Patent Law of the People's Republic of China

(Adopted at the 4th Session of the Standing Committee of the Sixth National People's Congress on March 12, 1984; amended for the first time by the Decision on Amending the Patent Law of the People's Republic of China adopted at the 27th Session of the Standing Committee of the Seventh National People's Congress on September 4, 1992; amended for the second time by the Decision on Amending the Patent Law of the People's Republic of China, adopted at the 17th Session of the Standing Committee of the Ninth National People's Congress on August 25, 2000; amended for the third time by the Decision of the Standing Committee of the National People's Congress on Amending the Patent Law of the People's Republic of China adopted at the 6th Session of Standing Committee of the 11th National People's Congress of the People's Republic of China on December 27, 2008; and amended for the fourth time in accordance with the Decision of the Standing Committee of the National People's Congress to Amend the Patent Law of the People's Republic of China adopted at the 22nd Session of the Standing Committee of the Thirteenth National People's Congress of the People's Republic of China on October 17, 2020) 

Article 1 This law is enacted for the purpose of protecting the legitimate rights and interests of patentees, encouraging inventions, giving an impetus to the application of inventions, improving the innovative capabilities, and promoting scientific and technological progress as well as the economic and social development.

Article 2 The “inventions” as used in this Law means inventions, utility models and designs.

The term “invention” refers to any new technical solution relating to a product, a process or an improvement thereof.

The term “utility model” refers to any new technical solution relating to a product's shape, structure, or a combination thereof, which is fit for practical use.

“Design” means a new design of the shape, pattern, or a combination thereof, as well as a combination of the color, shape and pattern, of the entirety or a portion of a product, which creates an aesthetic feeling and is fit for industrial application.

Article 3 The patent administrative department of the State Council shall be responsible for the administration of the patent work throughout China, uniformly accept and examine applications for patents, and grant patents in accordance with the law.

The patent administrative department of the people's government of each province, autonomous region, or municipality directly under the Central Government shall take charge of the administration of patents within its own jurisdiction.

Article 4 Where the invention for which a patent is applied for relates to the security or other vital interests of the State and is required to be kept confidential, the application shall be handled in accordance with the relevant provisions of the State.

Article 5 No patent shall be granted for an invention that contravenes any law or social moral or that is detrimental to public interests.

No patent will be granted for an invention based on genetic resources if the access or utilization of the said genetic resources is in violation of any law or administrative regulation.

Article 6 An invention-creation made by a person in the execution of tasks of the entity employing the person or mainly by taking advantage of the entity's material and technical conditions is a service invention-creation. The right to apply for a patent for a service invention-creation belongs to the entity; and after the application is granted, the entity is the patentee. The entity may, in accordance with the law, dispose of its right to apply for the patent for the service invention-creation and the patent right, and promote the exploitation and application of the invention-creation.

For any non-service invention, the right to apply for a patent shall remain with the inventor or designer. After the application is approved, the inventor or designer shall be the patentee.

For an invention made by a person by taking advantage of the material and technical means of the entity where he works, if there is a contract between the entity and the inventor or designer regarding the right to apply for patent and the ownership of the patent, the contractual stipulations shall prevail.

Article 7 No entity or individual shall prevent the inventor or designer from filing an application for patenting a non-service invention.

Article 8 For an invention made through the joint work of two or more entities or individuals, or made by an entity or individual upon the authorization of another entity or individual, the right to apply for a patent shall, unless it is otherwise agreed upon, remain with the entity or individual which made the invention or with the entities or individuals which jointly made the invention. After the application is approved, the entity (or entities) or individual(s) that filed the application shall be the patentee.

Article 9 One patent shall be granted to one invention. However, if a same applicant applied for both a patent for utility model and a patent for invention on a same day, if the patent for the utility model it has previously applied for has not terminated yet and if the applicant declares to waive the patent for utility model, the patent for invention can be granted.

Where two or more applicants file applications for a patent for an identical invention, the patent shall be granted to the applicant who is the first to file an application.

Article 10 The right to apply for a patent and the patent rights may be assigned.

Where a Chinese entity or individual is to assign the right to apply for a patent or a patent right to a foreigner or foreign enterprise or any foreign organization, it or he shall go through the formalities under relevant laws and administrative regulations.

