The new Chinese Patent Law has taken effect since 1st June 2021. This new Patent Law aims to strengthen protection for patent holders, stipulates harsher punishment for violators and encourages innovation. It provides a long-term mechanism for combating patent infringement, promoting high-quality development and solving new problems that emerge. The following new changes are worthy of attention for foreign applicants:

1. About design patent

The new patent law has made great changes on the protection of design patent, such as extending the protection term of design from 10 years to 15 years, starting to grant protection to partial design, and allowing the design application to claim Chinese domestic priority.

The United States, the European Union, Japan and other countries have established partial design systems before China. China has absorbed the experience in international judicial practice and introduced partial design systems to bridge the gap between the original and the international patent system.

The partial design is an innovative design for the part of the product. It is still part of the overall product appearance, but it needs to be relatively independent and complete. For example, the lampshade in the lamp, the frame of the glasses, the handle of the cabinet, etc. belong to the partial design. The partial design of the product is different from the design of the product parts. The design of the detachable part in the product can be protected as design of an independent product, or as partial design of the whole product. The CNIPA will further issue Rules for the Implementation of the Patent Law (“Rules for Implementation”) stipulating further restrictions on partial design.

2. About medicine-related patent

The new Patent Law includes the following new stipulations designed to protect medicine-related patents:

  • Upon the patentee’s application, the CNIPA could grant up to 5-year compensation to the patent term in order to make up for the time spent on the reviewing and market approval for new medicine.

  • Patent holders and those seeking market approval for a medicine could initiate a lawsuit during the approval process to get a verdict on whether a medicine's technical composition infringes on others' patents. The medical products administration could made its decisions on whether to suspend on the approval of the relevant medicine depending on the verdict.

The move is to help solve disputes as soon as possible before a patent goes on the market, and to better balance the interests of patent holders and enterprises producing generic medicines. It is also to help patients obtain medicines quickly and further guarantee public health.

3. About punishment for infringers

The new Patent Law has stipulated a harsher punishment for infringers:

  • The prescription for instituting legal proceedings concerning the infringement of patent right is changed to three years counted from the date on which the patentee or any interested party obtains or should have obtained knowledge of the infringing act.

  • The court may award a statutory damages of not less than RMB 30,000 and not more than RMB 5 million.

  • For severe intentional infringement, the amount of compensation for the damage caused by the infringement may be assessed on 1-5 times of the actual losses suffered by the right holder.

  • The administrative authority for patent enforcement may impose a fine of not more than five times of the illegal earnings to the person passing off a patent.

Under the new patent law, the cost for patent infringement greatly increased. It aims to provide a long-term mechanism for combating patent infringement and encourage innovation.

4. About function of administrative authority

The new patent law has mainly made the following adjustments:

  • Upon the request of the patentee or the interested party, the patent administration department under the State Council may handle the patent infringement disputes which have great influence among the whole country.

  • When investigating and prosecuting the suspected act of passing off a patent, the administrative authority for patent enforcement may, based on the evidence obtained

    • query the parties concerned, and investigate the relevant circumstances of the suspected illegal act;

    • carry out an on-the-spot inspection of the site where the party’s suspected illegal acts took place;

    • review and reproduce the contracts, invoices, account books and other relevant materials related to the suspected illegal act;

    • examine the products relevant to the suspected illegal act; and

    • seal up or withhold the products proved to be passing off the patented product.

  • When handling the patent infringement disputes upon the request of the patentee or the interested party, the administrative authority for patent enforcement may

    • query the parties concerned, and investigate the relevant circumstances of the suspected illegal act;

    • carry out an on-the-spot inspection of the site where the party’s suspected illegal acts took place;

    • examine the products relevant to the suspected illegal act.


5. For public service of patent open license

The new patent law has enhance the public service and set up new rules to improve the implement of patents:

  • Upon the patentee’s written application, the CNIPA can publish the announcement of open license of the patent. The announcement includes also the license fee and mode of payment which is proposed by the patentee.

  • For utility model and design patent, the patentee shall provide patent evaluation report.

  • To get the license of the patent, any individual or entity who wants to exploit the patent can send written notice to the patentee, and pay the requested license fee by the designated mode of payment.

  • The renewal fee of the patent during the open license shall be reduced or exempted.

  • During the open license, the patentee can grant common license to other licensees, but not exclusive license or sole license.

  • The patentee can file written application to withdraw the open license. The CNIPA shall publish the announcement of withdrawing the open license. The withdrawal will not affect the prior granted open license.

Now the applicant/patent holder can file application or request based on the new Patent Law. According to the Interim Measures on Handling the Examination Related to the Implementation of the Amended Patent Law issued by the CNIPA, the CNIPA will not examine these applications until the amended Rules for the Implementation of the Patent Law (“Rules for Implementation”) will take effect.