China's New Draft Patent Law Has Innovation at Heart
January 10, 2019 | BY
Erick RobinsonErick Robinson, Partner at Dunlap Bennett & Ludwig, Beijing and author of China Patent Blog dissects the recently published Draft of the Patent Law Amendments, and discusses the good, the bad and the not too ugly implication of the law, should it come into force, on patent litigation in China.
On January 4, 2019, the National People's Congress published a draft amendment to the Patent Law (the “Amendment”). The Amendment is open for public comments through February 3, 2019. This article summarizes the most important changes in the proposed Amendment. (See full text of the Amendment here.)
The newly added Article 20 states that patentees should follow the principle of good faith and must not abuse patent rights to harm public interest and the legitimate rights and interests of others or to exclude or restrict competition. This seems a bit ominous, as these terms are unclear and undefined. This could potentially allow a court to take action against a patentee or its patent for antitrust and competition reasons. Specifically involving the court by law for such purposes is not a good thing, as China already has other entities to deal with such issues.
Article 26 adds a new category of technology that is specifically not patentable. Under this article, methods of nuclear transformation and the substances obtained by such methods are not patentable.
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