China Promulgates Fourth Amendment to Patent Law
On October 17, 2020, the Standing Committee of the National People’s Congress in China promulgated the fourth amended Patent Law of the People’s Republic of China, which came into force in its original form in 1985, with subsequent amendments in 1992, 2000, and 2008. The amendment will come into effect on June 1, 2021.
The amendment for the first time codifies certain notable changes for pharmaceutical-related patents, including the introduction of a patent linkage system in China to align with international practices.
In addition, the amendment (i) increases statutory damages, introduces punitive damages, and shifts the burden of proving damages in patent infringement actions; (ii) enables the China National Intellectual Property Administration to determine patent infringement disputes of significant national impact; (iii) expands the scope of protection over design patents (particularly on subject matter) and extends their term of protection; (iv) allows disclosure under a national emergency or an extraordinary state of affairs that is not novelty-destroying; and (v) allows patentees to file a declaration to implement open license.
With the amendment, patent lawsuits concerning generic drug applications may be instituted under the new patent linkage system and more design patent applications may be filed in view of the expanded scope of protection and the extended term of protection to 15 years. The increase in the amount of statutory damages, the introduction of punitive damages and the shift of burden in proving damages in patent infringement actions may motivate patentees to enforce their patent rights before courts in China. It is expected that Chinese authorities will continue to refine the existing legal regime to put the amendment into action and practice.
The following highlights several key changes brought by the fourth amended Patent Law of the People’s Republic of China.
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