Where the right to apply for a patent or a patent right is assigned, the parties concerned shall conclude a written contract, and have the contract registered in the patent administrative department of the State Council. The said contract shall be announced by the patent administrative department of the State Council. The assignment of the right to apply for the patent or the patent right shall come into force as of the date of registration.

Article 11 After the granting of patent for an invention or utility model, unless it is otherwise prescribed by this Law, no entity or individual is entitled to, without permission of the patentee, exploit the patent, that is, to make, use, promise the sale of, sell or import the patented product, or use the patented process and use, promise the sale of, sell or import the product directly obtained from the patented process, for production or business purposes.

After the granting of a patent for a design, no entity or individual shall, without permission of the patentee, exploit the patent, that is to say, they shall not make, promise to sell, sell, or import the product incorporating its or his patented design, for production and business purposes.

Article 12 Where an entity or individual exploits the patent of anyone else, it or he shall conclude a licensing contract with the patentee and pay a patent royalty to the patentee. The licensee has no right to license any entity or individual other than the entity or individual as stipulated in the licensing contract to exploit the said patent.

Article 13 After the publication of an application for a patent for invention, the applicant may require the entity or individual exploiting the invention to pay an appropriate fee.

Article 14 If there is any agreement between the joint owners of the right to apply for a patent or a patent right regarding the exercise of the relevant right, the agreement shall be followed. If there is no such agreement, any of the joint owners may exploit the patent independently or license others to exploit the patent by means of ordinary license. In the case of licensing others to exploit the patent, royalties charged shall be distributed among the joint owners.

Except for the circumstance as described in the preceding paragraph, the exercise of the right to apply for a patent or a patent right shall be based on the consensus of all joint owners.

Article 15 The entity to whom a patent is granted shall give to the inventor or designer of the service invention a reward and shall, after exploitation of the patented invention, pay the inventor or designer a reasonable remuneration on the basis of the scope of popularization and application as well as the economic benefits yielded.

The state encourages entities to which patent rights are granted to implement property right incentives, and enable inventors or designers to rationally share the benefits of innovation in forms such as equities, options, and dividends.

Article 16 An inventor or designer has the right to expressly indicate in the patent documents that he is the inventor or designer.

A patentee has the right to label the patent on its patented product or on the package of the said product.

Article 17 Where any foreigner, foreign enterprise or other foreign organization that has no habitual residence or business office in China files an application for a patent in China, the application shall be treated under this Law in accordance with the agreement, if any, concluded between the country to which the applicant belongs and China, or in accordance with any international treaty to which both countries are a party, or on the basis of the principle of reciprocity.

Article 18 Where a foreigner, foreign enterprise or any other foreign organization that has no habitual abode or business office in China intends to apply for a patent or handle other patent-related matters in China, he or it shall authorize a legitimately formed patent agency to act on his or its behalf.

To apply for a patent or handle other patent-related matters in China, a Chinese entity or individual may authorize a legitimately formed patent agency to act on its or his behalf.

A patent agency shall abide by the laws and administrative regulations when filing applications for patents or handling other patent affairs as entrusted by the principal. It shall also be obligated to keep confidential the contents of the principal's invention, unless the application for patent has been published or announced. The specific measures for the administration of patent agencies shall be formulated by the State Council.

Article 19 Where an entity or individual intends to file an application in a foreign country for patenting an invention or utility model accomplished in China, it or he shall report in advance to the patent administrative department of the State Council for confidentiality review. The provisions of the State Council shall be followed in regard to the procedures and time limit for the confidentiality review.

A Chinese entity or individual may, in accordance with the relevant international treaties acceded to by the People's Republic of China, file an international application for patent. An applicant who files an international application for patent shall abide by the provisions of the preceding paragraph.

The patent administrative department of the State Council shall handle international applications for patent in accordance with the relevant international treaties acceded to by the People's Republic of China, this Law, and the relevant provisions of the State Council.

As to an invention or utility model for which a patent application is filed in a foreign country by violating the provision of paragraph 1 of this Article, no patent will be granted to it if a patent application has been filed in China.

Article 20 Patent applications and the exercise of patent rights shall adhere to the principle of good faith. Patent rights shall not be abused to damage the public interest or the lawful rights and interests of any other person.

Any abuse of patent rights to preclude or restrict competition, which constitutes a monopolistic act, shall be handled in accordance with the Anti-monopoly Law of the People's Republic of China.

