CHINA
CHINA
number) and must include characters indicating ‘patent applied for; not granted yet’. Te regulations further prescribe that for products directly obtained from the patented method, markings should be made so that this is clearly indicated.
Passing off
Te regulations do not include any provisions regarding updating patent markings but do include a rule that says improper marking constitutes patent passing-off. Rule 84 of
the Implementing Regulations of the
Chinese patent law prescribes that any of the following is an act of passing off a patent:
• Affixing a patent indication on a product or on the package of a product which has not been granted a patent, continuing to affix a patent indication on a product or on the package of a product aſter the related patent right has been declared invalid or is terminated, or affixing the patent number of another person on a product or on the package of a product without authorisation;
• Sale of the product as prescribed in subparagraph (1);
• Indicating a technology or design to which no patent right has been granted as a patented technology or patented design, indicating a patent application as a patent or using the patent number of another person without authorisation for such materials as specification of product, etc, which could mislead the public to regard the related technology or design as patented technology or patented design;
• Counterfeiting or transforming any patent certificate, patent document or patent application document; and
• Any other act which might cause confusion on the part of the public, misleading them to regard a technology or design to which no patent right has been granted as patented technology or patented design.
Affixing a patent indication legally on a patented product, or on a product directly obtained by a patented process, or on the package of such products before the termination of the patent right is not an act of passing-off a patent.
Where any person sells a product passing off a patent without knowing it, and can prove that it or he obtained the product from a legitimate channel, it or he shall be ordered to stop selling the product by the administrative authority for patent affairs, but be exempted from a fine.
52 World Intellectual Property Review e-Digest 2013 If passing-off is established, in addition to civil liability, relevant
enforcing bodies will require the relevant party to correct the marking and confiscate the illegal earnings, and may impose a fine up to four times the illegal profits. Where there are no illegal earnings, the fine may be up to RMB200,000 ($32,000).
Patent applicants and patentees should not ignore this rule when they make patent markings.
Prioritised examination for invention applications
On June 19, 2012, SIPO published regulations on prioritised examination for invention applications, which became effective on August 1, 2012. Te regulations do not apply to those applications that enjoy prioritised examination through bilateral or multilateral agreements, such as patent prosecution highway (PPH) agreements between SIPO and examination authorities of other countries or regions.
Applications that may enjoy prioritised examination under these
regulations include important applications in technical areas such as energy-saving technology, environmentally friendly technology, new generations of information technology, biotech, high-end equipment manufacturing, new energy, new materials, new energy vehicles, low carbon technology and resource-saving technology that is beneficial for ‘green’ growth. Alternatively, a first filing in China for which foreign applications are filed later may also enjoy prioritised examination. An application must be filed electronically to be eligible for prioritised application. Te regulations further provide for the document requirements when applying for prioritised examination.
Stephen Yang is a patent attorney and partner at Peksung Intellectual Property Ltd. He can be contacted at:
yyong@peksung.com
Stephen Yang has been practising IP law since 1997. His practice area covers mechanics, electronics, energy and high- tech areas. Yang was educated in China and Canada. Before joining Peksung, he worked in-house in Canada.
www.worldipreview.com
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76 |
Page 77 |
Page 78 |
Page 79 |
Page 80 |
Page 81 |
Page 82 |
Page 83 |
Page 84 |
Page 85 |
Page 86 |
Page 87 |
Page 88 |
Page 89 |
Page 90 |
Page 91 |
Page 92 |
Page 93 |
Page 94 |
Page 95 |
Page 96 |
Page 97 |
Page 98 |
Page 99 |
Page 100 |
Page 101 |
Page 102 |
Page 103 |
Page 104 |
Page 105 |
Page 106 |
Page 107 |
Page 108 |
Page 109 |
Page 110 |
Page 111 |
Page 112 |
Page 113 |
Page 114 |
Page 115 |
Page 116 |
Page 117 |
Page 118 |
Page 119