"The detailed rules for the implementation of the Patent Law have improved the relevant provisions from six aspects: application, examination, protection, application, supervision and international cooperation."
Patent system is an effective innovation incentive system. As an important supporting administrative regulation to ensure the effective implementation of the patent law, the revision of the detailed rules for the implementation of the patent law has attracted much attention since its inception.
The newly revised patent law has been officially implemented since June 1, 2021. The new patent law has made many new institutional arrangements in strengthening the protection of the legitimate rights and interests of patentees, promoting the transformation and application of patents, and improving the patent authorization system. These new systems need to be further implemented through the implementation rules.
In order to ensure the effective implementation of the new patent law, China National Intellectual Property Administration simultaneously carried out research and demonstration on the detailed rules for the implementation of the patent law, and formed the Detailed Rules for the Implementation of the Patent Law of People’s Republic of China (PRC) (Revised Draft), which was submitted to the the State Council executive meeting for deliberation and adoption after deliberation by the Ministry of Justice. The revised Detailed Rules for the Implementation of the Patent Law (hereinafter referred to as the "Detailed Rules"), consisting of 13 chapters and 149 articles, will come into force on January 20th this year.
"The" Rules "have improved the relevant regulations in six aspects: application, review, protection, application, supervision and international cooperation." Cong Lixian, dean of the School of Intellectual Property of East China University of Political Science and Law, said in an interview with the reporter of Rule of Law Weekend.
Delayed examination system provides reasonable space for high-quality patents
Patent examination is the premise of patent protection and application, and the Detailed Rules make many important provisions on patent application and patent examination.
"To provide applicants with more choices of review modes, and on the basis of speeding up the review and centralized review, a delayed review system has been added to better coordinate and match the review cycle with the market-oriented operation of patents and meet the diverse needs of innovative subjects." On December 26th, 2023, the State Council Press Office held a routine briefing on the State Council policy, which was introduced by Director Shen Changyu of China National Intellectual Property Administration.
Cong Lixian believes that the increase of delayed examination system is very helpful for the production of high-quality patents. "Patent applicants are worried that others will preempt the market share, so they will apply as soon as possible. The application process takes time, and patent applicants can further improve their patents as soon as possible during the application period. Delaying the examination gives the patent applicant a reasonable space, which is a normal grace period in the patent law system. "
He pointed out: "Although the number of patent applications in China is far ahead in the world, there are relatively few high-level and key technology patents that can produce practical effects. Delayed review can make the patented technology more perfect and the patented technology granted is of higher quality. "
Faye Wong, a senior partner of Beijing Kyoto Law Firm and director of china intellectual property society, told the reporter of Rule of Law Weekend that the increased delayed review system, combined with accelerated review and centralized review, gave the business entities in the review cycle more space to independently plan and deploy the interaction between patent achievements and commercial operations, provided more independent space for the business entities to land in commercial activities with patent achievements as the core driving force, and also provided a longer decision-making cycle for the right holders to take what form of rights to protect intellectual achievements.
Good faith clause to crack down on abnormal patent application and patent abuse
Article 20 of the revised Patent Law introduces the principle of good faith, stipulating that the application for a patent and the exercise of the patent right shall follow the principle of good faith, and the patent right shall not be abused to harm the public interest or the legitimate rights and interests of others.
On this basis, the "Detailed Rules" require that patent applications should follow the principle of good faith, and all kinds of patent applications should be based on real invention and creation activities, and no fraud is allowed; The patentee is required not to make a declaration of opening license or get a reduction or exemption of patent annual fee during the implementation of opening license by providing false materials, concealing facts and other means.
Cong Lixian told the reporter of "Rule of Law Weekend" that abnormal application is a chronic disease in the patent field, and some patent applicants use the patent application funding policies of governments at all levels to defraud policy dividends or other preferential treatment. "The principle of good faith is a principled clause in the patent law, and the Detailed Rules reaffirm the principle of good faith, which is more conducive to landing."
In recent years, the relevant departments have issued many documents to regulate the abnormal patent application from the aspects of not reducing patent fees, making public announcements, not subsidizing or rewarding, investigating criminal responsibility (defrauding subsidies and rewarding), and limiting the qualifications for participating in certain business activities. However, these documents have no direct administrative punishment measures against the applicant.
The "Detailed Rules" arm the teeth for the good faith clause. Article 100 stipulates the administrative responsibility for the above-mentioned illegal acts: the department in charge of patent law enforcement at or above the county level shall give a warning and may impose a fine of less than 100,000 yuan.
"Article 100 further clarifies the level of administrative law enforcement agencies for this kind of behavior, which is of positive significance for standardizing the management of patent applications and maintaining application behavior." Faye Wong said.
Special seal for compensation system of newly added patent right period
The duration of patent protection is one of the core contents of patent protection system.
In view of the unreasonable delay in the process of patent granting, the patent term compensation system was introduced in the revision of the patent law, that is, the invention patent term compensation and the drug patent term compensation. The fourth amendment of the Patent Law has set up the system of "compensation for patent term" in Article 42. In order to make the relevant system better implemented, a new chapter "Compensation for Patent Term" is added to the Detailed Rules, which makes specific and detailed provisions.
Cong Lixian said: "Because there is usually a lot of work behind the granting of patents, the patent application usually has a long period of time. In particular, the examination period of invention patents, that is, the period of formal examination and substantive examination may be as long as 4 to 5 years, and the protection period of invention patents is only 20 years. When the patent application is successful, the period will be reduced by a quarter out of thin air. Therefore, the time limit compensation for invention patents is conducive to patent protection. "
In addition, the Rules also optimized the patent application system, added the system of restoration, increase and correction of priority, relaxed the requirements of priority procedures and application procedures, and provided better services for domestic and foreign users.
