patent-protection

Patents (Not Including Designs)

Patents Laws and Related Rules

Guangdong Province, Mainland China

For the laws, you can find more information from the Patent Law of the People’s Republic of China (amended on 27 December 2008), implementing Regulations of the Patent Law of the People’s Republic of China, regulation on National Defense Patent, Guangdong Provincial Regulations on the Protection of Patents, Provisions on the Methods for Marking the Patent Marks and Patent Numbers, Measures for the Compulsory Licensing for Patent Implementation, Certain Questions Concerning Implementation of Customs Protection of Patents Provisions and Regulations on Patent Commissioning.

Reference Website (Simplified Chinese)

The Hong Kong Special Administrative Region

A patent, with the meaning of an exclusive right granted to the inventor of an invention, can be used as registering an invention which is new and engages in an inventive pace in Hong Kong. The invention should be applied in industrial aspect, and should include in the classes of inventions.

For patents laws, you can find more information from Patents Ordinance (Cap. 514), Patents (Designation of Patent Offices) Notices (Cap. 514A), Patents (Transitional Arrangements) Rules (Cap. 514B), Patents (General) Rules (Cap. 514C).

Reference Website (English)

The Macao Special Administrative Region

For patents laws, you can find more information from the Industrial Property Code of Macao (General provisions: Article 1-53, Industrial Property Registration: Article 54-59, Invention Patent: Article 60-119, Utility Patent: Article 120-124, Extension of Invention Patent: Article 129-135, Legal recourse: Article 275-283, Monitoring and penalties: Article 284-314). The Industrial Property Code of Macao was supported by the Decree-Law no. 97/99/M which was issued on 13 December 1999 and be effective on 6 June 2000.

The ruling of Chief Executive no. 59/2004 published on 22 March 2004 approves the State Intellectual Property Office (SIPO) as the qualified designated entity. The aim of this policy is to arrange substantial examination for the application for registering patent in the Macao SAR.

For Intellectual Property, the State Intellectual Property Office and the Macao SAR Economic Services issue the Cooperation Agreement on 24 March 2004 by the notice of Chief Executive no. 7/2004. There is 5 years extension on the period of validity of the Agreement. There is a notice which is issued in Series II of Official Gazette no. 12 on 19 March 2008.

Reference Website (English)

Classification of Patents

Guangdong Province

In China, there are three kinds of patents available (e.g. invention, utility model and design).

The meaning of invention is more about any new technical solution regarding the products, processes or improvements. For invention, the patent right is effective for 20 years, starting from the time when filing the application.

Utility model is concerning any new technical solution for the product’s shapes, the product’s structures or a combination of the shapes and structures. The new technical solutions should be used in a practical way. For utility model, the patent right is effective for 10 years, starting from the time when filing the application. More can be referred to Articles 2 and 42 of the Patent Law of the People’s Republic of China (Chinese Patent Law) amended on 27 December 2008. More about the designs can be referred to the “Designs” section.

The Hong Kong Special Administrative Region

The classification of patents can be done according to the International Patent Classification.

The Macao Special Administrative Region

The classification of patents can be done according to the International Patent Classification from www.wipo.int/classifications/fulltext/new_ipc/index.htm.

If the applicant wishes to make a patent search or identify the development status, he or she may utilize the system of patent classification in certain technical field can be done in the system of patent classification.

Application Methods, Fees, Procedures and Processing Time for Patent

Guangdong Province

Application Methods

Under the State Council, applicants or patent agency which is authorized by the applicants should file a patent application to the patent administration department

Procedures

  • It is necessary for the applicant who wants to file an application for invention or utility to file a request together with the application documents including specification, abstract and claims, etc.
  • If the invention depends on genetic resources, the direct source and the original source of the genetic resources in the application documents should be stated by the applicant. If original source cannot be provided, applicants should give specific reasons.
  • It is believed that the filing date will be the time that patent administration department under the State Council gets the patent application.
  • If an applicant files a patent application for the same invention in China within 12 months period after filing a patent application for an invention or utility model in a foreign country, priority can be enjoyed under the agreement between the related foreign country and China, or according to any international treaty to which both countries are members or of the principle of mutual recognition of the right of priority.
  • If an applicant files a patent application for the same invention with the patent administration department under the State Council within 12 months period after filing a patent application for an invention or utility model in China, the right of priority can be enjoyed.
  • The limitation for an invention or utility model patent application will be for one invention or utility model. A single general inventive concept which contains two or more inventions or utility models will be filed as one application. More can be referred to Articles 26 – 33 of the Chinese Patent Law amended on 27 December 2008.

