In 2008, the patent law will be revised soon, and public opinions are being sought. You can see some shortcomings of the current patent law by looking at the Explanation of the Draft Amendment to the Patent Law (Draft for Comment) and referring to the Comparison of Provisions of the Draft Amendment to the Patent Law (Draft for Comment), which is written in great detail.

Explanation on the Draft Amendment to the Patent Law (Draft for Comment)

I. Background and main process of revision

Since the beginning of the new century, with the rapid development of China's economy and society, intellectual property rights have become an important support for improving China's independent innovation ability and building an innovative country. Strengthening the protection of intellectual property rights and improving the ability of independent innovation have become the inherent requirements of implementing Scientific Outlook on Development and accelerating the transformation of economic development mode. The CPC Central Committee and the State Council attach great importance to and care about intellectual property protection. Party and state leaders have repeatedly pointed out on relevant occasions that it is necessary to strengthen the protection of intellectual property rights and strengthen the enforcement of intellectual property rights.

2011165438 On March 3rd, the State Council issued the Opinions on Further Doing a Good Job in Combating Infringement of Intellectual Property Rights and Making and Selling Fake and Inferior Commodities, pointing out that it is a long-term, complex and arduous task to combat infringement and counterfeiting. It is necessary to establish and improve a long-term mechanism, study and revise relevant laws, regulations and rules, and increase punishment.

In order to fulfill the above requirements, China National Intellectual Property Administration started the preparatory work for amending the Patent Law of People's Republic of China (PRC) (hereinafter referred to as the Patent Law) on October 2011year1month. With the efforts of all parties, the revision of the patent law was included in the legislative work plan of the State Council in 20 12.

On February 20 12, China National Intellectual Property Administration held a meeting of the director's office to study the revision of the patent law, discussed and adopted the revision work plan, and determined the guiding ideology of the revision work and the key revision contents to strengthen protection. Since then, relevant departments in China National Intellectual Property Administration have carried out a series of work such as field investigation and discussion according to the division of labor. In late February, Deputy Director China National Intellectual Property Administration He Hua led the responsible comrades of the Department of Law and Technology and the Department of Patent Management to hold a research meeting on the revision of the patent law in Hangzhou and Wenzhou. Representatives from dozens of enterprises in various industries in Zhejiang Province, law enforcement officers from Zhejiang Intellectual Property Office, Hangzhou, Wenzhou, Jiaxing and Yiwu, heads of industry associations and agencies, and experts from universities attended the research meeting. Delegates at the meeting reflected the outstanding problems such as difficulty in obtaining evidence for patent rights protection, long period, high cost and low compensation. In addition, relevant departments such as China National Intellectual Property Administration Management Department also went to Shenzhen, Zhenjiang and other places for field research, and other provinces (autonomous regions and municipalities) Intellectual Property Offices also organized local research work as required. After the investigation, the investigation situation and typical cases in 30 provinces were summarized. According to the survey, 30% of the patentees have encountered infringement disputes, and only 10% have taken measures to protect their rights. Many patentees have lost confidence in the patent system because it is difficult to protect their patents. At the same time, on the basis of investigation and discussion by various departments, China National Intellectual Property Administration Law Office organized meetings and discussions of relevant departments for many times, and formed suggestions and explanatory drafts for amending the Patent Law.

In mid-May, China National Intellectual Property Administration held another director's office meeting to listen to the report on the progress of the revision of the patent law, and made clear the relevant work ideas. Since then, the China National Intellectual Property Administration Law Office has communicated with relevant departments for many times on the suggestions and explanations for the revision of the patent law, and formed a draft for comments and submitted it to the executive meeting for deliberation. In mid-June, Tian Lipu, director of China National Intellectual Property Administration, presided over an executive meeting, which further clarified that the core content of this revision of the patent law is "strengthening patent protection and strengthening law enforcement", and reviewed and approved in principle the draft for comment and its explanation.

