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State Council Revises Rules for Implementation of the Patent Law of the People’s Republic of China
Release Date: 21 December 2023
The revised Rules for Implementation of the Patent Law of the People’s Republic of China (the Rules) consists of 13 chapters and 149 articles and came into effect on 20 January 2024. The key points and highlights of the Rules are as follows:
- Patent applications. The Rules expand the provisions concerning the novelty grace period. In addition to first disclosure at ‘academic conferences or technical conferences organized by relevant departments of the State Council or national academic organizations’, the Rules now include first disclosure at ‘academic conferences or technical conferences organized by international organizations recognized by the relevant departments of the State Council.” They also refine the regulations for international design patent applications. The Hague Agreement came into effect in China on 5 May 2022, and the Rules add a new Chapter 12 to specifically regulate the application requirements for international design patent applications.
- Patent examination. The Rules add a new Article 11, which requires patent applicants to adhere to the principle of good faith and cracks down on irregular patent applications (e.g. applications where the right to apply for a patent has been transferred for improper purposes or there is a false statement of inventor or designer name). The Rules also add a new Section 2 of Article 56, which introduces a deferred examination system. Previously, after submitting an invention patent application, the applicant was required to request substantive examination within three years. Failure to apply for examination within that period would be deemed withdrawal of the application. The deferred examination system allows applicants defer examination for one, two, or three years enabling them to continue the patent examination process based on the market situation of their products, to avoid the cost burden of unnecessary patent examination activities.
- Patent operation. The Rules refine the open license system of patent exploitation, adding a new Chapter 6, which clarifies the time and content of open license statements and specifies situations where an open license is not permitted. The Rules also increase the incentive for service invention, raising the statutory reward for invention patents from RMB 3,000 (approx. US$ 418) to RMB 4,000 (approx. US$ 557) in cases where no award method or amount has been specified or stipulated, and for utility model or design patents from RMB 1,000 (approx. US$ 139) to RMB 1,500 (approx. US$ 209) where no award method or amount has been specified or stipulated.
Source: The State Council of the People’s Republic of China 2023-12-21
https://www.gov.cn/zhengce/content/202312/content_6921633.htm
The State Council revised the “Implementing Rules for the Patent Law of the People’s Republic of China”
Date of issue: 2023-12-21
The revised “Implementing Rules for the Patent Law of the People’s Republic of China” ( referred to as the ” New Implementing Rules “) consist of 13 chapters and 149 articles, and will be effective from January 20, 2024. The key points and highlights included in this revision are as follows:
- In terms of patent applications , for example, the provisions on the grace period for novelty have been relaxed. On the basis of the original scope of “academic conferences or technical conferences organized by the relevant competent departments of the State Council or national academic groups ” , it further includes “international conferences recognized by the relevant competent departments of the State Council or organized by national academic groups”. Organize academic conferences or technical conferences.” Another example is to refine the regulations for international applications for industrial designs. The Hague Agreement will enter into force for China on May 5, 2022. In this regard, the “New Implementing Rules” have added a Chapter 12 , which specifically stipulates the application requirements for international applications for industrial designs. wait.
- In terms of patent review, for example, the ” New Implementing Rules ” have added Article 11, which requires patent applications to follow the principle of good faith and crack down on abnormal patent application behaviors (such as transferring patent application rights for improper purposes, or falsely changing the inventor, Designer’s patent). Another example is the new Article 56, Paragraph 2, of the ” New Implementing Rules ” , which introduces a delayed examination system. Previously, after an invention patent application was filed, the applicant had to request a substantive examination within 3 years . Failure to apply for examination within the time limit will be deemed to have been withdrawn. . The establishment of the delayed examination system allows applicants to decide whether to continue the patent examination process based on the market situation of the product, thereby avoiding the cost of unnecessary patent examination activities .
