HFG's look at celebrating thirty years of Patent Law in China

Patent law in China came into force on 1 April 1985, and the Chinese Patent Office received a record of 3,455 patent applications on that day.  This year marks thirty years of Patent Law of China and we thought it was a good time to provide you with a brief review of the last 30 years of Patent Law in China.

Since its entry into force from 1 April 1985, there have been three major amendments to the Patent Law of China.

First Patent Law Amendements

China Patent Law was first amended in 1992. The first amendments includes extending the protection period of invention patents to 20 years and utility models and designs to 10 years, extending the scope of patent re-examination, defining the conditions for shift of burden of proof in the patent litigations, and adding the consequence of false patent marking.

Second Patent Law Amendments

Second amendments to China Patent Law were in 2000. The second amendments of China Patent Law were made in accordance with the WTO requirements. The content of the second amendments included defining the purpose of the Patent Law as promoting technological advancement and innovation, simplifying patent application procedure and patent enforcement, the judgment by a civil court in the patent re-examination and invalidation proceedings in respect of utility models and designs is final which replaces the right of final judgment of the Patent Re-examination Committee, and stipulating the legal basis in Patent Law for patent applications filed using the Patent Cooperation Treaty system.

Third Patent Law Amendments

Third amendments to China Patent Law happened in 2008 under the backdrop of the implementation of China National Intellectual Property Strategy.  The third amendments introduced changes to the patentable subject-matters of a design patent, the standard for grant of a design patent and the examination procedure of design applications. The third amendments of China Patent Law aimed to increase the standard and quality of the grant of a patent, and maintain a balance between the patent proprietor’s interest and the public interest, so as to achieve the purpose of stimulating innovation and improved national competitiveness.

Where we are now?

After 30 years of Patent Law in China, where are we now? The below is the patent statistics that may shed some light on an answer of the question.

Compared with 14,000 patent applications filed in 1985, there were more than two million patent applications filed in 2014. In the last 10 years, the increase of number of patent applications filed per year is around 20%. By now, the number of patent applications filed in China is ranked as number one in recent 4 years, and number two in respect of the number of granted patents.  In recent years, the number of PCT patent applications has been a double-digit increase each year. In 2014 the number of PCT patent applications filed in China reached 127,500.

For applicants who need the fast-track examination, Chinese Patent Office has signed the Patent Prosecution Highway (PPH) agreement with 19 countries and regions worldwide.

The government focus on the next round of Chinese economic development will rely on technical innovation. For this purpose, a proposal of the fourth amendments to China Patent Law is expected, in which it appears that a double or treble damage for willful patent infringement is introduced and the protection period for a design patent extends to 15 years.  We believe that these proposed changes to China Patent Law would further protect the interests of patent proprietors and encourage innovation in China.

HFG’s Top Tips for Patent Law in China

• Don't tell anyone about your invention until you have filed a patent application in China.  In practice, non-disclosure agreements can be difficult to enforce.
• Your company in China may qualify for a 10% tax reduction each year if you have patents.
• China allows applicants using the PCT system to enter the national phase with a utility model, and the protection period for a utility model is 10 years from the date of filing.  If the international preliminary report on patentability has inventive step objections that the applicant has no chance in overcoming, utility models may be an option at the Chinese national phase entry to proceed for protection of your invention.

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 Please contact HFG patent team if you may want to know more about the above tips.

This article is for general information only.  Its content is not a statement of the law on any subject and does not constitute advice.  Please contact HFG for advice before taking any action in accordance with it.