Second, the guiding ideology of the revision of the patent law

The guiding ideology of this revision of the Patent Law is: under the guidance of Deng Xiaoping Theory and Theory of Three Represents, implement the Scientific Outlook on Development, solve the outstanding problems of ineffective protection in the operation of China's patent system, establish a system in line with China's national conditions, give full play to the respective advantages and functions of administrative law enforcement and judicial protection, earnestly safeguard the legitimate rights and interests of patentees, save the costs and social resources of the parties to the utmost extent, fully stimulate the innovation vitality of the whole society, and provide strong institutional support for accelerating the transformation of economic development mode and building an innovative country.

Three. Major revision suggestions

Patent infringement has the characteristics of strong concealment and difficulty in obtaining evidence. Especially with the rapid development of internet technology and logistics industry, the manufacturing and diffusion speed of patent infringing products is also accelerating, and the difficulty of patent rights protection is also increasing. The benefits of rights protection are often lower than the costs of rights protection. Malicious infringement phenomena such as intentional infringement, repeated infringement, group infringement and cross-regional chain infringement occur from time to time, which greatly dampen the patentee's innovation enthusiasm, disrupt the market order, destroy the innovation environment and hinder the construction of an innovative country.

In order to solve the above-mentioned outstanding problems, establish and improve a long-term mechanism to crack down on patent infringement, and further improve the patent protection system with China characteristics, the exposure draft puts forward some suggestions to amend some provisions of the Patent Law around strengthening patent protection and strengthening law enforcement, mainly including:

(a) to give judicial organs and administrative law enforcement organs the right to investigate and collect evidence, and to solve the problem of "difficult proof" in patent protection.

Different from the fact that the object of tangible property right is occupied by the obligee and the infringement is easy to be found, patent infringement is very concealed, and the evidence of infringement is mainly held by the infringer. In the process of safeguarding rights, the obligee is often in the dilemma of being unable to obtain evidence. In order to solve this problem, the exposure draft puts forward the following scheme:

On the one hand, in the civil litigation of patent infringement, according to the relevant provisions of the Civil Procedure Law, the power of the people's court to investigate and collect evidence is further clarified, that is, it is stipulated that the people's court should investigate and collect the products, account books, materials and other evidence suspected of infringement held by the accused infringer upon the application of the plaintiff or his agent ad litem; If the alleged infringer fails to provide or transfer, forge or destroy evidence, the people's court shall take compulsory measures according to law to hinder civil litigation; If a crime is constituted, criminal responsibility shall be investigated according to law.

On the other hand, in order to give full play to the role of administrative law enforcement agencies in handling patent infringement disputes, the exposure draft draws lessons from the relevant provisions of the Trademark Law and suggests that the competent department of patent work be given the means to investigate and collect evidence in patent infringement cases, so as to solve the problem of "difficulty in obtaining evidence" in administrative handling of infringement disputes by right holders.

In addition, at present, patent administrative law enforcement personnel generally reflect that the parties often refuse to cooperate, refuse or obstruct law enforcement personnel from exercising their functions and powers, and even violently resist the law. This not only affects the efficiency of handling cases, but also damages the dignity of the law and even seriously endangers the personal safety of law enforcement personnel. To this end, the exposure draft suggests that the responsibility of obstructing patent administrative law enforcement personnel from performing official duties should be clearly defined in accordance with relevant laws and regulations.

(2) Increase the function of the patent administrative department to judge the amount of infringement compensation, and solve the problem of "long period" of patent protection.

According to the current patent law, when dealing with patent infringement disputes, the patent administration department can mediate the amount of infringement compensation at the request of the parties. If mediation fails, the parties may bring a lawsuit to the people's court in accordance with the Civil Procedure Law. In practice, because the administrative mediation agreement on the compensation amount is not enforceable, the infringer still files a civil lawsuit again on the compensation issue under the circumstances of clear facts and obvious results, which artificially creates a litigation burden and makes it difficult for the obligee to effectively safeguard his own interests. This is not conducive to resolving disputes as soon as possible, and it also wastes administrative law enforcement and judicial trial resources. Therefore, under the premise of not reducing the follow-up relief channels of the parties, endowing the patent management department with the function of judging the amount of compensation in the process of dealing with infringement disputes is conducive to safeguarding the legitimate rights and interests of obligees, reducing the burden of litigation, saving public resources, and coordinating with the practice of "three trials in one" of intellectual property rights being implemented by people's courts at all levels. To this end, the exposure draft puts forward corresponding suggestions for revision.