Article 21 The patent administrative department of the State Council shall, pursuant to the requirements of objectivity, impartiality, accuracy and timeliness, handle the relevant patent applications and appeals.

The patent administrative department of the State Council shall strengthen the construction of the patent information public service system, release patent information in a complete, accurate, and timely manner, provide basic patent data, publish patent gazettes on a periodical basis, and promote the dissemination and utilization of patent information.

Before an application for patent is published or announced, the functionaries and other relevant persons of the patent administrative department of the State Council shall keep confidential the contents therein.

Article 22 An invention or utility model for which a patent is to be granted shall be novel, inventive and practically applicable.

Novelty means that the invention or utility model is not an existing technology, and prior to the date of application, no entity or individual has filed an application heretofore with the patent administrative department of the State Council for the identical invention or utility model and recorded it in the patent application documents or patent documents released after the said date of application.

Inventiveness means that, as compared with the technology existing before the date of application the invention has prominent substantive features and represents a notable progress and that the utility model has substantive features and represents progress.

Practical applicability means that the invention or utility model can be made or used and can produce effective results.

The term “existing technology” as mentioned in this Law refers to the technologies known to the general public both at home and abroad prior to the date of application.

Article 23 Any design for which a patent is granted shall not be attributed to the existing design, and no entity or individual has, before the date of application, filed an application with the patent administrative department of the State Council on the identical design and recorded it in the patent documents published after the date of application.

As compared with the existing design or combination of the existing design features, the design for which a patent is granted shall have distinctive features.

The patented design may not conflict with the lawful rights that have been obtained by any other person prior to the date of application.

The term “existing design” as used in this Law refers to a design known to the general public both at home and abroad prior to the date of application.

Article 24 An invention for which a patent is applied for does not lose its novelty where, within six months before the date of application, one of the following events occurred:

(1) it is disclosed to the public for the first time in the public interest, when a state of emergency or any extraordinary circumstance occurs in the country;

(2) where it was first exhibited at an international exhibition sponsored or recognized by the Chinese Government;

(3) where it was first made public at a prescribed academic or technological meeting;

(4) where it was disclosed by any person without the consent of the applicant.

Article 25 For any of the following, no patent right shall be granted:

(1) scientific discoveries;

(2) rules and methods for mental activities;

(3) methods for the diagnosis or for the treatment of diseases;

(4) animal and plant varieties;

(5) nuclear transformation methods and substances obtained in the method of nuclear transformation; and

(6) the design, which is used primarily for the identification of pattern, color or the combination of the two on printed flat works.

For processes used in producing products referred to in items (4) of the preceding paragraph, a patent may be granted in accordance with the provisions of this Law.

Article 26 Where an application for a patent for invention or utility model is filed, a request, a description and its abstract, and claims shall be submitted.

An application shall expressly specify the name of the invention or utility model, name of the inventor, name and address of the applicant, and other matters.

The description shall clearly and completely describe the invention or utility model so as to enable a person skilled in the relevant field of technology to carry it out; where necessary, drawings are required. The abstract shall state briefly the main technical points of the invention or utility model.

The claims shall clearly and concisely state the requested patent protection scope in accordance with the specifications.

For an invention based on genetic resources, the applicant shall state the direct source and the original source of the genetic resources in the application documents. If the applicant is not able to state the original source, it or he shall state the reasons.

Article 27 To apply for patenting a design, the applicant shall submit an application, pictures or photos of the design, a brief introduction to the design, and other documents.

The relevant pictures or photos submitted by the applicant shall clearly show the product's design for which the patent protection is requested.

Article 28 The date on which the patent administrative department of the State Council receives the application shall be the date of application. If the application is sent by mail, the date of mailing indicated by the postmark shall be the date of application.

Article 29 Where, within twelve months from the date on which any applicant first filed in a foreign country an application for patenting an invention or utility model, or within six months from the date on which any applicant first filed in a foreign country an application for patenting a design, he or it files in China an application for patenting the same, he or it may, in accordance with any agreement concluded between the said foreign country and China, or in accordance with any international treaty to which both countries are a party, or on the basis of the principle of mutual recognition of the right to priority, enjoy the right to priority.

