Tuesday, May 25 2021   \  Published by Lexgoal Law Office.

The Newly Revised "Patent Law of China" Takes Effect on June 1, 2021

The newly revised "Patent Law of China" will take effect on June 1, 2021. The following is an interpretation of the important clauses in this revision of the Patent Law.

Article 2 of the Patent Law adds protection of "partial design". When major countries and regions such as the United States, Japan, and the European Union have partial design systems, the introduction of a partial design system is conducive to integrating with the world patent system. From June 1, 2021 on, the improvement of the parts of products such as shoe soles, teacup handles, mouse scroll wheels, mobile phone screens, etc., a design application for those parts of the products may be filed in China.

  Article 20 of the Patent Law introduces the "principle of good faith" and "abuse of patent rights". The "good faith principle" is called the "imperial clause" in the civil law. Article 7 of the "Trademark Law"as revised in 2013 introduced the "good faith principle". Article 7 of the "Civil Code" as passed in 2020 stipulates that civil subjects engaging in civil activities should follow the principle of good faith, uphold honesty, and abide by promises; "Abuse of patent rights" echoes article 55 of the 2007 Anti-Unfair Competition Law.

 Article 24 of the Patent Law adds "disclosure for public interest in a state of emergency without loss of novelty". The amendment is to encourage the latest technology to be applied to "SARS, COVID-19" and other national incidents that may occur in the future, without worrying about not being able to apply for a patent after it is published.

 Article 29 of the Patent Law adds a 6-month domestic priority period for designs.  Article 30 of the Patent Law adds the time limit for submitting a copy when claiming priority.  Article 42 of the Patent Law extends the duration of patent rights for designs from ten years to fifteen years; and introduces the "patent right period compensation" system. This is to join the "Hague Agreement on the International Registration of Industrial Designs" (Hague Agreement). At present, China’s international applications for invention and utility model patents have the PCT system and for trademarks there is the Madrid system for international registration. After joining the Hague Agreement, China’s industrial designs will also have an international registration route.  The problem on the excessively long substantive examination period of invention patents leads to the shortening of the actual protection period of patents, which will be solved to a certain extent.

 Articles 50 to 52 of the Patent Law have added a system on patent right open licensing.  Article 71 of the Patent Law added "1-5 times of the compensation for intentional patent infringement"; the legal compensation for patent infringement was revised from RMB 1 - 3 million to RMB 3 - 5 million. According to Article 73 of the Patent Law, the statute of limitations period for patent infringement litigation is revised from two years to three years, and the statute of limitations shall be calculated from the date when the infringer is known or should be known. Corresponding to Article 188 of the Civil Code, the statute of limitations period for requesting protection of civil rights from the people’s court is three years, and the statute of limitations is calculated from the day when the right holder knows or should have known that the right has been damaged.   

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