Wednesday, September 10, 2008

New Draft Third Patent Law Amendment: Slight Improvements


In the beginning of this year there was not much reason for optimism regarding the third patent law amendment, read 'Curb your enthousiasm. The earlier draft included the requirement that Chinese legal and natural persons must first apply for patents before making foreign applications. That's why I wrote in July 'Discover Your Invention in China or Lose Protection'.

Fortunately this requirement has been removed according to Tuo Yannan who wrote an article about it for the China Daily, read more here. However, according to Peter Ollier, the draft article 21 states that for inventions completed in China, businesses need to obtain permission from SIPO before filing abroad, in case they don't file first in China. Read Mr Ollier's article for Managing IP here.

The legislative process for the patent law amendment started in 2006. So far I know that first input was asked, then the State Council put its stamp on the patent law reform blueprint, followed by submittance to the National People's Congress (NPC) Standing Committee for first reading. The deadline for comments is October 10, 2008. A draft law requires three readings before it can be adopted. This is expected to happen in the beginning of 2009, according to Mr Ollier. This latest draft (in Chinese) was submitted tot the National People's Congress.

So what big changes did make it in the new draft?

1. absolute novelty: inventions will need to be novel, not just in China. Tuo Yannan writes that it is not clear whether this absolute novelty requirement would be made retroactive (I would say, not a good idea);
2. disclosure rules for inventions relying on genetic resources;
3. a compulsory licensing scheme where a patent has not been sufficiently exploited within three years of grant, or has been abused by the grantee;
4. changes to the statutory damages.

Read Tuo Yannan's article for the China Daily here.
The Chinese characters 专(zhuan1) 利 (li4) mean together "patent".

1 comment:

Nia said...

Much has been made in the media, both western and Chinese, of China’s adoption of the “absolute novelty” standard. Does any other county in the world use this standard?
Thanks.