全国人民代表大会常务委员会关于修改《中华人民共和国专利法》的决定 附：第二次修正本 Decision of the Standing Committee of the National Peoples

he losses suffered by the patentee whose right was infringed or the profits which the infringer has earned through the infringement. If it is difficult to determine the losses which the patentee has suffered or the profits which the inf

ringer has earned, the amount may be assessed by reference to the appropriate multiple of the amount of the exploitation fee of that patent under contractual license."

　　28. A new article is added as article 61, which reads: "Where any patentee or interested party has evidence to prove that another person is infringing or will soon infringe its or his patent right and that if such infringing act is not checked or prevented from occurring in time, it is likely to cause irreparable harm to it or him, it or he may, before any legal proceedings are instituted, request the people's court to adopt measures for ordering the suspension of relevant acts and the preservation of property.

　　"The people's court, when dealing with the request mentioned in the preceding paragraph, shall apply the provisions of Article 93 through Article 96 and of Article 99 of the Civil Procedure Law of the People's Republic of China."

　　29. Article 61 is changed to be Article 62, and a new paragraph is added as the second paragraph, which reads:" Where no appropriate fee for exploitation of the invention, subject of an application for patent for invention, during the period from the publication of the application for the patent to the grant of patent right to the said invention is paid, prescription for instituting legal proceedings by the patentee to demand the said fee is two years counted from the date which the patentee obtains or should have obtained knowledge of the exploitation of his invention by another person. However, where the patentee has already obtained or should have obtained knowledge before the date of the grant of the patent right, the prescription shall be counted from the date of the grant."

　　30. Article 62 is changed to be Article 63 and is revised as follows: "None of the following shall be deemed an infringement of the patent right:

　　"(1) Where, after the sale of a patented product that was made or imported by the patentee or with the authorization of the patentee, or that was directly obtained by using the patented process, any other person uses, offers to sell or sells that product;

　　"(2) Where, before the date of filing of the application for patent, any person who has already made the identical product, used the identical process, or made the necessary preparation for its making or using, continues to make or use it within the original scope only;

　　"(3) Where any foreign means of transport which temporarily passes through the territory, territorial waters or territorial airspace of China uses the patent concerned, in accordance with any agreement concluded between the country to which the foreign means of transport belongs and China, or in accordance with any international treaty to which both countries are party, or on the basis of the principle of reciprocity, for its own needs, in its devices and installations;

　　"(4) Where any person uses the patent concerned solely for the purposes of scientific research and experimentation.

　　"Any person who, for production and business purposes, uses or sells a patented product without knowing that it was made and sold without the authorization of the patentee or that it was directly obtained by a patented process, shall not be liable to compensate for the damage of the patentee if he can prove that he obtains the product from a legitimate source."

　　31. A new article is added as Article 66, which reads as follows: "The administrative authority for patent affairs may not take part in recommending any patented product for sale to the public or any such commercial activities.

　　"Where the administrative authority for patent affairs violates the provisions of the preceding paragraph, it shall be ordered by the authority at the next higher level or the supervisory authority to correct its mistakes and eliminate the bad effects. The illegal earnings, if any, shall be confiscated.Where the circumstances

are serious, the persons who are directly in charge and the other persons who are directly responsible shall be given disciplinary sanction in accordance with law."

　　32. Article 66 is changed to be Article 67 and is revised as follows: "Where any State functionary working for patent administration or any other State functionary working for patent administration or any other State functionary concerned neglects his duty, abuses his power, or engages in malpractice for personal gain, which constitutes a crime, shall be investigated for his criminal liability in accordance with law. If the case is not serious enough to constitute a crime, he shall be given disciplinary sanction in accordance with law."

　　33. Article 68 is deleted.

　　34. The term " Patent Office " in the relevant Articles is replaced by "patent administration department under the State Council".

　　In addition, the words in the relevant Articles shall be amended in accordance with this Decision and the order of some articles shall be adjusted accordingly.

　　This Decision shall go into effect as of July 1, 2001.

　　The Patent Law of the People's Republic of China shall be revised correspondingly according to this Decision and republished.

　　Appendix:

　　Patent Law of the People's republic of China

　　(Adopted at the 4th Meeting of the Standing Committee of the Sixth National People's Congress on March 12, 1984 and amended in accordance with the Decision of the Standing Committee of the Seventh National People's Congress on Amending the Patent Law of the People's Republic of China at its 27th Meeting on September 4, 1992 and amended again in accordance with the Decision of the Standing Committee of the Ninth National People's Congress on Amending the Patent Law of the People's Republic of China adopted at its 17 the Meeting on August 25,2000)

　　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 enacted in order to protect patent rights for inventions-creations, encourage invention-creation, to facilitate the wide application of inventions-creations, promote the progress and innovation of science and technology, and meet the needs of the socialist modernization drive.

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

　　Article 3 The patent administration department under the State Council is responsible for the patent work throughout the country. It accepts and examines patent applications and grants patent rights for inventions- creations in accordance with law.

　　The administrative authority for patent affairs under the people's governments of provinces, autonomous regions and municipalities directly under the Central Government are responsible for the administrative work concerning patents in their respective administrative areas.

　　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 An invention-creation, made by a person in execution of the tasks of the entity to which he belongs, or made by him mai

nly by using the material and technical means of the entity is a service invention- creation. For a service intention-creation, the right to apply for a patent belongs to the entity. After the application is approved, the entity shall be the patentee.

　　For a non-service invention-creation, the right to apply for a patent belongs to the inventor or creator. After the application is approved, the inventor or creator shall be the patentee.

　　In respect of an invention-creation made by a person using the material and technical means of an entity to which he belongs, where the entity and the inventor or creator have entered into a contract in which the right to apply for and own a patent is provided for, such a provision shall apply.

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

　　Article 8 For an invention-creation jointly made by two or more entities or individuals, or made by an entity or individual in execution of a commission given to it or him by another entity or individual, the right to apply for a patent belongs, unless otherwise agreed upon, to the entity or individual that made, or to the entities or individuals that jointly made, the invention-creation. After the application is approved, the entity or individual that applies for it shall be the patentee.

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

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