Focus on the Amended Patent Law ②

What are the relevant measures to further strengthen intellectual property protection?

In an attempt to tackle the lingering problems in patent enforcement, such as low damages and poor effect, some changes are made in the amendment.

First, to show China’s attitude and determination to strictly protect intellectual property rights, raise the cost of infringement, and show deterrent power of law, the newly revised patent law adds punitive damages, allowing courts to award damages up to five times over right holders’ losses, or infringers’ benefits or reasonable patent royalties for malicious infringement.

Second, the new law drives up the statutory damages, raising the maximum to 5 million yuan and the minimum to 30,000 yuan in order to heighten IPR protection and significantly increase the cost of violations, which reflects the guidance of strengthening patent protection and innovation encouragement.

Third, the revision further improves the rule of evidence for patent cases. According to new law, when a right holder has exhausted all efforts in proving, and the infringer is in possession of infringement-related ledgers and documents, the court may order the infringer to furnish them, which reduced the burden of proof on  obligee.

In addition, the amendment improves the relevant system of administrative protection and adds the principle good faith to further elevate both the effect and efficiency of patent protection.

Spotlight Ⅳ

What are the changes in promoting patent commercialization and use?

A considerable part of patent applications in China haven’t been well comercialized and used after authorization at present. Facilitating patent commercialization and use is a way to achieve market value of patents as an intangible asset and provide tangible support for creative development of the real economy. In a bid to accelerate patent commercialization and use and improve patent commercialization service, the newly revised patent law adds some relevant contents.

First, service invention system is refined. The legal system of service invention is the basic for adjusting the distribution of rights and benefits of units and inventors. It plays an important role in mobilizing the innovation enthusiasm of units and their R&D personnel and promoting the transfer and transformation of inventions. The new law adds provisions that the relevant entity treats patent rights of a service invention-creation in accordance with the law and the nation encourages those granted patent rights to implement property right incentive, further motivating the creation, promotion and exploitation of inventions and making technological innovation benefit society.

Second, public service of patent information is reinforced. Timely release, dissemination and effective use of patent information is of great significance for improving the starting point on innovation, reducing repeated R&D, avoiding infringement of other’s patent rights and promoting innovation. Provisions designed for patent information are described, clarifying that the patent administrative department of the State Council is responsible for establishing public service system of patent information and providing the basic patent data and local patent administrative departments intensify work on patent information public service, patent commercialization and use.

Third, a patent open license system is added. The open license system is an important legal system to promote the transformation and implementation of patent, the core of which is to encourage the patentee to open the patent right to the society, promote the connection between supply and demand and patent implementation, which could truly realize the value of patents. Based on the basic national conditions and sophisticated international experience, the amended law installs provisions of the elements of open license statement and its being effective, the procedures, rights and duties of a licensee to obtain an open license and corresponding dispute settlements methods, in an attempt to solve information asymmetry problems sourced from patent supply and demand parties, to enable any entities and individuals to gain a patent license conveniently, lower transaction cost and improve patent commercialization efficiency.

(To be continued)