The publication is the latest stage of an exhaustive drafting and consultation process that began in 2006.
The amendments will introduce absolute novelty so that prior art published abroad can be used to invalidate a patent in China, and will increase the statutory damages available for patent infringement to up to Rmb1 million ($146,000).
Compensation will also include “ reasonable expenses the patentee has incurred in order to stop the infringing act”.
The latest draft is published with a 29-point explanatory note and includes some amendments that have proved controversial with IP owners in China. In particular, Article 21 states that, for inventions completed in China, businesses need either to file first in China or obtain permission from the State Intellectual Property Office before filing abroad.
Other proposed amendments include disclosure rules for inventions relying on genetic resources and additional provisions relating to compulsory licences and patent exhaustion. According to a translation obtained by Managing IP , Article 70, which deals with patent exhaustion, states that there is no patent infringement (amendments in italics):
Where, after the sale of a patented product that was made by the patentee o r the entity or individual with the authorization of the patentee , or of a product that was directly obtained by using the patented process by the patentee or the entity or individual with the authorization of the patentee , any other person uses, offers to sell or sells, imports that product;
This will be the third revision to the patent law since it was introduced in 1985. China has pledged to amend its patent, trade mark and copyright laws as part of the National IP Strategy that was officially announced in June this year.
The State Council submitted the draft amendments to the Standing Committee of the National People's Congress, the country’s top legislative body, for first reading at the end of August. The draft is available in Chinese at the official website of the National People’s Congress and the deadline for comments is October 10. The amendments are expected to become law in early 2009.
An article in the December 2007 edition of Managing IP looks at the proposed amendments to China’s patent and trade mark laws in more detail.
