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2011-03-07T02:08:00.000-08:00

Tort Liability Law 2009

2010-04-28T22:57:00.001-07:00

Decree of the President of the People’s Republic of China (No. 21)

The Tort Law of the People’s Republic of China, which was adopted at the 12th session of the Standing Committee of the Eleventh National People’s Congress on December 26, 2009, is hereby promulgated and shall come into force on July 1, 2010.

President of the People’s Republic of China: Hu Jintao
December 26, 2009

Tort Law of the People’s Republic of China
(Adopted at the 12th session of the Standing Committee of the Eleventh National People’s Congress on December 26, 2009)

Table of Contents
Chapter I General Provisions
Chapter II Constituting Liability and Methods of Assuming Liability
Chapter III Circumstances to Waive Liability and Mitigate Liability
Chapter IV Special Provisions on Tortfeasors
Chapter V Product Liability
Chapter VI Liability for Motor Vehicle Traffic Accident
Chapter VII Liability for Medical Malpractice
Chapter VIII Liability for Environmental Pollution
Chapter IX Liability for Ultrahazardous Activity
Chapter X Liability for Harm Caused by Domestic Animal
Chapter XI Liability for Harm Caused by Object
Chapter XII Supplementary Provision

Chapter I General Provisions

Article 1 In order to protect the legitimate rights and interests of parties in civil law relationships, clarify the tort liability, prevent and punish tortious conduct, and promote the social harmony and stability, this Law is formulated.

Article 2 Those who infringe upon civil rights and interests shall be subject to the tort liability according to this Law. “Civil rights and interests” used in this Law shall include the right to life, the right to health, the right to name, the right to reputation, the right to honor, right to self image, right of privacy, marital autonomy, guardianship, ownership, usufruct, security interest, copyright, patent right, exclusive right to use a trademark, right to discovery, equities, right of succession, and other personal and property rights and interests.

Article 3 The victim of a tort shall be entitled to require the tortfeasor to assume the tort liability.

Article 4 Where a tortfeasor shall assume administrative liability or criminal liability for the same conduct, it shall not prejudice the tort liability that the tortfeasor shall legally assume. Where the assets of a tortfeasor are not adequate for payments for the tort liability and administrative liability or criminal liability for the same conduct, the tortfeasor shall first assume the tort liability.

Article 5 Where any other law provides otherwise for any tort liability in particular, such special provisions shall prevail.

Chapter II Constituting Liability and Methods of Assuming Liability

Article 6 One who is at fault for infringement upon a civil right or interest of another person shall be subject to the tort liability.
One who is at fault as construed according to legal provisions and cannot prove otherwise shall be subject to the tort liability.

Article 7 One who shall assume the tort liability for infringing upon a civil right or interest of another person, whether at fault or not, as provided for by law, shall be subject to such legal provisions.

Article 8 Where two or more persons jointly commit a tort, causing harm to another person, they shall be liable jointly and severally.

Article 9 One who abets or assists another person in committing a tort shall be liable jointly and severally with the tortfeasor.
One who abets or assists a person who does not have civil conduct capacity or only has limited civil conduct capacity in committing a tort shall assume the tort liability; the guardian of such a person without civil conduct capacity or with limited civil conduct capacity shall assume the relevant liability if failing to fulfill his guardian duties.

Article 10 Where two or more persons engage in a conduct that endangers the personal or property safety of another person, if only the conduct of one or several of them causes harm to another person and the specific tortfeasor can be determined, the tortfeasor shall be liable; or if the specific tortfeasor cannot be determined, all of them shall be liable jointly and severally.

Article 11 Where two or more persons commit torts respectively, causing the same harm, and each tort is sufficient to cause the entire harm, the tortfeasors shall be liable jointly and severally.

Article 12 Where two or more persons commit torts respectively, causing the same harm, if the seriousness of liability of each tortfeasor can be determined, the tortfeasors shall assume corresponding liabilities respectively; or if the seriousness of liability of each tortfeasor is hard to be determined, the tortfeasors shall evenly assume the compensatory liability.

Article 13 Where the joint and several liability shall be assumed by the tortfeasors according to law, the victim of torts shall be entitled to require some or all of the tortfeasors to assume the liability.

Article 14 The compensation amounts corresponding to the tortfeasors who are jointly and severally liable shall be determined according to the seriousness of each tortfeasor; and if the seriousness of each tortfeasor cannot be determined, the tortfeasors shall evenly assume the compensatory liability. A tortfeasor who has paid an amount of compensation exceeding his contribution shall be entitled to be reimbursed by the other tortfeasors who are jointly and severally liable.

Article 15 The methods of assuming tort liabilities shall include:
1. cessation of infringement;
2. removal of obstruction;
3. elimination of danger;
4. return of property;
5. restoration to the original status;
6. compensation for losses;
7. apology; and
8. elimination of consequences and restoration of reputation.
The above methods of assuming the tort liability may be adopted individually or jointly.

Article 16 Where a tort causes any personal injury to another person, the tortfeasor shall compensate the victim for the reasonable costs and expenses for treatment and rehabilitation, such as medical treatment expenses, nursing fees and travel expenses, as well as the lost wages. If the victim suffers any disability, the tortfeasor shall also pay the costs of disability assistance equipment for the living of the victim and the disability indemnity. If it causes the death of the victim, the tortfeasor shall also pay the funeral service fees and the death compensation.

Article 17 Where the same tort causes the deaths of several persons, a uniform amount of death compensation may be determined.

Article 18 Where a tort causes the death to the victim, the close relative of the victim shall be entitled to require the tortfeasor to assume the tort liability. Where the victim of a tort, which is an entity, is split or merged, the entity succeeding to the rights of the victim shall be entitled to require the tortfeasor to assume the tort liability. Where a tort causes the death to the victim, those who have paid the medical treatment expenses, funeral service fees and other reasonable costs and expenses for the victim shall be entitled to require the tortfeasor to compensate them for such costs and expenses, except that the tortfeasor has already paid such costs and expenses.

Article 19 Where a tort causes any harm to the property of another person, the amount of loss to the property shall be calculated as per the market price at the time of occurrence of the loss or calculated otherwise.

Article 20 Where any harm caused by a tort to a personal right or interest of another person gives rise to any loss to the property of the victim of the tort, the tortfeasor shall make compensation as per the loss sustained by the victim as the result of the tort. If the loss sustained by the victim is hard to be determined and the tortfeasor obtains any benefit from the tort, the tortfeasor shall make compensation as per the benefit obtained by it. If the benefit obtained by the tortfeasor from the tort is hard to be determined, the victim and the tortfeasor disagree to the amount of compensation after consultation, and an action is brought to a people’s court, the people’s court shall determine the amount of compensation based on the actual situations.

Article 21 Where a tort endangers the personal or property safety of another person, the victim of the tort may require the tortfeasor to assume the tort liabilities including but not limited to cession of infringement, removal of obstruction and elimination of danger.

Article 22 Where any harm caused by a tort to a personal right or interest of another person inflicts a serious mental distress on the victim of the tort, the victim of the tort may require compensation for the infliction of mental distress.

Article 23 Where one sustains any harm as the result of preventing or stopping the infringement upon the civil right or interest of another person, the tortfeasor shall be liable for the harm. If the tortfeasor flees or is unable to assume the liability and the victim of the tort requires compensation, the beneficiary shall properly make compensation.

Article 24 Where neither the victim nor the actor is at fault for the occurrence of a damage, both of them may share the damage based on the actual situations.

Article 25 After the occurrence of any harm, the parties may consult each other about the methods to pay for compensations. If the consultation fails, the compensations shall be paid in a lump sum. If it is hard to make the payment in a lump sum, the payment may be made in installments but a corresponding security shall be provided.

Chapter III Circumstances to Waive Liability and Mitigate Liability

Article 26 Where the victim of a tort is also at fault as to the occurrence of harm, the liability of the tortfeasor may be mitigated.

Article 27 The actor shall not be liable for any harm that is caused intentionally by the victim.

Article 28 Where any harm is caused by a third party, the third party shall assume the tort liability.

Article 29 Where any harm to another person is caused by a force majeure, the tortfeasor shall not be liable, except as otherwise provided for by law.

Article 30 Where any harm is caused by self-defense, the person exercising self-defense shall not be liable. If the self-defense exceeds the necessary limit, causing any undue harm, the person exercising self-defense shall assume proper liability.

Article 31 Where any harm is caused by any conduct of necessity, the person causing the occurrence of danger shall be liable. If the danger is as the result of a natural cause, the person causing the harm for necessity shall not be liable or shall make proper compensation. If improper measures of necessity are taken or a necessary limit is exceeded, causing any undue harm, the person causing the harm for necessity shall assume proper liability.

Chapter IV Special Provisions on Tortfeasors

Article 32 Where a person without civil conduct capacity or with limited civil conduct capacity causes any harm to another person, the guardian shall assume the tort liability. If the guardian has fulfilled his guardian duties, his tort liability may be mitigated. Where a person without civil conduct capacity or with limited civil conduct capacity, who has property, causes any harm to another person, the compensations shall be paid out of his own property. The guardian shall make up any deficit of the compensations.

Article 33 Where a person with full civil conduct capacity causes any harm to another person as the result of his temporary loss of consciousness or control of his conduct, if he is at fault, he shall assume the tort liability; or if he is not at fault, the victim shall be compensated properly according to the economic condition of the person causing the harm.
Where a person with full civil conduct capacity causes any harm to another person as the result of his temporary loss of consciousness or control of his conduct due to alcohol intoxication or abuse of narcotic or psychoactive drug, he shall assume the tort liability.

Article 34 Where an employee of an employer which is an entity causes any harm to another person in the execution of his work duty, the employer shall assume the tort liability. Where, during the period of labor dispatch, a dispatched employee causes any harm to another person in the execution of his work duty, the entity employer receiving the dispatched employee shall assume the tort liability; and the entity employer dispatching the employee, if at fault, shall assume the corresponding complementary liability.

Article 35 Where, in a labor relationship formed between individuals, the party providing labor services causes any harm to another person as the result of the labor services, the party receiving labor services shall assume the tort liability. If the party providing labor services causes any harm to himself as the result of the labor services, both parties shall assume corresponding liabilities according to their respective faults.

Article 36 A network user or network service provider who infringes upon the civil right or interest of another person through network shall assume the tort liability.
Where a network user commits a tort through the network services, the victim of the tort shall be entitled to notify the network service provider to take such necessary measures as deletion, block or disconnection. If, after being notified, the network service provider fails to take necessary measures in a timely manner, it shall be jointly and severally liable for any additional harm with the network user. Where a network service provider knows that a network user is infringing upon a civil right or interest of another person through its network services, and fails to take necessary measures, it shall be jointly and severally liable for any additional harm with the network user.

Article 37 The manager of a public venue such as hotel, shopping center, bank, station or entertainment place or the organizer of a mass activity shall assume the tort liability for any harm caused to another person as the result of his failure to fulfill the duty of safety protection. If the harm to another person is caused by a third party, the third party shall assume the tort liability; and the manager or organizer, if failing to fulfill the duty of safety protection, shall assume the corresponding complementary liability.

Article 38 Where a person without civil conduct capacity sustains any personal injury during the period of studying or living in a kindergarten, school or any other educational institution, the kindergarten, school or other educational institution shall be liable unless it can prove that it has fulfilled its duties of education and management.

Article 39 Where a person with limited civil conduct capacity sustains any personal injury during the period of studying or living in a school or any other educational institution, the school or other educational institution shall be liable if failing to fulfill its duties of education and management.

Article 40 Where, during the period of studying or living in a kindergarten, a school or any other educational institution, a person without civil conduct capacity or with limited civil conduct capacity sustains any personal injury caused by any person other than those of the kindergarten, school or other education institution, the person causing the harm shall assume the tort liability; and the kindergarten, school or other educational institution shall assume the corresponding complementary liability if failing to fulfill its duties of management.

Chapter V Product Liability

Article 41 Where a defective product causes any harm to another person, the manufacturer shall assume the tort liability.

Article 42 Where a product with any defect caused by the fault of the seller causes any harm to another person, the seller shall assume the tort liability. Where a seller can neither specify the manufacturer of a defective product nor specify the supplier of the defective product, the seller shall assume the tort liability.

Article 43 Where any harm is caused by a defective product, the victim may require compensation to be made by the manufacturer of the product or the seller of the product. If the defect of the product is caused by the manufacturer and the seller has made the compensation for the defect, the seller shall be entitled to be reimbursed by the manufacturer.
If the defect of the product is caused by the fault of the seller and the manufacturer has made the compensation for the defect, the manufacturer shall be entitled to be reimbursed by the seller.

Article 44 Where any harm is caused to another person by a defective product and the defect is caused by the fault of a third party such as carrier or warehouseman, the manufacturer or seller of the product that has paid the compensation shall be entitled to be reimbursed by the third party.

Article 45 Where the defect of a product endangers the personal or property safety of another person, the victim shall be entitled to require the manufacturer or seller to assume the tort liabilities by removing the obstruction or eliminating the danger.

Article 46 Where any defect of a product is found after the product is put into circulation, the manufacturer or seller shall take such remedial measures as warning and recall in a timely manner. The manufacturer or seller who fails to take remedial measures in a timely manner or take sufficient and effective measures and has caused any harm shall assume the tort liability.

Article 47 Where a manufacturer or seller knowing any defect of a product continues to manufacture or sell the product and the defect causes a death or any serious damage to the health of another person, the victim shall be entitled to require the corresponding punitive compensation.

Chapter VI Liability for Motor Vehicle Traffic Accident

Article 48 Where a motor vehicle traffic accident causes any harm, the compensatory liability shall be assumed according to the relevant provisions of the Road Traffic Safety Law.

Article 49 Where the owner and the user of a motor vehicle are not the same person due to the relationship of a lease, a borrowing or any other reason and the liability of a traffic accident is attributed to the motor vehicle, the insurance company shall make compensation within the liability limit of the mandatory motor vehicle insurance. The user of the motor vehicle shall make up any deficit of the compensation; and if the owner of the motor vehicle is at fault as to the harm, he shall assume the corresponding compensatory liability.

Article 50 Where a motor vehicle has been transferred and delivered from one party to another through sale or in any other transaction method but the registration of ownership transfer has not been conducted, if the liability of a traffic accident is attributed to the motor vehicle, the insurance company shall make compensation within the liability limit of the mandatory motor vehicle insurance. The transferee of the motor vehicle shall make up any deficit of the compensation.

Article 51 Where an illegally assembled motor vehicle or a motor vehicle reaching the standard of retirement, which has been transferred through sale or in any other transfer method, causes a traffic accident and a harm, the transferor and the transferee shall be liable jointly and severally.

Article 52 Where a traffic accident occurs to a motor vehicle that has been obtained by theft, robbery or snatch and causes a harm, the thief, robber or snatcher shall assume the compensatory liability. The insurance company that makes advances for rescue expenses within the liability limit of the mandatory motor vehicle insurance shall be entitled to be reimbursed by the person liable for the traffic accident.

Article 53 Where the driver of a motor vehicle flees after a traffic accident occurs to the motor vehicle, if the motor vehicle is covered by the mandatory insurance, the insurance company shall make compensation within the liability limit of the mandatory motor vehicle insurance; or if the motor vehicle cannot be identified or is not covered by the mandatory insurance, and the expenses for the death of or personal injury to the victim, such as rescue and funeral fees, need to be paid, the advances shall be made out of the Social Assistance Fund for Road Traffic Accidents. After advances are made out of the Social Assistance Fund for Road Traffic Accidents, the governing body of the fund shall be entitled to be reimbursed by the person liable for the traffic accident.

Chapter VII Liability for Medical Malpractice

Article 54 Where a patient sustains any harm during diagnosis and treatment, if the medical institution or any of its medical staff is at fault, the medical institution shall assume the compensatory liability.

Article 55 During the diagnosis and treatments, the medical staff shall explain the illness condition and relevant medical measures to their patients. If any operation, special examination or special treatment is needed, the medical staff shall explain the medical risks, alternate medical treatment plans and other information to the patient in a timely manner, and obtain a written consent of the patient; or, when it is not proper to explain the information to the patient, explain the information to the close relative of the patient, and obtain a written consent of the close relative. Where any medical staff member fails to fulfill the duties in the preceding paragraph and causes any harm to a patient, the medical institution shall assume the compensatory liability.

Article 56 Where the opinion of a patient or his close relative cannot be obtained in the case of an emergency such as rescue of a patient in critic condition, with the approval of the person in charge of the medical institution or an authorized person in charge, the corresponding medical measures may be taken immediately.

Article 57 Where any medical staff member fails to fulfill the obligations of diagnosis and treatment up to the standard at the time of the diagnosis and treatment and causes any harm to a patient, the medical institution shall assume the compensatory liability.

Article 58 Under any of the following circumstances, a medical institution shall be at fault constructively for any harm caused to a patient:
1. violating a law, administrative regulation or rule, or any other provision on the procedures and standards for diagnosis and treatment;
2. concealing or refusing to provide the medical history data related to a dispute; or
3. forging, tampering or destroying any medical history data.

Article 59 Where any harm to a patient is caused by the defect of any drug, medical disinfectant or medical instrument or by the transfusion of substandard blood, the patient may require a compensation from the manufacturer or institution providing blood, or require a compensation from the medical institution. If the patient requires a compensation from the medical institution, the medical institution that has paid the compensation shall be entitled to be reimbursed by the liable manufacturer or institution providing blood.

Article 60 Under any of the following circumstances, a medical institution shall not assume compensatory liability for any harm caused to a patient:
1. the patient or his close relative does not cooperate with the medical institution in the diagnosis and treatment in line with the procedures and standards for diagnosis and treatment;
2. the medical staff have fulfilled the duty of reasonable diagnosis and treatment in the case of an emergency such as rescue of a patient in critical condition; or
3. diagnosis and treatment of the patient is difficult due to the medical level at the time.
Under the circumstance in item 1 of the preceding paragraph, if the medical institution or any of its medical staff is also at fault, the medical institution shall assume the corresponding compensatory liability.

Article 61 A medical institution and its medical staff shall fill out and properly keep the hospital admission logs, medical treatment order slips, test reports, operation and anesthesia records, pathology records, nurse care records, medical expenses sheets and other medical history data according to the relevant provisions. Where a patient files a request for consulting or copying the medical history data in the preceding paragraph, the medical institution shall provide the data.

Article 62 A medical institution and its medical staff shall keep confidential the privacy of a patient. If any privacy data of a patient is divulged or any of the medical history data of a patient is open to the public without the consent of the patient, causing any harm to the patient, the medial institution shall assume the tort liability.

Article 63 A medical institution and its medical staff shall not conduct unnecessary examinations in violation of the procedures and standards for diagnosis and treatment.

Article 64 The legitimate rights and interests of a medical institution and its medical staff shall be protected by law. Anyone who interrupts the order of the medical system or obstructs the work or life of medical staff shall be subject to legal liability.

Chapter VIII Liability for Environmental Pollution

Article 65 Where any harm is caused by environmental pollution, the polluter shall assume the tort liability.

Article 66 Where any dispute arises over an environmental pollution, the polluter shall assume the burden to prove that it should not be liable or its liability could be mitigated under certain circumstances as provided for by law or to prove that there is no causation between its conduct and the harm.

Article 67 Where the environmental pollution is caused by two or more polluters, the seriousness of liability of each polluter shall be determined according to the type of pollutant, volume of emission and other factors.

