Review on the fourth amendment to the PRC Patent law: Important update for Patent owners doing business in China
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The COVID-19 pandemic has been sweeping the world since the end of 2019, exerting a far-reaching impact on global economic and technological development. With the concerted efforts of countries around the world and the promotion of vaccines, the COVID-19 pandemic has been effectively controlled in most countries. China undoubtedly is outstanding in the fight against the pandemic. Despite having the world's largest population, China not only efficiently controlled the epidemic in a short time but also actively promoted technical and economic cooperation at home and abroad. The fourth amendment to the PRC Patent Law ("New Patent Law") in effect from 1 June 2021 demonstrates the determination of the Chinese government to improve the protection and enforcement of patent rights as well as promote the implementation and application of patented technologies, which is certainly a very good opportunity for domestic and foreign entities and individuals doing business in China.
Background
1. Appropriate burden of proof required for claiming high damages for patent infringement
In patent infringement disputes, it would be very advantageous for patentees as a whole to fulfil the burden of proof. First, pursuant to the New Patent Law, the damages can be calculated based on the patentee's actual loss OR the infringer's profit from infringement, not IN SEQUENCE. Although the profit from infringement is mostly applied in practice, this change reflects the relaxation of legal requirements on the burden of proof on patentees. Moreover, the New Patent Law provides a substantial increase in the amount of statutory damages and the punitive damages up to five times the amount calculated according to the aforesaid method. However, in our opinion, the problem about calculating the profit from infringement, among others, are still there due to the practical difficulty in proof by patentees, especially in preservation of evidence related to the infringing B2B goods. Therefore, the actual effect of the amended provisions on infringement damages will depend on the subsequent implementation rules of the Patent Law as well as the specific provisions of other relevant judicial interpretations. The entities and individuals doing business in China now still need to bear a greater burden of proof in patent infringement disputes in order to prove the existence of infringement and the amount of profit from…
