China’s legal regime for Intellectual Property Rights (IPR) comprises mainly the Patent Law of the People's Republic of China (“Patent Law”), Copyright Law of the People’s Republic of China (“Copyright Law”), Trademark Law of the People's Republic of China (“Trademark Law”), as well as their respective implementation regulations or rules. In the meantime, China is a member of such conventions or international treaties as the Paris Convention for the Protection of Industrial Property, the Berne Convention for the Protection of Literary and Artistic Works, and the Agreement on Trade-related Aspects of Intellectual Property Rights, etc., which therefore constitute part of China’s IPR legal system.
Abreast of its rapid economic developments, China revises its IPR laws rather frequently. The following is a brief introduction to the recent developments in IPR laws and regulations in China.
Patent Law
After its adoption in 1984, China’s Patent Law has been amended twice in 1992 and 2000 respectively.
The third amendment was adopted on Dec. 27, 2008 and came into force as of October 1, 2009. In the third amendment, 7 new articles were enacted and 29 articles were revised. The amendment covers such aspects as the purpose of the law, standards for granting patents, prosecution of and agents for patent involving foreign elements, patent protection, regulation on patent abuse, etc.
Accordingly, the newly revised Implementing Regulations of the Patent Law of the People's Republic of China was promulgated by the State Council on January 9, 2010 and came into effect on February 1, 2010.
The following are especially noteworthy to patent owners:
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Adoption of the so-called “absolute novelty” standard
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Requirement of a license for filing patent applications abroad where the inventions were made in China
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Significantly raised standard of validity for designs
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Adoption of the principle of international exhaustion
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Raised penalty for patent counterfeiting and the doubled statutory damages for patent infringement
Copyright Law
Adopted in September 1990, the Copyright Law had been amended once in October 2001.
On February 26, 2010, the second amendment was made which will come into force as of April 1, 2010.
The amendment includes two changes: First, the first sentence of Article 4, i.e., “Works the publication and dissemination of which are prohibited by law shall not be protected by this Law” was removed, in compliance with a WTO ruling on March 20, 2009, in which the Dispute Settlement Body of WTO held that China’s Copyright Law, specifically the first sentence of Article 4, was not in line with the Berne Convention or The Trade-Related Aspects of Intellectual Property Rights (TRIPS). After the amendment, works not yet passed the Chinese authorities’ censorship should no longer be deemed as non-protectable and therefore a significant obstacle for copyright owners to enforce their copyright is removed.
Second, a new article about copyright pledge was introduced.
Trademark Law
The trademark law had been amended twice respectively in 1993 and 2001 since it came into force on March 1, 1983.
The third amendment is currently on the way and aims to simplify the trademark application procedure, shorten the time needed for approval of trademarks, enhance the punishment of counterfeiting and afford more convenience to trademark applicants.
Others
In China, application of the laws is normally detailed or clarified by the relevant judicial interpretations of the Supreme People’s Court. Among the judicial interpretations recently issued on intellectual property rights, the following deserves special attention:
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Interpretation of the Supreme People’s Court on Several Issues concerning the Application of Law in the Trial of Patent Infringement Dispute Cases
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Provisions of the Supreme People’s Court on Issues Concerning the Trial of Cases of Civil Disputes over the Conflict between Registered Trademark or Enterprise Name with Prior Right
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Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Law to the Trial of Cases of Civil Disputes over the Protection of Well-known Trademarks
If you are interested in further information, please contact
Mr. Edouard Schmitt zur Höhe or Mr. James Wang
Email: edouard@sflaw.cn / james@sflaw.cn
Telephone: +86(0)10 6400 2173
Fax: +86(0)10 6400 2305
Disclaimer: The above article has been provided by Schmitt zur Höhe & Ferrante for reference purpose only and should not be regarded as professional legal advice. You should not act upon this article without seeking a competent legal counsel. You should consult an attorney for individual advice regarding your own situation.