Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in Hearing Cases of Civil Disputes over Copyright

Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in Hearing Cases of Civil Disputes over Copyright  October 12, 2002

Fa Shi [2002] No. 31

Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in Hearing Cases of Civil Disputes over Copyright have been adopted at the1246th Session of the Judicial Committee of the Supreme People's Court on October 12, 2002 and are hereby promulgated for implementation as of October 15, 2002.

(Adopted at the 1246th Session of the Judicial Committee of the Supreme People's Court on October 12, 2002 Fa Shi [2002] No. 31

In order to correctly adjudicate civil disputes over copyright, the application of laws to such disputes is hereby interpreted by the Supreme People's Court in accordance with relevant provisions of the General Principals of Civil Law of the People's Republic of China, the Contract Law of the People's Republic of China, the Copyright Law of the People's Republic of China, Civil Procedure Law of the People's Republic of China, as well as other applicable laws, as follows:

Article 1 A people's court will and shall accept the following civil disputes over copyright:
1. Disputes over ownership, infringement and contract related to copyright or copyright-related rights and interests;
2. Applications for pre-litigation injunction to cease infringement on copyright or copyright-related rights and interests, applications for pre-litigation property preservation, and applications for pre-litigation evidences preservation; and
3. Other disputes over copyright or copyright-related rights and interests.

Article 2 Civil disputes over copyright shall be subject to the jurisdiction of a people's court at the intermediate or higher level.
Each higher people's court may designate some grassroot courts to exercise jurisdiction over copyright-related civil disputes in the first instance.

Article 3 If a copyright infringing conduct has been disposed of by a competent copyright administrative authorities, and the infringed party files a lawsuit to pursue the infringing party for appropriate civil liability, then a competent people's court shall accept such lawsuit.
When adjudicating a civil dispute over a copyright-infringing conduct that has already been disposed of by a competent copyright administrative authorities, a people's court shall carry out an investigation into the facts of the reported case in all respects.

Article 4 Civil actions filed in connection with a copyright-infringing conduct shall be subject to the jurisdiction of the people's court at the place where the infringement is committed, or where the infringing copies are being stored or being seized or detained, or where the respondent resides, as stipulated by Articles 46 and,47 of the Copyright Law.
The infringing copies storing place provided in the preceding paragraph means such a place as used to store or shelter infringing copies in a large quantity or for business purposes; and the infringing copies seizure and detention place provided in the preceding paragraph means the place where the customs, the copyright administration authorities, the industry and commerce administration authorities, or any other competent administrative authorities takes lawful seizure or detention of the infringing copies.

Article 5 If it is a joint action against more than one respondent and involving different places of infringement, the plaintiff may, in its sole discretion, select the people's court at the infringement committing place of any one of the respondents; if the plaintiff only sues one respondent, then the people's court at the place where that respondent commits its infringement shall have jurisdiction thereover.

Article 6 If a lawfully established collective copyright management organization files an action in its own name and with a written authorization from the copyrighter, with a competent people's court, such action shall be duly accepted.

Article 7 Manuscripts, originals, lawful publications, copyright registration certificates, certificates issued by a certification institution, contracts by which rights are obtained, as well as other relevant documents, rendered by a party, which involve copyright, may serve as evidence(s) where appropriate.
Any natural person, legal person or non-legal-person organization that affixes its signature to a writing or production will be deemed as the right holder of the accompanying copyright and copyright-related interests, except there are evidences to the contrary.

Article 8 Objects, invoices or other related things that a party obtains in connection with purchase of infringing copies through ordering, on-site transaction or other methods, personally or by entrusting other person(s), may be used as evidences.
Evidences obtained according to facts by a notarial officer who has not represented his/her identity to the party suspected of infringement from the other party in manners provided in the preceding paragraph and the notarial deed issued in the course of taking such evidences shall be used as evidences, unless there are evidences to the contrary.

Article 9 "Made public" provided in Item 1 of Article 10of the Copyright Law means that a copyrighter publishes his/her works voluntarily to a non-specific group of people or that publishing a copywriter's works to a non-specific group of people after obtaining the copywriter's consent, but being known by the public is not a composite condition for that.

Article 10 For works referred to in Item 2 of Article 15 of the Copyright Law, if the copyrighter is a natural person, then the copyright term will be as provided in Item 1 of Article 21 of the Copyright Law; if the copywriter is a legal person or non-legal-person organization, then the copyright term will be as provided in Item 2 of Article 21 of the Copyright Law.

Article 11 For disputes arising due to the order of signatures on a piece of works, a people's court may dispose of them according to the following principals: if there is an agreement, determine the order of signatures according to such agreement; if there is no agreement, the people's court may determine the order of signatures according to one or more of such factors as the amount of work each author has contributed, the works' arrangement, the number of strokes of each author's family name, or other relevant factors.

Article 12 If as provided in Article 17 of the Copyright Law that the copyright of a commissioned works belongs to the commissioned party, then the commissioning party will be entitled to use the works within the agreed-upon scope; if the two parties have not agreed on a use scope, then the commissioning party may use the works free of charge for specified purposes for which it has commissioned the creation.

Article 13 Except for the conditions provided in Item 3 of Article 11 of the Copyright Law, if a piece of report, speech or other similar works is written by a person other than the principal but is reviewed by the principal and published in the name of the principal, then the copyright in connection with such works shall belong to the report or speech maker. The copyrighter may pay a proper amount of compensation to the writer.

Article 14 For autobiographical works the parties agree to write based on a specific person's story, if the parties have agreed on the copyright ownership in respect of such works, then the copyright ownership shall be determined according to such agreement; if there is no agreement in that regard, then the copyright shall belong to that specific person, who may pay the writer or compiler a proper amount of compensation for their any contribution to the works.