Article 68 Where any harm is caused by environmental pollution for the fault of a third party, the victim may require a compensation from either the polluter or the third party. After making compensation, the polluter shall be entitled to be reimbursed by the third party.

Chapter IX Liability for Ultrahazardous Activity

Article 69 One who causes any harm to another person while engaging in any ultrahazardous operation shall assume the tort liability.

Article 70 Where a nuclear accident occurs to a civil nuclear facility and causes any harm to another person, the operator of the civil nuclear facility shall assume the tort liability unless it can prove that the harm is caused by a situation such as war or by the victim intentionally.

Article 71 Where a civil aircraft causes any harm to another person, the operator of the civil aircraft shall assume the tort liability unless it can prove that the harm is caused by the victim intentionally.

Article 72 Where the possession or use of inflammable, explosive, acutely toxic, radioactive or any other ultrahazardous materials causes any harm to another person, the possessor or user shall assume the tort liability unless it can prove that the harm is caused by the victim intentionally or by a force majeure. If the victim is grossly negligent for the occurrence of the harm, the liability of the possessor or user may be mitigated.

Article 73 Where any harm is caused to another person by an aerial, high pressure or underground excavation activity or by the use of high speed rail transport vehicle, the operator shall assume the tort liability unless it can prove that the harm is caused by the victim intentionally or by a force majeure. If the victim is negligent for the occurrence of the harm, the liability of the operator may be mitigated.

Article 74 Where any harm is caused to another person by the loss or abandonment of ultrahazardous materials, the owner shall assume the tort liability. If the owner has delivered the ultrahazardous materials to another person for management, the person who manages the materials shall assume the tort liability; and if the owner is at fault, he shall be liable jointly and severally with the person who manages the materials.

Article 75 Where any harm to another person is caused by the illegal possession of ultrahazardous materials, the illegal possessor shall assume the tort liability. If the owner and the managing person cannot prove that it has fulfilled its duty of a high degree of care in preventing others from illegal possession, they shall be liable jointly and severally with the illegal possessor.

Article 76 Where any harm is caused by the entry into an area of ultrahazardous activities or an area of storing ultrahazardous materials, if the managing person has taken safety measures and fulfilled its duty of warning, its liability may be mitigated or it may assume no liability.

Article 77 Where any legal provision prescribes a limit of compensation for liability for an ultrahazardous activity, such a provision shall apply.

Chapter X Liability for Harm Caused by Domestic Animal

Article 78 Where a domestic animal causes any harm to another person, the keeper or manager of the animal shall assume the tort liability, but may assume no liability or assume mitigated liability, if it can prove that the harm is caused by the victim intentionally or by the gross negligence of the victim.

Article 79 Where any harm is caused to another person by a failure to take safety measures against an animal in violation of management rules, the keeper or manager of the animal shall assume the tort liability.

Article 80 Where any dangerous animal such as a fierce dog that is prohibited from keeping causes any harm to another person, the keeper or manger of the animal shall assume the tort liability.

Article 81 Where any animal of a zoo causes any harm to another person, the zoo shall assume the tort liability unless it can prove that it has fulfilled its duties of management.

Article 82 Where an abandoned or fleeing animal causes any harm to another person during the time period of its abandonment or fleeing, the original keeper or manager of the animal shall assume the tort liability.

Article 83 Where any harm is caused to another person by an animal for the fault of a third party, the victim may require a compensation from the keeper or manger of the animal, or require a compensation from the third party. After making compensation, the keeper or manager of the animal shall be entitled to be reimbursed by the third party.

Article 84 Animals shall be kept in accordance with the law, in the manner of respecting the social morals, and without interference with the life of others.

Chapter XI Liability for Harm Caused by Object

Article 85 Where any building, structure or facility or any thing laid thereon or suspended therefrom falls off or falls down, causing any harm to another person, if the owner, manager or user cannot prove that he is not at fault, he shall assume the tort liability. After making compensation, the owner, manager or user shall be entitled to be reimbursed by other liable persons if any.

Article 86 Where any building, structure or facility collapses, causing any harm to another person, the construction employer and contractor shall be liable jointly and severally. After making compensation, the construction employer or contractor shall be entitled to be reimbursed by other liable persons if any. Where the collapse of any building, structure or facility, which causes any harm to another person, is attributed to any other liable person, the other liable person shall assume the tort liability.

Article 87 Where any object thrown out of a building or falling down from a building causes any harm to another person and it is hard to determine the specific tortfeasor, all the users of the building who possibly commit the tort but those who can prove that they are not the tortfeasor shall make indemnity.

Article 88 Where a pile of objects collapse and cause any harm to another person, the person making the pile shall assume the tort liability if it cannot prove that it has no fault.

Article 89 Where any harm is caused to another person by objects piled, dumped or scattered on a public road, which obstruct passage, the relevant entity or individual shall assume the tort liability.

Article 90 Where any harm is caused to another person by a broken tree, the owner or manager of the tree shall assume the tort liability if it cannot prove that he is not at fault.

Article 91 Where anyone digs a pit, repairs or installs any underground facility, etc. at a public venue or on a public road but fails to set up any obvious warning sign or take any safety measure, and causes any harm to another person, the person shall assume the tort liability. Where a manhole or any other underground facility causes any harm to another person, the manager of the manhole or the facility shall assume the tort liability if he cannot prove that he has fulfilled the duties of management.

Chapter XII Supplementary Provision

Article 92 This Law shall come into force on July 1, 2010.

Notice Relating to Implementation of the Amended Patent Law 2009

2010-01-19T22:32:00.000-08:00

The State Intellectual Property Office
September 29, 2009

In order to implement the amended Patent Law, the matters relating to the patent applications filed on and after October 1, 2009 and others is hereby notified as follows:

Article 1. Where the same applicant files an application for both a utility model patent and an invention patent for the same invention on the same day, the applicant shall, at the time of filing the application, fill out the Statement for Application of Both a Utility Model Patent and an Invention Patent on the Same Day as required by the SIPO to state that another patent has been applied for the same invention.

Article 2. Where any entity or individual intends to file an application in a foreign country for a patent for invention or utility model made in China, it or he shall first ask the SIPO to conduct confidentiality examination and fill out the Request for Confidentiality Examination for Filing a Patent Application in a Foreign Country as required by the SIPO

Article 3. Where an applicant files a patent application for an invention completed depending on the genetic resource, the application shall fill out the Registration Form for Disclosure of Sources of Genetic Resources to state the direct source and original source of the genetic resource. Where the original source thereof cannot be made clear, the grounds shall be provided.

Article 4. Where an applicant files an application for design, the application shall submit a brief description of such design otherwise, the applcation will not be accepted; in making the brief description of a design, the Precautions for Brief Description of Designs released on October, 2009 may be taken as reference.

Article 5. The SIPO will only make patent assessment reports for utillity model patent or design patent of which the date of filing are on and after October 1, 2009 (meaning the priority date where priority is claimed), and will only make search reports for utility model patents of which the date of filing are before October 1, 2009 (meaning the priority date where priority is claimed).

Article 6. For any new application involving what are provided above in Articles 1, 2 and 3 and the Request for Patent Assessment Report, the Request for Confidentiality Examination for Filing a Patent Application in a Foreign Country and the Registration form for Disclosure of Sources of Genetic Resources, the applicant shall deliver or send the said directly to the Patent Service Division of the SIPO in papers, and the electronic application systems of the various patent service divisions and that under the SIPO are temporarily unavailable for receiving the foregoing applications and patent documents.

Transitional Measures on Implementation of the Amended Patent Law 2009

2010-01-19T22:05:00.000-08:00

The Transitional Measures on Implementation of the amended Patent Law, approved by the meeting of the State Intellectual Property Office (SIPO) of the People's Republic of China, are hereby promulgated and shall come into force as of October 1, 2009

Commissioner Tian Lipu

September 29, 2009

Article 1. These Measures are made in accordance with the provisions of Article 84 of the Legislation Law of the People's Republic of China to secure the implementation of the Decision of the Standing Committee of the National People's Congress on Amending the Patent law of the People's Republic of China.

Article 2. The provisions of the former Patent Law will apply to any patent application filed before October 1, 2009 and the patent rights granted on the basis of the application; The provisions of the amended Patent Law will apply to any patent application filed on or after October 1, 2009 and the patent right granted on the basis of the applications, except as otherwise provided in the following articles of these Measures for the patent application filed before October 1, 2009 and the patent right granted on the basis of the application.

The date of filing as referred to in the preceding paragraph shall be construed in accordance with the applicable provisions of the Rules for the Implementing Regulations of the Patent Law.

Article 3. Where any application for implementing a compulsory license of a patent is filed on or after October 1, 2009, the provisions of Chapter 6 of the amended Patent Law will apply.

Article 4. Where the administrative authority for patent affairs deals with any suspected patent infringement taken place on or after October 1, 2009, the provisions of Articles 11, 62, 69 and 70 of the amended Patent Law will apply.

Article 5. Where the administrative authority for patent affairs investigates and handles any suspected passing-off of a patent of another person, the provisions of Articles 63 and 64 of the amended Patent Law will apply.

Article 6. Where any patentee affixes a patent marking on or after October 1, 2009, the provisions of Article 17 of the amended Patent Law shall be applied.

Article 7. Where any foreigner, foreign business or other foreign organization not having habitual residence or business place in China entrusts or changes a patent agency on or after October 1, 2009, the provisions of Article 19 of the amended Patent Law will apply.

Article 8. These Measures shall come into force as of October 1, 2009.

Supreme People's Court to Hear Patent Infringement Disputes in Cases of Application of the Law Internetpretation of a Number of Issues 2009

2010-01-12T03:36:00.000-08:00

raw law translation; will be refined; work in process

Supreme People's Court to hear patent infringement disputes in cases of application of the law interpretation of a number of issues
最高人民法院关于审理侵犯专利权纠纷案件应用法律若干问题的解释

December 21, 2009 the Judicial Committee of Supreme People's Court passed the first 1480 meeting. The People's Republic of China Supreme People's Court Notice"Supreme People's Court on the trial of patent infringement disputes in cases of application of the law interpretation of a number of issues" was December 21, 2009 the Judicial Committee of Supreme People's Court passed the first meeting of 1480, is hereby announced that since January 1, 2010 shall come into force.

December 28, 2009
For the correct hear patent infringement disputes, according to "The People's Republic of China Patent Law," "The People's Republic of China Civil Procedure Law" and other relevant laws and regulations, combined with the actual trial, the enactment of this interpretation.　　

Article 1. People's right to argue should be based on the claims, according to the Patent Law the provisions of the first paragraph of Article 59th to determine the scope of patent protection. The right people in the first instance the court before the end of the debate claim the right to change their requirements, the people's court should be permitted. Who advocated the rights of dependent claims to determine the scope of patent protection, the people's court should be recorded in the dependent claims and references additional technical features of the technical features of the claims records to determine the scope of patent protection.　　
第一条　人民法院应当根据权利人主张的权利要求，依据专利法第五十九条第一款的规定确定专利权的保护范围。权利人在一审法庭辩论终结前变更其主张的权利要求的，人民法院应当准许。　　权利人主张以从属权利要求确定专利权保护范围的，人民法院应当以该从属权利要求记载的附加技术特征及其引用的权利要求记载的技术特征，确定专利权的保护范围。

Article 2. The people's court shall, according to claims records, combined general and technical personnel in this field read the description and drawings after the understanding of the claims to determine the first paragraph of Article 59th of patent law claim under content.
第二条　人民法院应当根据权利要求的记载，结合本领域普通技术人员阅读说明书及附图后对权利要求的理解，确定专利法第五十九条第一款规定的权利要求的内容。

Article 3. The people's court for the claim, can use the description and drawings, the claims related to the book claims, the patent examination of the file for explanations. Description of the right to demand a special definition language, and its specifically defined. By the above method is still not entirely clear meaning of the claims, and can combine books, textbooks, and other literature as well as the public know that general and technical personnel in this area is commonly understood interpretation.　　
第三条　人民法院对于权利要求，可以运用说明书及附图、权利要求书中的相关权利要求、专利审查档案进行解释。说明书对权利要求用语有特别界定的，从其特别界定。　　以上述方法仍不能明确权利要求含义的，可以结合工具书、教科书等公知文献以及本领域普通技术人员的通常理解进行解释。

Article 4. For the right to request the functional effects of expression or the technical characteristics of the people's court should be combined with the description and drawings describe the function or the effect of the specific implementation methods and their equivalent to the implementation of the method to determine the technical characteristics of content.　　
第四条　对于权利要求中以功能或者效果表述的技术特征，人民法院应当结合说明书和附图描述的该功能或者效果的具体实施方式及其等同的实施方式，确定该技术特征的内容。

Article 5. For only in the description or drawings described in the claims are not recorded in the technical program, right in cases of patent infringement disputes, will be included in the scope of patent protection, the people's court not support it.　　
第五条　对于仅在说明书或者附图中描述而在权利要求中未记载的技术方案，权利人在侵犯专利权纠纷案件中将其纳入专利权保护范围的，人民法院不予支持。

Article 6. The patent applicant, the patentee or the invalidation of a patent licensing program, through the claims, specification changes or a statement of opinion and give up the technical program, right in cases of patent infringement disputes in turn included in the scope of patent protection the people's court not support it.　　
第六条　专利申请人、专利权人在专利授权或者无效宣告程序中，通过对权利要求、说明书的修改或者意见陈述而放弃的技术方案，权利人在侵犯专利权纠纷案件中又将其纳入专利权保护范围的，人民法院不予支持。

Article 7. The people's court to determine whether the respondent infringing technology programs fall into the scope of patent protection, should review the claims of the right to argue all the technical features of the record. Respondent infringing technology program contains all of the claims recorded in the same or equivalent technical features of the technical features of the people's court shall identify the scope of protection of their falling into the patent; respondent infringing technology, the technical features of the program and the right to demand records of all technical features compared to the lack of claims recorded in more than one technical features, or have more than one technical characteristics are not the same does not mean that the people's court shall be determined that they are not falling into the scope of patent protection.　　
第七条　人民法院判定被诉侵权技术方案是否落入专利权的保护范围，应当审查权利人主张的权利要求所记载的全部技术特征。　　被诉侵权技术方案包含与权利要求记载的全部技术特征相同或者等同的技术特征的，人民法院应当认定其落入专利权的保护范围；被诉侵权技术方案的技术特征与权利要求记载的全部技术特征相比，缺少权利要求记载的一个以上的技术特征，或者有一个以上技术特征不相同也不等同的，人民法院应当认定其没有落入专利权的保护范围。

Article 8. Design patent products with the same or similar types of products, use and licensing design identical with or similar design, the people's court finds that the defendant should be caught infringing the design patent law under the second paragraph of Article 59th Design Patent of the right to protection.　　
第八条　在与外观设计专利产品相同或者相近种类产品上，采用与授权外观设计相同或者近似的外观设计的，人民法院应当认定被诉侵权设计落入专利法第五十九条第二款规定的外观设计专利权的保护范围。

Article 9. The people's court should be based on the use of exterior design products, determined whether the same or similar product categories. Determine the product's use, can refer to a brief description of the design, the international design classification, product features and product sales, the actual use conditions and other factors.
第九条　人民法院应当根据外观设计产品的用途，认定产品种类是否相同或者相近。确定产品的用途，可以参考外观设计的简要说明、国际外观设计分类表、产品的功能以及产品销售、实际使用的情况等因素。　　

Article 10. The people's court should be based on the design of the patented product the average consumer's level of knowledge and cognitive abilities, to determine whether the same or similar design.
第十条　人民法院应当以外观设计专利产品的一般消费者的知识水平和认知能力，判断外观设计是否相同或者近似　　

Article 11. The people's court finds that the design is the same or similar, it should be mandated design, sued the design infringement design features in order to design integrated to determine the overall visual effect; for the main technical functions determined by design features, as well as on the overall visual effect does not affect the product material, the internal structure characteristics, should not be considered.The following circumstances, usually designs the overall visual effect is more influential:(A) products normally use direct observation to be easily compared with other parts of the site;(B) authorize the design is different from the existing design of the design features in relation to the design authorized by the other design features.Infringing the design and authorized the respondent in the overall visual design were no differences in the people's court shall be determined between the same; in the overall visual effect, no substantive difference, it should be found between the two approximation.　　
第十一条　人民法院认定外观设计是否相同或者近似时，应当根据授权外观设计、被诉侵权设计的设计特征，以外观设计的整体视觉效果进行综合判断；对于主要由技术功能决定的设计特征以及对整体视觉效果不产生影响的产品的材料、内部结构等特征，应当不予考虑。　　下列情形，通常对外观设计的整体视觉效果更具有影响：　　（一）产品正常使用时容易被直接观察到的部位相对于其他部位；　　（二）授权外观设计区别于现有设计的设计特征相对于授权外观设计的其他设计特征。　　被诉侵权设计与授权外观设计在整体视觉效果上无差异的，人民法院应当认定两者相同；在整体视觉效果上无实质性差异的，应当认定两者近似。

Article 12. Would violate the invention or utility model patent products as components to create another product, the people's court shall identify the provisions of Article 11. belongs to the Patent Law the use of behavior; selling the other products, the people's court shall be determined to be the first Patent Law 11 provisions of sales practices.Would violate a design patent products as components to create another product and sell the people's court shall be found belonging to the provisions of the Patent Law Article 11. of the sales practices, but the violation of patent right for design products in the other product only with the exception of technical functions. For the preceding two paragraphs of the case, the defendant infringer division of labor between the people's court shall be recognized as contributory infringement.　　
第十二条　将侵犯发明或者实用新型专利权的产品作为零部件，制造另一产品的，人民法院应当认定属于专利法第十一条规定的使用行为；销售该另一产品的，人民法院应当认定属于专利法第十一条规定的销售行为。　　将侵犯外观设计专利权的产品作为零部件，制造另一产品并销售的，人民法院应当认定属于专利法第十一条规定的销售行为，但侵犯外观设计专利权的产品在该另一产品中仅具有技术功能的除外。对于前两款规定的情形，被诉侵权人之间存在分工合作的，人民法院应当认定为共同侵权。

Article 13. For the use of a patented process to obtain the original product, the people's court shall be recognized as the Patent Law in accordance with provisions of Article 11. patented product directly obtained.For the above-mentioned original product for further processing, treatment and follow-up of products obtained behavior, people's court shall be determined to be the use of patent law in accordance with the provisions of Article 11. of the patented product obtained directly.　　
第十三条　对于使用专利方法获得的原始产品，人民法院应当认定为专利法第十一条规定的依照专利方法直接获得的产品。　　对于将上述原始产品进一步加工、处理而获得后续产品的行为，人民法院应当认定属于专利法第十一条规定的使用依照该专利方法直接获得的产品。

Article 14. Respondent into the scope of patent protection all the technical features, with an existing technology in the program of the same or corresponding technical features no substantive difference in the people's court finds that respondent should be the implementation of the technical part of the infringer 60th Patent Law two provisions of existing technologies.Sued an existing design infringement design and the same or not materially different, the people's court finds that respondent should be designed to implement part of the infringer of patent law provided for in Article Sixty-existing designs.
　第十四条　被诉落入专利权保护范围的全部技术特征，与一项现有技术方案中的相应技术特征相同或者无实质性差异的，人民法院应当认定被诉侵权人实施的技术属于专利法第六十二条规定的现有技术。　　被诉侵权设计与一个现有设计相同或者无实质性差异的，人民法院应当认定被诉侵权人实施的设计属于专利法第六十二条规定的现有设计。　

Article 15. Respondent infringer illegally acquired technology or design ideas with the right to defend before the people's court not support it.One of the following circumstances, the people's court shall be found belonging to the Patent Law 69th section (b) provides that already ready manufacture, use of the necessary preparations for:(A) has completed the implementation of the invention necessary to process the main technical drawings or documents;(B) has been made or purchased to implement the major inventions of the necessary equipment or raw materials.Patent Law 69th section (b) the provisions of the original scope, including patent applications, the production scale of a few days ago and the use of existing production equipment or production preparation according to the existing scale of production can be achieved.First with the right people in the patent application in the future that it has implemented or will be ready to implement the necessary preparations for the transfer of technology or design, or permit others to commit, the defendant infringer to claim that implementation of the acts were within the original scope to continue to implement the people's court did not support , but the technology or design and the original transfer or inheritance of business, except in conjunction.　　

