Submitting the draft of the amendment of interest law to the first instance: improving the patent system and strengthening the protection and Application

On December 23, the draft amendment to the patent law was submitted to the seventh session of the Standing Committee of the 13th National People's Congress for deliberation The draft strengthens the protection of the legitimate rights and interests of the patentee, promotes the implementation and application of the patent, and raises a number of practices that have proved mature into legal norms The legal compensation for patent infringement is proposed to be increased to RMB 100000-5 million The network service provider will bear joint and several liability for the network patent infringement The unit can dispose the patent right of service invention creation according to law, establish a new patent open licensing system, and improve the patent authorization system This patent law amendment implements the important deployment of the CPC Central Committee and the State Council on intellectual property work Based on our own development needs, starting from the actual situation, it focuses on solving the outstanding problems in the field of patent in China On December 23, at the 7th Meeting of the Standing Committee of the 13th National People's Congress, Shen Changyu, director of the State Intellectual Property Office, made a statement on the amendment (Draft) to the patent law of the people's Republic of China Shen Changyu, director of the State Intellectual Property Office, said in his comments on the draft that strengthening the protection of intellectual property rights and improving the ability of independent innovation have become the inherent need to accelerate the transformation of economic development mode and the implementation of innovation driven development strategy China's current patent law was implemented in 1985 and has been amended three times It plays an important role in encouraging and protecting invention and creation, promoting scientific and technological progress and innovation With the development of the situation, there are some new situations and problems in the field of patent In order to further implement the deployment requirements of the Party Central Committee and the State Council and solve the problems in practice, it is necessary to amend the current patent law In order to increase the compensation for patent infringement, significantly increase the illegal cost and fully demonstrate the deterrent effect of law, the draft will stipulate that: for intentional infringement of patent rights, if the circumstances are serious, the compensation amount can be determined within one to five times of the amount calculated according to the loss suffered by the obligee, the interests obtained by the infringer or the multiple of the royalty of patent license; and the compensation amount will be determined in the case of difficulty in calculation In the case of the amount, the court may, at its discretion, increase the amount of compensation from RMB 10000 to RMB 1 million under the current patent law to RMB 100000 to RMB 5 million In order to solve the problem of proof of patent protection and improve the burden of proof, the draft proposes to add the following provisions: in order to determine the amount of compensation, the people's court can order the infringer to provide the books and materials related to the infringement when the obligee has tried his best to provide evidence, and the books and materials related to the infringement are mainly controlled by the infringer, while the infringer does not provide or provide false books and materials For information, the people's court may determine the amount of compensation with reference to the claims and evidence provided by the obligee In terms of improving patent administrative law enforcement, the draft proposes to add provisions: the patent administration department under the State Council may, at the request of the patentee or interested party, handle patent infringement disputes that have a significant impact in the whole country; the patent administration department shall, at the request of the patentee or interested party, handle patent infringement disputes, and deal with cases that infringe the same patent in its own administrative region It may be handled in combination; for cases of cross regional infringement of the same patent right, it may request the administrative department for patent work of the people's government at a higher level to handle them In order to cope with the increasing infringement of network patents and clarify the joint and several liability of network service providers for infringement of network patents, the draft further stipulates that: the patentee or interested party may notify the network service providers to adopt the patent in accordance with the effective judgment, ruling, mediation document of the people's court, or the decision of the administrative department of patent work to order to stop the infringement If the network service provider fails to take necessary measures in time, it shall bear joint and several liability In order to promote the implementation and application of the patent and clarify the disposal right of the company to the service invention creation, the draft plans to add the following provisions: the company can dispose the right and patent right to apply for the patent of the service invention creation in accordance with the law, implement the property right incentive, adopt the way of equity, option, dividend, etc., so that the developer or designer can reasonably share the innovation income, and promote the implementation and application of the relevant invention creation In terms of strengthening patent transformation services, the draft stipulates that: the patent administration department under the State Council shall strengthen the construction of the public service system of patent information, provide basic data of patent information, and promote the dissemination and utilization of patent information; the patent administration department under the State Council and the patent administration department of the local people's Government shall, together with the relevant departments at the same level, take measures to strengthen the public service of patent, Promote the implementation and application of patents A new patent open license system is proposed in the draft, with provisions to be added: if the patentee declares in writing to the patent administration department under the State Council that he is willing to license anyone to exploit his patent, and specifies the payment method and standard of the licensing fee, the patent administration department under the state Council shall announce and implement the open license; if anyone is willing to exploit the patent with open license, he shall notify in writing The patentee shall obtain the patent exploitation license after paying the licensing fee in accordance with the announced method and standard In addition, in terms of improving the patent authorization system, the draft plans to establish a new domestic priority system for design patent application, optimize the priority claim procedure, and extend the protection period of design patent from 10 years to 15 years as stipulated in the current patent law The draft also clarifies the principles of good faith and prohibition of abuse of rights, and adds a compensation system for the duration of innovative drug invention patents.