China
Answer ... Once a patent for an invention or a utility model has been registered, except where otherwise prescribed by the Patent Law, no entity or individual may, without the authorisation of the patent holder, exploit the patent holder’s patent – that is, manufacture, use, offer to sell, sell or import the patented product, or use the patented process, and use, offer to sell, sell or import the product directly obtained by the patented process, for any production or business purpose.
Once a patent for a design has been registered, no entity or individual may, without the authorisation of the patent holder, exploit the patent holder’s patent – that is, manufacture, offer to sell, sell or import the products incorporating the patent holder’s patented design, for any production or business purpose.
Any entity or individual exploiting the patent of another person must:
- enter into a licence contract for exploitation with the patent holder; and
- pay the patent holder a royalty for the exploitation of the patent.
The licensee has no right to authorise any entity or individual, other than the entity or individual as stipulated in the licensing contract, to exploit the patent.
After the publication of an invention patent application, the applicant may require the entity or individual exploiting the invention to pay an appropriate amount of royalties.
A patent holder has the right to label the patent on its patented product or on the package of the product.
China
Answer ... A patent holder can enforce its rights in China through administrative or judicial routes.
In the event of a dispute arising from the unauthorised exploitation of a patent, constituting infringement upon a patent right, the parties should attempt to resolve the dispute through negotiations.
If negotiations are unsuccessful or if the parties are unwilling to negotiate, the patent holder or any interested party may either:
- initiate either a lawsuit with a people’s court (judicial route); or
- request an administrative authority for patent affairs for settlement (administrative route).
Regarding the administrative route, upon finding that infringement has occurred, the administrative authority for patent affairs may issue an order for the infringer to cease the infringing activities immediately. If the infringer refuses to comply with the order, it may may, within 15 days of receiving notification, file a lawsuit in the people’s court in accordance with the Administrative Procedure Law. If the infringer neither files a lawsuit nor ceases the infringing activities within the specified period, the administrative authority for patent affairs may apply to the people’s court for compulsory enforcement.
Upon request, the administrative authority for patent affairs handling the dispute may mediate regarding the compensation for patent infringement. If no agreement is reached through mediation, either party may initiate a lawsuit in the people’s court in accordance with the Civil Procedure Law.
China
Answer ... The term of patent rights for inventions is 20 years; the term of patent rights for utility models is 10 years; and the term of patent right for designs is 15 years, all commencing from the filing date.
Where a patent right for an invention is granted four years from the filing date and three years from the date of the request for substantive examination of the application, the patent administration department under the State Council may, at the request of the patent owner, extend the term of the patent to compensate for the unreasonable delay in the granting process of the invention, except for any unreasonable delay caused by the applicant.
In order to compensate for the time required for the assessment and approval of the marketing of a new pharmaceutical product, the patent administration department under the State Council may, at the request of the patent owner, extend the term of the new pharmaceutical-related invention which has been approved for marketing in China. The compensation term may not exceed five years and the total effective term of the patent right may not exceed 14 years from the date of marketing approval.