent right is granted.

Article 44 In any of the following circumstances, the patent right shall terminate before the expiration of the term:

(1) Failure to pay annual fees in accordance with regulations;

(2) The patentee waives his patent right in a written statement.

If the patent right is terminated before the time limit expires, it shall be registered and announced by the patent administration department of the State Council.

Article 45. Since the date when the patent administration department of the State Council announced the grant of a patent right, if any unit or individual considers that the grant of the patent right does not meet the relevant provisions of this Law, it may request the Patent Reexamination Board to declare the patent right invalid.

Article 46 The Patent Reexamination Board shall promptly review and make a decision on a request to declare a patent right invalid, and notify the applicant and the patentee. The decision to declare the patent right invalid shall be registered and announced by the patent administration department under the State Council.

If the Patent Reexamination Board declares that the patent right is invalid or maintains the patent right, it may file a lawsuit in a people's court within three months from the date of receipt of the notice. The people's court shall notify the counterparty to the invalidation request procedure to participate in the lawsuit as a third party.

Article 47 A patent right that has been declared invalid shall be deemed to have not existed from the beginning.

Decisions declaring patents invalid, judgments and mediations on patent infringements made and enforced by people's courts before patents are declared invalid, decisions on patent infringement disputes that have been performed or enforced, and patent licensing contracts and Contracts for the transfer of patent rights are not retroactive. However, the losses caused to others due to the bad faith of the patentee shall be compensated.

If the infringement of patent infringement, patent use fee, or patent right transfer fee is not returned in accordance with the provisions of the preceding paragraph, and it is obviously in violation of the principle of fairness, it shall be returned in whole or in part.

Chapter VI Compulsory License for Patent Implementation

Article 48 In any of the following circumstances, the patent administration department of the State Council may grant a compulsory license to implement an invention patent or a utility model patent on the application of a unit or individual that has the conditions for implementation:

(1) The patentee has expired for three years from the date of grant of the patent right and four years from the date of filing the patent application, and has not implemented or fully implemented its patent without justification;

(2) The act of the patentee's exercise of the patent right is recognized as a monopolistic act in accordance with the law, in order to eliminate or reduce the adverse effect of the act on competition.

Article 49 In the event of a state of emergency or emergency, or for the purpose of public interest, the patent administration department of the State Council may grant a compulsory license to implement an invention patent or a utility model patent.

Article 50 For public health purposes, the patent administration department under the State Council may grant a compulsory license for manufacturing and exporting a drug that is patented to a country or region that complies with the relevant international treaties to which the People's Republic of China is a party.

Article 51: An invention or utility model that has obtained a patent right has significant technical progress that is significantly more economically significant than an invention or utility model that has already obtained a patent right, and its implementation depends on the implementation of the previous invention or utility model. The patent administration department of the State Council may grant a compulsory license to implement the previous invention or utility model based on the application of the latter patentee.

In the case where a compulsory license for implementation is granted in accordance with the provisions of the preceding paragraph, the patent administration department of the State Council may also grant a compulsory license for the implementation of the later invention or utility model based on the application of the previous patentee.

Article 52 Where the invention covered by a compulsory license is a semiconductor technology, its implementation is limited to the purposes of public interest and the circumstances specified in Article 48 (2) of this Law.

Article 53 Except for the compulsory licenses granted in accordance with Article 48 (2) and 50 of this Law, the implementation of compulsory licenses shall be mainly for the domestic market.

Article 54 Units or individuals applying for compulsory license in accordance with Article 48 (1) and Article 51 of this Law shall provide evidence to prove that they have requested the patentee to license their patents on reasonable terms , But failed to obtain permission within a reasonable time.

Article 55 The decision made by the patent administration department under the State Council to grant a compulsory license for implementation shall be notified to the patentee in a timely manner and shall be registered and announced.

The decision to grant a compulsory license for implementation shall stipulate the scope and time of implementation based on the reasons for the compulsory license. When the reasons for the compulsory license are eliminated and no longer occur, the patent administration department under the State Council shall, at the request of the patentee, make a decision to terminate the implementation of the compulsory license after examination.

Article 56 Units or individuals that have obtained a compulsory license for implementation do not enjoy the exclusive right to implement and have no right to allow others to implement.

Article 57 A unit or individual that has obtained a compulsory license for implementation shall pay a reasonable fee to the patentee or handle the issue of the fee in accordance with the relevant international treaties to which the People's Republic of China is a party. The amount paid for the use fee shall be negotiated by both parties; if the two parties cannot reach an agreement, the patent administration department of the State Council shall decide.