Article 16. Patent Law 65th People's Court pursuant to the provisions of the first paragraph of Article infringer to determine the benefits derived by the infringement, the infringer shall be limited to acts of infringement of patents received benefits; for other benefits arising from the right, it should be a reasonable deduction.Violation of invention, utility model patent right of the product is another product of the parts, the people's court should be based on the value of the parts itself, and in the realization of the role of product profits and other factors to determine a reasonable amount of compensation.A design patent infringement for the packaging of products, the people's court shall, according to the packaging itself was packaged in the realization of the value of its profits from the products in the role of other factors to determine a reasonable amount of compensation.　　
第十五条　被诉侵权人以非法获得的技术或者设计主张先用权抗辩的，人民法院不予支持。　　有下列情形之一的，人民法院应当认定属于专利法第六十九条第（二）项规定的已经作好制造、使用的必要准备：　　（一）已经完成实施发明创造所必需的主要技术图纸或者工艺文件；　　（二）已经制造或者购买实施发明创造所必需的主要设备或者原材料。　　专利法第六十九条第（二）项规定的原有范围，包括专利申请日前已有的生产规模以及利用已有的生产设备或者根据已有的生产准备可以达到的生产规模。　　先用权人在专利申请日后将其已经实施或作好实施必要准备的技术或设计转让或者许可他人实施，被诉侵权人主张该实施行为属于在原有范围内继续实施的，人民法院不予支持，但该技术或设计与原有企业一并转让或者承继的除外。

Article 17. Product or manufacture of products, technical solutions before the date of the patent application known to the public at home and abroad, the people's court shall be satisfied that the product does not belong to the first paragraph of the Patent Law 第六十一条of new products.　　
第十七条　产品或者制造产品的技术方案在专利申请日以前为国内外公众所知的，人民法院应当认定该产品不属于专利法第六十一条第一款规定的新产品。

Article 18. The right to the patent infringement issue a warning to others, being warned in writing by the person or interested person the right to exercise the right of appeal despite warnings from the right to receipt of the written Urgency, or within one month from the date of the written despite warnings from the date of issue of two months, the right to warn people not to withdraw is not filed suit, which was a warning to the people's court or interested party requests confirmation of its behavior is not patent infringement litigation, the people's court shall accept.　　
第十八条　权利人向他人发出侵犯专利权的警告，被警告人或者利害关系人经书面催告权利人行使诉权，自权利人收到该书面催告之日起一个月内或者自书面催告发出之日起二个月内，权利人不撤回警告也不提起诉讼，被警告人或者利害关系人向人民法院提起请求确认其行为不侵犯专利权的诉讼的，人民法院应当受理。

Article 19. Acts of the defendant patent infringement occurred in the October 1, 2009 before the people's court application of patent law before the amendment; took place in October 1, 2009 after the people's court application of the revised patent law. Acts of the defendant patent infringement occurred in the October 1, 2009 prior to and continued until October 1, 2009 since, based on revised pre-and revised the provisions of the Patent Law shall be liable for infringing per capita, the court applied the revised patent law to determine the amount of compensation.　　
第十九条　被诉侵犯专利权行为发生在2009年10月1日以前的，人民法院适用修改前的专利法；发生在2009年10月1日以后的，人民法院适用修改后的专利法。　　被诉侵犯专利权行为发生在2009年10月1日以前且持续到2009年10月1日以后，依据修改前和修改后的专利法的规定侵权人均应承担赔偿责任的，人民法院适用修改后的专利法确定赔偿数额。

Article 20. The Court previously released the relevant judicial interpretations inconsistent with this interpretation, to this interpretation.
第二十条　本院以前发布的有关司法解释与本解释不一致的，以本解释为准。

Patent Law 1984

2009-10-19T00:57:00.000-07:00

PATENT LAW OF THE PEOPLE’S REPUBLIC OF CHINA(Adopted at the Fourth Meeting of the Standing Committee of the Sixth National People’s Congress and promulgated by order No. 11 of the President of the People’s Republic of China on March 12, 1984, and effective as of April 1, 1985)

CONTENTS
CHAPTER I GENERAL PROVISIONS
CHAPTER II CONDITIONS FOR THE GRANT OF PATENT RIGHTS
CHAPTER III APPLICATION FOR PATENTS
CHAPTER IV EXAMINATION AND APPROVAL OF PATENT APPLICATIONS
CHAPTER V TERM, TERMINATION AND INVALIDATION OF PATENT RIGHTS
CHAPTER VI COMPULSORY LICENCE FOR EXPLOITATION OF A PATENT
CHAPTER VII PROTECTION OF PATENT RIGHTS
CHAPTER VIII SUPPLEMENTARY PROVISIONS

CHAPTER I GENERAL PROVISIONS
Article 1. This Law is formulated in order to protect patent rights for invention-creations, encourage invention-creations and facilitate their popularization and application, promote the development of science and technology and meet the needs of the socialist modernization.

Article 2. For the purpose of this Law, " invention-creation " means inventions, utility models and designs.

Article 3. The Patent Office of the People’s Republic of China shall accept and examine patent applications and grant patent rights for invention-creations that conform to the provisions of this Law.

Article 4. If an invention-creation for which a patent is applied involves national security or other vital interests of the state that require secrecy, the matter shall be treated in accordance with the relevant provisions of the state.

Article 5. No patent right shall be granted for any invention-creation that violates the laws of the state, goes against social morals or is detrimental to the public interest.

Article 6. For a job-related invention-creation made by any person in execution of the tasks of the unit to which he belongs or by primarily using the material resources of the unit, the right to apply for a patent shall belong to the unit. For an invention-creation that is not job-related, the right to apply for a patent shall belong to the inventor or designer. After an application is approved, if it was filed by a unit owned by the whole people, the patent right shall be held by such unit; if it was filed by a collectively owned unit or an individual, the patent right shall be owned by such unit or individual. For a job-related invention-creation made by any staff member or worker of a foreign-owned enterprise or a Chinese-foreign equity joint venture within the territory of China, the right to apply for a patent shall belong to the enterprise or joint venture. For an invention-creation that is not job-related, the right to apply for a patent shall belong to the inventor or designer. After the application is approved, the patent right shall be owned by the enterprise, joint venture or individual that applied for it. The owners and holders of patent rights are uniformly referred to herein as " patentees. "

Article 7. No unit or individual may suppress the application of an inventor or designer for a patent in respect of a invention-creation that is not job-related.

Article 8. For an invention-creation made jointly by two or more units, or made by a unit in execution of a commission for research or design given to it by another unit, the right to apply for a patent shall belong, unless otherwise agreed upon, to the unit which made or the units which jointly made the invention-creation. After the application is approved, the patent right shall be owned or held by the unit or units that applied for it.

Article 9. If two or more applicants apply separately for a patent on the same invention-creation, the patent right shall be granted to the person who applied first.

Article 10. The right of patent application and the patent right itself may be assigned. If a unit owned by the whole people wishes to assign a right of patent application or a patent right, it must obtain the approval of the competent authority at the next higher level. If a Chinese unit or individual wishes to assign a right of patent application or a patent right to a foreigner, it or he must obtain the approval of the relevant competent department of the State Council. In cases where a right of patent application or a patent right is assigned, the parties must conclude a written contract, which shall come into force after it is registered with and publicly announced by the Patent Office.

Article 11. After the grant of the patent right for an invention or utility model, no unit or individual may, except as provided for in Article 14 of this Law, exploit the patent without the authorization of the patentee, that is, no unit or individual may manufacture, use or sell the patented product or use the patented process for production or business purposes. After the grant of the patent right for a design, no unit or individual may exploit the patent without the authorization of the patentee, that is, no entity or individual may manufacture or sell products incorporating the patented design for production or business purposes.

Article 12. Except as provided for in Article 14 of this Law, any unit or individual exploiting the patent of another must conclude a written licensing contract with the patentee and pay the patentee a fee for the exploitation of its patent. The licensee shall not have the right to authorize any unit or individual other than that referred to in the contract to exploit the patent.

Article 13. After the application for an invention patent has been publicly announced, the applicant may require the units or individuals exploiting the invention to pay an appropriate fee.

Article 14. The relevant competent departments of the State Council and the people’s governments of provinces, autonomous regions, and municipalities directly under the Central Government shall, in accordance with the state plan, have the power to permit designated units to exploit important invention-creation patents held by units owned by the whole people under the organizational system or jurisdiction of these departments and governments. The units exploiting such patents shall, in accordance with state provisions, pay an exploitation fee to the unit holding the patent right. If patents held by Chinese individuals or collectively owned units are of great significance to the interests of the state or the public and need to be applied on an extended scale, the matter shall be handled by the relevant competent department of the State Council according to the provisions of the preceding paragraph, after reporting to the State Council and obtaining its approval.

Article 15. The patentee shall have the right to affix a patent marking and indicate the patent number on the patented product or on the packaging of that product.

Article 16. The unit owning or holding the patent right on a job-related invention-creation shall reward the inventor or designer and shall, upon exploitation of the patented invention-creation, reward the inventor or designer in accordance with the scope of its application and the economic benefits derived.

Article 17. An inventor or designer shall have the right to name himself as such in the patent document.

Article 18. If a foreigner, foreign enterprise or other foreign organization having no regular residence or place of business in China files an application for a patent in China, the application shall be handled under this Law in accordance with any agreement concluded between the country to which the applicant belongs and China, or any international treaty to which both countries are parties, or on the basis of the principle of reciprocity.

Article 19. If a foreigner, foreign enterprise or other foreign organization having no regular residence or place of business in China applies for a patent or has other patent matters to attend to in China, he or it shall entrust a patent agency designated by the State Council of the People’s Republic of China to act on his or its behalf. If any Chinese unit or individual applies for a patent or has other patent matters to attend to in the country, it or he may entrust a patent agency to act on its or his behalf.

Article 20. If a Chinese unit or individual intends to file an application in a foreign country for a patent on an invention-creation completed in China, it or he shall first file an application for patent with the Patent Office and shall, with the sanction of the relevant competent department of the State Council, entrust a patent agency designated by the State Council to act on its or his behalf.

Article 21. Until the publication or public announcement of a patent application, staff members of the Patent Office and persons involved shall have the duty to keep the contents of the patent application confidential.

CHAPTER II CONDITIONS FOR THE GRANT OF PATENT RIGHTS
Article 22. Any invention or utility model for which a patent right may be granted must possess the characteristics of novelty, inventiveness and usefulness. " Novelty " means that, before the filing date of the application, no identical invention or utility model has been publicly disclosed in domestic or foreign publications or has been publicly used or made known to the public by any other means in the country, nor has any other person previously filed with the Patent Office an application describing an identical invention or utility model which was recorded in patent application documents published after the said date of filing. " Inventiveness " means that, compared with the technology existing before the filing date of the application, the invention has prominent and substantive distinguishing features and represents a marked improvement, or the utility model possesses substantive distinguishing features and represents an improvement. " Usefulness " means that the invention or utility model is manufacturable or usable and can produce positive results.

Article 23. Any design for which a patent right may be granted must not be identical with or similar to any design which, before the filing date of the application, has been publicly disclosed in domestic or foreign publications or has been publicly used within the country.

Article 24. Any invention-creation for which a patent is applied shall not lose its novelty if, within six months before the filing date of the application, one of the following events has occurred: (1) it was exhibited for the first time at an international exhibition sponsored or recognized by the Chinese Government; (2) it was made public for the first time at a prescribed academic or technical conference; or (3) it was disclosed by any person without the consent of the applicant.

Article 25. No patent right shall be granted for any of the following: (1) scientific discoveries; (2) rules and methods for mental activities; (3) methods for the diagnosis or treatment of diseases; (4) foods, beverages and condiments; (5) pharmaceutical products, and substances obtained by means of a chemical process; (6) animal and plant varieties; and (7) substances obtained by means of nuclear fission. For the processes used in the manufacturing of the products listed in items (4) to (6) of the preceding paragraph, a patent right may be granted in accordance with the provisions of this Law.

CHAPTER III APPLICATION FOR PATENTS
Article 26. When a patent application is filed for an invention or a utility model, relevant documents shall be submitted, including a written request, a specification and an abstract thereof, and a patent claim. The written request shall state the title of the invention or utility model, the name of the inventor or designer, the name and address of the applicant and other related matters. The specification shall describe the invention or utility model in a manner sufficiently clear and complete so that a person skilled in the relevant field of technology can accurately produce it; where necessary, drawings shall be appended. The abstract shall describe briefly the technical essentials of the invention or utility model. The patent claim shall, on the basis of the specification, state the scope of the patent protection requested.

Article 27. When a patent application is filed for a design, relevant documents shall be submitted, including a written request and drawings or photographs of the design; the product on which the design is to be used and the category of that product shall also be indicated.

Article 28. The date on which the Patent Office receives the patent application documents shall be the filing date of the application. If the application documents are sent by mail, the postmark date shall be the filing date of the application.

Article 29. If a foreign applicant applies for a patent in China within 12 months from the date on which it first filed an application in a foreign country for a patent on the same invention or utility model, or within six months from the date on which it first filed an application in a foreign country for a patent on the same design, it may enjoy a right of priority in accordance with any agreement concluded between the country to which it belongs and China, or any international treaty to which both countries are parties, or on the basis of the principle of mutual recognition of the right of priority, that is, the date on which the application was first filed in the foreign country shall be regarded as the filing date of the application. If one of the events listed in Article 24 of this Law has occurred before an applicant claims a right of priority, the period of the right of priority shall be counted from the date on which that event occurred.

Article 30. An applicant who claims a right of priority shall make a written declaration at the time of application, indicating the date of filing of the earlier application in a foreign country and the specific country in which that application was accepted, and it shall submit within three months copies of the application documents certified by the agency that accepted the application in the foreign country; if the applicant fails to make the written declaration or meet the time limit for submitting the documents, the claim to the right of priority shall be deemed not to have been made.

Article 31. Each patent application for an invention or a utility model should be limited to a single invention or utility model. Two or more inventions or utility models belonging to a single inventive concept may be submitted together in one application. Each patent application for a design should limited to a single design used on one type of product. Two or more designs used on products belonging to a single category and sold or used in sets may be submitted together in one application.

Article 32. An applicant may withdraw its patent application at any time before the patent right is granted.

Article 33. An applicant may amend its patent application documents, but the amendments may not go beyond the scope of what was recorded in the original specifications.

CHAPTER IV EXAMINATION AND APPROVAL OF PATENT APPLICATIONS
Article 34. If, after receiving an application for an invention patent, the Patent Office finds upon preliminary examination that the application conforms with the requirements of this Law, it shall publish the application within 18 months from its filing date. Upon the request of the applicant, the Patent Office may publish the application at an earlier date.

Article 35. Upon the applicant’s request for an invention patent made at any time within three years from the filing date of an application, the Patent Office may carry out substantive examination of that application. If, without any justified reason, the applicant fails to meet the time limit for requesting such substantive examination, the application shall be deemed to have been withdrawn. The Patent Office may of its own accord carry out substantive examination of an application for an invention patent when it deems it necessary.

Article 36. When requesting substantive examination of an invention patent application, the applicant shall furnish reference materials concerning the invention that were available prior to the filing date of the application. When an applicant requests substantive examination of his application for an invention patent after he has applied in a foreign country for a patent on the same invention, he shall furnish documents from any investigations made in the foreign country for the purpose of examining that application, or documents stating the results of that examination. If, without any justified reason, the said documents are not furnished, the application shall be deemed to have been withdrawn.

Article 37. If, after completing the substantive examination of an invention patent application, the Patent Office finds that the application does not conform with the provisions of this Law, it shall notify the applicant and ask it to state its observations or amend the application within a specified time limit. If, without any justified reason, the applicant fails to respond within the time limit, the application shall be deemed to have been withdrawn.

Article 38. If, after the applicant has stated its observations or made amendments, the Patent Office still finds that the invention patent application does not conform with the provisions of this Law, it shall reject the application.

Article 39. If, after completing the substantive examination of an invention patent application, the Patent Office finds no cause for rejection, it shall make a decision, publicly announce it and notify the applicant.

Article 40. If, after receiving an application for a utility model patent or a design patent, the Patent Office finds upon preliminary examination that the application conforms with the requirements of this Law, it shall not carry out substantive examination of the application but shall immediately make a public announcement and notify the applicant.

Article 41. Within three months from the date of the public announcement of a patent application, any person may, in accordance with the provisions of this Law, file with the Patent Office an opposition to that application. The Patent Office shall send a copy of the opposition to the applicant, and the applicant shall respond in writing within three months from the date of receiving the copy. If, without any justified reason, the applicant fails to submit a written response within the time limit, the application shall be deemed to have been withdrawn.

Article 42. If after examination the Patent Office finds that the opposition is justified, it shall make a decision to reject the application and shall notify the opponent and the applicant.

Article 43. The Patent Office shall set up a Patent Re-examination Board. If an applicant disagrees with the Patent Office’s decision to rejecting its application, it may, within three months from the date of receiving notification of the decision, request the Patent Re-examination Board to make a re-examination. The Patent Re-examination Board shall, after re-examination, make a decision and notify the applicant. If the applicant for an invention patent disagrees with the decision of the Patent Re-examination Board to reject its request for re-examination, it may, within three months from the date of receiving notification of the decision, file a suit in a people’s court. The decision of the Patent Re-examination Board on any re-examination requested by the applicant concerning a utility model or design shall be final.

Article 44. If there is no opposition to a patent application or, if after examination the opposition is found unjustified, the Patent Office shall make a decision to grant the patent right, issue the patent certificate and register and publicly announce the relevant matters.

CHAPTER V TERM, TERMINATION AND INVALIDATION OF PATENT RIGHTS
Article 45. The term of the patent right for inventions shall be 15 years, counted from the filing date of the application. The term of the patent right for utility models or designs shall be five years, counted from the filing date of the application. Before the expiration of the said term, the patentee may apply for an extension of three years. Where a patentee enjoys a right of priority, the term of the patent right shall be counted from the date on which the application was filed in China.

Article 46. The patentee shall pay an annual fee beginning with the year in which its patent right is granted.

Article 47. In either of the following cases, the patent right shall be terminated prior to the expiration of its term: (1) if the annual fee is not paid as prescribed; or (2) if the patentee renounces its patent right by a written declaration. The termination of a patent right shall be registered and publicly announced by the Patent Office.

Article 48. After the grant of a patent right, any unit or individual that considers the grant of the said patent right not in conformity with the provisions of this Law may request the Patent Re-examination Board to declare the patent right invalid.