Article 15 If different authors produce works in respect of the same theme, and their respective expressions are independent from each other's and are of creative features in their own regard, it shall be recognized that each author has an independent copyright to his/her works.

Article 16 Pure factual information broadcasted through public communication media constitutes a type of current affairs news as provided in Item 2 of Article 5 of the Copyright Law. The source of news shall be indicated when broadcasting or reporting any piece of current affairs news gathered or compiled by others.

Article 17 Reproduction provided in Item 2 of Article 3 of the Copyright Law means that a newspaper or magazine publishes a piece of works that has been previously published by another press. If reproducing a piece of works without indicating the author of the works and the original source press, the reproducer shall be charged with such civil liabilities as eliminate all adverse effects caused thereby, make a public apology and compensate for losses, etc.

Article 18 An artwork located or on display in an outdoor public place provided in Item 10 of Article 22 of the Copyright Law means such artworks as sculptures, paintings, handwritings and others set up or exhibited in an outdoor public gathering place.
A person copying, drawing, photographing or video-recording such artworks as provided in the preceding paragraph may make use of his or her production in a reasonable manner and scope, which will not constitute an infringement upon the aforementioned artworks.

Article 19 A publisher or producer shall bear the burden of proof that it has been lawfully and duly authorized for any publishing or production it makes, and an issuer or lender shall bear the burden of proof that the reproductions it issues or leases are from a lawful source. If they fail to adduce sufficient proofs, they shall bear corresponding legal liabilities as provided in Articles 46, 47 of the Copyright Law.

Article 20 If a publication of one person infringes upon another person's copyright, the publisher shall bear appropriate civil liabilities of compensation according to its fault, the degree of infringement, the damages caused, and other relevant factors.
If the publisher fails to fulfill the obligation of due care in respect of the authorization, the source and signature of manuscript, the content of the publication it edits and other relevant factors for its publishing, the publisher shall bear corresponding liabilities of compensation therefor according to Article 48 of the Copyright Law.
If the publisher has fulfilled the obligation of due care as required, and the copywriter has no evidences to prove that the publisher shall have known its publication has infringed upon his/her copyright, then the publisher shall bear the civil liabilities to cease the infringement and return all proceeds gained from such infringement according to Item 1 of Article 117 of the General Principals of Civil Law.
The publisher shall bear the burden of proof that it has fulfilled the obligation of the said due care.

Article 21 If a computer software user makes unauthorized use of computer software or use computer software beyond the authorized use scope for commercial purpose, such user shall bear corresponding liabilities according to Item 1 of Article 4 of the Copyright Law and Item 1 of Article 24 of the Regulations on the Protection of Computer Software.

Article 22 If a copyright transfer contract is not made in writing, a people's court shall examine whether the contract has been duly set up according to Articles 36 and 37 of the Contract Law.

Article 23 If a piece of works delivered by a copyrighter for publishing is lost or damaged due to the publisher's fault, which results in the publication contract can not be performed, the publisher shall be held for civil liabilities according to Article 53 of the Copyright Law, Article 117 of the General Principals of Civil Law, and Article 122 of the Contract Law.

Article 24 A right holder's actual loss may be computed by multiplying the decrement in the number of reproductions due to infringement or the sales volume of infringing copies with the unit profit the right holder's would gain in producing those copies. In case it is hard to determine the decrement of reproductions, the loss shall be determined according to the market sales of the infringing copies.

Article 25 In case a right holder's actual loss or an infringer's illegal earnings can't be determined, a people's court shall, upon the request of the parties, or ex officio, apply the stipulation of Item 2 of Article 48 of the Copyright Law to determine the amount of compensation.
When determining the amount of compensation, a people's court shall take into consideration the type of the subject works, the reasonable use fee, the nature of the infringement, the consequences caused thereby, and other relevant circumstances.
Any agreement that the parties agree upon the compensation according to the first paragraph of this Article shall be granted and allowed.

Article 26 The reasonable amount of expense paid for deterring infringement provided by Item 1 of Article 48 of the Copyright Law includes the reasonable expenses the right holder or its agent incurs in investigating or producing evidences for the infringement.
A people's court, according to the claim of the parties and the specific case, may add the lawyer's fees which is consistent with the stipulations of relevant state departments into the sum of compensation.

Article 27 For copyright infringement cases instituted before the decision of amendment to the Copyright Law has been put into force, if a people's court adjudges the case after the decision has been put into force, it may refer to the stipulations of Article 48 of the Copyright Law.

Article 28 The prescription of action for copyright infringement is two (2) years, which shall commence from the date when the copyrighter is or shall be aware of the occurrence of the infringement. If an right holder brings an action after that two (2) years period has expired, and the infringement is still in continuation when the action is brought and is within the copyright term, a people's court shall adjudge the respondent to stop the continuing infringement; when computing the amount of damages, and the amount of compensations for infringement shall be calculated for two years taken backward from the date when this action is filed with the people's court.

Article 29 With respect to such infringement as provided in Article 47 of the Copyright Law, in addition to holding the infringer for civil liabilities, a people's court, if so requested by the complaining party, may impose upon the infringer appropriate civil penalties according to the stipulations of Item 3 of Article 134 of the General Principals of Civil Law, the amount of penalty may be determined by referrence to relevant stipulations of the Implementing Regulations of the Copyright Law of the People's Republic of China.
If an administrative sanction has been imposed by a competent administrative authorities uopn an infringement, then a people's court may not impose any civil sanction on the same infringement.