Where, within 12 months from the date of filing of the first application for a patent for an invention or utility model in China, or within six months from the date of filing of the first application for a patent for a design in China, the applicant files again an application for a patent for the same subject matter with the patent administrative department of the State Council, the applicant may enjoy a right of priority.

Article 30 An applicant which claims a right of priority for an invention or utility model patent shall file a written declaration at the time of application, and within 16 months from the date of filing of the first application, submit a duplicate of the first patent application documents.

An applicant which claims a right of priority for a design patent shall file a written declaration at the time of application, and submit a duplicate of the first patent application documents within three months.

An applicant which fails to file the written declaration or submit the duplicate of the patent application documents within the prescribed time limit shall be deemed to have not claimed a right of priority.

Article 31 An application for a patent for invention or utility model shall be limited to one invention or utility model. Two or more inventions or utility models attributed to a single general inventive concept may be filed as one application.

An application for a design patent shall be limited to one design. As to two or more similar designs for the same product or for products which fall into the same class and are sold or used in sets, an application for one design may be filed.

Article 32 An applicant may withdraw his or its application for a patent at any time before the patent right is granted.

Article 33 An applicant may make modifications to his or its application for a patent, but the modifications to the application for a patent for invention or utility model may not go beyond the scope of the disclosure contained in the initial description and claims, and the modifications to the application for a patent for design may not go beyond the scope of the disclosure as shown in the initial drawings or photographs.

Article 34 Where, after having received an application for patenting an invention, the patent administrative department of the State Council finds, upon preliminary examination, that the application is in conformity with the requirements of this Law, it shall publish the application promptly after the lapse of eighteen full months from the date of application. Upon the request of the applicant, the patent administrative department of the State Council may publish the application earlier.

Article 35 Upon the request of the invention patent applicant made at any time within three years from the date of application, the patent administrative department of the State Council will make a substantive examination on the application. If, without any justifiable reason, the applicant fails to request a substantive examination within the limit, the application shall be deemed to have been withdrawn.

The patent administrative department of the State Council may, on its own initiative, make a substantive examination on the application for a patent for invention when it deems it necessary.

Article 36 When the invention patent applicant requests a substantive examination, he or it shall furnish the reference materials of the invention that existed prior to the date of application.

Where an invention patent applicant has filed in a foreign country an application for a patent for the same invention, the patent administrative department of the State Council may require the applicant to submit within the specified time limit references retrieved for the purpose of examining that application, or the references of the examination result, in that country. If, without any justifiable reason, the said materials are not submitted within the specified time limit, the application shall be deemed to have been withdrawn.

Article 37 Where the patent administrative department of the State Council, after it has made the substantive examination on an invention patent application, finds that the application conforms to the provisions of this Law, it shall notify the applicant, requiring him or it to make a statement or revise the application within a specified time limit. If he or it fails to make a response without any justifiable reason, the application shall be deemed to have been withdrawn.

Article 38 Where, after the applicant has made a statement or revisions, the patent administrative department of the State Council finds that the invention patent application still does not conform to the provisions of this Law, the application shall be rejected.

Article 39 Where it is found after a substantive examination that there is no reason to reject the patent invention application, the patent administrative department of the State Council shall make a decision to grant a patent for the invention, issue an invention patent certificate, and register and announce it. The patent right for invention shall become effective as of the date of announcement.

Article 40 Where it is found after the preliminary examination that there is no reason to reject the application for patenting a utility model or design, the patent administrative department of the State Council shall make a decision to grant a patent for the utility model or design, issue the relevant patent certificate, and register and announce it. The patent right for utility model or design shall become effective as of the date of announcement.

Article 41 A patent applicant may file a request with the patent administrative department of the State Council for a review of the decision of the patent administrative department of the State Council to reject its application, within three months of receipt of a notice of the decision. After review, the patent administrative department of the State Council shall make a decision, and notify the patent applicant.

The patent applicant may file a lawsuit against the review decision made by the patent administrative department of the State Council within three months of receipt of a notice of the decision.

Article 42 The term of a patent for an invention shall be 20 years, the term of a patent for a utility model shall be ten years, and the term of a patent for a design shall be 15 years, all commencing from the date of filing of application.

Where a patent for an invention is granted four years from the date of filing of application and three years from the date of filing of request for substantial examination, the patent administrative department of the State Council shall, at the request of the patentee, provide patent term extension for unreasonable delay in the patenting process for the invention, except for unreasonable delay caused by the applicant.

