China IPR

Patent Law Revisions Up for Public Comment

SIPO has just made its proposed draft of revisions to the patent law (fourth amendment?) available on line.  With these sets of amendments, China is now in various stages of revising all major IP statutes:  the Copyright Law is with NCA in its second draft, the Trademark Law is with the State Council Legislative Affairs Office (SCLAO), and the Antiunfair Competition Law is also in some stage of review by either SAIC or the SCLAO. 

Based on news articles to date, this draft is intended to address patent enforcement challenges.  See, e.g., He Jing’s commentary.  If the focus is on administrative enforcement and the challenges revealed in administrative enforcement from the recent IP campaign, some may wonder whether, as one practitioner noted to me, SIPO  should look into substantive examination for utility model patents and designs, rather than administrative enforcement of patents.  Administrative enforcement of  patents has historically been problematic, due to the technical complexity of patents.  Many administrative enforcement cases involve design and utility model patents.  moreover, foreign companies are not, historically, significant users of this system.     However, we need to review the draft and data thoroughly.  We heard that these revisions may be on the SCLAO calendar for 2013.

At the same time, SIPO is reportedly seeking comments on its Regulations on the Remuneration for Inventor-Employee’s Inventions.  These were hotly debated at the time of that the third amendment to the patent law was under consideration, especially by foreign invested enterprises who would newly fall within the clear scope of its requirements.  A public draft is not yet available for comment, although the Quality Brands Protection Committee appears to be involved in commenting.

This is not all the legislation that is happening involving IP on the national level.  For example, the SAIC is still involved in drafting its IP abuse rules.  Moreover, the recently concluded Beijing Treaty on Audiovisual Performances will likely require changes in China’s copyright law, as is already reflected in the second NCA draft.  In addition I expect that Chinese negotiators would expect the NPC to consider early passage of the treaty that was concluded in Beijing.

There is little doubt that the NPC and SCLAO will be busy this year and next on a range of IP-related legislative matters, and there will be many interesting developments to look out for.

2 replies »

  1. Here is a draft translation of the SIPO announcement on the patent law amendment, provided bya reader (I do not have the original Chinese link):

    Patent Law amendment conference for advice organized by SIPO opens in Beijing recently. Delegates from the Education, Science, Culture and Public Health Committee of the National People’s Congress (NPC), the Legislative Affairs Committee of the NPC Standing Committee, the Legislative Affairs Office of the State Council, local intellectual property offices, colleges and universities, enterprises, and patent agencies attend the conference.
    Latest research data shows that 30% domestic patentees have encountered infringement dispute, but only 10% of them take measures to enforce their rights. Hence, patent right protection has become a weak link of the IP protection. For a long time, there are problems such as “difficult to provide evidence”, “low compensation”, “high cost”, “poor result”, etc., in safeguarding patent rights. Patent infringement deeply hurts innovation enthusiasm of patentee, disrupts the market economic order, and destroys the environment for innovation. To solve problems in practice and cooperatively carry out the Opinions on Further Campaign Against IP Infringement and Production and Distribution of Fake and Shoddy Products as well as establish a long-term mechanism of patent protection, SIPO starts the preparatory work of the Patent Law amendment from the end of 2011. Compared with the former three amendments, this one is well-targeted with “strengthening patent protection and intensifying law enforcement” as its aim. Participants attending the conference expressed their support of the aim and offered their advice on the draft amendment of the Patent Law from different perspectives.
    The event has been incorporated in the legislative plan of the State Council in 2012. On the basis of extensive investigation and discussion, SIPO has held several conferences accordingly and formulated the draft amendment of the Patent Law and the explanation. Henceforth, SIPO will continue to listen to opinions of parties to ensure a more scientific and reasonable draft amendment.

    Mark Cohen


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