Article 30 For a copyright infringement that occurred before October 27, 2001, if the infringed party makes an application to a people's court after that date, requesting the court to order the infringer to stop the infringement, or to adopt evidences preservation measures, the people's court shall apply the stipulations of Articles 49, 50 of the Copyright Law.
When adopting pre-litigation measures, a people's court shall refer to the stipulations of these Interpretation of the Supreme People's Court on the Application of Law for Stopping the Infringement upon the Right to the Exclusive Use of a Registered Trademark and Preserving Evidence before Initiating Litigation.

Article 31 Except these Interpretations provides otherwise, if a civil copyright dispute that a people's court accepts after October 27, 2001 involves a civil conduct occurring before October 27, 2001, then the people's court shall apply the stipulations of the pre-amendment Copyright Law to that conduct; if the dispute involves a conduct that occurs after that date, the people's court shall apply the stipulations of the amended Copyright Law; if the dispute involves a conduct that occurs before that date and continues after the same date, the people's court shall apply the stipulations of the amended Copyright Law.

Article 32 In case any previous stipulations are inconsistent with these Interpretations, these Interpretations shall prevail and apply.

最高人民法院印发《关于充分发挥知识产权审判职能作用推动社会主义文化大发展大繁荣和促进经济自主协调发展若干问题的意见

最高人民法院印发《关于充分发挥知识产权审判职能作用推动社会主义文化大发展大繁荣和促进经济自主协调发展若干问题的意见》的通知

法发[2011]18号

2011年12月16日

各省、自治区、直辖市高级人民法院，解放军军事法院，新疆维吾尔自治区高级人民法院生产建设兵团分院：

　　现将《最高人民法院关于充分发挥知识产权审判职能作用推动社会主义文化大发展大繁荣和促进经济自主协调发展若干问题的意见》印发给你们，请结合审判工作实际，认真贯彻执行。执行中遇到问题，请随时报告我院。

　　最高人民法院关于充分发挥知识产权审判职能作用推动社会主义文化大发展大繁荣和促进经济自主协调发展若干问题的意见

　　为深入贯彻十七届六中全会、中央经济工作会议精神和“十二五”规划纲要要求，充分发挥知识产权审判在推动社会主义文化大发展大繁荣及促进经济发展方式加快转变和经济自主协调发展中的职能作用，现就有关问题提出如下意见：

　　一、解放思想，能动司法，切实增强提供知识产权司法保障的责任感和使命感
　　1、提高认识，切实增强推动社会主义文化大发展大繁荣和促进经济自主协调发展的积极性和主动性。十七届六中全会通过的《中共中央关于深化文化体制改革推动社会主义文化大发展大繁荣若干重大问题的决定》，确定了中国特色社会主义文化发展道路，确立了建设社会主义文化强国的战略目标，提出了新形势下推动文化改革发展的指导思想、目标任务、重要方针、重大举措，是当前和今后一个时期指导我国社会主义文化建设的纲领性文件。国民经济和社会发展“十二五”规划纲要明确，未来五年我国各项工作必须以科学发展为主题，以加快转变经济发展方式为主线；坚持把经济结构战略性调整作为主攻方向，把科技进步和创新作为重要支撑。中央经济工作会议要求，要牢牢把握发展实体经济这一坚实基础，努力营造鼓励脚踏实地、勤劳创业、实业致富的社会氛围；牢牢把握加快改革创新这一强大动力，抓住时机尽快在一些重点领域和关键环节取得突破，着力提高原始创新能力，不断增强集成创新、引进消化吸收再创新能力；坚持创新驱动，强化知识产权保护；培育发展战略性新兴产业，注重推动重大技术突破，注重增强核心竞争力；加快壮大文化产业，推动文化事业蓬勃发展。文化发展、科技进步和知识创新，是推动经济发展方式转变和经济自主协调发展的根本动力。知识产权保护与促进文化发展繁荣和经济自主协调发展密切相关。各级法院和广大知识产权法官要充分认清形势，切实增强大局意识和责任意识，坚持能动司法，找准结合点和着力点，在知识产权司法保护中，更加注重激励文化发展和科技进步，更加注重推进文化创新和发展新型文化业态，更加注重推动知识产权文化的发展和繁荣；更加注重发挥知识产权对实体经济的促进和引领作用，更加注重培育发展战略性新兴产业和推动经济结构战略性调整，更加注重提高我国的综合国力和国际竞争力，在推动社会主义文化大发展大繁荣和经济自主协调发展中充分发挥建设者和保障者的作用。
　　2、更新观念，切实增强服务社会主义文化大发展大繁荣和经济自主协调发展的针对性和有效性。要强化加强保护观念，充分认识加强保护是当前知识产权司法保护的主要矛盾、基本定位和政策取向，统筹好国际国内两个大局，用足用好知识产权法律，加强各类知识产权司法保护，切实降低维权成本和加大制裁力度。要强化分门别类和宽严适度观念，在知识产权司法保护中注意适应各类知识产权的属性和特点，符合各类不同知识产权的功能和保护需求，使知识产权司法保护更加适应我国所处的国际国内发展环境，更加符合我国经济社会文化发展新的阶段性特征，更加符合我国文化发展和科技创新的新要求。要强化利益平衡观念，把利益平衡作为知识产权司法保护的重要基点，统筹兼顾智力创造者、商业利用者和社会公众的利益，协调好激励创造、促进产业发展和保障基本文化权益之间的关系，使利益各方共同受益、均衡发展。要强化初次裁判正确观念，高度重视提高第一审初次裁判的正确率，使当事人及早获得司法公正，提高服判息诉率和减少上诉率，促进社会和谐稳定。
　　3、发挥优势，进一步增强司法保护知识产权的主导性。继续深入落实发挥司法保护知识产权主导作用的国家知识产权战略构想和目标，增强贯彻这一战略目标的坚定性和自觉性，确保贯彻落实的科学性和准确性。要适应中国特色社会主义法律体系形成后的新形势新要求，更加重视司法保护知识产权，确保知识产权法律的贯彻实施，弘扬社会主义法治理念。要更加重视知识产权法律适用的稳定性和可预期性，重视程序保障和过程透明，重视在先典型案例示范作用，最大限度地为利益攸关方提供稳定和可期待的预期，最大限度地使其避免受司法标准不统一的困扰，积极营造良好的法律环境、投资环境和市场环境。要更加重视长效保护机制，重视一以贯之的法律执行，重视营造一种持之以恒的长效保护机制，避免为一时一事改变甚至损害法律的长效执行。要更加重视平等保护，重视知识产权法律的一体执行，坚决遏制地方保护。要更加重视裁判的引领和导向功能，在裁判中重视弘扬社会主义核心价值体系，注意把法律评价与道德评价有机结合起来，引领社会主流价值观，把维护公共道德作为司法保护的重要价值追求，提升全社会尊重知识、崇尚创新、诚信守法的知识产权法治文化。