Fees

According to the patent-related fee standard amended by SIPO in 2008, the fee for filing for applying an invention patent is RMB 900 (subject to adjustment). An 85% reduction can be applied for by an applicant (as natural person), so that the payment is RMB 135 (subject to adjustment). A 70% reduction can be applied for by an applicant (as entity), so that the payment is RMB 270 (subject to adjustment).

No reduction will be made on the printing fee (RMB 50) (subject to adjustment). An 85% reduction will be made on the substantive examination fee (RMB 135, 15% of RMB2,500 ) (subject to adjustment) for a natural person. A 70% reduction will be made on the substantive examination fee (RMB750, 30% of RMB2, 500) (subject to adjustment) for an entity.

An 85 % reduction will be made on the filing fee for a utility model patent application (RMB75, 15% of RMB500) for a natural person. A 70% reduction will be made on the filing fee for a utility model patent application (RMB150, 30% of RMB500) for an entity. More about patent-related fees can be referred to the official website of SIPO (www.sipo.gov.cn/sipo2008/zlsqzn/sqq/zlfy/200804/t20080410_372688.html).

Processing Time

According to the Chinese Patent Law, the examination procedures of an invention patent application contain acceptance, preliminary examination, publication, substantive examination and grant. A utility model’s or a design application’s the examination procedures contain acceptance, preliminary examination and grant only, excluding the publication at an early stage and substantive examination.

After getting the application and finishing the preliminary examination, the patent administration department under the State Council will issue the application that meets the requirement of the Chinese Patent Law quickly after 18 months from the filing date. Applicant may ask the patent administration department under the State Council to issue the application earlier. With the request made during the 3 years period from the filing date, application will be moved to the substantial examination. Owing to the failure of requesting for a substantial examination before the deadline without reasonable reason, the applicant’s application will be believed as abandonment. First, the patent administration department under the State Council may move on to have a substantial examination on any application for an invention patent if necessary. For filing to grant of utility model patent application, time can be shorter than the time spending on applying for an invention patent. Substantive examination is excluded.

The Hong Kong Special Administrative Region

There are two types of patent that can be registered in Hong Kong.

  • For the standard patent, it is renewable yearly after the end of the third year, with a maximum term of 20 years.
  • For the short-term patent, it is renewable after the end of the fourth year, with a maximum term of 8 years.

Standard Patent

The grant of a standard patent in Hong Kong is on the basis of the registration of a patent approved by one of the three patent offices which is called “designated patent offices”. The three patent offices are the State Intellectual Property Office, People’s Republic of China, the European Patent Office (in respect of a patent designating the United Kingdom), and the United Kingdom Patent Office.

Two stages are needed for standard patent application to engage in. Related requests should be filed before deadline. The first step is filing a request to record (on Patents Form P4) in Hong Kong within 6 months after publishing the patent application in the designated patent office (called “designated patent application”). The second step is filing a request for registration and grant (on Patents Form P5) in Hong Kong within 6 months after granting the patent by the designated patent office (called “designated patent”), or publishing the request to record by the Patents Registry of IPD. Whichever deadline is later will be the chosen one.

Short-term Patent

The grant of a short-term patent in Hong Kong is on the basis of the search report from an international searching authority under Article 16, Patent Co-operation Treaty or one of the three said designated patent offices. If an applicant wants to file a short term patent application in Hong Kong, he or she needs to hand in a request for grant with the necessary documents and information.