Article 58 If the patentee is dissatisfied with the decision of the patent administration department of the State Council on the implementation of a compulsory license, the patentee and the unit or individual that obtained the compulsory license are dissatisfied with the ruling of the patent administration department of the State Council on the use fee of the compulsory license. , You can sue to the people's court within three months of receiving the notice.

Chapter VII Protection of Patent Rights

Article 59 The scope of protection of a patent right for an invention or utility model shall be determined by the terms of the claims. The description and drawings may be used to explain the terms of the claims.

The scope of protection of a design patent right is based on the design of the product shown in the picture or photo. The brief description can be used to explain the design of the product shown in the picture or photo.

Article 60 The implementation of its patent without the permission of the patentee, that is, infringement of its patent right, and disputes shall be resolved by the parties through negotiation; if unwilling or unsuccessful, the patentee or interested party may sue to the people's court , You can also ask the department that manages the patent work. When the administrative department of patents determines that the infringing act is established, it may order the infringer to stop the infringing act immediately. If the party disagrees, he or she may report to the people within 15 days from the date of receiving the notice of the processing If the infringer does not sue and ceases the infringement after the expiration of the term, the department in charge of patent work may apply to the people's court for enforcement. At the request of the parties, the administrative department that handles patents may mediate the amount of compensation for patent infringement; if the mediation fails, the parties may sue to the people's court in accordance with the Civil Procedure Law of the People's Republic of China.

Article 61 Where a patent infringement dispute involves an invention patent for a new product manufacturing method, the entity or individual manufacturing the same product shall provide proof that its product manufacturing method is different from the patent method.

Where a patent infringement dispute involves a utility model patent or design patent, the people's court or the patent administration department may require the patentee or interested party to issue a search, analysis, and evaluation of the relevant utility model or design by the patent administration department of the State Council The patent evaluation report made is used as evidence for trial and handling of patent infringement disputes.

Article 62 In a patent infringement dispute, if the accused infringer has evidence to prove that the technology or design it implemented belongs to existing technology or existing design, it does not constitute a patent infringement.

Article 63 In the case of counterfeiting patents, in addition to civil liability in accordance with the law, the administrative department of patents shall order corrections and make announcements. The illegal income shall be confiscated and a fine of less than four times the illegal income may be imposed concurrently; if there is no illegal income, the fine may be imposed. A fine of less than 200,000 yuan; if a crime is constituted, criminal responsibility shall be investigated according to law.

Article 64 When the department in charge of patent work investigates and prosecutes suspected patent counterfeiting based on the evidence it has obtained, it may inquire the parties concerned and investigate the situation related to the suspected illegal acts; conduct on-site inspections of the places where the parties suspected illegal acts; Check and copy the contracts, invoices, account books and other relevant materials related to the suspected illegal acts; inspect the products related to the suspected illegal acts; and seal or seize products that have evidence that they are counterfeit patents.

When the administrative department of patents exercises the functions and powers prescribed in the preceding paragraph in accordance with the law, the parties shall assist and cooperate, and shall not refuse or obstruct it.

Article 65 The amount of compensation for infringement of patent rights shall be determined in accordance with the actual loss suffered by the right holder due to the infringement; if the actual loss is difficult to determine, it may be determined in accordance with the benefits obtained by the infringer due to the infringement. If it is difficult to determine the loss of the right holder or the benefit obtained by the infringer, it shall be reasonably determined with reference 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 the loss of the right holder, the benefits obtained by the infringer, and the patent license fee are difficult to determine, the people's court may determine to grant more than 10,000 yuan to 1 million yuan according to factors such as the type of patent right, the nature and circumstances of the infringement. Compensation.

Article 66 If the patentee or interested party has evidence to prove that another person is committing or about to commit an infringement of the patent right, if it is not stopped in time, it will cause irreparable damage to its legitimate rights and interests, it may report to the people before prosecution. The court applied for measures to order the suspension of the conduct.

The applicant shall provide a guarantee when applying; if the guarantee is not provided, the application shall be rejected.

The people's court shall make a ruling within 48 hours from the time the application is accepted; if there are special circumstances that require extension, it may be extended for 48 hours. Where a ruling is ordered to stop the relevant act, it shall be executed immediately. If the parties are not satisfied with the ruling, they may apply for reconsideration once; the execution of the ruling shall not be stopped during the reconsideration.