　　二、加强涉文化类知识产权案件的审判，促进文化创新和培育新型文化业态，积极推动社会主义文化大发展大繁荣
　　4、高度重视涉文化类知识产权案件的审判，依法加强文化类知识产权的保护。我国已形成以著作权法、非物质文化遗产法、计算机软件保护条例、信息网络传播权保护条例等法律、行政法规为主干的文化法律体系，涉文化类知识产权案件的审判已成为知识产权审判的重要方面。要认真贯彻落实中央关于大力发展公益性文化事业、加快发展文化产业的政策措施，制定和完善有关司法解释和司法政策，高度重视涉文化类审判工作，充分发挥知识产权审判对文化建设的规范、引导、促进和保障作用，激励全民族文化创造活力持续迸发，丰富人民社会文化生活，保障人民基本文化权益，推动文化产业跨越式发展，提升我国整体文化实力和国际竞争力。要高度重视涉及文化产业的新类型知识产权保护，积极推动文化产业发展成为国民经济支柱性产业。特别是依法加强出版发行、影视制作、广告、演艺、娱乐、设计等产业领域的著作权保护，推动传统文化产业发展壮大。深入研究和大力加强文化创意、数字出版、移动多媒体、动漫游戏、软件、数据库等战略性新兴文化产业的著作权保护，培育新型文化业态，扩展文化产业发展新领域，培育国民经济新的增长点，提升我国整体文化实力和竞争力。密切关注电信网、广电网、互联网“三网融合”等信息技术发展带来的新问题，在保护著作权益的同时，注重促进新兴产业的发展，促进我国信息化水平的提高。
　　5、加大文化创造者权益保护，保障文化创造源泉充分涌流。要妥善处理作品的独创性与独创高度的关系，既维护给予作品著作权保护的基本标准的统一性，又注意把握各类作品的特点和适应相关保护领域的特殊需求，使保护强度与独创高度相协调。要妥善适用著作权法有关著作权的概括性规定，及时保护创作者的新权益。妥善处理个人作品、职务作品和法人作品的关系，既最大限度保护作者权益和鼓励创作积极性，又依法保护法人或者其他组织的合法权益。妥善运用思想和表达两分法，注意思想与表达区分的相对性，合理界定作品保护范围。高度重视传播者权益保护，充分保护出版者、表演者、录音录像制作者、广播电台、电视台的合法权益，促进作品的传播和利用。积极探索对综艺晚会、体育节目等所涉权益的法律保护，合理平衡相关各方利益。
　　6、加强网络环境下的著作权保护，妥善处理保护著作权与促进信息网络产业发展和保障信息传播的关系。要准确把握法律、行政法规和司法解释有关网络环境下著作权保护的精神实质，特别要准确把握权利人、网络服务提供者和社会公众之间的利益平衡，既要加强网络环境下著作权保护，又要注意促进信息网络技术创新和商业模式发展，确保社会公众利益。正确把握作品、表演、录音录像制品提供行为与网络服务提供行为的划分，妥善处理有关网络服务提供者免责与归责、“通知与移除”规则与过错归责、网络服务提供者侵权过错与一般侵权过错的差别等关系。凡网络服务提供行为符合法定免责条件的，网络服务提供者不承担侵权赔偿责任；虽然不完全符合法定的免责条件，但网络服务提供者不具有过错的，也不承担侵权赔偿责任。要根据信息网络环境的特点和实际，准确把握网络服务提供行为的侵权过错认定，既要根据侵权事实明显的过错标准认定过错，不使网络服务提供者承担一般性的事先审查义务和较高的注意义务，又要适当地调动网络服务提供者主动防止侵权和与权利人合作防止侵权的积极性。要维护“通知与移除”规则的基本价值，除根据明显的侵权事实能够认定网络服务提供者具有明知或者应知的情形外，追究网络服务提供者的侵权赔偿责任应当以首先适用“通知与移除”规则为前提，既要防止降低网络服务提供者的过错认定标准，使“通知与移除”规则形同虚设；又要防止网络服务提供者对于第三方利用其网络服务侵权消极懈怠，滥用“通知与移除”规则。
　　7、妥善处理好技术中立与侵权行为认定的关系，实现有效保护著作权与促进技术创新、产业发展的和谐统一。既要准确把握技术作为工具手段所具有的价值中立性和多用途性，又要充分认识技术所反映和体现的技术提供者的行为与目的。既不能把技术所带来的侵权后果无条件地归责于技术提供者，窒息技术创新和发展；也不能将技术中立绝对化，简单地把技术中立作为不适当免除侵权责任的挡箭牌。对于具有实质性非侵权商业用途的技术，严格把握技术提供者承担连带责任的条件，不能推定技术提供者应知具体的直接侵权行为的存在，其只在具备其他帮助或者教唆行为的条件下才与直接侵权人承担连带责任；对于除主要用于侵犯著作权外不具有其他实质性商业用途的技术，可以推定技术提供者应知具体的直接侵权行为的存在，其应与直接侵权人承担连带责任。在审理涉及网络著作权、“三网融合”等新兴产业著作权案件时，尤其要准确把握技术中立的精神，既有利于促进科技和商业创新，又防止以技术中立为名行侵权之实。
　　8、妥当运用著作权的限制和例外规定，正确判定被诉侵权行为的合法性，促进商业和技术创新，充分保障人民基本文化权益。正确认定合理使用和法定许可行为，依法保护作品的正当利用和传播。在促进技术创新和商业发展确有必要的特殊情形下，考虑作品使用行为的性质和目的、被使用作品的性质、被使用部分的数量和质量、使用对作品潜在市场或价值的影响等因素，如果该使用行为既不与作品的正常使用相冲突，也不至于不合理地损害作者的正当利益，可以认定为合理使用。对设置或者陈列在室外社会公共场所的艺术作品进行临摹、绘画、摄影或者录像，并对其成果以合理的方式和范围再行使用，无论该使用行为是否具有商业目的，均可认定为合理使用。
　　9、综合运用多种法律手段，积极推动非物质文化遗产的保护、传承和开发利用，促进我国丰富的文化资源转化为强大的文化竞争力。非物质文化遗产是凝聚民族精神、传承民族文化、维护文化多样性、促进社会和谐和可持续发展的重要基础和纽带，是文化创新的重要源泉。本着传承与创新、保护和利用并重的原则，根据现有法律和立法精神，积极保护民间文学艺术、传统知识、遗传资源等非物质文化遗产，公平合理地协调和平衡在发掘、整理、传承、保护、开发和利用过程中各方主体的利益关系。坚持尊重原则，利用非物质文化遗产应尊重其形式和内涵，不得以歪曲、贬损等方式使用非物质文化遗产。坚持来源披露原则，利用非物质文化遗产应以适当方式说明信息来源。鼓励知情同意和惠益分享，非物质文化遗产利用者应尽可能取得保存者、提供者、持有者或者相关保护部门的知情同意，并以适当方式与其分享使用利益。综合运用著作权法、商标法、专利法、反不正当竞争法等多种手段，积极保护非物质文化遗产的传承和商业开发利用。
　　10、充分利用著作权保护手段，依法保护民间文学艺术作品。民间文学艺术作品的著作权保护，既要有利于民间文学艺术的传承，发挥其凝聚民族精神和维系民族精神家园的作用，又要有利于创新和利用，提高中华文化影响力。民间文学艺术作品可由产生和传承该作品的特定民族或者区域群体共同享有著作权，该特定民族或者区域的相关政府部门有权代表行使保护权利。对于民间文学艺术作品的保存人和整理人，应尊重其以适当方式署名的权利。利用民间文学艺术的元素或者素材进行后续创作，无需取得许可或者支付费用；形成具有独创性作品的，作者可依法获得完整的著作权保护，但应说明其作品的素材来源。不当利用民间文学艺术作品给特定民族或者区域群体精神权益造成损害的，人民法院可以判令不当利用人承担相应的民事责任。
　　11、有效利用商标法、专利法等法律手段，保护非物质文化遗产的商业价值，促进具有地方特色的自然、人文资源优势转化为现实生产力。将非物质文化遗产的名称、标志等申请商标注册，构成对非物质文化遗产的歪曲、贬损、误导等不正当利用行为，损害特定民族或者区域群体的精神权益的，可以认定为具有其他不良影响，禁止作为商标使用；已经使用并造成不良影响的，人民法院可以根据具体案情，判决使用人承担停止使用、赔礼道歉，消除影响等民事责任。非物质文化遗产的名称、标志等构成地理标志的，可以视具体情况作为在先权利予以保护。非物质文化遗产中的传统知识和遗传资源构成商业秘密的，禁止他人窃取、非法披露和使用。违反法律、法规的规定获取或者利用遗传资源，依赖该遗传资源完成发明创造并获得专利授权，专利权人指控他人侵犯其专利权的，可以不予支持。