For the purpose of making up the time required for the assessment and approval of the marketing of a new drug, the patent administrative department of the State Council may, at the request of the patentee, provide patent term extension for an invention patent relating to the new drug approved for marketing in China. The extension may not exceed five years, and the total effective term of the patent after the new drug is approved for marketing shall not exceed 14 years.

Article 43 A patentee shall pay an annual fee beginning with the year in which the patent is granted.

Article 44 In any of the following cases, the patent shall be terminated before the expiration of its duration:

(1) an annual fee is not paid under relevant provisions;

(2) the patentee waives his or its patent by a written declaration.

Any patent which is terminated prior to the expiration of its duration shall be registered and announced by the patent administrative department of the State Council.

Article 45 Where, as of the announcement of the granting of the patent by the patent administrative department of the State Council, any entity or individual considers that the granting of the said patent does not conform to the relevant provisions of this Law, it or he may request the patent administrative department of the State Council to invalidate the patent right.

Article 46 The patent administrative department of the State Council shall timely examine the request for invalidating a patent, make a decision and notify the petitioner and the patentee. The decision on invalidating the patent shall be registered and announced by the patent administrative department of the State Council.

Where any party is dissatisfied with the decision of the patent administrative department of the State Council on declaring a patent invalid or maintaining a patent, such party may, within three months as of receipt of the notification, bring a lawsuit to the people's court. The people's court shall notify the opposite party in the procedures for requesting invalidation that it or he should participate in the litigation as a third party.

Article 47 Any patent right that has been invalidated shall be deemed to be non-existent from the very beginning.

The decision on invalidating a patent shall, prior to the invalidation of the patent, have no retroactive effect on any judgment or mediation document on patent infringement which has been made and enforced by the people's court, on any implemented or compulsorily enforced decision concerning the settlement of a dispute over patent infringement, or on any performed contract for licensing a patent exploitation or for assignment of patent right. However, the patentee shall compensate for the damages it or he has maliciously caused to others.

Where, in accordance with the provisions of the preceding paragraph, the fact that no patent infringement compensation, no royalty for the exploitation of the patent or no patent assignment fee is refunded is obviously contrary to the principle of fairness, it shall be totally or partially refunded.

Article 48 The patent administrative department of the State Council and the departments charged with the administration of patents of the local people's governments shall, in conjunction with the relevant departments at the same level, take measures to enhance public services for patents and promote the exploitation and application of patents.

Article 49 Where any patent for invention owned by a state-owned enterprise or public institution is of great significance to the interests of the state or to the 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, upon approval of the State Council, decide to popularize and apply the patent within the approved scope, and allow designated entities to exploit the patent; and the exploiting entity shall, in accordance with the legal provisions of the state, pay royalties to the patentee.

Article 50 Where a patentee voluntarily files a written declaration with the patent administrative department of the State Council, indicating its willingness to permit any entity or individual to exploit its patent and specifying the royalty payment methods and rates, the patent administrative department of the State Council shall make an announcement and implement an open license. If an open license declaration is filed for a utility model or design patent, a patent evaluation report shall be provided.

A patentee withdrawing an open license declaration shall make the withdrawal in writing, and the patent administrative department of the State Council shall make an announcement. The announced withdrawal of an open license declaration shall not affect the validity of the open license granted earlier.

Article 51 Any entity or individual intending to exploit a patent under an open license shall obtain the patent exploitation license immediately after notifying the patentee in writing and paying the royalty according to the announced royalty payment methods and rates.

During the period of implementation of the open license, the patent annuity paid by the patentee shall be reduced or waived accordingly.

The patentee implementing an open license may grant an ordinary license after negotiating with the licensee over royalties, but shall not grant a sole license or exclusive license for the patent.

Article 52 Where any dispute arises over the implementation of an open license, the parties shall resolve the dispute through consultations; and if the parties are unwilling to consult or consultation fails, they may request the patent administrative department of the State Council to conduct mediation, or file a lawsuit with the people's court.

