A sneak peek at China’s long-awaited new draft Patent Law

Hogan Lovells

On 5 December 2018, the latest draft of the Chinese Patent Law was presented to China’s State Council (i.e. the executive body of China’s central government) during a meeting chaired by Premier Li Keqiang (see here for a summary, in Chinese). New developments about the draft have certainly been long-awaited, with the latest and highly debated version of the draft for public comment dating back to February 2016.

While the full draft hasn’t been released for public comments yet, official government sources have released a description summarizing areas of emphasis including:

  • “Drawing upon international practices”, increasing the amount of damages and fines for patent infringement (including significantly increasing damages for wilful infringement and counterfeiting);
  • Clarifying a shifting of the burden of proof to the defendant under a duty to cooperate in providing relevant information;
  • One or more provisions regarding joint liability of Internet Service Providers for not deterring infringement in a timely manner; and
  • Clarifying an appropriate incentivization scheme for inventors to share in the proceeds of service inventions, between employer and employee.
  • More broadly speaking, improving the patent examination/granting system.

It is expected that the full Draft won’t be published for public comment until the beginning of 2019. This is somewhat surprising, as a revision of the Patent Law was officially marked off on the list of the State Council Legislation Plan for 2018, which was published in February 2018. The time taken may reflect the hotly debated nature of certain new provisions of the Patent Law, and the many interests at stake. We will monitor these developments and keep you posted.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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