　　三、加大科技成果权保护力度，推动科技进步与创新，提高自主创新能力
　　12、依法加强专利、植物新品种、集成电路布图设计等科技类知识产权保护，积极推动科技进步和创新。根据科技进步的新趋势和经济发展的新需求，以提高我国原始创新能力和增强集成创新、引进消化吸收再创新能力为重要目标，准确贯彻专利法立法精神和正确进行侵权判定，加强对关键核心技术、基础前沿领域和战略性新兴产业的知识产权保护，推动技术突破和技术创新，推进传统产业优化升级，加快培育和发展战略性新兴产业，加快形成先导性、支柱性产业，增强企业和国家核心竞争力。加大涉文化领域科技类知识产权保护力度，发挥科技创新对文化发展的引擎作用，推动提高文化产业技术装备水平，增强文化产业核心竞争力，推动中华文化走向世界。
　　13、正确把握专利权保护宽严适度的司法政策，大力提高自主创新能力。确定专利权的具体保护范围和强度时要适当考虑不同技术领域专利权的特点和创新实际，符合不同技术领域的创新需求、创新特点和发展实际。坚持发明和实用新型专利权利范围的折衷解释原则，准确界定专利权的保护范围。重视专利的发明目的对专利权保护范围的限定作用，不应把具有专利所要克服的现有技术缺陷或者不足的技术方案纳入保护范围。对于创新程度高、研发投入大、对经济增长具有突破和带动作用的首创发明，应给予相对较高的保护强度和较宽的等同保护范围；对于创新程度相对较低的改进发明，应适当限制其等同保护范围。
　　14、正确运用专利侵权判定方法，加大对专利侵权行为的遏制力度。准确把握发明和实用新型专利侵权判定的全部技术特征对比、禁止反悔、捐献等判断规则，继续探索完善等同侵权适用条件。等同侵权应以手段、功能和效果基本相同并且对所属领域普通技术人员显而易见为必要条件，防止简单机械适用等同侵权或者不适当扩展其适用范围。现有技术抗辩规则在等同侵权和相同侵权中均可适用。准确把握外观设计专利侵权判定的整体观察设计特征、综合判断整体视觉效果的判定方法，以外观设计产品的一般消费者为判断主体，以外观设计的区别设计特征为核心，以产品外观设计整体视觉效果的相同或者近似作为判断侵权成立的根本标准。正确适用现有技术和设计抗辩，被诉侵权人以一份对比文献中记载的一项现有技术方案或者一项现有设计与公知常识或者惯常设计的显而易见组合主张现有技术或者现有设计抗辩的，应当予以支持。被诉侵权人以实施抵触申请中的技术方案或者外观设计主张其不构成专利侵权的，可以参照现有技术或者现有设计抗辩的审查判断标准予以评判。
　　15、妥善审理产品制造方法发明专利侵权案件，依法保护方法发明专利权。在适当考虑方法专利权利人维权的实际困难的同时，兼顾被诉侵权人保护其商业秘密的合法权益。依法适用新产品制造方法专利的举证责任倒置规则，使用专利方法获得的产品以及制造该产品的技术方案在专利申请日前不为公众所知的，制造相同产品的被诉侵权人应当承担其产品制造方法不同于专利方法的举证责任。使用专利方法获得的产品不属于新产品，专利权人能够证明被诉侵权人制造了同样产品，经合理努力仍无法证明被诉侵权人确实使用了该专利方法，但根据案件具体情况，结合已知事实以及日常生活经验，能够认定该同样产品经由专利方法制造的可能性很大的，可以根据民事诉讼证据司法解释有关规定，不再要求专利权人提供进一步的证据，而由被诉侵权人提供其制造方法不同于专利方法的证据。要针对方法专利侵权举证困难的实际，依法采取证据保全措施，适当减轻方法专利权利人的举证负担。要注意保护被申请人的利益，防止当事人滥用证据保全制度非法获取他人商业秘密。被诉侵权人提供了其制造方法不同于专利方法的证据，涉及商业秘密的，在审查判断时应注意采取措施予以保护。
　　16、妥善处理保护专利权与防止权利滥用的关系，依法规制滥用专利权及滥用诉前禁令制度。在依法保护专利权和保障当事人诉权的同时，注意防止专利权人明显违背法律目的行使权利，不正当地损害竞争对手，妨碍公平竞争和扰乱市场秩序。对于明知其专利权属于现有技术或者现有设计，仍然恶意向正当实施者及其交易对象滥发侵权警告或者滥用诉权，构成侵权的，可以视情支持受害人的损害赔偿请求。适度从严把握法律条件，加强程序保障，依法慎重采取诉前停止侵犯专利权措施。坚持把事实比较清楚、侵权易于判断作为采取诉前停止侵权措施的前提条件。对于需要进行比较复杂的技术对比才能作出侵权可能性判断的行为，不宜裁定采取责令诉前停止侵权措施。在条件允许的情况下，尽可能通过听取申请人与被申请人意见的方式对侵权可能性作出准确判断。宣告涉案专利权无效的无效请求审查决定已经作出的，一般不得裁定采取诉前停止侵害专利权措施。
　　17、加强植物新品种权保护，推进农业科技创新，促进农业发展方式加快转变。加大对具有自主知识产权的重大农业科技成果和植物新品种的保护力度，促进提高自主创新能力，推进农业科技进步，提高农业综合生产能力、抗风险能力和市场竞争力。依法严格保障品种权人的利益，大力促进品种的培育和创新成果的转化，发展现代农业。加大对侵犯植物新品种行为的打击力度，对于为商业目的生产、销售或者重复使用授权品种繁殖材料等侵权行为，要及时依法予以制止；对于假冒他人授权品种的行为，也应以侵犯植物新品种权纠纷论处。依法审查品种权人的证据保全申请，积极采取证据保全措施，保障品种权人及时获得司法救济。对被诉侵权繁殖材料采取证据保全措施，应尽量遵守相应的技术规程，保证取样的客观性和代表性，但不得以未邀请有关专业技术人员协助取样为由简单否定证据保全的效力。注意依法保护农民的合法权益，维护农业和农村稳定。正确区分作为品种生产者、管理者的制种大户与以种植为业的普通个人、农村承包经营户，既要依法免除以种植为业的普通个人、农村承包经营户自繁自用授权品种繁殖材料的侵权责任，又要防止实质上成为品种生产者和管理者的制种大户逃避法律制裁。

