Source: Jones Day
Published: November 2020
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.
CLICK HERE to read the white paper, “China Promulgates Fourth Amendment to Patent Law”
Jones Day retains all copyright and print rights for the above White Paper