Article 49. The Patent Re-examination Board shall examine the request for invalidation of a patent right, make a decision and notify the party who made the request and the patentee. Any decision declaring a patent right invalid shall be registered and publicly announced by the Patent Office. If any party disagrees with a decision of the Patent Re-examination Board either invalidating or upholding the patent right for an invention, it may, within three months after receiving notification of the decision, file a suit in a people’s court. The decision of the Patent Re-examination Board on a request to invalidate the patent right for a utility model or design shall be final.

Article 50. A patent right that has been invalidated shall be deemed to have been nonexistent from the outset.

CHAPTER VI COMPULSORY LICENCE FOR EXPLOITATION OF A PATENT
Article 51. The patentee itself shall have the obligation to manufacture the patented product or use the patented process in China, or it shall authorize other persons to manufacture the patented product or use the patented process in China.

Article 52. If, three years after the date of the grant of a patent right, the patentee of an invention or utility model has failed, without any justified reason, to fulfil the obligation set forth in Article 51 of this Law, the Patent Office may, upon the request of a unit possessing the means to exploit the invention or utility model, grant a compulsory licence to exploit the patent.

Article 53. If a patented invention or utility model is technically more advanced than another invention or utility model that was patented earlier and the exploitation of the later invention or utility model is dependent on the exploitation of the earlier invention or utility model, the Patent Office may, upon the application of the later patentee, grant a compulsory licence to exploit the earlier invention or utility model. If a compulsory licence has been granted in accordance with the provisions of preceding paragraph, the Patent Office may, upon the application of the earlier patentee, also grant a compulsory licence to exploit the later invention or utility model.

Article 54. Any unit or individual applying for a compulsory licence in accordance with the provisions of this Law shall furnish proof that it or he has not been able to conclude a licensing contract on reasonable terms with the patentee.

Article 55. Any decision made by the Patent Office granting a compulsory licence shall be registered and publicly announced.

Article 56. Any unit or individual that is granted a compulsory licence shall not have an exclusive right to exploit the patent in question, nor shall it or he have the right to authorize exploitation of the patent by others.

Article 57. Any unit or individual that is granted a compulsory licence shall pay the patentee a reasonable exploitation fee. The amount of the fee shall be decided by both parties through consultation. If the parties fail to reach an agreement, the Patent Office shall make a ruling.

Article 58. If a patentee disagrees with the decision of the Patent Office granting a compulsory licence or with its ruling regarding the exploitation fee, it may, within three months from receiving notification of the decision, file a suit in a people’s court.

CHAPTER VII PROTECTION OF PATENT RIGHTS
Article 59. The scope of protection in the patent right for an invention or a utility model shall be determined by the contents of the patent claim. The specification and appended drawings may be used to interpret the patent claim. The scope of protection in the patent right for a design shall be determined by the product incorporating the patented design as shown in the drawings or photographs.

Article 60. If any acts of infringement arise from the exploitation of a patent without the authorization of the patentee, the patentee or interested parties may request the patent administrative authorities to handle the matter or may directly file a suit in a people’s court. In handling the matter, the patent administrative authorities shall have the power to order the infringer to stop the acts of infringement and compensate for the losses. Any party dissatisfied with the order may, within three months from receiving notification of it, file a suit in a people’ shall have the power to order the infringer to stop the acts of infringement and compensate for the losses. Any party dissatisfied with the order may, within three months from receiving notification of it, file a suit in a people’s court. If, at the expiration of such period, the party has neither filed a suit nor complied with the order, the patent administrative authorities may approach the people’s court for compulsory enforcement of the order. When an infringement dispute arises, if the patented invention is a manufacturing process for a product, the unit or individual manufacturing the similar product shall furnish proof of its manufacturing process.

Article 61. The period of limitation for filing a suit concerning the infringement of a patent right shall be two years, counted from the day on which the patentee or the interested parties become aware or should become aware of the act of infringement.

Article 62. None of the following shall be deemed an infringement of a patent right: (1) use or sale of a patented product after it has been manufactured by the patentee or with the authorization of the patentee and subsequently sold; (2) use or sale of a patented product without knowledge of it having been manufactured and sold without the authorization of the patentee; (3) continued manufacture or use of a similar product, only within its original scope, by a party that, prior to the date of application for the patent in question, had already manufactured that similar product, used the same process or made the necessary preparations for such manufacture or use; (4) use of the patent in question by a foreign means of transport which temporarily passes through the territorial land, water or airspace of China for its own needs, in its devices and installations, in accordance with any agreement concluded between China and the country to which the foreign means of transport belongs, or any international treaty to which both countries are parties, or on the basis of the principle of reciprocity; or (5) use of the patent in question solely for the purposes of scientific research and experimentation.

Article 63. Whoever counterfeits the patent of another person shall be dealt with in accordance with Article 60 of this Law. If the circumstances are serious, the criminal liability of the person directly responsible shall be investigated by applying mutatis mutandis Article 127 of the Criminal Law.

Article 64. Whoever, in violation of the provisions of Article 20 of this Law, files in a foreign country an application for a patent without authorization, divulging an important state secret, shall be given administrative sanctions by the unit to which he belongs or by the competent authority at the next higher level. If the circumstances of the case are serious, his criminal liability shall be investigated in accordance with the law.

Article 65. Whoever usurps the right of an inventor or designer to apply for a patent on an invention-creation that is not job-related, or usurps any other right or interest of an inventor or designer prescribed by this Law, shall be given administrative sanctions by the unit to which he belongs or by the competent authority at the next higher level.

Article 66. If any staff member of the Patent Office or any of the relevant state functionaries engages in malpractices for the benefit of friends, he shall be given administrative sanctions by the Patent Office or the competent authority concerned. If the circumstances are serious, criminal liability shall be investigated by applying mutatis mutandis Article 188 of the Criminal Law.

CHAPTER VIII SUPPLEMENTARY PROVISIONS
Article 67. For patent applications filed with the Patent Office and other procedures carried out there, fees shall be paid as prescribed.

Article 68. Rules for the implementation of this Law shall be formulated by the Patent Office and shall be submitted to the State Council for approval before they are put into effect.

Article 69. This Law shall go into effect on April 1, 1985.

Decision of the Standing Committee of the NPC on Amending Patent Law 2008

2009-09-17T23:32:00.000-07:00

Order of the President of the People’s Republic of China
(No.8)

The Decision of the Standing Committee of the National People’s Congress on Amending the Patent Law of the People’s Republic of China, which was adopted at the 6th Session of Standing Committee of the 11th National People’s Congress of the People’s Republic of China on December 27, 2008, is hereby promulgated and shall come into force as of October 1, 2009.

President of the People’s Republic of China Hu Jintao
December 27, 2008

Decision of the Standing Committee of the National People’s Congress on Amending the Patent Law of the People’s Republic of China
(Adopted at the 6th Session of Standing Committee of the 11th National People’s Congress of the People’s Republic of China on December 27, 2008)

It is decided at the 6th Session of Standing Committee of the 11th National People’s Congress of the People’s Republic of China that the following amendments are made to the Patent Law of the People’s Republic of China:

1. Article 1 is amended as: “This law is enacted with a view to protecting the legitimate rights and interests of patentees, encouraging inventions, giving an impetus to the application of inventions, improving the innovative capabilities, and promoting scientific and technological progress as well as the economic and social development.”

2. Three paragraphs (paragraphs 2 through 4) are added in Article 2: “The term “invention” refers to any new technical solution relating to a product, a process or an improvement thereof.
“The term “utility model” refers to any new technical solution relating to a product’s shape, structure, or a combination thereof, which is fit for practical use.
“The term “design” refers to any new design of a product’s shape, pattern or a combination thereof, as well as the combination of the color and the shape or pattern of a product, which creates an aesthetic feeling and is fit for industrial application.”

3. Article 5 is amended as: “No patent shall be granted for an invention that contravenes any law or social morality or that is detrimental to public interests.
“No patent will be granted for an invention based on genetic resources if the access or utilization of the said genetic resources is in violation of any law or administrative regulation.”

4. One paragraph is inserted in Article 9 as paragraph 1: “One patent shall be granted to one invention. However, if the same applicant applied for both the patent for utility model and the patent for invention on a same day, if the patent for the utility model has not terminated yet and if the applicant declares to waive the patent for utility model, the patent for invention can be granted.”

5. Paragraph 2 of Article 10 is amended as: “Where a Chinese entity or individual is to assign the right to apply for a patent or a patent right to a foreigner or foreign enterprise or any foreign organization, it or he shall go through the formalities under relevant laws and administrative regulations.”
6. Paragraph 2 of Article 11 is amended as: “After the granting of a patent for a design, no entity or individual shall, without permission of the patentee, exploit the patent, that is to say, they shall not make, promise to sell, sell, or import the product incorporating its or his patented design, for production and business purposes.”
7. Article 12 is amended as: “Where an entity or individual exploits the patent of others, it or he shall conclude a licensing contract with the patentee and pay a patent royalty to the patentee. The licensee has no right to license any entity or individual other than the entity or individual as stipulated in the licensing contract to exploit the said patent”.

8. Paragraph 2 of Article 14 is deleted.

9. One article shall be added as Article 15: “If there is any agreement between the joint owners of the right to apply for a patent or a patent right regarding the exercise of the relevant right, the agreement shall be followed. If there is no such agreement, any of the joint owners may exploit the patent independently or license others to exploit the patent by means of ordinary license. In the case of licensing others to exploit the patent, royalties charged shall be distributed among the joint owners.

“Except for the circumstance as described in the preceding paragraph, the exercise of the right to apply for a patent or a patent right shall be based on the consensus of all joint owners.”

10. Articles 15 and 17 are combined as Article 17: “An inventor or designer has the right to expressly indicate in the patent documents that he is the inventor or designer.
“A patentee has the right to put a clear patent sign on its patented product or on the package of the said product.”

11. Paragraph 1 of Article 19 is amended as: “Where a foreigner, foreign enterprise or any other foreign organization that has no habitual abode or business office in China intends to apply for a patent or handle other patent-related matters in China, he or it shall authorize a legitimately formed patent agency to act as his or its agent.”
Paragraph 2 is amended as: “To apply for a patent or handle other patent-related matters in China, a Chinese entity or individual may authorize a legitimately formed patent agency to act as its or his agent.”

12. Paragraph 1 of Article 20 is amended as: “Where an entity or individual intends to file an application in a foreign country for a patent for an invention or utility model accomplished in China, it or he shall report in advance to the patent administrative department of the State Council for confidentiality review. The provisions of the State Council shall be followed in regard to the procedures and time limit for the confidentiality review.”

One paragraph is added as paragraph 4: As to an invention or utility model for which a patent application is filed in a foreign country by violating the provision of paragraph 1 of this Article, no patent will be granted for it if a patent application is filed in China.

13. One paragraph is added in Article 21 as paragraph 2: “The patent administrative department of the State Council shall completely, accurately and timely announce the patent information and regularly publish patent gazettes.”

14. Paragraph 2 of Article 22 is amended as: “Novelty means that the invention or utility model is not an existing technology, and prior to the date of application, no entity or individual has filed an application heretofore with the patent administrative department of the State Council for the identical invention or utility model and recorded it in the patent application documents or patent documents released after the said date of application.”
Paragraph 3 is amended as: “Inventiveness means, as compared with the existing technologies, the invention has prominent substantive features and notable progress and that the utility model has substantive features and progress.”
One paragraph is added as paragraph 5: “The term “existing technology” as mentioned in this Law refers to the technologies known to the general public both at home and abroad prior to the date of application.”

15. Article 23 is amended as: “Any design for which a patent right is granted shall not be attributed to the existing design, and no entity or individual, before the date of application, filed an application with the patent administrative department of the State Council on the identical design and recorded it in the patent documents published after the date of application.
“As compared with the existing design or combination of the existing design features, the design for which a patent is granted shall have distinctive features.
The patented design may not conflict with the lawful rights that have been obtained by any other person prior to the date of application.
The term “existing design” as used in this Law refers to a design known to the general public both at home and abroad prior to the date of application.”

16. One item is inserted in paragraph 1 of Article 25 as subparagraph (6): “the design, which is used primarily for the identification of pattern, color or the combination of the two on printed flat works.”

17. Paragraph 2 of Article 26 is amended as: “An application shall expressly specify the name of the invention or utility model, name of the inventor, name and address of the applicant, and other matters.”
Paragraph 4 is amended as: “The claims shall clearly and concisely state the requested patent protection scope in accordance with the specifications.”

One paragraph is added as paragraph 5: “For an invention based on genetic resources, the applicant shall state the direct source and the original source of the genetic resources in the application documents. If the applicant is not able to state the original source, it or he shall state the reasons.”

18. Article 27 is amended as: “To apply for a patent for a design, the applicant shall submit an application, pictures or photos of the design, a brief introduction to the design, and other documents.
“The relevant pictures or photos submitted by the applicant shall clearly show the product’s design for which the patent protection is requested.”

19. Paragraph 2 of Article 31 is amended as: “An application for a design patent shall be limited to one design. As to two or more similar designs for the same product or for products which fall into the same class and are sold or used in sets, an application for one design may be filed.”

20. Paragraph 2 of Article 47 is amended as: “The decision on invalidating a patent right shall, prior to the invalidation of the patent right, have no retroactive effect on any judgment or mediation document on patent infringement which has been made and enforced by the people’s court, on any implemented or compulsorily enforced decision concerning the settlement of a dispute over patent infringement, or on any performed contract for license of patent exploitation or for assignment of patent right. However, the patentee shall compensate for the damages it or he has maliciously caused to others.”

Paragraph 3 is amended as: “Where, in accordance with the provisions of the preceding paragraph, the fact that no patent infringement compensation, no royalty for the exploitation of the patent or no patent assignment fee is refunded is obviously contrary to the principle of fairness, it shall be totally or partially refunded.”

21 Article 48 is amended as: “Under any of the following circumstances, the patent administrative department of the State Council may, upon the application of an eligible entity or individual, grant it or him a compulsory license to exploit the patent for an invention or utility model:
1. The patentee, after the lapse of 3 full years from the date patent is granted and after the lapse of 4 full years from the date when a patent application is filed, fails to exploit or to fully exploit its or his patent without any justifiable reason; or
2. The patentee’s act of exercising the patent rights is determined as a monopolizing act and it is to eliminate or reduce the adverse consequences of the said act on competition.”

22. One article is added as Article 50: “For the purpose of public health, the patent administrative department of the State Council may grant a compulsory license for a patented medicine so as to produce and export it to the country or region which conforms to the provisions of the relevant international treaty to which the People’s Republic of China has acceded.”

23. One article is added as Article 52: “Where the invention involved in the compulsory license is a semi-conductor technology, the exploitation of the compulsory license shall be limited only to public interests and the circumstance as described in Article 48 (2) of this Law.”

24. One article is added as Article 53: “Besides the circumstances as described in Article 48 (2) and Article 50 of this Law in which a compulsory license is granted, the exploitation of a compulsory license shall be implemented primarily for supplying the domestic market.”

25. Article 51 is changed to Article 54 and is amended as: “An entity or individual who applies for a compulsory license under Article 48 (1) or Article 51 of this Law shall furnish evidence that can prove that it or he has requested the patentee for a license to exploit its or his patent on reasonable terms but failed to obtain such a license within a reasonable time.”

26. Article 54 is changed to Article 57 and is amended as: “The entity or individual that is granted a compulsory license for exploitation shall pay to the patentee a reasonable royalty or deal with the royalty issue under the relevant international treaties to which the People’s Republic of China has acceded. If a royalty is to be paid, the amount of the royalty shall be decided by both parties upon negotiation. If the parties fail to reach an agreement, the issue shall be settled by the patent administrative department of the State Council.”

27. Article 56 is changed to Article 59 and is amended as: “The scope of protection of the patent for an invention or utility model shall be that as specified in the claims. The specifications and the appended pictures may be used to interpret the claims.

The scope of protection of the patent for a design shall be determined by the product incorporating the patented design as shown in the drawings or photographs, the brief introduction may be used for introducing the patented design as shown in the pictures or photos.”

28. Paragraph 2 of Article 57 is changed to Article 61 and is amended as: “Where any dispute over patent infringement involves a patent for invention for the manufacturing process of a new product, the entity or individual manufacturing the identical product shall provide proof on the difference of its own process used in the manufacture of its product from the patented process.

“Where any dispute over patent infringement involves a patent for utility model or design, the people’s court or the patent administrative department may require the patentee or the interested parties to present a patent assessment report issued by the patent administrative department of the State Council, after the retrieval, analysis and assessment of the pertinent utility model or design, as a proof for trying and settling the dispute over patent infringement.”

29. One Article is added as Article 62: “In a dispute over patent infringement, if the accused infringer has evidence to prove that the technology or design it or he exploits is an existing technology or design, no patent infringement is constituted.”

30. Articles 58 and 59 are combined into Article 63 and amended as: “Whoever counterfeits the patent of anyone else shall, in addition to bearing the civil liabilities in accordance with the law, be ordered by the patent administrative department to make a correction and be announced by the patent administrative department; its or his illegal gains, if any, shall be confiscated, and it or he may be fined up to three times the illegal gains. If there is no illegal gain, it or he may be fined up to 200, 000 Yuan. If any crime is constituted, it or he shall be subject to criminal liabilities according to law.”

31. One article is added as Article 64: “When the patent administrative department investigates into and deals with a suspected counterfeit patent case on the basis of the evidence it has already gathered, it may query the relevant parties so as to find the information relevant to the suspected violation, may conduct an on-site inspection over the site of party suspected of having committed the violation, may consult and copy the contracts, invoices, account books and other materials relating to the suspected violation, may check the products relating to the suspected violation, and may seal up or detain the counterfeit patented product as proved by evidence.

“When the patent administrative department exercises the functions as prescribed in the preceding paragraph according to law, the parties shall assist and cooperate with it and shall not reject or hamper it.”

32. Article 60 is changed to Article 65 and amended as: “The amount of compensation for a patent infringement shall be determined on the basis of the actual losses incurred to the patentee as a result of the infringement. If it is difficult to determine the actual losses, the actual losses may be determined on the basis of the gains which the infringer has obtained from the infringement. If it is difficult to determine the losses incurred to the patentee or the gains obtained by the infringer, an amount shall be reasonably determined by reference to the multiple of the royalties for this patent. In addition, the compensation amount shall include the reasonable expenses that the patentee has paid for stopping the infringement.

“If it is difficult to determine the losses incurred to the patentee, the gains obtained by the infringer as well as the royalty for the patent, the people’s court may, by taking into account such factors as the type of patent, nature and particulars of the infringement, etc., decide a compensation in the sum of not less than 10, 000 yuan but not more than 1 million yuan.

33. Article 61 is changed to Article 66 and amended as: “Where a patentee or interested party has evidence to prove that someone else is committing or is going to commit an infringement upon the patent right, and its (his) lawful rights and interests will be damaged and are difficult to be remedied if the said infringement is not stopped in time, it or he may, prior to initiating a lawsuit, apply to the people’s court for taking such measures as ordering the stop of the relevant act.

“When an applicant files an application, it shall provide a guarantee. If it or he fails to do so, the application shall be rejected.

“The people’s court shall make a ruling within 48 hours as of its acceptance of an application. If it is necessary to extend the time limit in a special circumstance, the time limit may be extended for up to 48 hours. If a ruling is made to stop the relevant act, it shall be executed immediately. If any party refuses to accept the ruling, it (he) may apply for one review. The execution of the ruling is not suspended during the process of review.