Fees and Application Documents and Information

An address for service in Hong Kong should be provided by all applicants. For the applicants who want to hand in their patent applications through the e-filling system, they need to register with IPD as e-filers in advance. An e-Cert that is issued by a recognised certification authority in Hong Kong is held by the e-filers. More can be referred to the IPD’s website https://iponline.ipd.gov.hk.

For standard patents, filing fee ($380) (subject to adjustment) and an advertisement fee ($68) (subject to adjustment) are needed. For short-term patents, filing fee ($755) (subject to adjustment) and an advertisement fee ($68) (subject to adjustment) are needed.

More about patents forms and fees can be referred to the fee table in IPD’s website. More about application documents and information can be referred to the application of patent in IPD’s website.

Processing Time for Registration and Grant of Patents

For registration and grant of standard patents, in general case, if all requirements for registration are met, the time for the processing process will be within 3 months, which starts from the date of receipt of the request for registration and grant till the date of issuance of the certificate of grant of patent by the Patents Registry.

For grant of short-term patents, in general case, if all requirements for registration are met, the time for the processing process will be within 3 months, which starts from the date of receipt of the short-term patent application till the date of issuance of the certificate of grant of patent by the Patents Registry.

Free online search services are provided by IPD in http://ipsearch.ipd.gov.hk. These services can be made use of to see the application records on registering patent and publishing patent.

The Macao Special Administrative Region

There are two types of patent that can be registered in Macau.

  • For the Invention patent, patents will be effective for 20 years starting from the filing time, and will be renewable yearly after the end of the third year. Applicants should hand in the renewal in the 6 months previous to the current validity period.
  • For the utility patent, patents will be effective for 10 years starting from the filing time, and will be renewable yearly after the end of the second year. Applicants should hand in the renewal in the 6 months previous to the current validity period.

Invention Patent

Two types of procedures are involved in the registration of the invention patent.

  • The first step is to extend the Mainland invention patent to the Macao SAR.
    1. According to the Industrial Property Code and the notice of Chief Executive no. 7/2004 of 24 March, the applicants submitting an invention patent application in SIPO, or the right owners granting an invention patent in SIPO need to hand in a request to the Macao SAR for the extension of application or the patent right.
    2. For the aim of protecting patent in Macao SAR, if the applicants submit a patent application in SIPO, the form of “Application for Extension of Invention Patent from the State Intellectual Property Office” as well as the respective claims, description and abstract of the invention patent should be completed and sent to the Economic Services. If suitable, Power of attorney and Drawings should be submitted with the application.
    3. If the application is in sequence, the Official Gazette of the Macao SAR will state out the notice of the application on the website of www.economia.gov.mo after 18 months from the date of filing in SIPO or, from the claimed date if a priority right was claimed. During 3 months period after the publishing the notice of the grant of the patent in the “Patent Gazette” of SIPO, “Application of Other Actions” form should be completed. “The Copy of Extracts from the Patent Register” and “Patent Specification” which is issued by SIPO should be submitted to the Economic Services.
    4. The approval for the application for extension of invention patent will be done within 3 to 4 months after handing in “The Copy of Extracts from the Patent Register” and “Patent Specification”.
    5. For the aim of protecting patent in Macao SAR, if the owners of the right own the invention patent granted in SIPO, they will fill in the ““Application for
      Extension of Invention Patent from the State Intellectual Property Office” form and the “The Copy of Extracts from the Patent Register” and “Patent
      Specification”, and hand them in all to the Economic Services during the 3 months period after publishing the notice of the grant of the patent in the “Patent Gazette” of SIPO.
    6. During the 3 to 4 months after submitting “The Copy of Extracts from the Patent Register” and “Patent Specification”, there is the approval for the registration of the application for extension of invention patent.
  • The second step is to submit a latest application for invention patent in the Macao SAR.
    1. If the applicant applies for registration of an invention patent, he or she should hand in “Application for Registration of Invention Patent” form, claims, description and abstract. If suitable, the applicant should prepare the documents, including Power of attorney, documents proving the priority right claim, drawings, translated copies in Chinese of certificates or other documents that are not written in any Macao SAR’s official languages, and other supporting documents.
    2. If the application is in sequence, Official Gazette of the Macao SAR will state out the notice of the application in the website before 18 months after filing the application, or from the claimed date( if priority right was claimed). After publishing the application notice, and state-of-the-art patent, anyone may apply for opposing to a specific application for registering invention patent.
    3. In addition, during the 7 years period after filing application, a request of substantial examination for preparing examination report by SIPO should be filed by the applicants to the Economic Services. The “Application of Other Actions” form and examination fee of MOP 2,500(it will be adjusted) should be handed in for letting the application for invention be acceptable. More about the application form and fee can be referred to website of the Economic Services.