It is worth noting that, on the basis of the application of the original grace period for novelty, the scope of application of Article 24 of the Patent Law on "specified academic conferences or technical conferences" has been relaxed, and inventions and creations first published at academic conferences or technical conferences convened by international organizations recognized by relevant authorities in the State Council have been added.
Cong Lixian introduced: "Generally speaking, once an invention is made public, it is considered that novelty is lost. There are exceptions in patent legislation that do not lose novelty, that is, exhibitions recognized by some countries and academic conferences held by national academic organizations are open but not considered to lose novelty. This time, it is reasonable to include academic conferences or technical conferences held by international organizations recognized by relevant authorities. The inventions publicly published at these meetings do not lose novelty and meet the requirements of patent law and judicial practice. "
Various measures to strengthen the utilization ratio of patent conversion
"The core essence of the vitality of patents lies in transformation and application. In practice, the work of patent transformation and application is not satisfactory." Faye Wong said frankly that on the one hand, there are no good technological achievements in the industry, and on the other hand, the patent achievements of scientific research institutions such as universities are idle.
She explained that information asymmetry is one of the causes. On the other hand, scientific research teams are not good at dealing with legal and commercial issues, and disputes in cooperation affect the enthusiasm of right holders for transformation.
Cong Lixian also put forward: "The low utilization rate of patent conversion is a realistic problem. On the one hand, although there are a large number of patents, there are not many high-quality patents; On the other hand, because the linkage and transformation mechanism between the obligee and the industry has not been established, many patents are in the hands of the obligee, and the industrial information is asymmetric and the mechanism does not match. At the same time, there is still a problem that the marketization of the transformation platform and service guarantee mechanism is not high. "
The "Detailed Rules" clearly stated that it is necessary to enhance the public service capacity of patent information and promote the open sharing and interconnection of patent data resources. Refined the patent open license system, clearly put forward the requirements of open license statement, the situation of not implementing open license and other specific contents. We will improve the reward system for service inventions and creations, appropriately raise the legal reward standard after the patent right is granted, and adjust the legal reward standard after the implementation of the transformation to give reasonable remuneration in accordance with the provisions of the Law on Promoting the Transformation of Scientific and Technological Achievements.
"The Detailed Rules provide a guarantee for the conversion and utilization of patents, and open licensing is an important means to promote the conversion and utilization. The patent law hopes to create favorable conditions to promote development by formulating encouraging policies, such as fee reduction and incentive mechanisms, so that patents can be practical and applied. " Cong Lixian said.
"The" Rules "clearly stated that it is necessary to improve the public service capacity of patent information and promote the open sharing and interconnection of patent data resources. At the same time, the patent open license system was further refined, the specific requirements of the open license statement were put forward, and the circumstances in which the open license was not allowed were listed. " Faye Wong believes that this accurately responds to the difficulties in practice.
She emphasized that the "Detailed Rules" adjusted the legal remuneration standard after the implementation of patent conversion to give reasonable remuneration in accordance with the provisions of the Law on Promoting the Transformation of Scientific and Technological Achievements, and also expanded the legal form of patent innovation incentives, which will also have a positive impact on the creation of patent innovation achievements. These specific institutional refinement measures will further provide strong legal support for the transformation and application of patents.
In addition, Faye Wong is also concerned that the Detailed Rules clearly proposes to enhance the public service capacity of patent information and promote the open sharing and interconnection of patent data resources, which also provides a landing interface for the subsequent development and utilization of patent data.
Local design protection and international connection
It is worth noting that, in order to link up with China’s accession to The Hague Agreement on the International Registration of Industrial Designs (hereinafter referred to as The Hague Agreement), the Detailed Rules have added special provisions on international applications for industrial designs, clarifying the specific examination procedures for international applications for industrial designs.
Li Shunde, a researcher at the Institute of Law, Chinese Academy of Social Sciences, said that when China’s patent law was amended for the fourth time, it had made corresponding adjustments to join The Hague Agreement, increased the protection of partial designs, added the priority of designs, and extended the protection period of design rights to 15 years. Accordingly, the "Detailed Rules" level is further refined in combination with practical needs: first, the requirements for patent application documents for local designs are clarified; The second is to refine the domestic priority system of design, and to clarify the conditions for requesting the domestic priority of design and the relationship with the prior application of invention and utility model; Third, the perfection of other systems, such as the right restoration, delayed examination provisions, etc., are also applicable to the application for a patent for design.
At the same time, in order to better link up with The Hague Agreement, a new chapter "Chapter XII Special Provisions on International Applications for Designs" was added to the Rules, which specifically stipulated the legal status of international applications for designs, the review procedures for domestic and international links, and the provisions for linking up with the domestic patent application system for designs in terms of priority, grace period for novelty, divisional application and so on.
Cong Lixian told reporters: "The revision of the patent law is initially linked with The Hague Agreement, and it is also of exemplary significance to refine the application procedures for design patents with the help of the revision of the Detailed Rules. In the future, all parts of intellectual property laws need to be in line with international standards."
"The newly added systems such as local design protection and domestic priority of design have paid attention to the fact that people’s understanding of a better life is blooming in the current society, and the corresponding innovative subjects’ demand for product design protection is increasingly diversified. The Detailed Rules provide an institutional outlet for this demand." Faye Wong said. (Reporter Meng Wei)
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