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					            Patent: Zhi or Liang?
 A Re-exploration on the Recent Development of
             Patent Quality in China

Nan Zhang, Herchel Smith PhD Candidate, Queen Mary
     College, University of London, Jan 21 2010
   What happened
recently in the Chinese
  patent law system?
 The third amendment of Chinese Patent Law
  started from April 2005 and passed by the
  Standing Committee of People’s Congress in Dec
  2008

 This amendment was put into effect on Oct 1 2009

 The new Implementing Regulation of Chinese
  Patent Law will be put into effect on Feb 1 2010
    1.New Absolute Novelty Principle (1)

 Before the amendment: Relative novelty :
• Novelty means that, before the date of filing, no
  identical invention or utility model has been publicly
  disclosed in publications in China or abroad
• or has been publicly used or made known to the public
  by any other means in China
• nor has any other person filed previously with the
  Patent Administration Department Under the State
  Council an application which described the identical
  invention or utility model and was published after the
  said date of filing
    1. New Absolute Novelty Principle (2)

After the amendment: Absolute Novelty
• If an invention is accessible to the public
  before the date of filing, the invention loses its
  novelty
• So, the evidence of public sale outside China
  might cause the loss of patentability in an
  application in China
        2.No more Double Patenting

Before the amendment: on one invention, one
 applicant sometimes apply for both utility
 model patent (10 years) and invention patent
 (20 years).
After the amendment: on one invention, one
 application, one patent ( Art. 9)

Utility model patent vs. invention patent?
         3. New Amendment in Patent Agency


 New Art. 19
 Any foreigner, foreign enterprise or other foreign
  organization having no habitual residence or business
  office in China applies for a patent, or has other patent
  matters to attend to, in China, it or he shall appoint any
  patent agency legally established within China.
 Before the amendment,
  ……shall appoint a patent agency designated by the
  Patent Administration Department under the State
  Council to act as his or its agent.(193 patent agents)
       4.The New Reward System
The New Implementing Regulation of Chinese Patent Law

Art. 76: The inventor can make a contract regarding the reward(jiang
jin) with his/her work unit (dan wei) which has been granted patent right;

Art. 77: If there is no contract,
•For invention patent, the reward ≥ 3000 RMB Yuan (approx. 480 AUD);
•For utility model patent, the reward ≥ 1000 RMB Yuan (approx. 160
AUD);
•When anyone comes up with good suggestions on a patent application
and the patent right has been granted, this person should receive a
certain amount of reward from the work unit.
        5.The New Bonus System
Art. 78.If there is no contract on the bonus, within
 the valid period of a patent:

• For invention patent and utility model patent, the award
  ≥ 2% of yearly sale’s profit;
• For design patent, the award ≥ 0.2% of yearly sale’s
  profit;
• Or grant the inventors a lump sum of bonus according to
  the figures above;
• when the work unit licenses the patent, the inventors
  should receive ≥ 10% of the licence fee.
A Chart on the Patent Applications and Grants
              2006-2009, SIPO
Local governments
Eg: The Patent Work Plan of 11th Five-Year of Guangdong
  Province

• Since 1995, Guangdong ranked No. 1 in the patent
  applications and patent grants every year

• to guarantee the yearly increase of patent applications at 15%

• What we can see from the figures
Patent attorneys
Application quantities link to their incomes, work reviews,
 promotions, images of the firms


Patent applicants
 Application quantities link to their bonuses, work reviews,
  promotions, and the situation in their negotiations in
  cross-licensing
The Gate is
higher now!
 Thank you very much!

Nan Zhang, n.zhang@qmul.ac.uk

				
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