“If the applicant fails to lodge a lawsuit within 15 days after it takes such measures as ordering the stop of the relevant act, the people’s court shall lift the said measure.

“Where there are errors in an application, the applicant shall compensate the party against whom an application is filed for the losses caused by the stop of the relevant act.”

34. One article is added as Article 67: “To stop a patent infringement, the patentee or any interested party may apply to the people’s court for preserving the evidence when such evidence is likely to be destroyed and hard to be obtained again.

“The people’s court may order the applicant to provide a guarantee for the preservation. If the applicant fails to do so, its or his application shall be rejected.

The people’s court shall make a ruling within 48 hours after it accepts an application. If it makes a ruling on preserving the evidence, the ruling shall be executed immediately.

If the applicant fails to initiate a lawsuit within 15 days after the people’s court has taken the measure of preserving the evidence, the people’s court shall terminate the said measure.

35. Paragraph 1 of Article 63 is changed to Article 69, subparagraph (1) is amended as: “the use, promise to sell, sell or import of the patented product or product directly obtained under the patented process after the said product is sold by the patentee or by its (his) licensed entity or individual;”

One item is added as item (5): “for the purpose of providing the information as required for administrative examination and approval, the production, use or import of patented medicine or patented medicinal equipment as well as the patented medicine or patented medicinal equipment produced or imported exclusively for the said purpose.”

36. Paragraph 2 of Article 63 is changed to Article 70 and amended as: “Whoever uses or sells a patented product without knowing that the product was produced and sold without permission of the patentee or a product directly obtained from a patented process for the purpose of production and business operation is not required to bear the liabilities for compensation provided that it or he can prove that the product is obtained from a legal source.”

This Decision shall be implemented as of October 1, 2009.

The Patent Law of the Peoples’ Republic of China shall be re-promulgated after the corresponding amendments are made and after the sequential order of its articles is adjusted according to this Decision.

Administrative Measures for the Safety of Places of Origin of Agricultural Products

2009-07-14T06:02:00.000-07:00

Order of the Ministry of Agriculture
(No. 71)

The Administrative Measures for the Safety of Places of Origin of Agricultural Products, which were adopted at the 25th executive meeting of the Ministry of Agriculture on September 30, 2006, are hereby promulgated and shall come into force as of November 1, 2006.

Minister Du Qinglin

October 17, 2006

Administrative Measures for the Safety of Places of Origin of Agricultural Products
Chapter I General Provisions

Article 1 For the purposes of strengthening the administration of places of origin of agricultural products, improving the conditions of the places of origin and ensuring the safety of places of origin, these Measures are formulated in accordance with the Law of the People’s Republic of China on Agricultural Product Quality Safety.

Article 2 The term “places of origin of agricultural products” refers to the relevant regions, in which the plants, animals and microbes as well as their products are produced.

The term “safety of places of agricultural products” means that the quality of the soil, water body and atmosphere environment of the places of origin of agricultural products meet the requirements for the production of agricultural products of safe quality.

Article 3 The Ministry of Agriculture shall be responsible for the supervision and administration of the safety of places of origin of agricultural products.

The agriculture administrative departments of the people’s governments at the county level and above shall be responsible for the demarcation, supervision and administration of the places of origin of agricultural products within their respective administrative area.

Chapter II Monitoring and Evaluation of Places of Origin

Article 4 An agriculture administrative department of the people’s government at the county level or above shall establish a sound system of monitoring the safety of places of origin of agricultural products, intensify the investigation, monitoring and evaluation of the safety of places of origin of agricultural products, work out annual reports on the status and development trend of the safety of places of origin of agricultural products and submit the said reports to the agriculture administrative department of the next higher level for archival purposes.

Article 5 An agriculture administrative department of the people’s government at the province level or above shall set up state-level and province-level monitoring points in the following areas so as to monitor the dynamic changes of the safety of places of origin of agricultural products and direct the administration and production of the safety of places of origin of agricultural products.
(1)The production areas of agricultural products around industrial and mining enterprises;
(2)The sewage irrigation areas;
(3)The production areas of agricultural products in suburbs of big and medium cities;
(4)The production areas of important agricultural products; and
(5)Other areas necessary to be monitored.

Article 6 The technical norms such as the relevant national standards shall be observed in the investigation, monitoring and evaluation of the safety of places of origin of agricultural products.

The establishment, change and revocation of a monitoring point shall be subject to expert evaluation.

Article 7 An agriculture administrative department at the county level or above shall strengthen the collection of information about the safety of places of origin of agricultural products and shall establish complete monitoring archives of the safety of places of origin of agricultural products.

The monitoring archives shall exactly record the changes of the status of the safety of places of origin of agricultural products and shall preserve such records for a long time.

Chapter III Demarcation and Adjustment of Prohibited Production Areas

Article 8 If the toxic and harmful substances in a place of origin of agricultural products do not meet the standards on the safety of places of origin and if they cause that the toxic and harmful substances in the agricultural products do not meet the agricultural product quality safety standards, it shall be demarcated as a prohibited agricultural product production area.

An areas prohibited to produce edible agricultural products may produce non-edible agricultural products.

Article 9 In case of the circumstance as mentioned in Article 8 of these Measures, the agriculture administrative department of the people’s government at the county level or above shall put forward a suggestion on the demarcation of prohibited production area and shall submit it to the agriculture administrative department at the province level. The agriculture administrative department at the province level shall organize an expert evaluation, and report the following materials to the people’s government for approval and make an announcement upon approval.
(1)The monitoring result of the safety of place of origin and the testing result of agricultural products;
(2)The report on the monitoring and evaluation of the safety of place of origin, including analyses of the pollution causes, pertinence between the place of origin and the agricultural product pollution, evaluation method and conclusion;
(3)The report of expert evaluation; and
(4)The suggestions on the agricultural production structure and the relevant settlement measures.

Article 10 After the demarcation of a prohibited production area, the nature of the cultivation land or basic farm shall not be changed. The compensation standards on the requisition of farm land shall not be lowered.

Article 11 The agriculture administrative department of the people’s government at the county level shall erect a signpost in a prohibited production area, which shall indicate the location of the prohibited production area, boundaries, area, types of agricultural products prohibited to be produced, main pollutants, approval entity, date of erection of the signpost, etc.

No entity or individual may illegally move away or destroy any signpost.

Article 12 After the safety status of prohibited production area is improved and meets the relevant standards, the agriculture administrative department of the people’s government at the county level or above shall timely put forward an adjustment suggestion.

The adjustment of a prohibited production area shall be made in accordance with Article 9 of these Measures. Where a prohibited production area is adjusted, the content of the signpost shall be changed or the signpost shall be removed.

Article 13 An agriculture administrative department of the people’s government at the county level or above shall timely submit the results of demarcation and adjustment of the prohibited agricultural product production areas within its administrative area to the Ministry of Agriculture for archival purposes.

Chapter IV Protection of Places of Origin

Article 14 An agriculture administrative department of the people’s government at the county level or above shall popularize the clean production technologies and methods and develop dynamic agriculture.

Article 15 An agriculture administrative department of the people’s government at the county level or above shall work out a plan on the pollution prevention and protection of places of origin of agricultural products and integrate it into its plan on development of agriculture and rural economy.

Article 16 An agriculture administrative department of the people’s government at the county level or above shall take biological, chemical and engineering measures to recover and administer a prohibited agricultural product production area or any other agricultural product production area in which the toxic and harmful substances do not satisfy the standards on the origin of places.

Article 17 An agriculture administrative department of the people’s government at the county level or above shall take measures to intensify the scientific research, technology popularization and publicity and training regarding the recovery and administration of polluted places of origin.

Article 18 The environmental impact evaluation document on an agricultural construction project shall, upon examination and approval of the agriculture administrative department of the people’s government at the county level or above, be submitted to the relevant department for examination and approval.

Where any established enterprise or project pollutes a place of origin of agricultural products, the agriculture administrative department of the local people’s government shall apply with the people’s government at the same level for taking measures to decrease or eliminate the pollution damage.

Article 19 No entity or individual may produce, fish or gather any prohibited edible agricultural products from or establish production base of agricultural products in any prohibited production area.

Article 20 Any entity or individual is prohibited to emit or dump any exhaust gas, waste water, solid waste or any other toxic or harmful substance to any place of origin of agricultural products.

It is prohibited to pile, store or dispose any industrial solid waste in any place of origin of agricultural products. Where industrial solid waste is piled, stored or disposed around any place of origin of agricultural products, effective measures shall be taken to prevent any damage to the safety of place of origin of agricultural products.

Article 21 Where an entity or individual offers or uses urban trash, sewage sludge or any other solid waste as agricultural water or fertilizer, it shall make innocuous treatment of the said solid waste and shall make it conform to the relevant standards of the state.

Article 22 An agricultural product producer shall reasonably use fertilizer, pesticide, veterinary medicine, feed, feed additive, agricultural films and other agricultural inputs. It is prohibited to use any agricultural input which is clearly banned by the state or is obsolete or is unlicensed.

An agricultural product producer shall timely eliminate, re-collect agricultural films, packing materials of agricultural inputs, etc. so as to prevent them from polluting the environment of place of origin of agricultural products.

Chapter V Supervision and Inspection

Article 23 An agriculture administrative department at the county level or above shall be responsible for the supervision and inspection of the safety of places of origin of agricultural products.

Where an agriculture administrative law enforcer performs the supervision and inspection duties, he shall show his administrative law enforcement certificate to the entity or individual to be inspected. The relevant entity or individual shall faithfully provide the pertinent information and materials, shall not reject the inspection or provide any false information.

Article 24 Where an agriculture administrative department of the people’s government at the county level or above finds that a place of origin of agricultural products is endangered by pollution, it shall order the entity or individual causing such pollution to take measures to reduce or eliminate the pollution. If the said entity or individual refuses to do so, that shall be reported to the people’s government at the same level to punish it (him).

Where any pollution accident takes place in a place of origin of agricultural products, the agriculture administrative department of the people’s government at the county level or above shall investigate and deal with it.

For any emergency of pollution to the agricultural environment, it shall be tackled according to the plan on the emergencies of pollution to the agricultural environment.

Article 25 The operating funds for the monitoring, supervision and inspection of the safety of places of origin shall be integrated into the annual budget of the agriculture administrative department of the people’s government at the same level. No entity or individual inspected may be charged any fee for the monitoring, supervision and inspection of the safety of places of origin.

Article 26 Any prohibited production area, which is demarcated by violating the Law of the People’s Republic of China on the Agricultural Product Quality Safety and these Measures, shall be null and void.

Where anyone violates these Measures because of illegally moving away or destroying the signpost of any prohibited production area, the agriculture administrative department of the local people’s government at the county level or above shall order it to make a correction and may fine it (him) 1, 000 yuan or less.

Any other violator of these Measures shall be punished in accordance with the relevant laws and regulations.

Chapter VI Supplementary Provisions

Article 27 These Measures shall come into force as of November 1, 2006.

Measures for the Administration of Geographical Indications of Agricultural Products

2009-07-14T05:53:00.000-07:00

Order of the Ministry of Agriculture
(No.11)

The Measures for the Administration of Geographical Indications of Agricultural Products, which have been deliberated and adopted at the 15th executive meeting of the Ministry of Agriculture on December 6th, 2007, are hereby promulgated, and shall come into force as of February 1st, 2008.

Minister: Sun Zhengcai

December 25th, 2007

Measures for the Administration of Geographical Indications of Agricultural Products

Chapter I General Provisions

Article 1 For the purpose of regularizing the use of geographical indications of agricultural products, guaranteeing the quality and characteristics of agricultural products with geographical indications and improving the market competitiveness of agricultural products, these Measures are formulated in accordance with the relevant provisions of the Agriculture Law of the People’s Republic of China and the Law of the People’s Republic of China on the Quality Safety of Agricultural Products.

Article 2 The term “agricultural product” as mentioned in these Measures refers to primary products sourced from agriculture, namely, plants, animals, microorganisms and the products thereof obtained in agricultural activities.

The term “geographical indications of agricultural products” as mentioned in these Measures refers to special agricultural product indications which are named by territorial names and are meant to tell that the indicated agricultural products are from a specific area and that the quality and major characteristics of the products mainly lie in the natural and ecological environment as well as cultural and historical factors of the area.

Article 3 The state applies the registration system to geographical indications of agricultural products. Registered geographical indications of agricultural products shall be under the protection of law.

Article 4 The Ministry of Agriculture shall be in charge of the registration of geographical indications of agricultural products of the whole nation, while the agricultural product quality safety center under it shall be in charge of the examination and expert appraisal of geographical indications of agricultural products.

The administrative department of agriculture under the people’s government at the provincial level shall be in charge of accepting and preliminarily examining the applications filed within this administrative region for the registration of geographical indications of agricultural products.

The expert committee established by the Ministry of Agriculture for the appraisal of the registration of geographical indications of agricultural products shall be in charge of the expert appraisal work. The expert committee shall be composed of experts in crop and plant production, animal husbandry, fishery and agricultural product quality safety, etc.

Article 5 No fee may be charged for the registration of geographical indications of agricultural products. The administrative department of agriculture under the people’s government at or above the county level shall bring the expenses for the administration of geographical indications of agricultural products into the annual budget of this department.

Article 6 The administrative department of agriculture under the people’s government at or above the county level shall bring the protection and utilization of geographical indications of agricultural products into the development planning of agriculture and rural economy of this administrative region and give support in terms of policy and funds.

The state encourages social forces to assist push forward the development of geographical indications of agricultural products.

Chapter II Registration

Article 7 An agricultural product whose geographical indication is applied for registration shall meet the following requirements:
1. its name is composed of the name of the geographic area and the general name of the agricultural product;
2. the product has unique characteristics or special mode of production;
3. the quality and characteristic of the product mainly lie on the unique natural and ecological environment as well as cultural and historical factors;
4. the product has a limited producing area; and
5. the environment of its producing area and its quality satisfy the state’s compulsory technical norms.

Article 8 Applicants for the registration of geographical indications of agricultural products shall be excellent professional cooperative economic organizations of farmers and industrial associations determined by the local people’s government at or above the county level in accordance with the following conditions:
1. having the capability for supervising and administering the geographical indications of agricultural products and the products thereof;
2. having the capability for providing guidance for the production, processing and marketing of agricultural products with geographical indications; and
3. having the capability for bearing civil liabilities independently.

Article 9 An applicant satisfying the conditions for the registration of geographical indications of agricultural products may file a registration application with the administrative department of agriculture under the people’s government at the provincial level and submit the following application material:
1. a registration application form;
2. a certificate on the qualification of the applicant;
3. a description on the typical characteristics of the product and a corresponding product quality appraisal report;
4. the environment conditions of the producing area of the product, the technical norms for production and the technical norms for product quality safety;
5. a document determining the territorial scope, and a distribution map of its producing area;
6. a straight sample or a sample picture of the product; and
7. other necessary descriptive or evidentiary material.

Article 10 The administrative department of agriculture under the provincial people’s government shall, within 45 workdays from the date when the application for the registration of a geographical indication of agricultural products is accepted, finish the preliminary examination on the application material and the on-site verification, and propose its preliminary examination opinion. If the application satisfies the relevant requirements, it shall file the application material together with the preliminary examination opinion with the agricultural product quality safety center under the Ministry of Agriculture; if not, it shall notify the applicant of its opinion and suggestion within 10 workdays from the date when the preliminary examination opinion comes out.

Article 11 The agricultural product quality safety center under the Ministry of Agriculture shall, within 20 workdays from the date when it receives the application material and the preliminary examination opinion, examine the application material, propose its examination opinion and organize experts to appraise.

The expert appraisal work shall be undertaken by the expert committee for the appraisal of the registration of geographical indications of agricultural products. The expert committee shall work out appraisal conclusions independently and be responsible for these conclusions.

Article 12 If the expert committee is in favor of the application after appraisal, the agricultural product quality safety center under the Ministry of Agriculture shall publish an announcement on approving the application on behalf of the Ministry of Agriculture.

If any entity or individual has any objection to the approval, it/he shall, within 20 days from the date of expiration of the announcement, present the objection to the agricultural product quality safety center under the Ministry of Agriculture. If no objection has been received, the Ministry of Agriculture shall make a decision on putting the geographical indication on registration, publish an announcement thereon, issue the Certificate of the People’s Republic of

China

on the Registration of Geographical Indications of Agricultural Products, and publish the relevant technical norms and standards for the products concerned.

If the expert committee is not in favor of the application after appraisal, the Ministry of Agriculture shall make a decision on disapproving the registration, and notify the applicant of the disapproval and reasons in written form.

Article 13 The registration certificate of a geographical indication of agricultural products shall be valid permanently.

Under any of the following circumstances, a registration certificate holder shall file an application for modification in accordance with the prescribed procedure:
1. the registration certificate holder or the legal representative changes; or
2. the territorial scope or corresponding natural and ecological environment changes.

Article 14 A geographical indication of agricultural products shall be a combination of a public mark and the name of the territorial product. See the attached drawing for the basic patterns of public marks. The norms for the use of geographical indications of agricultural products shall be formulated and promulgated by the Ministry of Agriculture in another initiative.

Chapter III Use of Indications

Article 15 An entity or individual may apply to the registration certificate holder for using the registered geographical indication as long as it/he satisfies the following conditions:
1. the agricultural product produced or traded by it/him originates from the territorial scope indicated in the registration certificate;
2. it/he has obtained the corresponding qualification for producing or trading the agricultural product concerned;
3. it/he is capable of conducting producing and trading activities in strict accordance with the prescribed quality and technical norms; and
4. it/he has the capacity for the market development and operation of the agricultural product concerned.

To use a geographical indication, an entity or individual shall conclude an agreement on the use of geographical indication with the registration certificate holder of the indication on the basis of production and operation year, and the agreement shall bear the quantity and scope of use as well as the relevant responsibilities and obligations.

The registration certificate holder of a geographical indication of agricultural products may not charge fees for use against users of the indication.

Article 16 A user of a geographical indication of agricultural products shall be entitled to:
1. use the geographical indication on his/its products and the packages thereof; or
2. use the registered geographical indication to make publicity or participate in exhibitions or sales fairs.

Article 17 A user of a geographical indication of agricultural products shall be obliged to:
1. voluntarily accept the supervision and examination of the registration certificate holder of the indication;
2. guarantee the quality and credibility of the agricultural product covered by the indication; and
3. correctly and legally use the indication.

Chapter IV Supervision and Administration

Article 18 The administrative department of agriculture under the people’s government at or above the county level shall strengthen the supervision and administration of geographical indications of agricultural products, and supervise and examine the territorial scope of agricultural products whose geographical indications have been registered and the use of such indications on a regular basis.

Where an agricultural product whose geographical indication has been registered or a registration certificate holder fails to satisfy the requirements specified in Article 6 or 7, the Ministry of Agriculture shall write off the registration certificate, and publish an announcement thereon.

Article 19 The producers and operators of agricultural products with geographical indications shall establish a quality control tracing system. Holders of certificates on the registration of geographical indications of agricultural products and users of such indications shall be responsible for the quality and credibility of the agricultural products concerned.

Article 20 No entity or individual may forge or falsely use any geographical indications of agricultural products or any registration certificates.

Article 21 The state encourages entities and individuals to exercise social supervision over geographical indications of agricultural products.

