Supreme Court and SIPO elaborate on implementation of revised PRC Patent Law

To ensure that the Decision of the Standing Committee of the National People’s Congress on the Amendments to the PRC Patent Law published on 27 December 2008 is fully enforced, the Supreme People’s Court and the State Intellectual Property Office (SIPO) issued, on 27 and 29 September 2009 respectively, three documents containing specific provisions for the coordinated implementation of the PRC Patent Law before and after its amendment, and for some issues in connection with patent applications filed in accordance with the revised Patent Law.

Supreme People’s Court Notice Regarding the Study and Implementation of the Amended PRC Patent Law

Article 1 of this Notice (Fa Fa [2009] No. 49) contains specific provisions for the co-ordinated implementation of the laws that apply to disputes over infringement of patents: “In the trial by a People’s Court of disputes over infringement of patents, for any acts of patent infringement taking place prior to 1 October 2009, the Patent Law before amendments were made thereto shall apply; for any acts of patent infringement taking place after 1 October, the amended Patent Law shall apply; for any acts of infringing patents that took place prior to 1 October and continued after 1 October, where the patent infringers are held liable for indemnity under the Patent Law before and after the amendments thereto, the amended Patent Law shall apply in determining the amount of indemnity.”

Article 3 of the Notice sets out provisions in favour of patentees concerning legal convergence in the application for an injunction and preservation of evidence: “If a sued act of patent infringement occurred prior to 1 October, and the concerned party applied to a People’s Court after 1 October for an order to halt the relevant act and to preserve evidence, the revised Patent Law shall apply.”

Business Law Digest is compiled with the assistance of Jincheng Tongda & Neal. The authors can be emailed at wangyuanyuan@jtnfa.com. Readers should not act on the basis of this information without seeking professional legal advice.