Patent Protection

I.  Protection Scope of Patent Right

1. Protection Scope of Patent Right of Inventions and Utility Models
(1) Contents of Protection: The protection scope of the patent right shall be, in principle, determined by the patent claim. The patent specification and appended drawings may provide interpretations for the patent claim, i.e. the interpretation of the patent claim shall be determined by the technical contents recorded in the letter of patent claim, including the scope determined by the characters equivalent with such necessary technical contents.
(2).  Restraining Power: After an invention patent or a utility model patent right is granted, unless otherwise specified in this Law, no organization or individual may exploit the patent without licensing from the patentee, i.e., they may not produce, use, offer to sell, sell, or import the patented products, nor use the patented method or use, offer to sell, sell or import products that are acquired directly through the patented method.
 
2. Protection of Industrial Design Patent Right
(1)Contents of Protection: the scope of protection shall be subject to the design of the product as shown in the drawings or pictures, brief descriptions may be used to describe the said design shown in the drawings or pictures.
(2)Prohibition: After the grant of the patent right for a design, no unit or individual may exploit the patent without the authorization of the patentee, that is, no entity or individual may manufacture, sell or import products incorporating the patented design for production or business purposes.
II. Approaches of Patent Right Protection
1. Right Protection By Litigation
(1).Case Acceptance Scope of Court
Dispute on Patent Application Right;
Dispute on Ownership of Patent Right;
Dispute on Assignment Contract of Patent Right, Patent Application Right;
Dispute on Patent Infringement;
Dispute on Counterfeiting Others' Patent;
Dispute on Usage Fees of Patent (after publication of patent application and before the grant of patent right);
Dispute on Rewards to the Inventor or Designer of a Service Invention;
Dispute on Pre-Litigation Cessation of Patent Right Infringement, Property Preservation Measures;
Dispute on Qualification of Inventor, Designer;
A case involving dissatisfaction with the reexamination decision of the Patent Reexamination Board on sustaining the rejection of an application;
A case involving dissatisfaction with the decision of the Patent Reexamination Board on a request to declare a patent right invalid;
A case involving dissatisfaction with the Patent Administration Department under the State Council on enforcing the compulsory permit;
A case involving dissatisfaction with the ruling of the Patent Administration Department under the State Council on the usage fee for enforcing the compulsory permit;
A case involving dissatisfaction with the administrative reconsideration decision of the Patent Administration Department under the State Council
A case involving dissatisfaction with the administrative decision of the department in charge of patent-related work;
Any other Patent Disputes.    
 
(2) Court with Jurisdiction
A first instance patent dispute case shall be under the jurisdiction of an intermediate people's court at the place where the people's government of the province, the autonomous region or the municipality directly under the Central Government is located or an intermediate people's court designated by the Supreme People's Court.
(3)Period Limitation of Action
The period limitation of action for the patent right infringement shall be two years, commencing from the date when the patentee or interested party knows or should have know of the infringement act.
If the patentee files an action after two years and the infringement act continues when such an action is filed, and said patent is still valid, the people's court shall make a judgment to order the defendant to cease the infringement act and the compensation amount for the infringement shall commence from two years before the date when the patentee files the action with the people's court.
If an appropriate royalty is not paid for using an invention after the invention patent application is publicized and before the patent right is granted, the time limit for action of the patentee for payment of royalties shall be two years, commencing from the date when the patentee knows or should have known of the use of that patent by others. However, the period of limitation of action shall commence from the date when the patent right is granted if the patent knows or should have known of the use before patent right is granted.
(4) Pre-litigation Injunction and Property Preservation
 
2. Rights Protection by Administrative Methods
(1) Administrative Authorities for Patent Affairs
Each Party shall apply to the Administrative Authorities for Patent Affairs for resolving or mediating such patent disputes to protect its legal interests. 
Where any party concerned requests for handling or mediation of a patent dispute, it shall fall under the jurisdiction of the administrative authority for patent affairs of the place where the requested party has his location or where the act of infringement takes place. Where two or more administrative authorities for patent affairs all have jurisdiction over a patent dispute, the administrative authority for patent affairs that first accepts the request shall have jurisdiction if requests are filed with two or more administrative authorities. 
 
