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China Patents Law
5 Surprising Changes pending to China Patent Law
A new draft Patent Law is making the rounds in China's legislative process. The proposed draft bill presents an attempt to strengthen measures for collecting evidence for court proceedings as well as administrative proceedings.
At court, a judge under the draft law, would have the ability to order the defendant to submit its account books and other evidence to prove damages. In case of refusal of the infringers to submit, or deliverance of forged account books, the court is free to determine damages in reference to the proprietor’s claim. The draft bill proposes an award of double or triple damages depending on the scale of infringement. The statutory damages would be increased to five million Chinese Yuan in place of the existing one million.
The draft Bill extends the scope of the design patent to include partial designs. SIPO proposes to extend the protection term to 15 years to meet the requirement of the Hague Agreement Concerning International Registration of Industrial Designs. This will prove as a deterrent to infringement of design patent.
SIPO introduces the concept of License of Right (LOR) in the draft Bill. The patent proprietors can request SOPI to publish a written statement while offering license to anyone at defined royalty. The patentee cannot grant exclusive license to others or request preliminary injunction before withdrawal of offers of the LOR.
The draft Bill adds implied license for undisclosed Standard Essential Patents (SEP). In case of failure of the patentee to disclose essential patents during the process of standard formulation, the user of the standards get the license to use the patented technology. The parties can negotiate the license fees. SIPO can make a decision in case the parties fail to do so.
The draft Bill empowers the PRB to bring new grounds while reexamining or invalidating proceedings on its own initiative even when such defects do not find a mention in the rejection design or in the invalidation request. Public consultants have criticized this proposal. However, the draft retains the same.
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