Patent Law of the People’s Republic of China — Full English Translation (2020 Amendment)

Chapter I: General Provisions

Article 1 This Law is enacted to protect the lawful rights and interests of patentees, encourage invention-creation, promote the application of invention-creation, enhance innovation capability, and promote scientific and technological progress and economic and social development.

Article 2 For the purposes of this Law, ‘invention-creation’ means inventions, utility models, and designs. An invention means a new technical solution proposed for a product, a process, or the improvement thereof. A utility model means a new technical solution proposed for the shape or structure of a product, or a combination thereof, that is fit for practical use. A design means a new design of the shape, pattern, or a combination thereof, as well as a combination of color with shape or pattern, of the whole or a part of a product, that is rich in aesthetic appeal and fit for industrial application.

Article 3 The Patent Administration Department of the State Council shall be responsible for the administration of patent work nationwide, uniformly accept and examine patent applications, and grant patent rights in accordance with law. The patent administration departments of provinces, autonomous regions, and municipalities directly under the Central Government shall be responsible for patent administration within their respective administrative areas.

Article 4 Where an invention-creation for which a patent is applied relates to national security or other vital interests and confidentiality is required, the patent application shall be handled in accordance with the relevant state provisions.

Article 5 No patent right shall be granted for any invention-creation that contravenes the laws of the state, social morality, or public interests. No patent right shall be granted for any invention-creation that is accomplished by relying on genetic resources obtained or used in violation of the provisions of laws and administrative regulations.

Article 6 An entity or individual that is entitled to a patent right for an invention-creation made in the course of performing the tasks of the entity to which he or she belongs or primarily using the material and technical conditions of the entity shall be the patentee. For a service invention-creation, the entity shall reward the inventor or creator; after the patent right is exploited, the inventor or creator shall be given reasonable remuneration based on the extent of exploitation and the economic benefits derived.

Article 7 No entity or individual shall suppress the application for a patent by an inventor or creator for a non-service invention-creation.

Chapter II: Conditions for Granting Patent Rights

Article 8 For an invention or utility model for which a patent right may be granted, it shall possess novelty, inventiveness, and practical applicability. Novelty means that the invention or utility model is not an existing technology; no entity or individual has filed an application with the patent administration department for the identical invention or utility model before the date of filing and the application is published in patent application documents or patent documents published after the date of filing. Inventiveness means that compared with the existing technology, the invention has prominent substantive features and represents notable progress, and the utility model has substantive features and represents progress. Practical applicability means that the invention or utility model can be manufactured or used and can produce positive effects.

Article 9 An existing technology means technology known to the public domestically or abroad before the date of filing. A design for which a patent right may be granted shall not be an existing design; no entity or individual has filed an application with the patent administration department for the identical design before the date of filing and the application is published in patent documents after the date of filing. The design for which a patent right is granted shall be clearly different from an existing design or a combination of the features of existing designs. The design for which a patent right is granted shall not conflict with the lawful rights obtained by others before the date of filing.

Article 10 No patent right shall be granted for the following: (1) scientific discoveries; (2) rules and methods of intellectual activities; (3) methods for diagnosis or treatment of diseases; (4) animal and plant varieties; (5) substances obtained by means of nuclear transformation; (6) designs of two-dimensional printed matter made primarily for marking effect on patterns, colors, or a combination thereof. Patent rights may be granted for production methods of animal and plant varieties listed in item (4).

Article 11 For an invention or utility model for which a patent application is filed in a foreign country in violation of the provisions of Article 4 of this Law on confidentiality examination, no patent right shall be granted if a patent application is subsequently filed in China.

Article 12 The patent administration department may, after granting the patent right, correct obvious errors in the patent application documents or patent documents such as errors in wording, symbols, drawings, etc.

Article 13 Where a patent application for an invention relates to a new biological material that is not available to the public and the specification cannot clearly describe it to enable a person skilled in the art to carry out the invention, the applicant shall deposit a sample of the biological material with a depository institution designated by the patent administration department before the date of filing or at the latest on the date of filing.

Article 14 Where an invention-creation for which a patent application is filed relies on genetic resources, the applicant shall state the direct source and original source of the genetic resources in the patent application documents; where the applicant cannot state the original source, the applicant shall state the reasons.

Chapter III: Patent Application

Article 15 An application for a patent for an invention or utility model shall be limited to one invention or utility model. Two or more inventions or utility models belonging to a single general inventive concept may be filed as one application. An application for a patent for a design shall be limited to one design. Two or more similar designs of the same product, or two or more designs of products of the same category that are sold or used as a set, may be filed as one application.

Article 16 The patent administration department shall publish the patent application documents of an invention application 18 months after the date of filing on the basis of the request of the applicant. Where the applicant requests early publication, the patent administration department shall publish the application after preliminary examination.

Article 17 An applicant may amend the patent application documents, provided that the amendment to the application documents for an invention or utility model shall not exceed the scope disclosed in the original specification and claims, and the amendment to the application documents for a design shall not exceed the scope shown in the original drawings or photographs.

Article 18 An applicant may file a divisional application based on a pending patent application, provided that the divisional application shall not exceed the scope disclosed in the original application.