If the applicant fails to sue within 15 days from the date when the people's court takes measures to order the suspension of the relevant behavior, the people's court shall lift the measure.

If the application is wrong, the applicant shall compensate the respondent for the losses suffered as a result of stopping the relevant acts.

Article 67 In order to stop patent infringement, the patentee or interested party may apply to the people's court for preserving evidence before the lawsuit may be lost or difficult to obtain in the future.

The people's court may order the applicant to provide security by taking preservation measures; if the applicant does not provide security, the application shall be rejected.

The people's court shall make a ruling within 48 hours from the time of accepting the application; if the ruling is taken to take preservation measures, it shall be implemented immediately.

If the applicant fails to sue within 15 days from the date when the people's court takes the preservation measures, the people's court shall lift the measures.

Article 68 The limitation period of a lawsuit for infringement of a patent right is two years, calculated from the date on which the patentee or interested party becomes aware of or should have known the infringement.

Where the invention patent is used and the proper use fee is not paid before the patent right is granted, the statute of limitations for the patent owner's request for payment of the use fee is two years from the date when the patentee learns or should know that others have used the invention However, if the patentee has known or should have known before the date of grant of the patent right, it shall be calculated from the date of grant of the patent right.

Article 69 Any one of the following circumstances shall not be considered as a patent infringement:

(1) a patented product or a product directly obtained in accordance with a patented method is used, promised to be sold, sold, or imported by the patentee or a unit or individual authorized by the patentee;

(2) Those who have already manufactured the same product, used the same method, or made the necessary preparations for the manufacture and use before the patent application date, and continue to manufacture and use only within the original scope;

(3) Foreign transportation vehicles temporarily passing through China s territorial waters, territorial waters and airspace shall be installed in their installations and equipment for the transportation vehicles themselves in accordance with the agreements signed by their respective countries with China or international treaties to which they have joined, or the principle of reciprocity Use of related patents;

(4) using relevant patents exclusively for scientific research and experiments;

(5) In order to provide the information required for administrative examination and approval, those who manufacture, use, or import patented drugs or patented medical devices, and those who manufacture or import patented drugs or patented medical devices exclusively for them.

Article 70 If a patent infringing product that is used, promised to be sold, or sold for production and business purposes is not known to have been manufactured and sold without the permission of the patentee, and can prove the legal origin of the product, it shall not be liable for compensation.

Article 71 If a person applies for a patent in a foreign country in violation of the provisions of Article 20 of this Law and leaks state secrets, he shall be given administrative sanctions by the unit or superior authority; if a crime is constituted, criminal responsibility shall be investigated according to law.

Article 72 Anyone who infringes upon the inventor's or designer's right to apply for a non-service invention-creation patent and other rights specified in this Law shall be given administrative sanctions by the unit where he works or by the competent higher authority.

Article 73 The administrative department of patents shall not participate in business activities such as recommending patented products to the public.

If the department in charge of patent work violates the provisions of the preceding paragraph, its superior authority or supervisory authority shall order it to make corrections, eliminate the impact, and confiscate the illegal income; if the circumstances are serious, the person in charge directly responsible and other persons directly responsible shall be given administrative sanctions according to law .

Article 74. Staff members of state organs engaged in patent administration and other relevant state organs who neglect their duties, abuse their power, or engage in malpractices for personal gains and constitute a crime shall be investigated for criminal responsibility in accordance with the law; if it does not constitute a crime, administrative sanctions shall be imposed in accordance with law.

Chapter VIII Supplementary Provisions

Article 75 When applying for patents and other formalities with the patent administration department under the State Council, fees shall be paid in accordance with regulations.

Foreign patent law has a history of 300 years, and China's patent law is 30 years

On March 12, 1984, after more than five years of gestation, the "Patent Law of the People's Republic of China" was promulgated and officially implemented on April 1, 1985. This is an important achievement of China's economic system reform and scientific and technological system reform. The implementation of the Patent Law legally recognizes that inventions and inventions can be protected as an intangible property, which has pushed China's economic system reform and science and technology system reform further forward, showing China's determination and confidence in reform, opening up, and going global.

In 1992, China made the first amendment to the Patent Law, expanded the scope of patent protection, extended the term of patent rights, increased protection for the import of patented products, and provided for the extension of method patent protection to those directly obtained under the method. Products, re-stated the conditions for the implementation of compulsory patent licensing, etc., all of which marked that the level of patent protection in our country has reached a new level and is increasingly in harmony with international development trends. On January 1, 1993, China began to implement the revised Patent Law.