Article 53 Under any of the following circumstances, the patent administrative department of the State Council may, upon the application of an eligible entity or individual, grant it or him a compulsory license to exploit the patent for an invention or utility model:

(1) The patentee, after the lapse of 3 full years from the date when patent is granted and after the lapse of 4 full years from the date when a patent application is filed, fails to exploit or to fully exploit its or his patent without any justifiable reason; or

(2) The patentee's act of exercising the patent rights is determined as a monopolizing act and it is to eliminate or reduce the adverse consequences of the said act on competition.

Article 54 Where a national emergency or any extraordinary state of affairs occurs, or where the public interest so requires, the patent administrative department of the State Council may grant a compulsory license to exploit the patent for an invention or utility model.

Article 55 For the purpose of public health, the patent administrative department of the State Council may grant a compulsory license for a patented medicine so as to produce and export it to the country or region which conforms to the provisions of the relevant international treaty to which the People's Republic of China has acceded.

Article 56 Where an invention or utility model for which the patent was granted has seen any major technical progress of prominent economic significance when compared with another invention or utility model for which the patent has been granted earlier, and the exploitation of the later invention or utility model depends on the exploitation of the earlier one, the patent administrative department of the State Council may, upon the request of the later patentee, grant a compulsory license to exploit the earlier invention or utility model.

Where, according to the preceding paragraph, a compulsory license is granted, the patent administrative department of the State Council may, upon the request of the earlier patentee, also grant a compulsory license to exploit the later invention or utility model.

Article 57 Where the invention involved in the compulsory license is a semi-conductor technology, the exploitation of the compulsory license shall be limited only to public interests and the circumstance as described in Article 53 (2) of this Law.

Article 58 Besides the circumstances as described in Article 53 (2) and Article 55 of this Law in which a compulsory license is granted, the exploitation of a compulsory license shall be implemented primarily for supplying the domestic market.

Article 59 The entity or individual requesting, in accordance with the provisions of Article 53 (1) and Article 56 of this Law, a compulsory license for exploitation shall prove that it or he has not been able to conclude with the patentee a license contract for exploitation on reasonable terms within a reasonable timeframe.

Article 60 Where the patent administrative department of the State Council decides to grant a compulsory license for exploitation, it shall notify the patentee in time, and register it and make an announcement.

A decision on granting a compulsory license for exploitation shall, on the basis of the reasons for compulsory license, specify the scope and time of exploitation. When the reasons for compulsory license have been eliminated and will no longer occur, the patent administrative department of the State Council shall, upon request of the patentee, make a decision after examination on terminating the compulsory license.

Article 61 Any entity or individual who is granted a compulsory license for exploitation shall not have exclusive right to exploit the patent and shall not have the right to authorize anyone else to exploit the patent.

Article 62 The entity or individual that is granted a compulsory license for exploitation shall pay to the patentee a reasonable royalty or deal with the royalty issue under the relevant international treaties to which the People's Republic of China has acceded. If a royalty is to be paid, the amount of the royalty shall be decided by both parties upon negotiation. If the parties fail to reach an agreement, the issue shall be settled by the patent administrative department of the State Council.

Article 63 Where a patentee is dissatisfied with the decision of the patent administrative department of the State Council on granting a compulsory license for exploitation, or where a patentee, or an entity or individual to whom the compulsory license for exploitation is granted is dissatisfied with the ruling of the patent administrative department of the State Council on the royalties payable for compulsorily licensed exploitation, he or it may, within three months as of receipt of the notification, bring a lawsuit to the people's court.

Article 64 The scope of protection of the patent right for an invention or utility model shall be determined by the terms of the claims. The description and the appended drawings may be used to interpret the claims.

The scope of protection of the patent right for design shall be determined by the product incorporating the patented design as shown in the drawings or photographs.

Article 65 In the event that a dispute arises out of any exploitation of a patent without permission of the patentee, that is, the infringement upon a patent right, the parties shall settle the dispute through negotiations. If they are not willing to negotiate or fail to reach an agreement through negotiations, the patentee or any interested party may either bring a lawsuit with the people's court, or request the patent administrative department, for settlement. If the patent administrative department ascertains at the time of settlement that infringement exists, it may order the infringer to immediately stop the infringement act. The party dissatisfied may, within 15 days as of receipt of the notification, bring a lawsuit with the people's court in accordance with the Administrative Procedural Law of the People's Republic of China . If the infringer neither brings a lawsuit within the time limit nor stops the infringement act, the patent administrative department may apply to the people's court for compulsory enforcement. The patent administrative department that settles the dispute may, upon request of the parties may hold a mediation regarding the compensation amount for infringement upon the patent right. If no agreement is reached through mediation, either party may bring a lawsuit with the people's court in accordance with the Civil Procedural Law of the People's Republic of China .

