New year, new patent law
Premier Wen Jiabao signed a State Council Order on January 9, 2010 to publish the new Implementing Regulations, which came into force on February 1, 2010. The new regulations improve the examination system for regulating patent applications in foreign countries for inventions made in China. They also refine the patent application process and conditions for granting patents, define the information disclosure requirements for genetic resources and improve administrative penalties for patent infringement.
Shortly after the publication of the new regulations, new Guidelines for Examination, drafted by the State Intellectual Property Office (SIPO) in accordance with the new regulations, were published on January 21, 2010. They too came into force on February 1, 2010.
The revision of the three things needed to prosecute patent applications has been completed: the Patent Law, the Implementing Regulations and the Guidelines for Examination.
Patent protection
On December 28, 2009, the Supreme People’s Court of China issued a judicial interpretation on patent infringement disputes. The judicial interpretation, which contains 20 rules, came into force on January 1, 2010.
The interpretation covers several major issues, including the scope of protection enjoyed by invention and utility model patents; doctrines to establish patent infringement; doctrines to determine design patent infringement; application of prior art defences and prior use defences; and the acceptance of lawsuits for confirmation of non-infringement.
Customs protection of IP rights
On December 10, 2009, the State Council’s Legislative Affairs Office determined to publish the Council’s decisions on amending the Regulations of the People’s Republic of China on Customs Protection of Intellectual Property Rights (draft for approval). It also announced that it would publish explanatory notes with the decisions for public consultation. The draft was submitted to the State Council by the Customs General of China.
“Infringers tend to break up whole products into parts to get around the IP restrictions"
The draft version contains six important amendments to the existing regulations. These include amendments to the recordation process for IP rights and changes to the rules on counterbonds, as well as facilitating the withdrawal of applications for protection requested by IP rights owners, allowing the auction of infringing goods, and imposing legal liabilities on their import and export.
Currently, infringers tend to break up whole products into parts to get around the IP restrictions. This problem has been exacerbated by infringers exporting illegal goods by mail. It is clear that customs needs to impose greater punishments.
In the draft version for consultation, Article 28 in the original regulation has been amended to say that “goods carried by individuals or mailed to entry or exit the country, if it exceeds the reasonable amount for personal use, and infringes the intellectual property rights prescribed in Article 2 in the regulations, shall be regarded as infringing goods”.
Biological germplasm repository
After five years’ effort, China’s Southwest Wildlife Germplasm Repository, the first of its kind in China, was established at the Kunming Institute of Botany, which is part of the Chinese Academy of Sciences. On November 24, 2009, an expert group organised by the National Development and Reform Commission inspected and approved the germplasm repository, which began operating formally.
The repository, which cost Rmb148 million (€15 million), became the third organisation in the world to store important germplasm. The others are Noah’s Ark Seed Bank in Norway and the Royal Botanic Gardens in the UK. The capacity of the Chinese repository is said to be one of the largest in the world.
Stephen Yang is a partner at Peksung Intellectual Property Ltd. He can be contacted at: yyong@peksung.com
