Chinese Patent Law Reform: Beyond the Headlines (RECORDING)
After a new patent law was formally adopted by China's National People's Congress on Oct. 17, many reports described the changes as almost all upside for those who own patents in the country, creating new mechanisms for patent protection and additional scope for damages.
But our expert panel -- a global pharmaceutical attorney with long experience of the country, a veteran patent litigator in China, and a USPTO specialist, say to beware of overly upbeat forecasts. They will discuss:
- The new pharmaceutical patent linkage system, modeled on the U.S. Chinese Hatch-Waxman process. This is a potential step forward, but details are lacking. Responsibility for developing and managing the regime are delegated to two regulatory agencies: the National Medical Products Administration (NMPA) and the National Intellectual Property Administration (CNIPA). They will not create binding regulations, but implement rules without the full force of law, leaving unclear how coordination with the courts will work. The patent statute provides CNIPA a new authority to decide whether a pharmaceutical patent would cover a generic product, which could be cause for concern.
- The new law provides for punitive damages for patent infringement for the first time and allows the damages award to be increased by up to five times when the infringement is willful. But what constitutes intentional infringement is left undefined and will be developed over time. Some experts fear this discretion will be used as a weapon against foreign companies that are being sued by Chinese companies in China.
- The potential of a new Open Licensing scheme to encourage use of patents. A patentee can voluntarily declare in writing to the CNIPA that it is willing to license any entity or individual to implement the patent for specified royalties. CNIPA will publish information about available open licenses.