Article 22 Where any worker of registration administration, supervision and examination of geographical indications of agricultural products abuses his authorized power, neglects his duty or engages in malpractice for personal gains, he shall be punished according to law; if he is suspected of committing any crime, he shall be transferred to the judicial organ and bear corresponding criminal liability.

Article 23 Where any entity or individual violates the provisions of these Measures, the administrative department of agriculture under the people’s government at or above the county level shall punish it/him in accordance with the relevant provisions of the Law of the People’s Republic of

China

on the Quality Safety of Agricultural Products.

Chapter V Supplementary Provisions

Article 24 The Ministry of Agriculture accepts applications for the registration of geographical indications of agricultural products from foreign countries, and protects them once they have been registered in the People’s Republic of

China

. The specific measures shall be worked out in another initiative.

Article 25 These Measures shall come into force as of February 1st, 2008.

Attached Drawing: Basic Patterns of Public Marks (Omitted)

Interpretation Relating to Adjudication of and Application of Law to Cases of Copyright Disputes on Networks 2000

2009-03-17T09:42:00.000-07:00

Interpretation by the Supreme People's Court of Several Issues Relating to Adjudication of and Application of Law to Cases of Copyright Disputes on Computer Network

(Adopted at the 1144th Meeting of the Adjudication Commission of the Supreme People's Court on 21 December 2000, and went into effect on 21 December 2000)

With a view to duly adjudicating cases of copyright disputes on computer network, an interpretation of several issues relating to the application to this category of cases is made as follows in accordance with the provisions of the General Principles of the Civil Law, the Copyright Law and the Civil Procedure Law.

Article 1. Cases of copyright disputes on computer network are under the jurisdiction of the people's court of the place in which an infringing act is committed or in which the defendant has his or its domicile. The places in which an infringing act is committed includes the place where equipment used to carry out accused infringing acts, such as network servers, computer terminals,etc.. Where the place in which an infringing act is committed and in which the defendant has his or its domicile is hard to determine, the place of the equipment such as a computer terminal in which the plaintiff has found the contents of infringement may be deemed the place where the infringing act is committed.

Article 2. Works under the protection of the Copyright Law shall include the digitized form of all the categories of works specified in Article 3 of the Copyright Law. Other achievements of intellectual creation shall be protected by the people's court which cannot be placed in the works categorized in Article 3 of the Copyright Law, but are original in the field of literature, art and science, and reproducible in some tangible form.
The provisions of Article 10 of the Copyright Law for the various rights of the copyright all apply to the copyright in the digitized works. Communication of works to the public through network is a way to use works under the Copyright Law, and the copyright owner shall enjoy the rights to use or allow others to use the work in a variety of ways and to be remunerated therefor.

Article 3 , Except that the copyright owner otherwise states or an Internet service provider (ISP) states on his or its behalf that a work, published in the press or on the Internet, should not be reprinted and adapted, reprinting and adaptation of a work, with the remuneration paid according to the relevant provisions and source thereof indicated, do not constitute an infringement. However, such reprinting and adaptation going beyond the scope of reprinting of works in press shall be established as an infringement.

Article 4. Where an internet service provider participates in any act of another person to infringe copyright through network, or aids and abets, on the Internet, others to carry out any act of copyright infringement, the people's court shall investigate it and other actors or any other person having directly carried out the infringement, and impose joint liability thereon.

Article 5. Where any Internet service provider engaged in provision of information contents has obtained clear knowledge that an Internet user is, carrying out on the Internet, an act of infringement on another person's copyright, or being warned by the copyright owner based on solid evidence, failure to take measures for removal and elimination of the infringing contents in order to eradicate the consequence of the infringement, the people's court shall investigate it and the network user, and impose joint liability thereon according to the provision of Article 130 of the General Principles of the Civil law.

Article 6. Where any Internet service provider engaged in provision of information contents refuses, without justification, to provide the registration material of the infringer on its network as requested for by the copyright owner in an effort to investigate and impose liability for the infringement, ...the people's court shall investigate it, and impose corresponding liability thereon according to the provision of Article 106 of the General Principles of the Civil law.

Article 7. Where any copyright owner who, upon finding out the infringing information warns the Internet service provider or requests for the registration material of the infringer on the network, is unable to produce proofs of his identification, ownership of copyright and the infringement, such warning or request shall be deemed not to have been made.
Where, after the copyright owner produces said proofs, the Internet service provider does not take measures, the copyright owner, when instituting legal proceedings, apply to the people's court for its firstly deciding to stop the infringement, remove impediment, eliminate ill effect, and the people's court shall give the permission.

Article 8. Where any Internet service provider takes measures, such as removal and elimination of the infringing information contents, upon the warning by the copyright owner based on solid evidence, and where the accused infringer requests the Internet service provider to be liable for breach of contract, the people's court shall not support such request.
Where the copyright owner's accusation of infringement is not based on facts, and the accused infringer has suffered damages as caused by the measures taken by the Internet service provider, and claims for compensation for the damages, the people's court shall decide to order the person giving the warning to bear the liability therefor.

Article 9. when hearing cases of copyright dispute on the Internet, the people's court shall respectively apply the laws as the following according to the different circumstances of the cases.
(1) The provisions of Article 45 (1), (2), (3) and (4) of the Copyright Law shall apply to the determination of infringement on the personal rights, such as the right of publication;
(2) The provisions of Article 45 (5) of the Copyright Law shall apply to the determination of infringement on the right of use in the communication of a work to the public;
(3) The provisions of Article 45 (6) of the Copyright Law shall apply to the determination of infringement on the right of remuneration;
(4) The provisions of Article 45 (8) of the Copyright Law shall apply to the determination of infringement on the neighbouring rights of phonogram producers, performers, and broadcasting and television organizations, or to the determination that the acts as caused by deliberate deletion or alteration of the copyright management information constitute infringement; and
(5) The provisions of Article 46 (1) of the Copyright Law shall apply to the determination of infringement by plagiarizing and copying another person's work.

Article 10. When determining the amount of damages arising from an infringement, the people's court may, by the request of the infringee, calculate the amount of damages according to the direct economic damages to and losses of the expected interests thereto; it may also calculate the damages on the bases of the income the infringer makes from the infringing act. Where the infringer cannot give proof of its costs or the necessary expenses, the income made thereby from the infringing act shall be the interests sought thereby.
Where the infringee's damages cannot be determined, the people's court may, by the request of the infringee, determine the amount of damages to be RMB 500 yuan to no more that RMB 300,000 yuan, but not exceeding RMB 500,000 yuan at most.

Interpretation Relating to Application of Law to Trial of Cases of Dispute over Copyright on networks 2004

2009-03-17T09:38:00.000-07:00

Interpretation by the Supreme People's Court of Several Issues Relating to Application of Law to Trial of Cases of Dispute over Copyright on Computer Network
(Adopted at the 1144th Meeting of the Adjudication Commission of the Supreme People's Court on 22 November 2000; Amended at 1302nd the Meeting of the Adjudication Commission of the Supreme People's Court on 23 December 2003 and Entering into Force on 7 January 2004)

With a view to duly trying cases of disputes over copyright on computer network, this interpretation of the several issues relating to the application of law to this category of cases has hereby been made as follows in accordance with the provisions of the General Principles of the Civil Law, the Copyright Law and the Civil Procedure Law.

Article 1. A case of dispute over copyright on computer network shall be under the jurisdiction of the people's court of the place where an infringing act is committed or where the defendant has his or its domicile. The places where infringing acts are committed shall include places where equipment used to carry out accused infringing acts, such as network servers or computer terminals, etc. is located. Where the place in which an infringing act is committed or in which the defendant has his or its domicile is difficult to determine, the place of the equipment, such as a computer terminal, in which the plaintiff has found the contents of infringement may be deemed the place where the infringing act is committed.

Article 2. Works protected under the Copyright Law shall include the digital form of all the categories of works specified in Article 3 of the Copyright Law. Other achievements of intellectual creation shall be accorded the protection by the people's court which cannot be categorised as the works enumerated in Article 3 of the Copyright Law and which are original in the field of literature, art and science, and reproducible in some tangible form.

Article 3. Except that the copyright owner otherwise states, or the press or an Internet service provider (ISP) states on his or its behalf with entrustment thereby to this effect, that a work published in the press or on the Internet should not be reprinted and adapted, reprinting and adaptation of a work, with the remuneration paid according to the relevant provisions and source thereof indicated, do not constitute infringement. However, reprinting and adaptation going beyond the scope of a work reprinted in the press shall be established as infringement.

Article 4. Where an Internet service provider participates in any act of another person to infringe copyright through network, or aids and abets, on the Internet, others to carry out any act of copyright infringement, the people's court shall, pursuant to the provision of Article 130 of the General Principles of the Civil law, investigate it and other actors or any other person having directly carried out the infringement, and impose joint liability thereon.

Article 5. Where any Internet service provider engaged in provision of information contents has obtained clear knowledge that an Internet user is carrying out, on the Internet, an act of infringement of another person's copyright, or being warned by the copyright owner with solid evidence, and failed to take measures to remove and eliminate the infringing contents so as to eradicate the consequence of the infringement, the people's court shall investigate it and the network user, and impose joint liability thereon pursuant to the provision of Article 130 of the General Principles of the Civil law.

Article 6. Where any Internet service provider engaged in provision of information contents refuses, without justification, to provide the registration material of the infringer on its network as requested for by the copyright owner in an effort to investigate and impose liability for the infringement, the people's court shall investigate it, and impose corresponding liability thereon according to the provision of Article 106 of the General Principles of the Civil law.

Article 7. Where an Internet service provider has obtained clear knowledge of, and uploads, transmits or supplies, method, means or material used specially for intentionally circumventing or destroying another person's technological measures for the protection of copyright, the people's court shall investigate the Internet service provider pursuant to the provision of Article 47 (6) of the Copyright Law at the litigant request of an interested party and according to the specific circumstances of the case.

Article 8. Where any copyright owner who, upon finding out the infringing information, warns the Internet service provider about this or requests for the network registration material of the infringer is unable to produce proofs of his identification, ownership of the copyright and the circumstance of the infringement, such warning or request shall be deemed not to have been made.
Where, after the copyright owner produces said proofs, the Internet service provider does not take the measures, the copyright owner may, before instituting legal proceedings, request the people's court for decision on cessation of the relevant act and for property/evidence preservation, and may, when instituting legal proceedings, request the people's court for its decision first on cessation of the infringement, removal of impediment and/or elimination of ill effect, and the people's court shall give the permission.

Article 9. Where any Internet service provider takes the measures, such as removal and elimination of the infringing information contents, upon the warning by the copyright owner based on solid evidence and where the accused infringer requests to hold the Internet service provider liable for breach of contract, the people's court shall not support such request.
Where the copyright owner's accusation of infringement is not based on facts and where the accused infringer claims for the damages because of injury it or he has suffered due to the measures taken by the Internet service provider, the people's court shall decide to order the person giving the warning to be liable the damages.

Measures for the Management of Chinese Famous Brand Products

2008-11-18T13:06:00.000-08:00

New Management Measures for Famous Brands
The State General Administration for Quality Supervision and Inspection and Quarantine (AQSIQ) has recently announced the "Measures for the Management of Chinese Famous Brand Products".

The new measures specify the eight prerequisites of a famous brand:
1. Conformity with state law and industrial policy.
2. In terms of quality, the product should command a leading position in the domestic market 3. and reach an advanced level by international standards. In terms of market share, export earnings and reputation, the product should be among the best of its kind on the domestic market.
3. In terms of annual sales, profits tax paid, profit per unit cost and contribution to total assets ratio, the product should be among the best in the industry.
4. The production enterprise should be equipped with advanced production technology and equipment and is a leader in terms of technological innovation and product development.
5. The product should be manufactured in compliance with a domestic standard that is comparable to international standards or the advanced standards in foreign countries.
6. The enterprise should possess sound measuring, inspection and testing systems.
7. The enterprise should possess a sound and effective quality assurance system.
8. The enterprise should offer excellent after-sale service with a high level of customer satisfaction.
The evaluation of famous Chinese brands is an annual exercise conducted on enterprises free of charge.

Source: HKTDC, see here.

Action Plan For Effective Protection And Enforcement Of Intellectual Property Rights 1995

2006-07-25T06:16:00.000-07:00

Note of the web master: Normally I try to link to a website that has already the content. However, this historical document I could only found by using google cache. So, in order to preserve the text virtually I have posted it integrally online.

PEOPLE'S REPUBLIC OF CHINA INTELLECTUAL PROPERTY RIGHTS MEMORANDUM OF UNDERSTANDING--1995 ACTION PLAN
PRIVATE Ministry of Foreign Trade and Economic Cooperation Minister Wu Yi
February 26, 1995

Dear Minister Wu Yi:
I have the honor to acknowledge receipt of your letter of this date, including its annex, which reads as follows:

Dear Ambassador Kantor:

I have the honor to refer to the consultations between representatives of the Government of the People's Republic of China (China) and the Government of the United States of America (United States) which were conducted in the spirit of the 1992 Memorandum of Understanding between our governments concerning the protection of intellectual property rights. Both of our governments are committed to providing adequate and effective protection and enforcement of intellectual property rights and have agreed to provide this to each other's nationals.
China's actions in this respect show considerable progress and determination to achieve effective enforcement of intellectual property rights through judicial and administrative procedures. China has created specialized intellectual property courts to hear these cases and I can confirm that the Civil and Criminal Procedure Laws of the People's Republic of China empower the courts to address infringement of intellectual property rights through measures to stop infringement, preserve property before and during litigation, and to order the infringer to provide compensation to right owners for infringement of their intellectual property rights. In addition, the courts also act to preserve evidence to permit effective litigation.
China's Supreme People's Court has issued a circular instructing courts at various levels to address intellectual property cases expeditiously, including cases involving foreign right holders. In respect of taking criminal action against infringers, our procuratorates are actively pursuing criminal infringement cases.

I have attached to this letter a State Council Intellectual Property Enforcement Action Plan (Annex I) that will be carried out immediately. This Action Plan strengthens the enforcement efforts that China has already taken and establishes a long term enforcement structure so that the peoples government in the provinces, directly administered municipalities, autonomous regions and cities meet the requirements of that Plan and China will actively implement it. Under Chinese law, each administrative authority mentioned in the Action Plan is fully empowered to take the specified steps to effectively enforce intellectual property rights.
Chinese authorities have recently taken effective actions to enforce intellectual property rights. Recently seven plants producing infringing products have been closed, business licenses revoked, and more than two million infringing CDs, LDs and copies of computer software have been seized and destroyed. Under the Chinese government's action plan, this effort will intensify and by July 1, 1995, investigation of all production lines suspected of producing infringing CDs, LDs and CD-ROMs will be completed. Factories that have engaged in infringing activities will be punished through seizure and forfeiture of infringing product and all infringing copies will be destroyed and the materials and implements directly and predominantly used to make the infringing product will be seized, forfeited and defrayed. Business licenses and permits will also continue to be revoked in appropriate cases.

Exports of infringing products have been banned. The establishment of a copyright verification system and the use of unique identifiers on CDs, CD-ROMS, and LDs will provide a vital tool to prevent the production of infringing goods and export of those goods. Permits to engage in activities related to audio-visual products will not be issued without copyright verification and imprint of the unique identifier. More than one violation of this condition will result in revocation of the permit and repeat serious offenders will have their business licenses revoked.

Retail establishments will be inspected under the Action Plan and enterprises will keep records of inventories and other information to strengthen enforcement. Recent raids on computer software enterprises are an example of China's effective enforcement of intellectual property rights.

Another aspect of China's decision to develop its economy and open its markets further is increased cooperation and trade in products protected by intellectual property rights. China has recently approved the establishment of a representative office for the International Federation of Phonogram Industries (IFPI) and will examine and approve, when published requirements are met, the pending application of the relevant entity for the verification of motion picture copyright, as well as other entities involved in copyright verification. Obtaining this approval does not prejudice the ability of these offices to engage in other activities in accord with Chinese laws and regulations.

China confirms that it will not impose quotas, import license requirements, or other restrictions on the importation of audiovisual and published products, whether formal or informal. China will permit U.S. individuals and entities to establish joint ventures with Chinese entities in China in the audiovisual sector for production and reproduction. These joint ventures will be permitted to enter into contracts with Chinese publishing enterprises to, on a nationwide basis, distribute, sell, display and perform in China. China will immediately permit such joint ventures to be established in Shanghai, Guangzhou, and moreover, other major cities, and will then expand the number of these cities, in an orderly fashion, to thirteen (13) by the year 2000. U.S. individuals and entities will be permitted to enter into exclusive licensing arrangements with Chinese publishing houses to exploit the entire catalogue of the licensor and to decide what to release from that catalogue. China will also permit U.S. individuals and entities to establish joint ventures in the computer software sector and these joint ventures will be permitted to produce, and sell computer software and computer software products in China.

China will continue to permit U.S. individuals and entities to enter into revenue sharing arrangements with Chinese entities. Permissible arrangements will include, for example, licensing agreements under which the U.S. entity receives a negotiated percentage of revenues generated by film products.

China will adopt or enforce measures necessary to protect public morals or to maintain public order, as long as such measures are applied consistently and in a non-discriminatory, non-arbitrary manner and do not operate as a disguised restriction on trade. By October 1, 1995, China will publish all laws, rules, regulations, administrative guidance, or other official documents concerning any limitation on, regulation of or permission required to engage in all activities identified above. The audiovisual departments under the State Council will intensify their efforts to formulate the regulatory rules on audio-visual products which will clarify the specific censorship regulations for publication and importation of audio-visual products. For audio-visual products that meet the provisions of the censorship requirements, their publication and import will be approved without any restrictions in terms of quantity. The censorship regulations will be open, transparent and published. Determinations as to censorship requirements will normally be made within ten days, but in no event longer than sixty days from receipt of an application.

In light China's policies of market opening, representatives of U.S. enterprises are invited to begin discussions on their establishment in China, including possible licensing arrangements, as soon as possible.

It is my understanding that the United States will provide assistance to China with respect to the protection and enforcement of intellectual property rights. This work will be implemented mainly through the U.S. Customs Service, U.S. Department of Justice and the United States Patent and Trademark Office.

The U.S. Customs Service is prepared to provide cooperative and reciprocal assistance to China on providing improved enforcement of intellectual property rights. This assistance and coordination effort could include: (1) providing training, in China, by U.S. Customs personnel, of Chinese customs officers with responsibility for enforcing intellectual property rights, and (2) providing mutually agreed relevant technical equipment to assist in the enforcement of intellectual property rights. Training will likely include: how to identify infringing merchandise through physical examination, verification of documents, and laboratory testing, and assistance in building a centralized system of intellectual property rights recordations. The U.S. Patent and Trademark Office will also assist in training Chinese personnel, including through providing training and documents for the people who work on verification of well-known marks and mechanisms for establishing an administrative appeals process.

China and the United States will exchange information and statistics on a quarterly basis beginning on June 1, 1995, on intellectual property enforcement activities in their two countries. Beginning on January 1, 1996, this exchange will be carried out on a semi-annual basis for the next two years, and on a schedule to be agreed thereafter.

Under these exchanges, China will provide information and statistics concerning enforcement, throughout the country, of intellectual property rights of U.S. nationals and joint ventures with U.S. nationals, by type of intellectual property, establishments raided, and the value and disposition of infringing products and machinery and implements. Information and statistics on prosecutions and administrative and court decisions will also be provided.

