中华人民共和国专利法(中英)

three months from the date of receipt of the notification, institute legal proceedings in the people's court.

　　CHAPTER V

　　DURATION, CESSATION AND INVALIDATION OF PATENT RIGHT

　　Article 42. The duration of patent right for inventions shall be twenty years, the duration of patent right for utility models and patent right for designs shall be ten years, counted from the date of filing.

　　Article 43. The patentee shall pay an annual fee beginning with the year in which the patent right was granted.

　　Article 44. In any of the following cases, the patent right shall cease before the expiration of its duration:

　　(1) where an annual fee is not paid as prescribed;

　　(2) where the patentee abandons his or its patent right by a written declaration.

　　Any cessation of the patent right shall be registered and announced by the patent administrative organ under the State Council.

　　Article 45. Where, starting from the date of the announcement of the grant of the patent right by the patent administrative organ under the State Council, any entity or individual considers that the grant of the said patent right is not in conformity with the relevant provisions of this Law, it or he may request the Patent Reexamination Board to declare the patent right invalid.

　　Article 46. The Patent Reexamination Board shall examine the request for invalidation of the patent right, make a decision and notify the person who made the request and the patentee. The decision declaring the patent right invalid shall be registered and announced by the patent administrative organ under the State Council.

　　Where any party is not satisfied with the decision of the Patent Reexamination Board declaring the patent right invalid or upholding the patent right, such party may, within three months from receipt of the notification of the decision, institute legal proceedings in the people's court.

　　The people's court shall notify the opponent party of the party which has requested for the invalidation procedure to be represented the proceedings as the third party.

　　Article 47. Any patent right which has been declared invalid shall be deemed to be non-existent from the beginning.

　　The decision of invalidation shall have no retroactive effect on any judgement or order on patent infringement which has been pronounced and enforced by the people's court, on any decision concerning the handling of patent infringement which has been implemented or enforced, and on any contract of patent license and of assignment of patent right which have been performed, prior to the decision of invalidation; howev

er, the damages caused to other persons in bad faith on the part of the patentee shall be compensated.

　　If, pursuant to the provisions of the preceding paragraph, no repayment, by the patentee or the assignor of the patent right to the licensee or the assignee of the patent right, of the fee for the exploitation of the patent or the price for the assignment of the patent right is obviously contrary to the principle of equity, the patentee or the assignor of the patent right shall repay the whole or part of the fee for the exploitation of the patent or the price for the assignment of the patent right to the licensee or the assignee of the patent right.

　　COMPULSORY LICENSE FOR EXPLOITATION OF THE PATENT

　　Article 48. Where any entity which is qualified to exploit the invention or utility model has made requests for authorization from the patentee of an invention or utility model to exploit its or his patent on reasonable terms and such efforts have not been successful within a reasonable period of time, the patent administrative organ under the State Council may, upon the application of that entity, grant a compulsory license to exploit the patent for invention or utility model.

　　Article 49. Where a national emergency or any extraordinary state of affairs occurs, or where the public interest so requires, the patent administrative organ under the State Council may grant a compulsory license to exploit the patent for invention or utility model.

　　Article 50. Where the invention or utility model for which the patent right was granted is of important technical advance of considerable economic significance compared with another invention or utility model for which a patent right has been granted earlier and the exploitation of the later invention or utility model depends on the exploitation of the earlier invention or utility model, the patent administrative organ under the State Council may, upon the request of the later patentee, grant a compulsory license to exploit the earlier invention or utility model.

　　Where, according to the preceding paragraph, a compulsory license is granted, the patent administrative organ under the State Council may, upon the request of the earlier patentee, also grant a compulsory license to exploit the later invention or utility model.

　　Article 51. The entity or individual requesting, in accordance with the provisions of this Law, a compulsory license for exploitation shall furnish proof that it or he has not been able to conclude with the patentee a license contract for exploitation on reasonable terms.

　　Article 52. The decision made by the patent administrative organ under the State Council granting a compulsory license for exploitation shall be notified to the patent concerned as soon as reasonably practicable and shall be registered and announced.

　　The decision of the patent administrative organ under the State Council granting a compulsory license for exploitation shall limit the scope and duration of the exploitation on the basis of the reasons justifying the grant. If and when the circumstances which led to such compulsory license cease to exist and are unlikely to recur, the patent administrative organ under the State Council may, upon the request of the patentee, terminate the compulsory license after examination.

　　Article 53. Any entity or individual that is granted a compulsory license for exploitation shall not have an exclusive right to exploit and shall not have the right to authorize exploitation by any others.

　　Article 54. The entity or individual that is granted a compulsory license for exploitation shall pay to the patentee a reasonable exploitation fee, the amount of which shall be fixed by both parties in consultations. Where the parties fail to reach an agreement, the patent administrative organ under the State Council shall adjudicate.

　　Article 55. Where the patentee is not sat

isfied with the decision of the patent administrative organ under the State Council granting a compulsory license for exploitation, or where the patentee or the entity or individual that is granted the compulsory license is not satisfied with the adjudication made by the patent administrative organ under the State Council regarding the exploitation fee payable for exploitation, he or it may, within three months from the receipt of the notification, institute legal proceedings in the people's court.

　　CHAPTER VII

　　PROTECTION OF PATENT RIGHT

　　Article 56. The extent of protection of the patent right for invention or utility model shall be determined by the terms of the claims'. The description and the appended drawings may be used to interpret the claims.

　　The extent of protection of the patent right for design shall be determined by the product incorporating the patented design as shown in the drawings or photographs.

　　Article 57. Where anyone exploits a patent without the authorization of the patentee, he or it constitutes an infringement to the patent right of the patentee. For the disputes resulted from the infringement, the parties concerned may settle it by themselves through consultation. Where the parties are not willing to settle the disputes through consultation or where the consultation fails to reach an agreement, the patentee or any interested party may institute legal proceedings in the people's court or to request the authorities for patent work to handle the matter. Where the authorities for patent work considers the infringement well found, it has the power to order the infringer to stop infringement acts immediately. In case the party concerned is not satisfied with the decision, he or it may, within 15 days from the receipt of the notification of the order, institutes legal proceedings in the people's court, according to the Administrative Procedure Law of the People's Republic of China. If such proceedings are not instituted within the time limit and if the order is not compiled with, the authority for patent work may approach the people's court for compulsory execution. The authorities for patent work may, upon the request of the parties concerned, mediate on the damages concerned. If mediation does not work, the parties concerned may lodge a lawsuit with the people's court according to the Civil Procedure Law of the People's Republic of China.

　　When any infringement dispute relates to a process patent for the manufacture of a new product, any entity or individual manufacturing the identical product shall furnish proof to the effect that a different process is used in the manufacture of its or his product . Where the infringement relates to a patent for utility model, the people's court or the authority for patent work may request the applicant to furnish search reports made by the patent administrative organ under the State Council .

　　Article 58. Where any person passes off the patent of another person, except for bearing civil liabilities according to law, he shall be ordered to amend his acts by the authorities for patent work a

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