The National People’s Congress has released a public comment draft of the long-awaited revised patent law on its website . Here is the draft itself, and here are the official explanations on the draft , along with other laws released by the NPC. The comments are due by February 3, 2019.
The NPC Observer’s summary of the legislative history to date is here. Based on a quick read, the biggest disappointment remains the absence of a patent linkage regime, as was noted of the State Council draft. The inclusion of patent term restoration (five years) for pharmaceuticals is however, a plus. There are also provisions on 5x punitive damages, extension of term for design patents (15 years), on-line infringement, expanding administrative enforcement, dealing with “counterfeit” patents, reversals of burden of proof for information on damages caused by the infringer, and an extension of the statute of limitations to three years, amongst other positive aspects. There is also a good faith requirement to deter abusive patent litigation, but not one for prosecution of patents (e.g., a duty of candor).
In addition to filing comments electronically, commentors can use snail mail, by writing to NPCSC Legislative Affairs Commission 全国人大常委会法制工作委员会. Instructions may be found at the NPC Observer website.
The draft may have been expedited in order to show a package of reforms that adddress US concerns in light of imminent trade discussions between the US and China, and as such appears to be part of larger package – perhaps even including the establishment of the new SPC IP Court.
I welcome readers to submit any translations of the proposed law and any comments they file to this blog for further publication.
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