Article 19 Where an applicant files a patent application for the first time in China for an invention or utility model, he or she may claim priority based on a prior application for the same subject matter filed with the patent administration department within 12 months for an invention or utility model, or within 6 months for a design.

Article 20 Where a foreign applicant with no habitual residence or business office in China files a patent application in China, the application shall be handled by a legally established patent agency.

Chapter IV: Examination and Approval of Patent Applications

Article 21 Upon receipt of an application for a patent for an invention, the patent administration department shall carry out preliminary examination. Where the application meets the requirements of this Law after preliminary examination, it shall publish the application 18 months after the date of filing. The patent administration department may publish the application at an earlier date upon the request of the applicant.

Article 22 An applicant for an invention patent shall, within three years from the date of filing, request the patent administration department to carry out substantive examination of the application. Where the applicant fails to request substantive examination within the time limit without justifiable reason, the application shall be deemed withdrawn.

Article 23 Where an application for a patent for a utility model or design is found to meet the requirements of this Law after preliminary examination, the patent administration department shall make a decision to grant the patent right for the utility model or design, issue the corresponding patent certificate, and register and publish the same.

Chapter V: Term, Termination and Invalidation of Patent Rights

Article 24 The term of patent right for an invention shall be 20 years, for a utility model shall be 10 years, and for a design shall be 15 years, all counted from the date of filing. For an invention patent granted for a new drug on the Chinese market, the patent administration department may, at the request of the patentee, extend the term of the patent right to compensate for the time taken for the review and approval of the new drug for marketing.

Article 25 A patentee shall pay annual fees beginning from the year in which the patent right is granted. Where the patentee fails to pay the annual fee in accordance with the relevant provisions, the patent right shall be terminated before the expiration of the term.

Article 26 Where a patentee waives the patent right by a written declaration, the patent right shall be terminated before the expiration of the term.

Article 27 From the date of the announcement of the grant of a patent right by the patent administration department, any entity or individual that considers that the grant of the patent right does not conform to the relevant provisions of this Law may request the patent administration department to declare the patent right invalid.

Article 28 Where the patent administration department declares a patent right invalid, the patent right shall be deemed non-existent from the beginning. The decision declaring the patent right invalid shall have no retroactive effect on any judgment, ruling, or mediation document on patent infringement that has been made and enforced by a people’s court, or any decision on patent infringement dispute that has been enforced or performed, or any patent exploitation license contract or patent assignment contract that has been performed.

Chapter VI: Special License for Exploitation of Patents

Article 29 Any entity or individual that intends to exploit the patent of another shall conclude a written license contract with the patentee and pay a royalty to the patentee. The licensee shall not have the right to authorize any entity or individual other than those specified in the contract to exploit the patent.

Article 30 Where an invention patent of a state-owned enterprise or institution is of great significance to national or public interests, the relevant competent department of the State Council and the people’s government of the province, autonomous region, or municipality directly under the Central Government may, after approval by the State Council, decide to have the patent exploited within a certain scope and pay a reasonable royalty to the patentee.

Article 31 A person may, by submitting a request to the patent administration department stating the reasons, request a compulsory license to exploit a patent where: (1) the patentee has not exploited or sufficiently exploited the patent without justifiable reason within three years from the grant of the patent right and within four years from the date of filing; (2) the exercise of the patent right by the patentee is determined in accordance with law to be a monopolistic act, and the compulsory license is to be granted to eliminate or reduce the adverse effects of such act on competition.

Article 32 Where a national emergency or extraordinary state of affairs occurs, or public interest so requires, the patent administration department may grant a compulsory license to exploit an invention or utility model patent.

Article 33 For the purpose of public health, the patent administration department may grant a compulsory license for the manufacture and export of a patented drug to a country or region that complies with the provisions of the relevant international treaties to which China is a party.

Article 34 An entity or individual that is granted a compulsory license to exploit a patent shall pay a reasonable royalty to the patentee. Where the parties fail to reach an agreement on the amount of the royalty, the patent administration department shall make a ruling.

Chapter VII: Protection of Patent Rights

Article 35 The scope of protection of the patent right for an invention or utility model shall be determined by the terms of the claims. The specification and drawings may be used to interpret the claims. The scope of protection of the patent right for a design shall be determined by the design of the product shown in the drawings or photographs.

Article 36 After the grant of a patent right for an invention or utility model, except where otherwise provided in this Law, no entity or individual may, without the permission of the patentee, exploit the patent, i.e., manufacture, use, offer for sale, sell, or import the patented product, or use the patented process and use, offer for sale, sell, or import the product directly obtained by the patented process, for production or business purposes.

Article 37 After the grant of a patent right for a design, no entity or individual may, without the permission of the patentee, exploit the patent, i.e., manufacture, offer for sale, sell, or import the product incorporating the patented design, for production or business purposes.

Article 38 Where a dispute arises over the exploitation of a patent without the permission of the patentee, i.e., patent infringement, the parties shall resolve the dispute through consultation. Where the parties are unwilling or unable to resolve the dispute through consultation, the patentee or an interested party may institute legal proceedings in a people’s court or request the patent administration department to handle the matter.