Article 66 Where any dispute over patent infringement involves a patent for invention for the manufacturing process of a new product, the entity or individual manufacturing the identical product shall provide proof on the difference of its own process used in the manufacture of its product from the patented process.

Where a dispute over patent infringement involves a utility model patent or a design patent, the people's court or the department charged with the administration of patents may require the patentee or interested party to present a patent evaluation report prepared by the patent administrative department of the State Council after retrieval, analysis, and evaluation of the relevant utility model or design, as evidence for adjudicating or handling the dispute over patent infringement. The patentee, the interested party, or the alleged infringer may also voluntarily present the patent evaluation report.

Article 67 In a dispute over patent infringement, if the accused infringer has evidence to prove that the technology or design it or he exploits is an existing technology or design, no patent infringement is constituted.

Article 68 Whoever counterfeits a patent shall, in addition to being held civilly liable in accordance with the law, be ordered by the department charged with patent law enforcement to take corrective action, which shall be announced, with the illegal income confiscated, and may be fined not more than five times the illegal income or if there is no illegal income or the illegal income is not more than 50,000 yuan, fined not more than 250,000 yuan; and if it is criminally punishable, the offender shall be held criminally liable in accordance with the law.

Article 69 In investigating and handling suspected patent counterfeiting acts based on evidence already obtained, the departments charged with patent law enforcement shall have the authority to take the following measures:

(1) Interviewing the relevant parties and investigating information related to the suspected violations of law.

(2) Conducting on-site inspection of places where the parties are suspected of violations of law.

(3) Consulting and duplicating the contracts, invoices, account books, and other relevant materials related to the suspected violations of law.

(4) Inspecting the products related to the suspected violations of law.

(5) Placing under seal or impounding the products with a counterfeited patent as proved by evidence.

The department charged with the administration of patents may take the measures set forth in subparagraphs (1), (2) and (4) of the preceding paragraph to handle patent infringement disputes at the request of the patentee or the interested party.

When the department charged with patent law enforcement or the department charged with the administration of patents performs the functions prescribed in the preceding two paragraphs in accordance with the law, the parties shall provide assistance and cooperation, and shall not reject or obstruct it.

Article 70 The patent administrative department of the State Council may handle patent infringement disputes that have significant influence nationwide at the request of the patentee or interested party.

In handling patent infringement disputes at the request of the patentee or interested party, the department charged with the administration of patents of a local people's government may concurrently handle cases in which the same patent is infringed upon within its administrative region; and may request the department charged with the administration of patents of the local people's government at a higher level to handle cases in which the same patent is infringed upon across different administrative regions.

Article 71 The damages for a patent infringement shall be determined according to the actual loss suffered by the right holder due to the infringement or the benefits obtained by the infringer from the infringement; or if it is difficult to determine the loss suffered by the right holder or the benefits obtained by the infringer, the damages shall be reasonably determined by reference to the multiple of the royalty for this patent. In the case of an intentional patent infringement with serious circumstances, the damages may be determined as not less than one nor more than five times the amount determined in the aforesaid method.

Where it is difficult to determine the loss suffered by the right holder, the benefits obtained by the infringer, and the patent royalty, the people's court may, by taking into account factors such as the type of the patent and the nature and circumstances of the infringement, determine the damages as not less than 30,000 yuan nor more than five million yuan.

The damages shall also include the reasonable disbursements of the right holder for preventing the infringement.

Where the right holder has made best efforts to adduce evidence but the account books and materials relating to the infringement are mainly in the possession of the infringer, in order to determine the damages, the people's court may order the infringer to provide such account books and materials; and if the infringer fails to provide them or provides any false ones, the people's court may award damages by reference to the claims of and the evidence provided by the right holder.

Article 72 Where a patentee or interested party has evidence to prove that another person is committing or will commit an infringement upon the patent or an act of interfering with the patentee's or interested party's realization of rights, and irreparable harm will be caused to the lawful rights and interests of the patentee or interested party if the infringement is not stopped in a timely manner, the patentee or interested party may, before instituting an action, apply to the people's court for attachment of property, ordering certain conduct, or prohibiting certain conduct, in accordance with the law.

