同济大学：《中国知识产权保护》课程电子教案（课件讲稿）05 专利保护 Patent Protection in China

Outline A.Why patent system neccesary B.Main features of a patent C.Main features of Chinese patent System D.What does a Chinese patent look like? E.Governing Laws and Rules F.File a Patent application in China G.Patent Litigation in China H.Case at trade fair 2012.9.11 Tongji-Zhang Taolue 3

Outline A. Why patent system neccesary B. Main features of a patent C. Main features of Chinese patent System D. What does a Chinese patent look like? E. Governing Laws and Rules F. File a Patent application in China G. Patent Litigation in China H. Case at trade fair 2012.9.11 Tongji - Zhang Taolue 3

A.Why patent necessary? Patents provide incentives to individuals by offering them recognition for their creativity and material reward for their marketable inventions.These incentives encourage innovation,which assures that the quality of human life is continuously enhanced. -Comments from WIPO Patents Promote the Progress of Science Patentee are obligated to publicly disclose his idea in detail,thus enrich the total body of technical knowledge in the world the purpose of Invention-creation This Law is enacted to protect patent rights for invention-creations,to encourage invention-creation,to foster the spreading and application of inventions-creations, and to promote the development and innovation of science and technology,for meeting the needs of the construction of socialist modernization. -Article 1,Patent Law of P.R.China

A. Why patent necessary? • Patents provide incentives to individuals by offering them recognition for their creativity and material reward for their marketable inventions. These incentives encourage innovation, which assures that the quality of human life is continuously enhanced. —— Comments from WIPO • Patents Promote the Progress of Science Patentee are obligated to publicly disclose his idea in detail, thus enrich the total body of technical knowledge in the world • the purpose of Invention-creation This Law is enacted to protect patent rights for invention-creations, to encourage invention-creation, to foster the spreading and application of inventions-creations, and to promote the development and innovation of science and technology, for meeting the needs of the construction of socialist modernization. —— Article 1, Patent Law of P. R. China

B.Main features of a patent 2023/12/12 Tongji-Taolue Zhang 5

B. Main features of a patent 2023/12/12 Tongji - Taolue Zhang 5

Overview of intellectual property Legal right What for? How? Patents New inventions Application and examination Exists Copyright Original creative or artistic forms automatically Distinctive identification Use and/or Trade marks of products or services registration Google Registered designs External appearance Registration* Valuable information Reasonable efforts Trade secrets not known to the public to keep secret 2023/12/12 Tongji-Taolue Zhang 6

Overview of intellectual property Legal right What for? How? Copyright Original creative or artistic forms Trade marks Distinctive identification of products or services Use and/or registration Registered designs Registration* Patents New inventions Application and examination Exists automatically Trade secrets External appearance Valuable information not known to the public Reasonable efforts to keep secret 2023/12/12 Tongji - Taolue Zhang 6

Character of Patent ·1、Basic features:Patent=专利？ ·Disclosure(patent) ·Monopoly-专利-in applied territory ·2、Legal protection of Tech. public Know-how Patent tech. Public domain } private e0000■00eg000gg009■gg年0■0n单年年000■n年

Character of Patent • 1、Basic features: Patent = 专利？ • Disclosure (patent) • Monopoly -- 专利 -- in applied territory • 2、Legal protection of Tech. Know-how Patent tech. Public domain private public

The "social contract"implicit in the patent system Reveal Get invention exclusivity so that others can learn from it and improve upon it! 2023/12/12 Tongji-Taolue Zhang 8

The "social contract" implicit in the patent system Reveal invention Get exclusivity … so that others can learn from it and improve upon it! 2023/12/12 Tongji - Taolue Zhang 8

Rights conferred by the patent Prevent others from making,using,offering for sale,selling or importing infringing products in the country where the patent was granted (Art.11) Sell these rights or conclude licensing contracts (Art.12) Right to affix a patent marking on patented product or on the packing of that product (Art.17,sen.2)Right or Obligation? For up to 20 years from the date of filing of the patent application (Art.40)(Which date?) Tho patent doos not grant the right to uso the invontion searoh is indispensable!!! 2023/12/12 Tongji-Taolue Zhang 9

Rights conferred by the patent • Prevent others from making, using, offering for sale, selling or importing infringing products in the country where the patent was granted (Art.11) • Sell these rights or conclude licensing contracts (Art.12) • Right to affix a patent marking on patented product or on the packing of that product (Art.17, sen.2) Right or Obligation? • For up to 20 years from the date of filing of the patent application (Art. 40) ( Which date? ) • Q: The patent does not grant the right to use the invention? 2023/12/12 Tongji - Taolue Zhang 9

Advantages and disadvantages of patenting Advantages Disadvantages 。 Exclusivity enables Reveals invention investment and higher to competitors returns on investment (after 18 months) Strong,enforceable legal Can be expensive right Patent enforceable only Makes invention tradable after grant(this can take (licensing) 4-5 years) 2023/12/12 Tongji-Taolue Zhang 10

• Exclusivity enables investment and higher returns on investment • Strong, enforceable legal right • Makes invention tradable (licensing) • Reveals invention to competitors (after 18 months) • Can be expensive • Patent enforceable only after grant (this can take 4-5 years) Advantages and disadvantages of patenting Advantages Disadvantages 2023/12/12 Tongji - Taolue Zhang 10

C.Main features of Chinese patent System 2023/12/12 Tongji-Taolue Zhang 11

C. Main features of Chinese patent System 2023/12/12 Tongji - Taolue Zhang 11

China's Patent Law and its amendments 。 1980 Patent Office was established 。 1984 PRC's first Patent Law Patent for Invention,Utility model,and design First-to-file system Limitation on the scope of patentable items such as... 1992 first amendment 20/10 years patent term;Protection for pharmaceutical Drug Inaugurated China's membership in the Patent Cooperation Treaty 2000 second amendment(Compliance with the TRIPS agreement) Infringement of Offering for sale Judicial final review for all disputes ·20o8 third amendment 1.Absolute novelty:Publication anywhere before filing destroys novelty 2.Bolar Exception -Unlicensed use of patented pharmaceuticals and medical devices in order to obtain regulatory approval for post-patent expiration sales allowed 3.Enhance the protection of Design Patent 4.Invention made in China can file first outside China Fourth amendment ongoing... Stronger remedies such as punitive damage

China’s Patent Law and its amendments • 1980 Patent Office was established • 1984 PRC’s first Patent Law Patent for Invention, Utility model, and design First-to-file system Limitation on the scope of patentable items such as… • 1992 first amendment 20/10 years patent term; Protection for pharmaceutical Drug Inaugurated China's membership in the Patent Cooperation Treaty 2000 second amendment(Compliance with the TRIPS agreement) Infringement of Offering for sale Judicial final review for all disputes • 2008 third amendment 1. Absolute novelty: Publication anywhere before filing destroys novelty 2. Bolar Exception – Unlicensed use of patented pharmaceuticals and medical devices in order to obtain regulatory approval for post-patent expiration sales allowed 3. Enhance the protection of Design Patent 4. Invention made in China can file first outside China Fourth amendment ongoing… Stronger remedies such as punitive damage