In a positive move for the owners of intellectual property rights, the Chinese government has passed updated legislation that both increases sanctions for infringers and provides new opportunities for those seeking intellectual property rights after 01 June 2021.
In this updated legislation, one of the most significant changes is that applicants will be able to seek design protection for a part of a product in isolation. Once these legislative changes have come into effect, applicants will more easily be able to protect the shape and appearance of distinctive aspects of a product, increasing the options for protecting the visual impact of such products in China.
In another positive change to design protection in China, the lifespan of design patents is being increased to 15 years, a precursor to China joining the Hague Agreement. Furthermore, systems for the adjustment and extension of the lifespan of all types of patents are being introduced, compensating applicants for delays in the examination process for which they were not to blame.
The forthcoming changes within this legislative update also extend to remedies for patent infringement. In cases of infringement where the loss suffered by the patent owner, the benefit gained by the infringer or patent royalty fees cannot be determined, statutory damages have been increased to a maximum of five million CNY (around £575,000). If the infringer is determined to have wilfully and seriously infringed another’s patent right, punitive damages of up to five times the usual damages award may be levied by the court, a significant deterrent.
The process of calculating the damages caused by infringement has also been overhauled. These changes include the introduction of a more patentee friendly procedure, similar to the discovery process in the USA. Finally, the updated legislation extends the date by which infringement proceedings must be started to three years from the day when the patentee or interested party knew, or should have known, about the infringement.
Overall, the new intellectual property legislation introduced by the Chinese government is favourable to the owners of intellectual property and will help business of all sizes develop, strengthen and enforce their portfolio of Chinese intellectual property rights. We look forward to providing further updates regarding this updated legislation before it comes into force.
For more information, please contact Thomas Gibb:
T: +44 (0) 23 8000 2022