　　四、加强商标权保护，培育和维护知名品牌，积极促进社会主义市场经济的竞争性、创新性和包容性增长
　　18、依法加强商标权保护。商标权的保护，必须有利于鼓励正当竞争，有利于划清商业标识之间的边界，有利于遏制恶意抢注他人知名商业标识及“傍名牌”行为，有利于为知名品牌的创立和发展提供和谐宽松的法律环境，为培育知名品牌和提升企业综合竞争力提供助力，推动我国从制造大国向品牌强国加快转变。要根据商标的知名度、显著程度等，恰当运用商标近似、商品类似、在先使用并且有一定影响的商标、以欺骗或者其他不正当手段取得商标注册等裁量性法律标准，妥善把握商标注册申请人或者注册人是否有真实使用意图，以及结合商标使用过程中的“傍名牌”行为认定主观恶意等，用足用好商标法有关规定，加大遏制恶意抢注、“傍名牌”等不正当行为的力度，充分体现商标权保护的法律导向。
　　19、妥善处理商标近似与商标构成要素近似的关系，准确把握认定商标近似的法律尺度。认定是否构成近似商标，要根据案件的具体情况。通常情况下，相关商标的构成要素整体上构成近似的，可以认定为近似商标。相关商标构成要素整体上不近似，但主张权利的商标的知名度远高于被诉侵权商标的，可以采取比较主要部分决定其近似与否。要妥善处理最大限度划清商业标识之间的边界与特殊情况下允许构成要素近似商标之间适当共存的关系。相关商标均具有较高知名度，或者相关商标的共存是特殊条件下形成时，认定商标近似还应根据两者的实际使用状况、使用历史、相关公众的认知状态、使用者的主观状态等因素综合判定，注意尊重已经客观形成的市场格局，防止简单地把商标构成要素近似等同于商标近似，实现经营者之间的包容性发展。
　　20、充分考虑商标所使用商品的关联性，准确把握商品类似的认定标准。认定商品类似可以参考类似商品区分表，但更应当尊重市场实际。要以相关公众的一般认识为标准，结合商品的功能、用途、生产部门、销售渠道、消费对象等因素，正确认定商标法意义上的商品类似。主张权利的商标已实际使用并具有一定知名度的，认定商品类似要充分考虑商品之间的关联性。相关公众基于对商品的通常认知和一般交易观念认为存在特定关联性的商品，可视情纳入类似商品范围。
　　21、规范驰名商标的认定和保护，切实加强驰名商标保护。驰名商标保护的目的在于适当扩张具有较高知名程度的商标的保护范围和保护强度，不是评定或者授予荣誉称号。凡当事人主张驰名商标保护且符合保护条件和确有必要的，应当依法予以认定和保护。对于一般公众广泛知晓的驰名商标，要结合众所周知的驰名事实，减轻商标权人对于商标驰名情况的举证责任。认定驰名商标并不要求具有等同划一的知名程度，但驰名商标的保护范围和强度要与其显著性和知名度相适应，对于显著性越强和知名度越高的驰名商标，要给予其更宽的跨类保护范围和更强的保护力度。要认真执行司法解释的规定，准确把握驰名商标的保护范围，加强对驰名商标事实认定的严格把关，坚持判前审核制度，防止当事人弄虚作假，为骗取驰名商标的认定而进行虚假诉讼。
　　22、妥善认定商标侵权抗辩，维护正当经营者的合法权益。商标侵权行为应以在商业标识意义上使用相同或者近似商标为条件，被诉侵权人为描述或者说明其产品或者服务的特点而善意合理地使用相同或者近似标识的，可以依法认定为正当使用。注册商标权人的注册商标属于复制、摹仿或者翻译他人未在中国注册的驰名商标、抢注被代理人或者被代表人的商标或者以不正当手段抢注他人已经使用并有一定影响的商标，被诉侵权的在先商标使用人以此为由提出抗辩的，应当予以支持。
　　23、妥善处理实体与程序的关系，强化商标授权确权争议的实质性解决。程序既有其独立的法律价值，又必须以实体问题的解决和实体公正的实现为取向和终极目标。实体公正既是程序运行的目标和指向，又需要以程序公正为支撑和保障。既要高度重视程序公正，防止忽视程序公正片面追求实体公正，又要以实体公正为依归，防止机械司法。当事人因行使程序权利的瑕疵而可能影响其重大实体权益，甚至可能导致其丧失救济机会且没有其他救济途径的，可以根据案件具体情况给予补救机会。要注重商标授权确权争议的实质性解决，避免陷入不必要的程序重复，搁置实体问题和回避矛盾。对于商标是否应予注册、是否应当撤销等能够做出实体性判断的，可以在裁判理由中作出明确的判断，为被诉行政机关重作决定作出明确指引。