Under these exchanges, the United States will provide to China, on the same schedule, information and statistics concerning the customs seizure value of infringing goods by commodity, the seizure value of infringing goods by type of intellectual property right, ,the seizure value of Chinese infringing goods by commodity, and the seizure quantities of infringing goods by commodity. The United States will also provide statistics on federal intellectual property enforcement activities, including information on prosecutions for copyright infringement and trademark counterfeiting and court decisions in intellectual property cases.

The United States will also provide information and statistics on Chinese products that are infringed in the United states.
China and the United States will, upon request, consult and exchange information on the license verification system set out in the Action Plan and particular applications of that system. China and the United States require that public entities in both countries shall not use unauthorized copies of computer software in their computer systems and legitimate software will be used.
They likewise require that adequate resources shall be provided to permit the acquisition only of authorized computer software.

In addition, China and the United States will consult promptly at the request of either government with respect to any matter affecting the operation or the implementation of the provisions of this letter, including its annex. In addition, both governments agree to consult, during the first year on a quarterly basis, semiannually for the following two years and then on a schedule to be agreed, on the implementation of the Action Plan and its effectiveness.
On the basis of the foregoing, the United States will immediately revoke China's designation as a "special 301" priority foreign country, and will terminate the section 301 investigation of China's enforcement of intellectual property rights and market access for persons who rely on intellectual property protection and rescind the order issued by the U.S. Trade Representative on February 4, 1995, imposing increased tariffs on Chinese exports.

Please confirm that this letter, including its annex, and your letter in reply constitute an Understanding between our two Governments.
With assurances of my highest consideration.

Wu Yi
Minister of Foreign Trade and Economic Cooperation

I have the honor to confirm that your letter, including this annex, and this letter constitute an Understanding between our two governments.
With my highest regard,

Michael Kantor
United States Trade Representative

ANNEX I
ACTION PLAN FOR EFFECTIVE PROTECTION AND ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS
Since infringement of intellectual property rights, including copyright piracy, patent infringement, trademark counterfeiting, and unfair competition, is prohibited in China, the State Council's Working Conference on Intellectual Property has developed this Action Plan to effectively crack down an infringement of intellectual property rights in China. The People's Governments of provinces, directly administered municipalities, autonomous regions and cities, as well as government ministries and departments are to participate in the substantial reduction of intellectual property rights infringement through effective implementation of this Action Plan.
This Action Plan sets forth both immediate and longer-term projects for the effective enforcement of intellectual property rights through the exercise of existing and expanded authority. The key short-term projects of this Action Plan include the institution of a special enforcement period. During this period, intensive action will be taken to investigate and punish infringement of intellectual property rights, targeting efforts on areas with a high level of infringement and actions against the manufacture, reproduction, and distribution of infringing products.
Long-term (3-5 years), sustained enforcement will be carried out by the State Council's Working enforce on Intellectual Property Rights, other working conferences on intellectual property, enforcement task forces and ad hoc groups, which will coordinate and work together to provide effective enforcement of intellectual property rights and punishment of infringement within each province, directly administered municipality, autonomous region and city, and among them. Administrations, including the Chinese Customs, State Council Departments, police and other relevant agencies will also participate in providing effective enforcement of intellectual property rights.

I . Intellectual Property Rights Enforcement Structure
A. State Council Working Conference on Intellectual Property Rights And Sub-Central Working Conference

1. The State Council has established a Working Conference on Intellectual Property Rights which through forceful measures centrally organizes and coordinates protection and enforcement of all intellectual property rights throughout the country, and will ensure that effective protection is provided and infringement of intellectual property rights is substantially reduced. For the purposes of this Plan, intellectual property rights include copyright and related rights, trademarks, patents, protection against unfair competition, including protection of undisclosed information, and other relevant subject matter.

2. The State Council's Working Conference on Intellectual Property Rights is comprised of the State Council's departments in charge of science, technology, foreign trade and economic cooperation, foreign affairs, press and publication, culture, broadcast, film, television, justice, public security, patent, copyright, industrial and commercial administration, and customs, as well as the departments in charge of the relevant industries.

3. The main duties that the State Council's Working Conference on Intellectual Property Rights will carry out are:
-- To coordinate, study and decide on the major policies and measures for the effective protection and enforcement of intellectual property rights, and to coordinate and organize enforcement activities among provinces, directly administered municipalities, autonomous regions and cities, as well as government ministries and departments (hereinafter referred to as regions and departments) to achieve uniform and effective protection and enforcement of intellectual property rights;
-- To monitor the implementation of the laws and regulations on intellectual property rights, to organize and instruct the relevant authorities within regions and departments to investigate and substantially reduce infringement of intellectual property rights;
-- To instruct and organize the relevant authorities within regions and departments to provide education on and publicity for the laws regarding intellectual property rights, to foster the understanding of intellectual property rights protection among people throughout the country, and to improve intellectual property law enforcement skills of leading officials at various levels of government, as well as the skills of enforcement personnel.
-- To instruct that administrative, civil and criminal processes and sanctions arc applied consistently and uniformly to all Chinese and foreign persons and all public, private, and not for-profit entities, that engage in infringing conduct.

4. The State Council Working Conference will direct and coordinate the work of intellectual property working conferences which the People's Governments of at least 22 provinces, directly administered municipalities and autonomous regions, and major cities including Guangdong, Beijing, Shanghai, Tianjin, Wuhan, Nanjing, Shenzhen, Jiangsu, Zhejiang, and Fujian, will organize to carry out activities within their jurisdiction at the direction of the State Council Working Conference so that effective enforcement is achieved throughout the country.

5. The State Council Working Conference will issue directions to the provincial, directly administered municipalities, autonomous regions and city bodies coordinating and guiding intellectual property rights, to formulate action plans and work programs in their own localities for effective enforcement of the laws on intellectual property rights, as well as plans on providing information and education on intellectual property rights.
a. Each plan or work program shall provide for effective law enforcement, eliminate interference by local protectionism, and ensure complete dnd effective implementation and enforcement of the laws and regulations on intellectual property rights in the respective locality. The State Council Working Conference will receive these action plans and work programs and, within three months after issuance of this Action Plan, will inform the relevant Conference of any problems with that Conference's action plan or work program and issue directions to address the problems at that time.
b. In the immediate future the focus will be on selected key regions and problems where serious efforts shall be made to investigate and tackle major cases, and criminals shall be punished.
c. The provinces, regions and cities in which working conferences are established shall issue follow-up reports each quarter for the first year and semi-annually subsequently, beginning on June 1, 1995, on implementation of the action plans and work programs, which will be published as soon as they are issued.
d. Included within each report will be the name of a contact person in the working conference who will be responsible for coordination of all intellectual property protection for that conference and who will be a point of access for right holders.
6. The State Council's Working Conference on Intellectual Property Rights has established an Office within the State Science and Technology Commission to prepare for and handle the day-to-day functions of the State Council's Working Conference.
(a) The Office of the State Council's Working Conference on Intellectual Property Rights has established a system of liaison officers. The liaison officers of various regions and departments will report to the Office of the State Council's Working Conference an Intellectual Property Rights regularly regarding actions taken to provide effective protection and enforcement of intellectual property rights in their regions and departments, and will relay and implement the instructions, spirit, and work duties from the State Council s Working Conference on Intellectual Property Rights to the various regions and departments.
(b) Provincial, regional, municipal and city working conferences will establish local offices to carry out day-to-day functions and organize relevant local departments to implement China's intellectual property laws and provide effective enforcement of those laws.

B Enforcement Task Forces
1. Administrative and other authorities responsible for intellectual property protection and enforcement including the National Copyright Administration (NCA), State Administration for Industry and Commerce (AIC), the Patent Office, and police at the national, provincial, autonomous region, and directly administered municipality and cities (hereinafter "sub-central levels"), and customs officials will coordinate their activities under the working conference system and participate in enforcement task forces. Each participant in a task force shall give assistance to ensure effective enforcement and is not allowed to refuse to provide such assistance. The People's Governments at each level shall give the necessary guarantees in terms of personnel, working expenses, and conditions to implement this Action Plan to ensure that:

a. Each enforcement task force has all necessary legal authority and will use its resources to initiate and carry out investigations of any suspected infringement of intellectual property rights. In the case of investigations involving more than one sub-central jurisdiction, where necessary, the relevant intellectual property rights working conference will organize and coordinate the enforcement task forces to carry out the investigation.

b. Each enforcement task force's authority includes the authority, in situations in which there is reason to believe or suspect that there has been an infringement of an intellectual property right, to:
--enter and search any premises;
-- review books and records for evidence of infringement and damages; and
--seal suspected goods and the materials and implements directly and predominantly used to make them.

c. When infringement is found, the enforcement task force has the authority to impose fines, order an end to the production, reproduction and sale of audio-visual products, revoke the permits for producing and reproducing audio-visual products, and cause the forfeiture and destruction of infringing goods and the materials and implements directly and predominantly used to make them, without compensation of any sort.

2. The enforcement task force has the authority to order infringement to stop while infringement cases are being processed. The party seeking such relief may be required to provide a security or equivalent assurance sufficient to protect the alleged infringer and the competent authorities and to prevent abuse. The amount of such security or equivalent assurance shall not deter recourse to these procedures.

3. Cases of infringements that are suspected to be of a (criminal nature shall be passed over to the prosecutor as well as being subject to administrative action- In each criminal case, the relevant authority will seek severe penalties commensurate with the level of infringement, and impose such penalties.

4. All sub-central level intellectual property protection and enforcement authorities participating in the enforcement task force will undertake aggressive ex officio actions (actions on their own authority without request from a right holder) against all types of infringement of intellectual property rights and investigate all complaints from right holders, their representatives or their exclusive licensees filed with the relevant administrative agency.

5. Upon its establishment, each enforcement task force shall specify a contact person and publish a phone number which right holders and other interested persons may use to exchange information with the Task force. Each enforcement task force shall, on request, keep right holders fully informed of the progress of the relevant investigations and, when offered, shall rely an right holders for information and expertise to assist the task forces enforcement efforts.

6. Foreign and domestic right holders may submit petitions for investigations and enforcement actions to an enforcement task force by addressing them to the contact person at that task force. Once received, petitions shall be forwarded to the administrative authority within the task force in charge of the intellectual property at issue for management of the case. Petitions shall be accepted according to published, uniform criteria that are limited to determining whether there is reason to believe that the petitioner is the right holder and there is reason to believe or suspect that a right has been or may be infringed. Within fifteen days of the receipt of the petition, the petitioner must be notified that the petition has been accepted or, if it is not accepted, notified in writing of the specific reasons for its refusal. Requests for administrative enforcement actions and receipt of administrative remedies will not affect the right to seek relief in a judicial action.

7. Ad Hoc Groups --In areas in which the situation is particularly serious, enforcement task forces shall set up ad hoc groups to take immediate action against infringement in specific fields, such as audio-visual products (which includes CDs, LDs, audio cassette tapes, video tapes, sound recordings, and motion pictures) (hereinafter referred to as "audio-visual products"), computer software in any format or form, including video games, diskette, network, hard drive, CD-ROM or other medium (hereinafter referred to as "computer software") , publications, and trademarks. Each ad hoc group will be headed by the departments in charge of their respective area of responsibility and shall act with the assistance of other departments concerned. The ad hoc groups shall have the same authorities as the enforcement task forces.

C. Special Enforcement Period
1. The working conferences and enforcement task forces will operate over the long-term. In addition, beginning on March 1, 1995, the Special Enforcement Period will be intensified for the next six months. During this period, the number of investigations will be increased and other actions taken to ensure the elimination of piracy, counterfeiting and other infringements of intellectual property rights.

2. During the Special Enforcement Period, the State Council's Working Conference on Intellectual Property will direct and coordinate enforcement efforts which all working conferences and enforcement task forces established under this Action Plan will undertake. The State Council's Working Conference on Intellectual Property will also coordinate with the relevant departments in launching a nation-wide information and education campaign on intellectual property rights.

3 . Particular campaign will be placed on achieving effective enforcement in key regions, cities and entities with a high level of infringing activity with a focus on pursuing significant cases so as to eliminate piracy and counterfeiting, deter future infringement, and require use of legitimate products.

4 . During the Special Enforcement Period:
--The work of investigation and punishment of infringers, will focus on regions and entities where infringing products are produced, the places of distribution, and the points of sale.
--Efforts will be primarily directed against piracy activities involving audio-visual products, computer software, books and other publications, sound recordings, counterfeiting and infringement of trademarks, especially well-known trademark, patent infringement and unfair competition.
--Each of the CD, LD and CD-ROM factories now operating in China shall be investigated during the Special Enforcement Period to determine whether they have produced or are producing unauthorized CDs, LDs or computer software in CD-ROM format. Factories subject to investigation will not be provided prior notice of visits and inspections. Those factories found not to have engaged in infringing conduct shall be re-registered and monitored on a regular basis thereafter. Those that are found to be engaging in infringing conduct shall be subject to administrative and/or judicial penalties, commensurate with the level of infringement.
--In respect of trademark infringement, the focus will be an prosecuting some significant cases, imposing severe penalties and widely publicizing them to demonstrate the dignity of the legal system and to deter further infringements.

5. While carrying out special raids, each enforcement task force is also to intensify and conscientiously carry out regular, routine inspections, and to make unremitting efforts to confirm that its operations are effective, and that infringements of intellectual property rights in its own area are substantially reduced and do not reoccur.

6. If infringements of intellectual property rights in a specific area are not substantially reduced by 31 August 1995, or if significant increases occur at any time in the future, then the Special Enforcement Period in that area will be extended or reinstated accordingly. If piracy is substantially reduced in a particular area, then that area can terminate the special enforcement effort before August 31, 1995.

D. Enforcement Efforts In Specific Fields
1. Audio-Visual Products and Computer Software

a. Enforcement task forces will complete the investigation of production lines suspected of producing infringing CDs, LDs, and CD-ROMs including computer software by July 1, 1995. In addition, relevant units engaged in reproduction, publication, import, export, wholesale, leasing, operation, or public performance of these products will be investigated.

b. Factories determined to have been engaged in infringing activities will be punished through seizure and forfeiture of infringing product and required to pay compensation adequate to compensate the loss which the infringed party suffered as stipulated in Article 53 of the Copyright Regulations, and will pay serious fines commensurate with the level of infringement. In addition, those factories found to be engaging in serious infringing production shall have their business licenses revoked. All infringing copies and the materials and implements directly and predominantly used to make them shall be seized, forfeited and destroyed.

2. Other Enforcement Efforts In Respect of Audio-Visual Products and Computer Software
All audio-visual administration departments and copyright administration departments at the sub-central level will join with relevant departments in charge of industry and commerce administration, and enforcement task forces (where they exist) to complete a comprehensive investigation of all CD, LD, CD-ROM production lines.

a. Audio-Visual Products
Infringement of copyright for audio-visual products is strictly banned. To that end, the following actions shall be taken:

i. The operation of audio-visual product businesses without obtaining the relevant permits and a business license will be prohibited.

ii. Audio-visual administration and copyright administration departments will begin comprehensive inspections and investigations of establishments that publish, reproduce, wholesale, retail, rent out, or perform audiovisual products within their respective jurisdictions. They will examine and verify the types, quantities, product whereabouts and matters relating to copyright for all-such products reproduced, sold, rented, performed and/or otherwise dealt with by these establishments. This work will be pursued on a continuous basis.
-- Repeat offenders (those who have been found to infringe on more than one occasion) will have their relevant audio-visual product permits revoked. For serious repeat offenders, the AIC office will revoke that infringers business licenses and will not grant another to such offender in the same field of activity within three years. The full range of administrative and judicial penalties will also apply, as appropriate.

iii. All sub-central departments in charge of audiovisual product control, together with enforcement task forces (where they exist) , will ensure that each retailer maintains an accurate inventory of his or her audio-visual products and updates it regularly. Departments are to improve routine inspection of these establishments. They are to examine carefully the origin of audio-visual products supplied to enterprises and keep well-informed of the category, quantity, and outlet of reproduced products.
-- Except for those products published and distributed by regular audio-visual units approved by the State and reproduced, produced or imported after approval, all audio-visual products will be treated as illegal publications and turned over and destroyed. In addition, other remedies in the law shall apply as appropriate.
-- Retail units dealing with audiovisual product must possess licenses to operate, and unlicensed retail peddlers of these products will be strictly banned. Operators shall receive their goods from distribution units approved by publications administration departments, and must register goods they receive. In cases in which the source of infringing products is unclear, an investigation will be made, responsibility will be determined, and those responsible will be strictly punished through administrative and judicial means, commensurate with the level of infringement.

iv. Prior to July 1, 1995, a report an the investigation and punishments imposed will be sent to the responsible departments, with a copy to the State Council Intellectual Property Working Conference Office.

b. Computer software
Infringement of copyrighted computer software is strictly banned under the law and each individual and entity, including all public, private, and not-for-profit entities, shall be treated equally under the law. To ensure effective enforcement against piracy and infringement of copyright in computer software, the following actions shall be taken:

i. The State Council Intellectual Property Working Conference will organize and coordinate the AIC, police, copyright administration, electronics industry, other relevant departments and the enforcement task forces (where they exist) to conduct comprehensive inspections of establishments that commercially reproduce, wholesale, retail, or rent out computer software within their respective jurisdictions. This work will be pursued on a continuous basis.

ii. All sub-central departments in charge of computer software product control, together with enforcement task forces (where they exist), will require each retailer to maintain an accurate inventory of his or her computer software, including information on the type, origin, quantity, and product location of any software that it commercially reproduces, distributes or rents, and update it regularly. Departments are to improve routine inspection of these establishments and verify the accuracy of the inventory. They are to verify the accuracy of the information in the inventory.
-- Except for those products distributed by entities with appropriate business licenses and reproduced, produced or imported after approval, all computer software will be treated as illegal publications and turned over and destroyed. Retail units dealing with computer software must possess licenses to operate, and unlicensed retail peddlers of these products will be strictly banned. If a retail unit cannot establish that it purchased computer software from an individual or entity with an appropriate business license, the source of the product will be investigated. Any individual or entity that reproduces or sells the software of right holders from whom they have not been licensed, will be punished through administrative and judicial means, commensurate with the violation. Cases in which serious infringement has been punished will be broadly publicized.
--For serious repeat offenders, the AIC office will revoke the infringers' business licenses and will not grant another to such offender in the same field of activity within three years. The full range of administrative and judicial penalties will also apply, commensurate with the violation

iii. All public, private, and not-for-profit entities using computer software, shall provide resources sufficient to purchase legitimate software.
iv. Prior to October 1, 1995, a report an the investigation and punishments imposed will be sent to the responsible departments, with a copy to the state Council Intellectual Property Working Conference Office.

3. Books, Periodicals and Other Printed Works
a. With respect to books and periodicals, supervision and monitoring of the distribution of publications will be improved since piracy of publications is absolutely banned. All localities are to carry out an operation to consolidate all printing firms within their areas of jurisdiction, take severe action against those enterprises that illegally take orders to print pirated publications, and the business licenses of those engaged in the printing of pirated printed matter are to be revoked without mercy.

b. Publishers and printing enterprises must check with the license issuing agency to verify the printing license prior to undertaking the printing of books or periodicals. Those who do not strictly complete the formalities and print pirated books or periodicals will be punished through administrative and judicial means. Grant of a publishing license will be based on whether the applicant has obtained authorization or permission from the right holder or that person's representative to publish the relevant material. Printing houses that operate without licenses will be shut down.