- In terms of patent application, for example, the open licensing system for patent implementation has been refined. The “New Implementing Rules” have added a new Chapter 6, which clarifies the time for making an open licensing statement, the content that should be included, the circumstances under which open licensing is not allowed, etc. Another example is to increase the intensity of rewards for service inventions. The “New Implementation Rules” will increase the statutory bonus for invention patents from 3,000 yuan to 4,000 yuan when the reward method and amount are not agreed upon or stipulated. The statutory bonus is increased from 1,000 yuan to 1,500 yuan .
Source: Chinese Government Website 2023-12-21
News link: https://www.gov.cn/zhengce/content/202312/content_6921633.htm
Beijing Higher People’s Court Releases White Paper on Beijing Courts’ Specialized Trial of Intellectual Property Cases over Three Decades (1993-2023)
Date: 29 November 2023
The White Paper issued by the Beijing Higher People’s Court indicates both the number of cases and the range of IP issues that have been dealt with since Beijing courts began conducting specialized IP trials thirty years ago, and the improvements that have been made to the system during that time.
The Courts have dealt with an expanding range of IP issues, including the first case involving a drug patent linkage dispute and a case involving application rights of the new plant variety of corn ‘Nongda 372’. The amount of punitive damages awarded in civil IP cases involving infringement of copyright, trademarks, trade secrets and other IP rights has gradually increased with compensation amounts in several cases exceeding RMB 10 million (approx. US$ 1,500,000). The White Paper further indicates that from 1993 to September 2023, the Beijing courts accepted a total of 4624,577 IP cases at first instance, second instance, appeal and retrial, and concluded 598,228 IP cases. Among these, a total of 621,762 new IP cases at first and second instance were accepted, with an average annual growth rate of 21.8%, and 595,520 cases were concluded, with an average annual growth rate of 22.2%.
Source: Beijing Higher People’s Court 2023-11-29
https://mp.weixin.qq.com/s/5vhqK2x8fLJSBR8rF_gcfA
The Beijing Higher People’s Court released the “Thirty-Year White Paper on Professional Intellectual Property Trial in Beijing Courts ( 1993-2023)”
Date: 2023-11-29
Since Chinese courts took the lead in establishing intellectual property tribunals on August 5, 1993 , Beijing courts have carried out specialized intellectual property trials for thirty years . The cases tried by Beijing courts have the characteristics of a full range of types, many new types of cases, and the number of cases ranks among the top in the country . The Beijing Court heard the first drug patent linkage dispute, the dispute over the ownership of the new corn variety “Nongda 372” plant variety, and other cases. The number of punitive damages applicable to civil cases involving copyright infringement, trademark rights, trade secrets and other intellectual property rights has gradually increased. The amount of compensation awarded in many cases exceeds 10 million yuan. Data from the “White Paper” shows that from 1993 to September 2023, Beijing courts received a total of 624,577 new intellectual property cases of first instance, second instance, appeal, retrial, etc., and concluded 598,228 cases. Among them, a total of 621,762 first and second instance intellectual property cases were newly accepted, with an average annual growth rate of 21.8%; 595,520 cases were concluded, with an average annual growth rate of 22.2%.
Data source: Beijing Higher People’s Court 2023-11-29
News link: https://mp.weixin.qq.com/s/5vhqK2x8fLJSBR8rF_gcfA
CNIPA Releases the China Intellectual Property Operation Annual Report (2022)
Date: 28 November 28, 2023
The Report provides a detailed account of China’s IP operation in 2022. There was an increase in the activity of IP operation in China during the year, and the role of IP in economic development became more pronounced. The number of patent assignments, licenses, pledges, and other operations reached 507,000. The value of patent and trademark financing pledges across the country reached RMB 486.88 billion, maintaining a growth rate of over 40% for three consecutive years. By the end of 2022, IP insurance had provided risk protection exceeding RMB 11 billion for more than 28,000 companies, covering over 46,000 patents, trademarks, geographical indications, and integrated circuit layout designs. A total of 91 IP securitization products were issued on the Shanghai and Shenzhen Stock Exchanges, raising actual funds of RMB 21 billion. In addition, more than 3,400 Trademark and Brand Guidance Stations, providing advisory and guidance services in relation to IP, were established nationwide in 2022.