(3) Processing of Patent Infringement Disputes
A. Application of Processing of Patent Infringement Dispute by the Applicant
a. Applicant shall mean patentee, licensee of contract for licensing the implementation of a patent, lawful heir of patent right, etc.
b. Materials for Submission by the Applicant
Written Request;
Relevant evidence and materials may be submitted as appendix of written request;
B. Resolve of Infringement Dispute
a. Administrative authorities for patent affairs shall make written decision for the patent dispute.
b. Administrative authorities for patent affairs shall order the infringer to cease the infringement immediately in event that the infringement act could be confirmed.  
 (4) Mediation of Patent Infringement Disputes
A. Scope of Mediation
Dispute on Patent Application Right;
Dispute on Ownership of Patent Right;
Dispute on Qualification of Inventor, Designer;
Dispute on Qualification of Inventor, Designer;
Dispute on Company or Individual Usage Fees of Patent (after publication of patent application and before the grant of patent right); such dispute shall be proposed after the grant of patent right;
 
B. Mediation Procedures
The Application shall submit written request to the department in charge of patent related work;
Where the parties reach an agreement upon mediation, a mediation statement shall be prepared and be affixed with the signature or seal of the two parties and shall be submitted to the department in charge of patent related work for filing. If mediation fails, the department in charge of patent related work shall conclude the case by withdrawing the case and shall notify both the parties.
IV. Liabilities of Patent Infringement 
1.Civil Liability
The amount of compensation for patent right infringement shall be determined according to the actual losses of the patentee caused by the infringement. If the actual losses cannot be easily determined, the compensation amount may be determined according to the benefit acquired by the infringer through the infringement. If the losses of the patentee or the benefit of the infringer cannot be easily determined, the compensation amount may be a reasonable number of times of the royalties of that patent. The amount of compensation shall include the reasonable expenditures paid by the patentee for preventing the infringement act.
2. Administrative Liability
(1) Anyone who counterfeits a patent of others shall, in addition to bearing civil liabilities in accordance with the law, be ordered by the authorities for the administration of patent-related work to make a correction, and a circular shall be made accordingly. The relevant illegal gains shall be confiscated, and a fine of no more than four times the illegal gains may be imposed. If there are no illegal gains, a fine of no more than RMB200, 000 may be imposed.
(2) If a person usurps the right to apply for a a non-service invention, or usurps any other rights and interests specified in this Law, of an inventor or designer, the violating party shall be subject to administrative sanctions by the organization to which the party belongs or the superior competent authority.
3. Criminal Liability
(1) Counterfeiting another's patent shall fall under definition of "serious circumstances ", and the counterfeiter shall be convicted of counterfeiting patents and sentenced to fixed-term imprisonment of not more than three years or criminal detention with the concurrent imposition of a fine, or shall be subject to a fine alone.
(2)Whoever, after being aware that another party has committed crimes involving intellectual property rights infringement, provides loans, funds, account numbers, invoices, certifications, permission certificates or provides area for production and operation or facilitates or provides help such as transportation, storage, import and export agency, shall be punished in the capacity of an accomplice to the crimes of intellectual property rights infringement.
V. Relevant Laws and Regulations
1. Patent Law of People’s Republic of China
2. Rules for the Implementation of the Patent Law of the People's Republic of China
3. Certain Provisions of the Supreme People's Court on Issues Concerning Application of Law to Pre-Litigation Cessation of Patent Right Infringement
4. Certain Provisions of the Supreme People's Court on Issues Concerning Application of Law in Trying Cases Involving Patent Disputes
5. Interpretation of the Supreme People's Court on Certain Issues Concerning the Application of Law in Trying Cases Involving Technology Contract Disputes
6. Measures on the Administrative Implementation of Patents
7. Administrative Reconsideration Procedure of State Intellectual Property Office
8. Administrative Measures for the Filing of Patent Implementation Licensing Contracts
9. Measures for Compulsory License of Patent Exploitation
10.Civil Procedure Law of the People's Republic of China
11.Criminal Law of the People’s Republic of China
12. Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Certain Issues Concerning the Application of Law in Handling Criminal Cases Involving Infringement of Intellectual Property Rights
13.Administrative Reconsideration Law of the People's Republic of China.

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