Revision of China patent law lauded

The draft raises fines for violators and clarifies the responsibilities of online service providers, in what is the fourth revision to the law since 1984.
The draft raises fines for violators and clarifies the responsibilities of online service providers, in what is the fourth revision to the law since 1984.PHOTO: REUTERS

Legal circles welcome draft, which tightens IP rights and raises fines for violations to $1m

BEIJING • Legal specialists have welcomed a draft revision of China's patent law after seeing that it strengthens intellectual property (IP) rights protection by raising fines for violations.

The draft, submitted on Sunday for a first review to the Standing Committee of the National People's Congress, China's top legislature, aims to help build a fairer business environment and encourage innovation.

"The draft is meant to solve new patent problems, such as difficulties in collecting evidence in patent lawsuits, online IP infringement and low compensation for victims of patent infringement," said Mr Shen Changyu, head of the State Intellectual Property Office, as he explained it to the legislature.

The draft raises fines for violators to a range of between 100,000 yuan and five million yuan (S$20,300 and S$1 million) when the loss to patent holders and the benefits gained by violators cannot be determined.

The current fine range is 10,000 yuan to one million yuan.

"I am glad to see fines for patent infringers substantially increased in the draft," said lawyer Gao Xiaoli, who specialises in patent cases at Jingshi Law Firm in Beijing. "It must be a big threat for violators and will better safeguard the legitimate rights of patent holders."

Ms Gao said many of her clients now received less than 100,000 yuan in compensation when their patent rights were infringed upon, which she said is too little.

PATENTS AND INNOVATION

The number of patent applications in our country has been rising in recent years, though we could hardly be called a strong patent country, because many patents are not now applied in technology or economy, which is not good for innovation.

MS KANG LIXIA, a lawyer specialising in IP disputes at Conzen Law Firm in Beijing.

"The loss or benefit in about 90 per cent of cases is hard to clarify, because evidence collection is also a challenge in legal practice," she said.

Ms Gao applauded another change in the draft whereby courts can take evidence provided by patent holders as a reference point to calculate the amount of fines if violaters provide none or only false material in their defence.

"The revision means our country has strongly determined and made greater efforts to protect patent owners," she added.

Ms Kang Lixia, a lawyer specialising in IP disputes at Conzen Law Firm in Beijing, also gave the draft the thumbs up.

She said the five million yuan maximum fine is heavier and shows "that the draft has paid greater attention to the patent quality".

"The number of patent applications in our country has been rising in recent years, though we could hardly be called a strong patent country, because many patents are not now applied in technology or economy, which is not good for innovation," she said.

Noting that the draft asks government patent-related departments to set up systems to supply patent information and data to further promote the patent transformation or application, Ms Kang said that patent quality will be improved step by step in this way.

The draft also clarifies the responsibilities of online service providers, stipulating that they will be held liable if they do not delete or block violated works or products on their platforms in line with court rulings.

"It's a crucial move," Ms Gao said. "Fake trademarks are easy for online platform operators to identify, and they can promptly remove or ask users not to use them, but patent infringements are difficult for them to figure out."

This is the fourth revision to the patent law since 1984, the last amendment being in 2008.

CHINA DAILY/ASIA NEWS NETWORK

A version of this article appeared in the print edition of The Straits Times on December 25, 2018, with the headline 'Revision of China patent law lauded'. Print Edition | Subscribe