Source: CNIPA 2023-11-28
The State Intellectual Property Office released the “China Intellectual Property Operation Annual Report (2022)”
Date: 2023-11-28
The “Report” summarizes China’s intellectual property operations in 2022. The “Report” shows that in 2022, the activity of China’s intellectual property circulation will increase, and the role of intellectual property in economic development will become more obvious. In 2022, the number of patent transfers, licenses, pledges and other operations in China will reach 507,000, and the national patent and trademark pledge financing amount will reach 486.88 billion yuan, maintaining a growth rate of more than 40% for three consecutive years. By the end of 2022, the cumulative number of intellectual property insurance will be more than 2.8 More than 46,000 patents, trademarks, geographical indications and integrated circuit layout designs of Wanjia enterprises provide risk protection of more than 110 billion yuan. A total of 91 intellectual property securitization products were issued on the Shanghai and Shenzhen stock exchanges across the country, and 21 billion yuan was actually raised. In addition, more than 3,400 new trademark and brand guidance stations will be added across the country in 2022.
Source: State Intellectual Property Office 2023-11-28
Decision of First Intermediate People’s Court of Chongqing Municipality in FRAND Royalties Dispute between OPPO and Nokia
Date: 14 December 2023
Having failed to reach agreement in relation to the licensing of its new 5G SEP (standard essential patent) patent, Nokia began suing OPPO for patent infringement in various parts of the world, including the UK, the Netherlands, France, and other countries. OPPO believed that Nokia’s claimed 5G patent royalty standard (EUR 3 per device) was too high, and it filed a lawsuit with the First Intermediate People’s Court of Chongqing Municipality, seeking a determination of the global FRAND (fair, reasonable, and nondiscriminatory) rate for Nokia’s SEP portfolio.
The Court ultimately determined, for the first time globally in the mobile industry, a cumulative global rate1 for 5G SEP ranging from 4.341% to 5.273%. It also determined a patent royalty for Nokia’s 2G-5G patent portfolio based on different regions; for example, the patent royalty for a single 5G multi-mode mobile phone in the first region (countries and regions with a per capita GDP greater than or equal to UDS 20,000) is UDS 1.151 per device, while the patent royalty in the second region (mainland China) and the third region (other countries and regions except for the first and second regions) is USD 0.707 per device.
This judgment is the first global FRAND rate judgment in the ongoing global patent dispute between OPPO and Nokia since July 2021. It is also the first time that Chinese judicial authorities have determined a global FRAND rate in a SEP litigation.
Source: 21st Century Business Herald, China Business Network 2023-12-14
Chongqing No. 1 Intermediate People’s Court issued a judgment on the FRAND licensing rate dispute between OPPO and Nokia
Date: 2023-12-14
Since Nokia and OPPO have not reached an agreement on Nokia’s new 5G patent license agreement, Nokia has sued OPPO for patent infringement in the United Kingdom, the Netherlands, France and other places around the world since July 2021. OPPO has also filed a lawsuit with the Chongqing No. 1 Intermediate People’s Court. , requesting the determination of global FRAND rates for Nokia’s standard essential patent portfolio . OPPO believes that the 5G patent fee standard claimed by Nokia (3 euros/unit) is too high . The Chongqing No. 1 Intermediate People’s Court finally determined for the first time in the world that the global cumulative fee rate for the 5G standard in the mobile phone industry is 4.341%-5.273%, and The license fee for Nokia’s 2G-5G patent package is determined based on different regions. For example, the license fee for a single unit of 5G multi-mode mobile phones in the first region of the world ( countries and regions with per capita GDP greater than or equal to US$20,000 ) The license fee for each unit is US$1.151, and the single-unit license fee for Zone 2 (Mainland China) and Zone 3 (other countries and regions except Zone 1 and Zone 2) is US$0.707 per unit.
This judgment is the first FRAND global rate judgment in the global patent dispute between OPPO and Nokia that began in July 2021. It is also the first time that Chinese judicial authorities have determined the FRAND global rate in standard essential patent litigation.
Source: 21st Century Business Herald, China Business News 2023-12-14
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