Article 39 Where a dispute over patent infringement involves an invention patent for a manufacturing process of a new product, the entity or individual manufacturing the identical product shall provide proof that the manufacturing process of its product is different from the patented process.

Article 40 Where a patent infringement dispute is handled by the patent administration department, the patent administration department may, based on the request of the patentee or interested party, conduct mediation on the amount of compensation for patent infringement damage.

Article 41 The amount of compensation for patent infringement damage shall be determined based on the actual losses suffered by the patentee or the benefits gained by the infringer as a result of the infringement. Where it is difficult to determine the losses suffered by the patentee or the benefits gained by the infringer, the amount of compensation shall be reasonably determined by reference to a multiple of the royalty for the patent license.

Article 42 Where the infringement of a patent right is intentional and the circumstances are serious, the amount of compensation may be determined as not less than one time but not more than five times the amount determined in accordance with the preceding methods. Where it is difficult to determine the losses of the patentee, the benefits of the infringer, or the royalty for the patent license, the people’s court may determine the amount of compensation as not less than RMB 30,000 and not more than RMB 5,000,000 based on factors such as the type of patent right and the nature and circumstances of the infringement.

Article 43 The patentee or an interested party may, before instituting legal proceedings, apply to a people’s court for an order to preserve evidence where evidence may be lost or difficult to obtain later.

Article 44 The patent administration department may, when handling a patent infringement dispute at the request of the patentee or interested party, order the infringer to immediately stop the infringing act.

Article 45 Where a person counterfeits the patent of another, the person shall, in addition to bearing civil liability in accordance with law, be ordered by the patent administration department to take corrective action. The illegal gains shall be confiscated and a fine of not more than five times the illegal gains may be imposed.

Article 46 Where a person passes off a non-patented product as a patented product or a non-patented process as a patented process, the patent administration department shall order the person to take corrective action and may impose a fine of not more than RMB 200,000.

Article 47 The limitation period for instituting legal proceedings for patent infringement shall be three years, counted from the date on which the patentee or interested party knew or should have known of the infringing act and the infringer.

Article 48 Where the patentee or interested party has evidence to prove that another person is infringing or is about to infringe the patent right and that the patentee’s lawful rights and interests will suffer irreparable damage if the infringing act is not stopped in a timely manner, the patentee or interested party may, before instituting legal proceedings, apply to a people’s court for an order to stop the relevant act.

Article 49 Where, for the purpose of production and business operations, a person uses, offers for sale, or sells a patented product that is not known to be manufactured and sold without the permission of the patentee, the person shall not be liable for compensation provided that the person can prove the lawful source of the product.

Article 50 Any of the following circumstances shall not be deemed infringement of a patent right: (1) where a patented product or a product directly obtained by a patented process is used, offered for sale, sold, or imported by the patentee or with the permission of the patentee; (2) where the patented product or the product directly obtained by the patented process was manufactured and sold by the patentee or with the permission of the patentee; (3) where a person has already manufactured the identical product, used the identical process, or made necessary preparations for manufacturing or using the same before the date of filing and continues to manufacture or use the same only within the original scope.

Article 51 A person that uses a relevant patent exclusively for the purpose of scientific research and experimentation, or for the purpose of providing information required for administrative review and approval, shall not be deemed to have infringed the patent right.

Article 52 Where the legitimate rights and interests of a patentee are infringed in the online environment, the patentee or interested party may notify the network service provider to take necessary measures such as deletion, blocking, or disconnection. The network service provider shall promptly forward the notice to the network user. Where the network user considers that the network user’s acts do not constitute infringement, the network user may submit a statement to the network service provider.

Chapter VIII: Supplementary Provisions

Article 53 The provisions of this Law shall apply to the filing of international applications for patents in accordance with the relevant international treaties to which China is a party. The specific measures shall be formulated by the State Council.

Article 54 The patent administration department shall publish patent information in a timely, accurate, and complete manner and shall establish a patent information public service system to facilitate the public’s access to patent information.

Article 55 An applicant for a patent for invention or utility model shall submit a request, specification, claims, abstract, and other documents. An applicant for a patent for design shall submit a request, drawings or photographs of the design, a brief description of the design, and other documents.

Article 56 The specification shall contain a clear and comprehensive description of the invention or utility model to enable a person skilled in the art to carry it out; where necessary, drawings shall be attached. The abstract shall briefly state the technical essentials of the invention or utility model. The claims shall define clearly and concisely the scope of the patent protection sought based on the specification.

Article 57 The date of filing shall be the date on which the patent administration department receives the patent application documents. Where the application documents are sent by mail, the date of filing shall be the date of the postmark.

Article 58 An applicant may withdraw the patent application at any time before the patent right is granted. An applicant may amend the patent application documents, provided that the amendment to the application documents for an invention or utility model shall not exceed the scope disclosed in the original specification and claims.

Article 59 Where an applicant claims priority, the applicant shall submit a written declaration when filing the application and submit a copy of the prior application documents within three months.

Article 60 Where a patent application involves national defense secrets requiring confidentiality, the patent administration department shall transfer the application to the national defense patent institution for examination.