The “Implementing Rules for the Patent Law of the People’s Republic of China” have been revised and will be implemented from January 20, 2024

Following the revision of the “Patent Law” in 2020 and China’s application to join the “Hague Agreement on International Registration of Industrial Designs” of the World Intellectual Property Organization on February 5, 2022, in response to these changes, the State Council passed the revised draft of the “Implementing Regulations of the Patent Law” on December 11, 2023, which will be implemented from January 20, 2024.

The key points of this revision include:

1. To furtherly clarify the criteria for identifying circumstances where novelty factor shall not be affected.

Article 24 of the “Patent Law” stipulates that, “Where an invention-creation for patent application encounters any of the following circumstances within six months before the filing date, the novelty factor shall not be affected: (1) the invention-creation is first made public for the purpose of public interest during a national emergency or extraordinary state of affairs; (2) the invention-creation was first shown in an international exhibition organized or recognized by the Chinese Government; (3) the invention-creation was first published at a stipulated academic or technological conference; or (4) the contents of the invention-creation were divulged by others without the consent of the applicant.

Article 33 of the revision further stipulates the standards and procedural requirements regarding the determination of the four aforementioned circumstances, that is, “The international exhibitions recognized by the Chinese government referred to in Article 24 (2) refer to international exhibitions registered or recognized by the International Exhibition Bureau as stipulated in the Convention on International Exhibitions. The academic or technological conferences referred to in Article 24 (3) refer to academic or technological conferences organized by relevant competent departments of the State Council or national academic organizations, as well as academic or technological conferences organized by international organizations which are recognized by relevant competent departments of the State Council. If an invention or creation for which a patent is applied for falls under the circumstances listed in Article 24 (2) or (3), the applicant shall declare at the time of filing the patent application and submit the relevant invention or creation that has been exhibited within 2 months from the date of application. Or proof of publication, as well as the date of exhibition or publication. The invention or creation for which a patent is applied for falls under the circumstances listed in Article 24 (1) or (4), if the patent administration department of the State Council could require the applicant to submit proofs within the specified time limit if it is necessary. If the applicant fails to make a declaration and submit supporting documents in accordance with the provisions of the third paragraph of this article, or fails to submit supporting proofs within the specified time limit in accordance with the provisions of the fourth paragraph of this article, the provisions of Article 24 of the ‘Patent Law’ shall not apply to their application.”

2. To improve the standards of rewards and compensation for a service invention-creation.

The revision adjusts the rewards for an invention patent from the previous CNY 3000 to CNY4000, and the rewards for an utility model patent or design patent from CNY 1000 to CNY 1500.

Regarding the remuneration part, Article 78 of the original “Implementing Regulations of the Patent Law” stipulated that, where an employer which has been granted has not agreed with the employee on the form and amount of remuneration or has not stipulated the form and amount of such remuneration in its rules and systems formulated pursuant to the law, the employer shall withdraw a certain proportion from the relevant business profits or licensing fees as remuneration. The revision removes this provision and replaced it with a provision for remuneration in accordance with the provisions of the “Law on Promoting the Transformation of Scientific and Technological Achievements”.

This adjustment means that in the future, if there are no internal regulations, or agreements between the employer and the employee, the remuneration standards will be significantly increased, because the proportion of related operating profits stipulated in the “Law on Promoting the Transformation of Scientific and Technological Achievements” is 5%, which is much higher than the 2% of operating profits related to invention patents or utility model patents, and 0.2% of operating profits related to design patents, as stipulated in the original “Implementation Rules of the Patent Law”. In addition, in terms of licensing fees, the original “Implementing Regulations of the Patent Law” stipulated a ratio of 10%, while the “Law on Promoting the Transformation of Scientific and Technological Achievements” stipulated a ratio of 50% of net income.