New Progress in the Patent Law Amendment (Draft)

In recent years, with the rapid development of China's economy and society, major enterprises pay more and more attention to intellectual property rights. Strengthening the protection of intellectual property rights and improving the ability of independent innovation have become the inherent requirements of China in the stage of economic transformation. At the major conferences, there were calls for improving the use and protection of intellectual property rights one after another. The 18th National Congress of the Communist Party of China clearly put forward "implementing the strategy of intellectual property rights and strengthening the protection of intellectual property rights"; at the third plenary session of the 18th National Congress of the Communist Party of China, it was proposed that "strengthening the use and protection of intellectual property rights and improving the incentive mechanism for technological innovation"; at the Fourth Plenary Session of the 18th National Congress of the Communist Party of China, it was proposed to "improve the property rights system that encourages innovation, the intellectual property protection system, and the mechanism and system to promote the transformation of scientific and technological achievements". Under the new situation, higher requirements are put forward for the application and protection of intellectual property rights.

On the other hand, the current patent law related system obviously lags behind the development requirements of the new era in terms of patent protection. It is difficult to prove patent infringement, the cycle is long, the cost is high, the amount of compensation is low, repeated infringement and malicious infringement are repeatedly prohibited, and the high investment in patent protection Low output dampened the enthusiasm of many innovative enterprises to carry out patent protection, and some even gave up patent protection. The lack of patent protection has further hurt some enterprises with high R & D investment, which can neither profit from innovation nor gain an advantageous position in the competition through intellectual property rights. With these contradictions becoming increasingly prominent, it is imperative to amend the patent law.

2018Year12Month23On the 7th meeting of the Standing Committee of the 13th National People's Congress, the "the People's Republic of China Patent Law Amendment (Draft)" was reviewed. This draft is from the patent law1984The fourth amendment after the examination and approval in, the main content of the amendment is to increase the provisions on proof, to solve the problem of "difficulty in proof" in the process of patent protection, to increase the compensation for patent infringement, and to compensate for the highest amount of patent infringement.5times or50010,000 yuan; clarify the joint and several liability of network service providers for network patent infringement; increase the "patent open licensing system" to promote the transformation, application and implementation of patents; stipulate that job inventions and creations can be subject to property rights incentives, and equity, options, dividends, etc. Ways to promote the implementation and use of patents; extend the protection period of design patent rights15Year. In addition, the extension of the protection period of innovative drugs has been added.5New arrangements for the year.

In order to strengthen the protection of the legitimate rights and interests of patentees and solve the long-standing problem of difficulty in proving patent rights, the draft improves the provisions related to the burden of proof. The draft adds provisions: after the people's court determines that the infringement of patent right is established, in order to determine the amount of compensation, if the obligee has tried his best to provide evidence and the account books and materials related to the infringement are mainly in the hands of the infringer, the infringer may order the infringer to provide account books and materials related to the infringement, and the infringer does not provide or provides false account books and materials, the people's court may determine the amount of compensation with reference to the claims of the right holder and the evidence provided.

To increase the intensity of compensation for patent infringement, the draft stipulates: for intentional infringement of patent rights, if the circumstances are serious, the amount of compensation can be determined within one to five times the amount calculated according to the loss suffered by the obligee, the rights and interests obtained by the infringer or the multiple of the patent license fee; and when it is difficult to calculate the amount of compensation, the amount of compensation that the court can determine at its discretion will be increased to 100,000 to 5 million. In the current patent law, the court can determine the amount of compensation at its discretion from 10,000 yuan to 1 million yuan. This provision aims to increase the cost of patent infringement and enhance the enthusiasm of patentees to protect their rights, so as to better protect the legitimate rights and interests of patentees.

The draft also adds new provisions on the liability of network service providers: (1) If the network service provider knows or should know that the network user uses the network service it provides to infringe the patent right or counterfeit the patent, and fails to take necessary measures such as deleting, blocking or disconnecting the infringing product link in time to stop it, it shall bear joint and several liability with the network user. (2) If the patentee or interested party has evidence to prove that the network user infringes his patent right or counterfeits the patent by using the network service, he may notify the network service provider to take the necessary measures mentioned in the preceding paragraph to stop it. If the network service provider fails to take necessary measures in a timely manner after receiving the qualified and effective notice, it shall be jointly and severally liable for the expanded part of the damage with the network user. (3) If the patent administrative department determines that the network user infringes the patent right or counterfeits the patent by using the network service, it shall notify the network service provider to take the necessary measures mentioned in the first paragraph of this article to stop it. If the network service provider fails to take the necessary measures in time, the expanded part of the damage shall be jointly and severally liable with the network user. The purpose of this provision is to reduce the sales market for infringing products and to mitigate the infringement of the rights and interests of patentees by infringing products.

The draft adds the "patent open licensing system". The draft stipulates that if the patentee declares in writing to the patent administration department of the State Council that he is willing to license anyone to implement his patent, and clearly specifies the license fee, the patent administration department of the State Council shall make an announcement and implement the ex officio license. Where an ex officio license declaration is made for a patent for utility model or design, a patent evaluation report shall be provided. This provision is to promote the transformation, application and implementation of patents, while increasing the conversion rate of patents, and providing convenience for the transfer and implementation of patents.

To clarify the unit's right to dispose of service inventions and creations, the draft adds provisions: the unit's right to apply for patents and patent rights for service inventions and creations can be disposed of in accordance with the law, property rights incentives can be implemented, and equity, options, dividends and other methods can be adopted to make inventors or designers reasonable Share the benefits of innovation, increase the enthusiasm of inventors or designers for research and development, and better promote the implementation and application of related inventions.

In order to meet the needs of my country's accession to the "Hague Agreement" on design protection, the draft modifies the protection period of design patent rights and extends it to 15 years, while the protection period stipulated in the current patent law is 10 years.

In12Month23At the seventh meeting of the Standing Committee of the 13th National People's Congress on the same day, Shen Changyu, director of the State Intellectual Property Office, also introduced relevant regulations on the extension of the protection period of innovative drugs. In order to compensate for the time for the review and evaluation of innovative drugs on the market, the draft proposes that the State Council may extend the patent right for innovative drug invention patents that are simultaneously applied for listing in China and abroad. The extension period shall not exceed five years, and the total validity period after the innovative drug is listed shall not exceed 14 years. The purpose of this provision is to improve the protection of innovative drugs and to protect the interests of the original pharmaceutical companies.

The acceleration of the "Patent Law Amendment (Draft)" shows my country's determination in patent protection. Increasing intellectual property protection can benefit many companies, and it is also of great significance to promote Chinese companies to "go global. The draft has now been submitted to the National People's Congress for consideration and is expected to be adopted next year.