4. Trademarks
a. Since trademark counterfeiting and infringement is illegal, the working conferences and enforcement task forces will investigate and punish trademark infringement promptly and strictly. Cases involving suspected criminal trademark infringement must be handed over to the prosecutors. The relevant authorities will seek severe penalties, commensurate with the level of infringement.

b. Any trademark agent permitted to act an behalf of Chinese individuals and entities will now also be permitted to act on behalf of foreign individuals and entities. For the purposes of obtaining enforcement actions by the AIC and Customs, wholly-owned subsidiaries of foreign companies, joint ventures involving foreigners in China, and any licensee in China will be permitted to act on behalf of the foreign owner of the mark.

E. Enforcement Directly Through Administrative Agencies and Departments
1. The Administrations and Departments listed below shall have the respective authorities as specified and will exercise those authorities to eliminate infringement of intellectual property rights:

a. The National Copyright Administration (NCA) and local copyright administrative agencies are in charge of and responsible for administration and maintenance of all copyright protection for computer software, audio-visual products, books and other publications, and all other works. NCA and local copyright administrative agencies shall direct and be in charge of enforcement efforts as part of enforcement task forces and each task force will investigate and punish copyright infringement.

b. The Trademark Office of the SAIC is in charge of trademark registration and trademark administration throughout the country. If there is reason to believe that a trademark contract is inconsistent with the law, the Trademark Office will review the contract to determine if it is valid. The AIC Trademark Office also punishes trademark infringement and trademark counterfeiting and handles the appeal of trademark infringement cases and identifying and determining whether trademarks are well-known.
AIC is the primary administrative law enforcement department responsible for investigating and punishing unfair competition. It is responsible for supervising and examining transactions of operators in the market, preventing unfair competition, and investigating and punishing illegal activities that infringe on trade secrets.

c. The Chinese Patent Office is an administrative authority for the enforcement of patent law and is the functional authority in charge of patent work under the State Council. The administrative authorities for patent affairs established by relevant departments under the State Council or the local People's Governments are responsible for directing and coordinating patent work in localities and departments, for mediating and handling patent disputes, as well as investigating and punishing passing-off of patents within its jurisdiction.

2. All copyright, patent and trademark authorities at the provincial, regional and local levels will report directly to, and follow the guidelines of, the NCA, AIC and the Patent Office at the central level. All such authorities shall devote time and resources to secure effective communication between themselves at the inter-regional level and with the central level and to ensure the effectiveness and coordination of their operations.

3 . Administrative authorities, including NCA, AIC and the administrative authorities for patent affairs, responsible for determining and punishing infringement shall:
--wherever there is reason to believe or suspect an infringement of an intellectual property right, order the infringement to stop immediately, and where infringement is found, upon the request of the right holder, require the infringer to compensate for the loss which the infringed party suffered (as stipulated in Article 53 of the Copyright Regulations, and Article 39 of the Trademark Law and Rule 43 of the Trademark Regulations and Article 60 of the Patent Law), and impose serious fines on the infringer commensurate with the level of infringement;
-- in any case that involves suspected criminal conduct refer the case to the prosecutors; and
-- with respect to repeat offenders, i.e., those who have been found to infringe intellectual property rights in a serious manner on more than one occasion, the relevant AIC office will revoke their business licenses and will not grant another to such offender in the same field of activity within three years.

4. In the process of enforcing the intellectual property laws, all administrative and judicial bodies with responsibility in this area are to accept information about infringements given by the holders of intellectual property rights (including foreign owners of intellectual property rights), or by other interested persons, and are to conduct investigations into the reported cases promptly.

5. Foreign and domestic right holders will be permitted to submit petitions to initiate investigations and enforcement action to the national or local administrative agency in charge of the intellectual property right at issue. Petitions shall be accepted according to published, uniform criteria that are limited to determining whether there is a reason to believe that the petitioner is the right holder or that person's authorized representative and there is a reason to believe or suspect that a right has been or may be infringed. Information on procedures for filing such petitions shall also be published and made available to right holders. within fifteen days of the receipt of the petition, the petitioner must be notified that complaint has been accepted or, if it is not accepted, notified in writing of the specific reasons for its refusal. Requests for administrative enforcement actions and receipt of administrative remedies does not affect the right to seek relief in a judicial action.

6. Foreign right holders or their representatives will be permitted to collect information by legal means concerning infringement of their rights. Foreign entities will be permitted to collect by legal means any information relevant to the issue of infringement. Such information will be admissible as evidence when administrative agencies initiate investigations and handle cases and this evidence will be treated as equal to evidence collected and provided by Chinese nationals.

F. Additional Administrative Actions
1. All sub-central level administrative departments in China must institute an Intellectual Property Rights protection and enforcement system with individuals and enterprises that manufacture or sell books, computer software, except for CD-ROMS, or are engaged in trademark printing or publishing to determine if violations have occurred.
-- Since individuals and enterprises that manufacture, sell or print or publish these products are subject to special permits and annual business operating license checks, administrative departments shall register only those entities that have observed the law. Repeat offenders (those who have been found to infringe on more than one occasion) will have their relevant audio-visual product permits revoked. For serious repeat offenders, the AIC office will revoke the infringers, business licenses and will nor grant another to such offender in the same field of activity within three years. The full range of administrative and judicial penalties will also apply, commensurate with the violation.

2. All sub-central level administrative departments must combine stringent enforcement with information and education; run training classes; and require the manufacturers and sellers of audio-visual products. computer software products, books, and engage in trademark printing or publishing to study, in-depth, intellectual property laws, regulations, and relevant documents. Examinations shall be held to check their study. Those who pass will be issued an intellectual property rights training certificate and will operate on the strength of the certificate.
Those who fail to obtain an intellectual property rights training certificate will be refused the registration of their special permits and annual business operating licenses when the annual inspection is due until such time as they obtain a training certificate.

3. In intellectual property right infringement investigations, all sub-central level administrative departments will institute a system for persons to provide information and assistance in intellectual property right infringement cases.

4. All sub-central level administrative departments shall institute a monitoring system for serious and significant intellectual property infringement cases, and in cooperation with the intellectual property working conferences coordinate cross-region and cross-province investigations and enforcement efforts. They shall crack down promptly and effectively on copyright pirating, trademark counterfeiting, and other intellectual property rights infringements so as to eliminate infringement.

5. While properly carrying out special law enforcement inspection operations, all sub-central administrations and all departments are to further improve and perfect all routine supervisory and administrative systems, develop standardized administrative procedures, improve administrative quality, perform their duties and conscientiously protect the legitimate rights and interests of intellectual property rights owners.

G. Customs Enforcement
1. All customs offices will further intensify the protection of intellectual property rights of all imports and exports and they will be subject to customs enforcement.
Beginning on March 1, 1995, and lasting until October 1, 1995, Customs will intensify the protection at the border for imports and exports of CDs, LDs, CD-ROMs and trademarked goods. Customs will, therefore, detain suspected infringing products. Once the goods are determined to be infringing, they will be seized, forfeited and destroyed or excluded from the stream of commerce according to the principles set forth below. Those, responsible for the infringement will be strictly punished through administrative and/or judicial means.

2. New customs regulations will be published by July 1, 1995 and enter into force by October 1, 1995. These new regulations will clarify that infringing goods that are imported or exported are illegal. In order to protect intellectual property rights, customs will exercise all of the authorities stipulated by China's Customs Law. In particular:
-- Goods that infringe intellectual property rights under Chinese laws and regulations are prohibited from being imported into or exported from China.
-- The copyright or trademark owner or his authorized representative may apply to customs for the enforcement of his intellectual property right with respect to imports and exports.
-- In the area of copyrights, Customs will enforce copyrights against infringing imports and exports in all cases in which the applicant for enforcement presents legal proof of copyright, which in the case of a national of a member of the Berne Convention for the Protection of Literary and Artistic Works, would be satisfied by a copyright registration certificate of that member country.
-- In the area of trademarks, Customs enforces trademarks against infringing imports and exports in all cases in which the applicant for enforcement presents a "Trademark Registration Certificate" issued by the AIC or, in the case of unregistered marks, a claim of well-known status confirmed by the AIC.
-- Customs will, on an ex officio basis (without a request from the right holder), based on suspicion of infringement, on the petition of the right holder or his representative, or on a random basis, examine all types of imports and exports protected by copyright and trademarks and determine whether they are infringing.
-- The Customs Office shall detain goods if they are suspected of constituting an infringement or in accordance with a ruling of the Peoples Courts. On detention of suspected infringing goods, the right holder or his representative will be notified and can request that the customs office continue to detain the goods. When the customs office detains goods suspected to constitute an infringement, the right holder or his representative will post a bond in an amount equal to the value of the bonded goods, to be determined based on the invoice value of the goods. If a final determination as to infringement is negative, the importer or exporter can request relief for losses incurred in a civil court action against the right holder. If the right holder pays any award granted by the court, the bond will be returned to the right holder; if the right holder does not pay such award in a timely manner, customs will forward the bond to the court for satisfaction of the judgement.
-- Customs can release the suspected infringing goods after the courts, Customs, or the relevant administrative authorities make a final determination clearing the goods of suspicion of infringement. However, if within a period not exceeding 10 working days after the right holder has been served notice of the detention, Customs has not been informed that proceedings leading to a decision on infringement have been initiated by a party other than the alleged infringer, or that the duly empowered authority has taken provisional measures prolonging the detention of the goods, the goods shall be released, provided that all other conditions for importation or exportation have been complied with; in appropriate cases, this time-limit may be extended by another 10 working days.
-- Within ten working days or the goods being detained, the customs office will begin an investigation as to the legitimacy of the detained goods that are suspected of infringement. In particular, the customs office will in every possible instance make a comparison between such suspected goods and legal goods, carry out an inspection of the suspected goods and the vessel of transportation concerned, inspect the factories and warehouses that are under the customs office's supervision and are suspected of being involved in the case of infringement, and re-examine the documents and materials related to the case of infringement. In doing so, Customs will search for evidence of or infringement, other infringing goods, and the materials and implements used to make infringing goods.
-- For cases involving suspected criminal activity and cases exceeding Customs authority to address, Customs will, within 20 working days of the goods being detained, notify prosecutors, the police and other relevant administrative enforcement authorities, who will cooperate with Customs in the investigation and punishment of these cases.
-- Imports and exports that are determined to be infringing will be seized by customs officials. Infringing articles seized and forfeited for violation of China's copyright law shall be destroyed.
--All goods violating China's trademark law will be destroyed, unless the trademark is removed or obliterated. In that case, such goods will be kept out of the stream of commerce and can be used only for charity, use by the government agencies who demonstrate a need for the product, or auctioned so long as it is not auctioned to the infringer.
-- Customs will also impose severe administrative penalties on the infringer.
-- By December 31, 1995, Customs will establish a central recordation system for the protection of copyright and trademark rights. Recordation will be valid for no less than seven (7) years or until the expiration of the copyright or trademark right, whichever is sooner, but recordation can be extended after its expiration.
-- The recordation system will include information on suspected or known infringers, including those persons and entities found by an administrative body, judicial authorities to have dealt in infringing imports or exports. Customs will include in this system identifying information provided by owners of intellectual property rights or other reliable sources an known or suspected importers or exporters of infringing goods; means for identifying the specific merchandise that is believed to be infringing; location and time, if available, of the anticipated impartation or exportation; and suspected destination of exported goods. customs will disseminate the continuously updated information to all customs offices.
-- If the parties concerned are dissatisfied with the customs office's decision, they can ask for administrative reconsideration or judicial proceedings, in accordance with the provisions of
Article 53 of the Customs Law.

H. Establishment of Copyright Verification Systems
1. Unique Identifier
a. Beginning on March 1, 1995, CDs and all CD-ROMS will be protected through a unique identification verification system. By July 31, 1995, LDs will also be protected through such a system and technical assistance will he provided to assure that the means to implement this system are made available by that date. To implement this system: manufacturers of copies of CDs, LDS, and all CD-ROMs will be issued a unique identifier that must be imprinted on the manufactured copies in an obvious place.
b. Any manufacturer of copies of CDs, LDs and CD-ROMs that fails to comply with the unique identifier requirement will be punished by administrative and judicial means commensurate with the violation.

2. Title Verification
a. All individuals or entities engaged in reproduction, production, or publishing of foreign audiovisual products or computer software in CD-ROM format must register their contracts with the NCA or local copyright authorities.

b. Any individual or entity that reproduces or publishes, including for export, in foreign audio-visual products or computer software in CD-ROM format must receive title registration from MCA and a permit authorizing the specific act from the relevant authority. Any individual or entity that fails to receive title registration or a permit or exceeds the scope of the permit will be punished by administrative and judicial means commensurate with the violation.
--NCA shall refer documents purporting to authorize any such act to relevant associations of right owners and shall not issue a certificate of title registration except upon receipt of verification from such association.
-- The relevant authority (Press and Publications, Ministry of Culture, Ministry of Radio, Television and Film, and the local audio-visual departments) charged with granting permits shall not issue a permit except upon prior receipt of NCA's certificate of title registration. Permits will be specifically limited to the acts actually authorized by the right holder.
--The issuance of a registration certificate with respect to a particular work will in no way preclude a later action for infringement against any party with respect to the work.

3. Beginning on March 1, 1995, any entity that reproduces CDs, LD's, or CD-ROMs shall maintain, during the period of production or reproduction and for three years thereafter, a copy of the license contract and certificate of registration, together with an example of the copies produced.

I. Administrative and Regulatory Matters
1. Trademarks
a. The Trademark Office of the AIC, when verifying whether a mark is well-known, will make its examination on a case-by-case basis. Well-known marks are those known in the relevant sector of the public, including knowledge in China resulting from the international renown of the trademark.

b. If a owner of the trademark requests a determination concerning whether a mark is well-known, either directly or through the Customs Office, for the purpose of preventing the import or export of goods or in connection with an administrative or judicial proceeding to determine infringement, the Trademark Office will issue a determination concerning whether the trademark is well-known within 30 days after receipt of the request.

c. Protection of a well-known mark will extend to products or services other than those on which the mark is registered or used, to the extent such use would indicate a connection between those goods and services and the owner of the mark or adversely affect the commercial reputation of the trademark owner.

d. Trademarks that the Trademark Office of AIC determines are well-known, but are not registered in China, will be protected against infringement, including providing the right to oppose or cancel the registration of a duplicate or confusingly similar mark. The owner of an unregistered well-known mark will be able to enforce his rights against infringement and counterfeiting to the same extent a registered trademark owner can enforce rights.

e. The Trademark Office of the AIC will not register a mark it has determined to be well known to a person other than the internationally recognized owner of the well-known mark. Registration of well-known marks to persons other than the internationally recognized owner of such marks will be canceled upon petition of the internationally recognized owner of the well-known mark within five years of the date of registration. No time limit shall apply for requesting the cancellation of well-known marks registered in bad faith. If the registered mark is identical to or substantially indistinguishable from the well-known mark, the requirement of Rule 25(2) of the Implementing Regulations of the Trademark Law has been met.

f. AIC will establish and publish standards to govern the registration process, for example, standards relating to deter-mining likelihood of confusion, descriptiveness, and criteria for determining if a mark is well-known, and procedures for filing and examining a trademark application, and renewal of registration, and standards and procedures for opposition and cancellation of marks.

2. Unfair Competition
Any person or entity that engages in any act of unfair competition, such as the adoption of the trade dress, trade name, commercial indication or trade mark or service mark of a competitor, false allegations in the course of trade of such a nature as to discredit the establishment, the goods or services, or the industrial or commercial activities, of a competitor; indications or allegations the use of which in the course of trade are liable to mislead the public as to the nature, the manufacturing process, characteristics, suitability for their purpose, or the quality of the goods or services will be considered to be engaged in unfair competition. AIC and other responsible departments will intensify efforts to address unfair competition and to strictly punish violations commensurate with their seriousness.

II. Pursuit of Information Dissemination and Training, and Improving the Environment for Intellectual Property Laws
A. Relevant authorities will conduct training and education on intellectual property protection across the country and take the following steps:
1. Incorporate intellectual property laws into the state's knowledge-of-law popularization scheme, with the aim of providing training on intellectual property rights for over 50 percent of officials at or above the county and departmental ranks in all departments within one to two years. Over 80 percent of persons in charge of research institutes, large and medium-sized enterprises, and institutions of higher learning, as well as officials in economics, science and technology, and culture management, shall also undergo such training.

2. Make special efforts to improve and expand the training of officials responsible for administering and enforcing intellectual property rights. These officials include personnel in departments of industry and commerce, press and publication, culture, customs, and police who are charged with enforcing patents, trademarks rights, and copyrights, including copyright in computer software. The government will cooperate with local judicial bodies, actions to improve the professional quality of judicial and prosecutorial personnel, and provide Customs officers with training courses in identifying products that infringe copyrights, including methods of inspecting computer software, products that infringe trademarks and other intellectual property rights.

3. Provide national training and education about intellectual property rights protection. These efforts will include: publicity campaigns through the news media on intellectual property rights and the importance of protecting them; opening or expanding special studies of intellectual property at institutes of higher learning, and providing basic education for undergraduates; and providing training courses for the management staff of enterprises and non-profit-making institutions that make or sell products protected by intellectual property rights.

B. The Press and Publication Organizations shall:
1. Organize manpower systematically to heighten the awareness of protecting intellectual property rights and of intellectual property laws in society as a whole. While giving publicity to the positive results and experiences of enterprises and non-profit-making institutions in protecting intellectual property rights, the media must also expose serious infringements of intellectual property rights and local protectionism.

2. Mount nation-wide information and education efforts through broadcasting, television, newspapers, periodicals, and other mass media to boost publicity on intellectual property rights, and to publicize the consequences of infringements of intellectual property rights. Wide coverage shall be given to serious right infringements--including investigations into foreign-involved cases--through television and newspapers. This will serve as information and education for the general public.

C. Prior to June 1, 1995, the State Council's Office for the Working Conference on Intellectual Property Rights will have compiled and published a body of laws and provisions on intellectual property rights to make publicly available the laws, provisions, regulations, standards, edicts, decrees, and interpretations regarding the authorization, management, and implementation of intellectual property rights. All intellectual property laws, regulations, provisions, standards, edicts, decrees, and interpretations will be published, and those that are not published and made readily available will not be enforced.

D. The State Council's Office for the Working Conference on Intellectual Property Rights is charged -- together with the Chinese Patent Office, the Trademark Office of the PRC State Administration for Industry and Commerce, the State Copyright Administration, and other concerned departments -- with compiling and publishing the "Guidelines for Patent Application and Protection in China," the "Guidelines for Trademark Application and Protection in China," and the "Guidelines for Copyright Protection," in which they are to clarify standards and procedures for intellectual property rights protection, so that Chinese and foreign holders of intellectual property rights can have a better understanding of the legal provisions and methods for protecting intellectual property rights in our country. Each set of guidelines shall clearly explain all procedures and standards related to the application for, maintenance of, and enforcement of intellectual property rights. The Chinese language version of these guidelines shall be made widely available to the public by September 1, 1995.

The TCC offers these agreements electronically as a public service for general reference. Every effort has been made to ensure that the text presented is complete and accurate. However, copies needed for legal purposes should be obtained from official archives maintained by the appropriate agency.

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