Dr. Jiang zhipei explained the "Matching rules" with the New Patent Law in China at the 6th International Judges Conference on Intellectual Proterty Law on May 25 in Brussels. He  spoke:

New legislation was promulgated in 2010 following the third revision of the PRC  China Patent Law ("New Patent Law").  "Matching rules" will affect the initiative of patent right holders in patent infringement actions in China.  

These matching rules include the Interpretation on the Application of Law Concerning Several Issues in Handling Patent Infringement Disputes ("Interpretation") (effected on 1 January 2010) published by the Supreme People's Court, the revisions of the Rules for the Implementation of the Patent Law of PRC ("Implementation Rules") (effected on 1 February 2010), and the amendment of the Patent Administrative Enforcement Rules (“Enforcement Rules”) which came into effect on February 1, 2011.

1.      Interpretation

The Interpretation had been under preparation for several years, and the public was provided with numerous opportunities to comment on the drafts since 2003.  I have offered some personal comments in the preparation.

Many provisions in the Interpretation are critical for parties in the patent litigation in Chinese courts. The most important ones are as follow:

Ÿ   How to build a Claim, including the importance of specifications, drawings and reference materials, as well as means-plus-function claims and estoppel;

Ÿ   How to determine the infringement, including the doctrine of literal infringement;

Ÿ   How to protect Design patent, including the criteria of similarity and the ordinary consumer standard;

Ÿ   How to assess the damages, including the infringer profits standard;

Ÿ   Declaratory actions for non-infringement; and

Ÿ   Defenses based on prior art or prior use.

2.      Implementation Rules

The revised Implementation Rules provide detailed explanations and specifications to help the implementation of the New Patent Law.

The following key rules need to be noted:

Ÿ   Inventor or designer’s financial reward;

Ÿ   Genetic resources; and

Ÿ   Compulsory license.

3.      Enforcement Rules

One of the main purposes of the Enforcement Rules is to improve procedural standard by codifying the practice and principles of patent enforcement by SIPO and local patent authorities.  The important changes include the allocation of duties between SIPO and local authorities, the enforcement procedures, the seizure and investigation powers, and the time limit for handling patent disputes.