Patent regulation development promotes information spread and application September, 2011

1. Patent regulation development promotes information spread and application September, 2011

2. Birth and development of patent regulations • The gestation, birth and development of Chinese patent regulations are closely connected with reform and opening-up. Experiences of more than 30 years witnessed achievements of reform and opening-up from the planned economy to the market economy. • Enact and implementation of the Law of Patent of PRC(hereinafter referred to as “the Law of Patent”) • Passed in the fourth session of the 6th NPC Standing Committee on March, 12, 1984, and implemented from April, 1, 1985. • The first amendment of the Law of Patent • Passed in the 27th session of the 7th NPC Standing Committee on Sept. 4, 1992, and implemented from Jan. 1, 1993.

3. Birth and development of patent regulations • The second amendment of the Law of Patent • Passed in the 17th session of the 9th NPC Standing Committee on Aug. 25, 2000, and implemented from Jul. 1, 2001. • The Third amendment of the Law of Patent • Passed in the 6th session of the 11th NPC Standing Committee on Dec. 27, 2008, and implemented from Oct. 1, 2009. • The State Council announced the decision of regulations of implementing the amendment of the Law of Patent on Jan. 9, 2010, and the decision was implemented from Feb. 1, 2010. • State Bureau of Intellectual Property has enacted a series of departmental regulations such as transitional measures and guides to amendment examination.

4. Birth and development of patent regulations • The basic tenet of patent regulations is to encourage invention and innovation, promote new technology application, and promote economic and social development. • 2 basic functions: • Grant the innovator protection of his monopoly • Promote spread and application of patent information • Categories of patent: invention, practical model, appearance design • Examination regulations: • Invention---initial examination + substantive examination, invalidation after authorization • Practical model and appearance design---initial examination, invalidation after authorization and patent assessment report.

5. Birth and development of patent regulations • Protective regulations: • Administrative enforcement---local bureaus of intellectual property investigate and deal with fake and inferior products, settle tort disputes and mediate right disputes. • Judicial trial---administrative proceedings, common pleas • Spread and application of patent information • Patent communiqué, patent registration and public information service • Specialized information service • Upgrade starting points of innovation, decrease duplicative R&D, and prevent from pirating others’ patents

6. Birth and development of patent regulations • Major task of the 3rd amendment of the Law of Patent: • Clarify right ascription, encourage enthusiasm of invention and innovation, and promote implementation and application of patent technology; • Be strict with conditions of patent authorization, improve patent qualities, and upgrade stability of patent; • Deal with the interest conflicts between the public and patentees reasonably, and prevent abuse of patent; • Improve judicial and administrative enforcement measures, and strengthen protection of patent.

7. Contents of the amendments of the Law of Patent • 1.Clarify patent ascription and corresponding rights and obligations • Exertion and exercise of common patent ( article 15) • Principle of the priority status of contracts • Exclusive of other promises, it must be agreed by the whole part owners to deal with common rights, i.e. to transfer rights of patent application, withdraw or transfer patent application, transfer or give up patent, grant the others utilize the patent solely or exclusively; • Exclusive of other promises, any part owner can grant the others utilize his/her patents separately or in common permission. • Having granted the others utilize, the fee shall be distributed among the part owners.

8. Contents of the amendments of the Law of Patent • 2. Improve conditions of patent authorization • Absolute novelty (Article 22) • Published, used publically, and known by the public in other ways both domestically and overseas • Inimical application by oneself • Present technical concept • Protection and resource disclosure of genetic resources ( article 5, 26) • Inventions will not be granted patent if their success relies on genetic resources, and acquisition or utilization of the genetic • Applicants shall disclosure direct and original resources of genetic resources in their application documents.

9. Contents of the amendments of the Law of Patent • 3. Improve regulations as to appearance design • Properly limit the object sphere of appearance design patent, to improve quality of the applications • The designs of patterns, colors or the combination, whose major function is to be a mark, will not be granted patent (article 25) • Upgrade substantive conditions of granting appearance design patent (article 23) • Absolute novelty, inimical application • Present design concept • Add up requirements of creativeness—clearly different from present designs or their combination of characteristics

10. Contents of the amendments of the Law of Patent • Allow application of “similar appearance design” in one case (article 31) • Briefing to the design becomes necessary application document (article 27) • Further clarify the criteria of judging protection sphere of appearance design patent (article 59) • Briefings and pictures can explain pictures or photos. • Set up the regulation of appearance design patent assessment report (article 61)

11. Contents of the amendments of the Law of Patent • 4. Protect public rights and interests, to prevent abuse of patent • Improve regulations as to compulsive permission, to promote patent application • Based upon applications from the units or personnel who possess the conditions of utilizing the patent, they can be bestowed the compulsive permission to utilize the patent. • Link up with the Law of anti-monopolization---patentees’ activities of exerting their patent can be decided as monopolization by judicial procedures or administrative procedures, to eliminate or decrease their unfavorable impacts on business competition. • Patentees don’t exert or don’t take full advantages of their patents without reasonable reasons. • Compulsive permission of public health and medicine patent---permit export of medicines made upon compulsive permission in regulated conditions, in accordance with resolutions relative of public health of Doha Announcement (article 50)

12. Contents of the amendments of the Law of Patent • Add up exceptional regulations of tort disputes as to medicine or medical appliances patent (article 69) • Manufacture, use and import patent medicine or medical appliances exclusively to acquire the information for administrative examination and approval, including the others’ manufacture and import for him. • Add up regulations of present technology demur (article 62) • In the course of tort pleas, if the defendant can testify that the applied technology is present technology or design, People’s court shall decide that his activities don’t belong to tort.

13. Contents of the amendments of the Law of Patent • 5. Improve enforce measures to strengthen protection of patent • Regulations of clarifying compensation amount of tort (article 65) • Legal compensation amount • Reasonable expense of patentees to prevent tort activities • Add up regulations of evidence protection prior to the lawsuit (article 67) • Application of the party • Judgment made with 48 hours • Evidence protective measures should be eliminated if the applicant don’t go to court within 15 days from the date of taking the measures.

14. Contents of the amendments of the Law of Patent • Add up regulations of methods of investigation and acquiring evidence by administrative enforcement bodies (article 64) • Inquiry and investigate relative things • Carry out field inspection on suspicious sites • Consult and copy materials such as contract, invoice, account book, etc. • Inspect relative products • Seal up or seize fake or inferior patent products • Strengthen protection of appearance design patent • Promise sale

15. Contents of the amendments of the Law of Patent • 6. Deepen reform of administrative examination and approval, build up a government of service • Abrogate appointment of agencies of dealing with foreign affairs( Article 19) • Abrogate the provision that Chinese must entrust Chinese agent to apply for patent overseas(Article 20) • Augment obligations of administrative departments of patent to spread patent information(article 21) • State Bureau of Intellectual Property shall release patent intact precise and timely information, and issue patent communiqués periodically.

16. Thanks！