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Amendments to Chinese Patent Law Under Formal Review

CPC Congress 2007 by Bert van Dijk.
By Jeffrey Chang

China's top legislative agency, the National People's Congress Standing Committee, has begun reading for a substantial set of amendments to Chinese Patent Law. These amendments, according to an official statement, are intended "to bring the law and processes up to international standards and best practices." Should the amendments pass, it would be only the third revision to Chinese Patent law in the past 25 years.

Among the key amendments in the proposal are:

  1. Adoption of the "Absolute Novelty" Standard
    The current "relative novelty standard", in which a technology may still be considered novel so long as it is not being publicly used or sold in China, will be abandoned for the "absolute novelty standard", in which inventions should not have been known to the public at home or abroad prior to filing.

  2. Elimination of Requirement to First File Domestically
    Business and individuals may directly apply for foreign patents without first applying for a Chinese patent. However, inventions may be required to first undergo a secret examination to ensure state security.

  3. No Patents for Genetic Resource Acquirement & Utilization
    Inventions based on genetic resources that have been acquired or utilized illegally will not be granted patents. The relevant laws were not listed. This purpose of this amendment was stated as "to protect [China's] genetic resources."

  4. Compulsory Licensing
    Primarily targeted at patented medicines, the amendment would allow the Chinese State Council to grant license to manufacture and export medicines with Chinese Patents to specific countries and regions. A further section allows compulsory licensing if illegal anti-competitive practices by the patent holders are found.

  5. Increased Infringement Penalties
    Compensation for patent infringement now includes the rights holder's cost of deterring infringement. Fines have increased from three-fold to four-fold and in case that damages cannot be determined, the courts may still impose fines of up to 200,000 RMB.

Discussions about these changes have been held since 2005, and although no formal schedule is set, the State Council intends to have the amendments in effect by 2009. Draft law requires three readings by the Standing Committee before adoption.

The official news release can be found here.


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