(3) Clarify the effective time of the decision on examining the request for invalidation and related follow-up procedures, so as to solve the problem of "long period" of patent protection.

The effective time of the decision of the Patent Reexamination Board to declare the patent right invalid or maintain the patent right (referred to as the decision on examining the request for invalidation) directly affects the trial or handling efficiency of patent infringement disputes. At present, the patent law and its implementing rules do not clearly stipulate the effective time of the decision on examining the request for invalidation, and there are different understandings and operations in practice, which leads to the problem of "long cycle" in many infringement disputes. For example, after the decision to maintain the validity of the patent right is made, the claimant for invalidation will often file an administrative lawsuit to avoid tort liability. During the administrative litigation (usually 6 months to 2 years), the people's court or the patent administrative organ will often continue to suspend the trial or handling, and many patent infringement cases will be delayed for a long time.

In order to make the public know the legal status of the patent right in time, the exposure draft suggests that the patent administrative department of the State Council should register and announce the decision to declare the patent right invalid or maintain the patent right in time, and specify the effective time of the decision. At the same time, in order to improve the efficiency of patent dispute resolution and solve the problem that the period of patent infringement cases is too long due to the invalidation procedure, the exposure draft suggests that after the decision to declare the patent right invalid or maintain the patent right takes effect, the people's court and the administrative department for patent affairs should promptly hear and handle the infringement dispute according to the decision.

(4) Adding a punitive compensation system for intentional infringement to solve the problem of "low compensation" for patent protection.

At present, intellectual property infringement compensation, like other civil infringement compensation, is based on the principle of "compensation" or "compensatory principle", that is, the compensation obtained by the right holder is used to compensate the actual loss of the right holder. However, because the object of intellectual property rights is intangible, the protection of intellectual property rights is more costly and difficult than the protection of tangible property, and the risk of infringing intellectual property rights is smaller and lower than that of infringing tangible property. The benefits of engaging in intellectual property infringement activities far outweigh its risks and costs. Therefore, from a practical point of view, the principle of "leveling" can not only compensate the obligee for all the losses suffered by infringement, but also can not have any deterrent effect on infringement. Strict "fill in the blanks" principle is tantamount to condoning infringement to a certain extent. This is also one of the reasons why intellectual property infringement has been repeatedly prohibited. In order to fully protect the legitimate rights and interests of patentees and effectively curb intentional infringement, the exposure draft suggests introducing punitive damages to encourage patentees to actively exercise their rights and achieve the legislative purpose of patent law protection and innovation.

(five) to give the administrative department of patent work the function of investigating and stopping vicious infringement, and to solve the problem of "high cost and poor effect" of patent rights protection.

In view of intentional infringement, repeated infringement, group infringement and other vicious infringements, it is very expensive for the patentee to protect the rights of the infringers one by one, with little effect, so many obligees lose confidence in the patent system. These vicious infringements not only directly infringe the legitimate rights and interests of the patentee, but also disrupt the market order, damage the authority of the patent system, and hit the innovation vitality of the whole society, which has serious social harm. In order to effectively investigate and stop these vicious infringements, rebuild the innovation subject's confidence in the patent system, and safeguard the authority of the patent system, the exposure draft refers to the provisions of the trademark law and other relevant laws, and proposes to give the patent management department the right to actively investigate and deal with infringements suspected of disrupting market order and the corresponding administrative punishment power.

At the same time, considering that some patent infringement cases with great influence in the whole country and involving many provinces need unified guidance and coordination at the national level in the process of investigation, it is suggested in the Exposure Draft that the patent administrative department of the State Council should clarify the organization and investigation functions of patent infringement cases with great influence in the whole country.