　　五、依法规范竞争秩序，培育自由公平、诚信守法的竞争文化，创造公平有序、充满活力的市场环境
　　24、加强不正当竞争案件的审判，维护市场公平竞争。妥善处理好知识产权专门法与反不正当竞争法的关系，在激励创新的同时，又要鼓励公平竞争。反不正当竞争法补充保护作用的发挥不得抵触知识产权专门法的立法政策，凡是知识产权专门法已作穷尽性规定的领域，反不正当竞争法原则上不再提供附加保护，允许自由利用和自由竞争，但在与知识产权专门法的立法政策相兼容的范围内，仍可以从制止不正当竞争的角度给予保护。妥善处理好反不正当竞争法的原则规定与特别规定之间的关系，既要充分利用原则规定的灵活性和适应性，有效制止各种花样翻新、层出不穷的不正当竞争行为，又要防止原则规定适用的随意性，避免妨碍市场自由公平竞争。严格把握反不正当竞争法原则规定的适用条件，凡属反不正当竞争法特别规定已作明文禁止的行为领域，只能依照特别规定规制同类不正当竞争行为，原则上不宜再适用原则规定扩张适用范围。反不正当竞争法未作特别规定予以禁止的行为，如果给其他经营者的合法权益造成损害，确属违反诚实信用原则和公认的商业道德而具有不正当性，不制止不足以维护公平竞争秩序的，可以适用原则规定予以规制。正确把握诚实信用原则和公认的商业道德的评判标准，以特定商业领域普遍认同和接受的经济人伦理标准为尺度，避免把诚实信用原则和公认的商业道德简单等同于个人道德或者社会公德。
　　25、依法加强商业秘密保护，有效制止侵犯商业秘密的行为，为企业的创新和投资创造安全和可信赖的法律环境。根据案件具体情况，合理把握秘密性和不正当手段的证明标准，适度减轻商业秘密权利人的维权困难。权利人提供了证明秘密性的优势证据或者对其主张的商业秘密信息与公有领域信息的区别点作出充分合理的解释或者说明的，可以认定秘密性成立。商业秘密权利人提供证据证明被诉当事人的信息与其商业秘密相同或者实质相同且被诉当事人具有接触或者非法获取该商业秘密的条件，根据案件具体情况或者已知事实以及日常生活经验，能够认定被诉当事人具有采取不正当手段的较大可能性，可以推定被诉当事人采取不正当手段获取商业秘密的事实成立，但被诉当事人能够证明其通过合法手段获得该信息的除外。以符合法定条件的商业秘密信息为依据，准确界定商业秘密的保护范围，每个单独的商业秘密信息单元均构成独立的保护对象。完善商业秘密案件的审理和质证方式，对于涉及商业秘密的证据，要尝试采取仅向代理人展示、分阶段展示、具结保密承诺等措施限制商业秘密的知悉范围和传播渠道，防止在审理过程中二次泄密。妥善处理商业秘密民事侵权诉讼程序与刑事诉讼程序的关系，既注意两种程序的关联性，又注意其相互独立性，在依法保护商业秘密的同时，也要防止经营者恶意启动刑事诉讼程序干扰和打压竞争对手。
　　26、妥善处理保护商业秘密与自由择业、涉密者竞业限制和人才合理流动的关系，维护劳动者正当就业、创业的合法权益，依法促进劳动力的合理流动。职工在工作中掌握和积累的知识、经验和技能，除属于单位的商业秘密的情形外，构成其人格的组成部分，职工离职后有自主利用的自由。在既没有违反竞业限制义务，又没有侵犯商业秘密的情况下，劳动者运用自己在原用人单位学习的知识、经验与技能为其他与原单位存在竞争关系的单位服务的，不宜简单地以反不正当竞争法的原则规定认定构成不正当竞争。妥善处理商业秘密保护和竞业限制协议的关系，竞业限制协议以可保护的商业秘密存在为前提，但两者具有不同的法律依据和行为表现，违反竞业限制义务不等于侵犯商业秘密，竞业限制的期限也不等于保密期限。原告以侵犯商业秘密为由提起侵权之诉，不受已存在竞业限制约定的限制。
　　27、加强垄断案件的审理工作，及时有效制止垄断行为，增强市场活力，促进市场结构的完善和市场经济的健康发展。要强化反垄断法的效果思维，全面考虑各种相关因素，综合评估涉嫌垄断行为的反竞争和促进竞争的效果，依法认定垄断行为。注意发挥经济学专家和专业机构的作用，探索引进经济分析方法的途径和方式。要根据不同的垄断行为类型，合理分配垄断民事纠纷案件中当事人的证明责任。对于明显具有严重排除、限制竞争效果的垄断协议，可以不再要求受害人举证证明该协议具有排除、限制竞争的效果；对于公用企业以及其他具有独占经营资格的经营者滥用市场支配地位的，可以根据案件具体情况适当减轻受害人的举证责任。

