| The third revision of Chinese Patent Law regarding the design: an introduction (fourth) Friday, Apr. 24, 2005 The third modification of Chinese Patent Law is passed already by the legislature , and will begin to be put into effect on October 1 , 2009. For the part of design concerned, we will introduce and explain it successively. Revised Article One item was added as Article 62: “In a patent infringement dispute, if the accused infringer can furnish evidence to prove that the technique or design he exploited belongs to the prior art or prior design, the said exploiting act shall not be considered as constituting an infringing act”. Revision Explanation During infringement lawsuit, the prior art defense is always adopted by the court, but it has not been added to the article of law. The revision of the article includes prior art defense to make it accepted as the law. Revised Article The Article 57 was changed to Article 61, and amended as: “Where any patent infringement dispute relates to a patent for invention for a process for the manufacture of a new product, any entity or individual manufacturing the identical product shall furnish proof to show that the process used in the manufacture of its or his product is different from the patented process. "Where the patent infringement dispute relates to a patent for utility model or a patent for design, the people's court or the administrative authority for patent affairs may ask the patentee or interested party to furnish an evaluation report of patent right made by the Patent Administration Department Under the State Council after searching, analyzing and evaluating the patent for the utility model or design, so that it may be used as an evidence for examining and handling the infringement dispute". Revision explanation Since only the formality examination was practiced in China when examining design and utility model patent applications, the validity of patentability was often questioned during infringement lawsuits. When revising the patent law on second time, the search report relating to utility model application was added in the law, and rule of providing search report relating to design application was also added. Revised Article The Paragraph 2 of Article 11 was amended as: "After the grant of the patent right for a design, no entity or individual may, without the authorization of the patentee, exploit the patent, that is, make, offer to sell, sell or import the product incorporating its or his attended design, for production or business purposes." Revision Explanation The revision of the article enlarged the protection scope of design patent, accepting the item of offer to sell when enforcing patent right. The new rule has changed the way where the demonstrating the identical design of others during exhibition was not regarded as infringement act. News origin: Lung Tin |