On August 25, 2000, the Seventeenth Meeting of the Standing Committee of the Ninth National People's Congress adopted the Decision on Amending the Patent Law of the People's Republic of China. This is the second revision since the first revision of the Patent Law in September 1992. This is another important milestone in the history of the development of China's patent industry. It is a very important measure for China to implement the strategy of rejuvenating the country through science and education, which fully reflects the great importance the Party Central Committee and the State Council attach to patent work. The ability and level of patent protection in China has created a very favorable condition. On July 1, 2001, the second revised patent law came into effect.

On October 1, 2003, the number of patent applications rose from 8 to 12 digits. Since the implementation of the "Patent Law of the People's Republic of China" on April 1, 1985, an eight-digit patent application number that has been used for 18 years becomes history. The rise of the patent application number indicates that the output of China's invention and innovation and technological innovation will reach a new scale, and the degree of openness and internationalization of the Chinese market will enter a new level. A new period of rapid development of the patent industry has continued. arrival.

On March 12, 2004, on the 20th anniversary of the enactment of China's Patent Law, China's "Electronic Patent Application System" was officially opened, and the first Chinese electronic patent application was born, writing a strong mark in the history of Chinese patents. China has realized the electronicization of patent applications, marking a new step for the State Intellectual Property Office in applying modern technology to provide services to the public. At the same time, it has also provided a solid foundation for China's participation in international exchanges and international competition in the field of intellectual property. Technical Support.

On March 17, 2004, the fifth day after the 20th anniversary of the enactment of the Chinese Patent Law, the total number of patent applications in China exceeded the 2 million mark, and the leapfrog development of patent applications was truly achieved. From the implementation of the Chinese Patent Law to the beginning of 2000, it took us 15 years to bring the total number of patent applications in China to the first one million. Since then, just over four years later, the total number of Chinese patent applications has exceeded the second one million.

Invention patent application process

Eligibility

1. Accept patent fees in domestic cases represented by applicants (patent holders) or agencies.

2. Foreign patents or PCT patents are not accepted (Patent fees for foreign-related patents refer to the relevant fees for patent applications of non-Chinese nationalities and legal person patent applications of Hong Kong, Macao and Taiwan).

3. Types of patent fees accepted:

(1) Application fees for invention patents, utility model patents, and design patents (printing fees for invention patent applications).

(2) Patent application surcharge (description surcharge, claim surcharge).

(3) Substantive examination fee for invention patent request.

(4) Patent registration fee (including stamp duty).

(5) Annual patent fee.

(6) Late fees for annual patent fees.

(7) Patent recovery request fee.

Application procedures

Accept the patent fee that the applicant handed in or remitted by the bank or post office. The payment date of patent fees is determined in accordance with the Patent Law, the Implementing Rules of the Patent Law, and relevant regulations.

1. If the patent fee is paid face-to-face, the date of the face-to-face payment shall be regarded as the payment date, and the payer shall carefully fill in the payment list as proof of account.

2. For bank remittance, the remittance date shall be used as the payment date, and the bank remittance slip and remittance list shall be used as the billing voucher. The bank transfer slip lacks the necessary payment information (patent application number and fee type), and the date on which the correct payment information is received is the payment date.

3. For remittances through the post office, the remittance date is used as the payment date, and the copy of the post office remittance slip is used as the voucher. The post office remittance slip lacks the necessary payment information (patent application number and fee type), and a refund will be processed directly. After the refund, the original remittance date will no longer be retained.

4. After receiving the payment from the parties, use the computer toll collection system provided by the Patent Office of the State Intellectual Property Office to record and print the receipt in quadruplicate, and send the first and third copies to the Toll Office of the State Intellectual Property Office Patent Office. The second couplet will be paid or sent to the payer, and the fourth couplet will be combined with the billing voucher.

Procedure

1. The applicant fills in the payment information according to the contents of the payment list.

2. The agency provides payment information according to the payer and collects the fee to print the receipt.

3. The payer checks the printed payment receipt and payment.

4. The agency will send the first and third copies of the payment receipt to the Toll Office of the Patent Office of the State Intellectual Property Office the next day, and telex the payment information to the Toll Office of the Patent Office of the State Intellectual Property Office.

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