　　六、加强知识产权诉讼制度建设，完善审判体制和工作机制
　　28、深刻把握知识产权案件的特点与规律，建立健全适合知识产权案件特点的纠纷解决机制。正确把握“调解优先、调判结合”的工作原则。要根据知识产权案件专业技术性强的特点，积极引导当事人选择委托调解、专家调解、行业调解等方式解决纠纷。坚持依法自愿调解原则，不得违背当事人意愿强调硬调和以拖促调。对于当事人或者相关行业对判明是非的期待高，或者对明确规则的要求强烈，或者对判决的接受程度高的案件，尽可能选择以判决方式解决纠纷，充分发挥司法裁判的指引和导向功能。要发挥科技专家在解决纠纷中的作用，完善知识产权案件专业技术问题解决机制。
　　29、继续完善知识产权审判体制机制，充分发挥知识产权司法保护的综合效能。按照国家知识产权战略的要求，积极推进由知识产权审判庭集中审理知识产权民事、行政和刑事案件的试点工作，建立知识产权民事、行政和刑事审判协调机制，提高司法效率，统一司法标准，发挥整体保护效能，努力构建资源优化、科学运行、高效权威的知识产权审判体系。要加强与公安机关、检察机关以及知识产权行政执法机关的协调配合，形成保护合力。优化知识产权案件管辖布局，适当增加管辖一般知识产权案件的基层法院，鼓励中、基层法院根据工作需要开展跨地区划片集中管辖，合理配置审判资源。
　　30、维护法治统一，促进市场统一开放。完善案件管辖制度，加强监督制约，适当采取提级管辖、异地指定管辖等措施，有效遏制地方保护和部门保护现象，保障案件公正审理。决定提级管辖或者异地指定管辖的，原管辖法院要正确对待，及时移交案件。切实加强审判监督，发挥二审和再审的纠错功能，防止为顾及审判绩效考核指标而迁就错误裁判。对于指令再审的案件，有关再审法院要正确理解和认真对待再审指令，依法改正错误。对于无视再审指令，拖延再审或者无正当理由不执行再审指令的，要严肃纪律，情节严重的给予通报批评。进一步完善工作机制，适当加大知识产权关联案件的协调和指导力度，维护裁判标准的统一。

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Tort Liability Law 2009

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

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

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

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

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.