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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.

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

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

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

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

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

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

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

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

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

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

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

8. Paragraph 2 of Article 14 is deleted.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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