Following the implementation of the new Patent Law on October 1 2009, the new Implementing Regulations of the Patent Law of the People's Republic of China were adopted by the State Council on December 30 2009 and came into force on February 1 2010. The changes made in the Regulations are quite extensive and a number of points are worth nothing.
First, according to the new Patent Law, inventions or utility models completed in China are required to be submitted to the Patent Office for security examination before filing for foreign patents. In the Regulations, the phrase "inventions or utility models completed in China" is further defined as "the substantive content of the technical solutions completed in China".
The new Patent Law requires the direct and original source of the genetic recourses to be stated in the application if the invention is dependent upon these genetic resources. The Regulations define the term "genetic resources" as "hereditary materials with practical or potential value obtained from such things as humans, animals, plants or microbes". The regulations further define the term "inventions dependent upon genetic resources" as "inventions utilising the hereditary functions of genetic resources".
New types of compulsory licences are provided for in the new Patent Law if patents are not fully exploited. The Regulations define the expression "not fully exploited patents" as "the method or scale of the exploitation of the patents by the patentee or the licensee cannot satisfy domestic need for the patented products or processes".
A person who sold products being passed off as patented products is not liable to an administrative fine (but can still be ordered to cease such sales) provided they can produce evidence as to their legitimate source.
Although the new Patent Law permits multiple design applications, the Regulations limit the maximum number of similar designs in a single application to 10.
The Regulations abolish the following official fees: application maintenance fees, termination procedure request fees, compulsory licence request fees and compulsory licence exploitation fees.
 |
|
 |
| Howard Tsang and Jack Zhu |
Wilkinson & Grist
6/F, Prince's Building, 10 Chater Rd
Central, Hong Kong
Tel: +852 2524 6011
Fax: +852 2520 2090
iprop@wilgrist.com
www.wilgrist.com