On April 2, 2015, the State Council Legislative Affairs Office (“SCLAO”) published a draft of the Service Invention Regulations along with an accompanying explanation. The draft was prepared with the assistance of SIPO and the Ministry of Science and Technology. Comments are due by May 2, 2015.
Here is a quick translation of what the explanation says about the “hot issue” of the balance between contracting autonomy and providing mandatory minimum rewards for inventors:
The draft fully respect the autonomy of the parties, and adopts the principle of priority of the agreement on the rights of ownership and incentive remuneration reached by the parties according to law. At the same time, in order to prevent a disguised deprivation or restriction of the rights of the inventor by the employer, the draft establishes a certain restriction on the principle of priority of the agreement of the parties. The draft provides that whenever there is nullification of the inventor’s rights under these regulations, or when the enjoyment or exercise of these rights is subject to unreasonable contractual provisions or rules, those conditions are invalid.
On July 16, the Supreme Peoples Court published a public comment draft of proposed revisions to its “Decision of the SPC Regarding Questions of Application of Law in Adjudication of Patent Cases”, 最高人民法院关于审理专利纠纷案件适用法律问题的若干规定. Comments are due by August 15, 2014. Comments may be emailed to: email@example.com。 The last revision to this document was in 2013, when a provision was inserted to give jurisdiction to designated basic courts to handle patent cases.
Of particular note in this short set of revisions are provisions regarding providing an appraisal report for utility model patents to the court if such a report had been requested by the plaintiff of SIPO, as well as provisions which appear to provide more flexibility in calculation of damages by the court, consistent with the 2008 patent law.
Many of the changes appear self-explanatory – such as those which track changes in relevant statutory provisions. However, in light of the efforts to amend the patent law, experiments in specialized IP courts, calls for more deterrent damages and more extensive commercialization of IP rights, some additional explanation would be helpful regarding the reasons for any changes in policy that may be implicit in these revisions and any further changes that may be contemplated.
Earlier USG comments on the patent law revisions are found here.
Once I receive a full translation or comparison of prior drafts from any reader, I will post it on line. Readers are encouraged to send in their translations, suggestions and comments. For now, the full Chinese text of the proposed revisions with my own initial bilingual observations are attached.