Article 73 In order to stop a patent infringement, a patentee or interested party may, before instituting an action, apply to the people's court for the preservation of evidence if any evidence may be destroyed or lost or difficult to obtain at a later time.

Article 74 The prescriptive period for instituting an action against a patent infringement shall be three years, commencing from the date when the patentee or interested party knows or should have known the infringement and the infringer.

Where any other person uses an invention after an application for the invention patent is published and before the patent is granted without paying appropriate royalties, the prescriptive period for the patentee to claim the payment of such royalties shall be three years, commencing from the date when the patentee knows or should have known the use by the other person; however, if the patentee knows or should have known the use prior to the grant date of the patent, the prescriptive period shall commence from the grant date of the patent.

Article 75 None of the following circumstances shall be deemed an infringement upon a patent right:

(1) using, promising to sell, selling or importing any patented product or product directly obtained under the patented process after the said product is sold by the patentee or by its (his) licensed entity or individual;

(2) having made identical product or having used the identical process or having made necessary preparations for making such a product or using such a process prior to the date of application, and continuing making such product or using such a process only within the original scope;

(3) for any foreign means of transport which temporarily passes through the territory, territorial waters or territorial airspace of China, its using the relevant patents in accordance with any agreement concluded between China and that country to which the foreign means of transport belongs, or in accordance with any international treaty to which both countries have acceded, or on the basis of the principle of reciprocity, for its own needs, in its devices and installations;

(4) using relevant patents solely for the purposes of scientific research and experiment; and

(5) producing, using or importing patented medicine or patented medicinal equipment for the purpose of providing the information as required for administrative examination and approval, and producing and importing the patented medicine or patented medicinal equipment exclusively for the said purpose.

Article 76 Where, in the process of assessment and approval for the marketing of a drug, any dispute arises between the applicant for the marketing of a drug and the relevant patentee or interested party over the patent right related to the drug of which an application for registration is filed, the relevant party may file a lawsuit with the people's court, requesting a judgment as to whether the relevant technical solution of the drug of which an application for registration is filed falls within the scope of protection of any other person's patent on a drug. The medical products administration of the State Council may, within the prescribed time limit, make a decision on whether to suspend the approval of marketing of the relevant drug according to the effective judgment of the people's court.

The applicant for the marketing of a drug and the relevant patentee or interested party may also apply to the patent administrative department of the State Council for an administrative adjudication on any patent dispute related to the drug of which an application for registration is filed.

The medical products administration of the State Council shall, in conjunction with the patent administrative department of the State Council, develop specific connecting measures for the resolution of patent disputes in the stages of approval of drug marketing and application for the marketing of a drug, report such measures to the State Council, and implement them upon consent of the State Council.

Article 77 Whoever uses or sells a patented product without knowing that the product was produced and sold without permission of the patentee or a product directly obtained from a patented process for the purpose of production and business operation is not required to bear the liabilities for compensation provided that it or he can prove that the product is obtained from a legal source.

Article 78 Whoever, in violation of the provisions of Article 19 of this Law, files in a foreign country an application for a patent, if it or he has divulged any state secret, he shall be subject to an administrative sanction by the entity where he works or by the competent authority at the higher level. If any crime is constituted, he shall be subject to the criminal liabilities.

Article 79 No patent administrative department shall participate in the business activities such as recommending patented products to the public.

Where a patent administrative department violates the provisions of the preceding paragraph, it shall be ordered by its superior organ or its supervision organ to make a correction and eradicate the ill effects. The illegal proceeds, if any, shall be confiscated. If the circumstance is serious, the directly liable person-in-charge and other directly liable persons shall be subject to a disciplinary action in accordance with the law.

Article 80 Where any staff member of a state organ for patent administration or of any other relevant state organ neglects his duties, abuses his powers, practices favoritism for himself or his relative, if any crime is constituted, he shall be subject to criminal liabilities according to law. If no crime is constituted, he shall be given a disciplinary action according to law.

Article 81 To apply for a patent or going through other formalities with the patent administrative department of the State Council, the applicant shall pay the prescribed fees.

Article 82 This Law shall enter into force on April 1, 1985.