How long it takes for approving registration of invention patents relies on how long designated examination entity takes for finishing the examination report.

Utility Patent

If the applicant applies for registration of an utility patent, he or she should hand in “Application for Registration of Utility Patent” form, claims, description and abstract. If suitable, the applicant should prepare the documents, including Power of attorney, documents proving the priority right claim, drawings, translated copies in Chinese of certificates or other documents that are not written in any Macao SAR’s official languages, and other supporting documents.

If the application is in sequence, Official Gazette of the Macao SAR will state out the notice of the application in the website before 18 months after filing the application, or from the claimed date( if priority right was claimed). After publishing the application notice, and state-of-the-art patent, anyone may apply for opposing to a specific application for registering utility patent.

In addition, during the 4 years period after filing application, a request of substantial examination for preparing examination report by SIPO should be filed by the applicants to the Economic Services. The “Application of Other Actions” form should be handed in for letting the application for invention be acceptable. More about the application form can be referred to website of the Economic Services.

How long it takes for approving registration of utility patents relies on how long designated examination entity takes for finishing the examination report.

For the “Application for Extension of Invention Patent from the State Intellectual Property Office”, “Application for Registration of Invention Patent” and “Application for Registration of Utility Patent”, several reminders should be noted.

  • First, the applicants should finish the application forms in Chinese or Portuguese.
  • Second, if the applicants do not own an effective Macao SAR Resident’s Identity Cards or the bodies corporates do not register in the Macao SAR, then they need to appoint agents, e.g. lawyer registered with the Macao Lawyers Association, person who is residing in the Macao SAR or body corporate registered in the Macao SAR. Agents are in charge of signing the form.
  • Third, one application form is for one patent registration only.
  • Forth, the applicants who file their applications by individuals or by agents should possess a Macao SAR Resident’s Identity Card for certification and identification. The Economic Services will examine the authenticity of signature. The applications who file their applications by bodies corporate or by agents as bodies corporate need to ask their legal representatives, who possess the authority, to sign the form, and should obtain official certification of authenticity through a Notary Office of the Macao SAR.

The “Application for Extension of Invention Patent from the State Intellectual Property Office” form, “Application for Registration of Invention Patent” form and “Application for Registration of Utility Patent” form, and the supporting documents should be submitted to the Industrial Property Application Counter of Reception Center of the Economic Services.

The application fee (extension of invention patent (MOP 800) (subject to adjustment), invention patent(MOP 800) ( subject to adjustment), utility patent (MOP 400) ( subject to adjustment) as well as the payment slip should be handed in and paid during 8 working days following the time when an application number was assigned and the payment slip was obtained. More about the application forms and fees can be referred to the website of the Economic Services.

The Economic Services can be used for seeking the basic information of filed trademarks. No fee is required. The website of the Economic Services.

The standard charge varies with the government’s policies. Applicants may visit the official websites for the details of the latest standard charges.

Patent Examination

Guangdong Province

There are five stages for the examination of patent applications. The five stages are acceptance, preliminary examination, publication, substantive examination and grant.

Invention

Meeting the requirements of the Chinese Patent Law of China, the application will be published by the patent administration department under the State Council upon the expiration of 18 months from the filing date. If there is a request from the applicant, the application will be published earlier by the patent administration department under the State Council. If the request from the applicants is done during the 3 years period after the filing date, applications will move on to the substantial examination. Substantial examination will be stated as failed if the applicants hand in the application after the deadline with any reasonable reason. The patent administration department under the State Council may move on to have a substantial examination on any application for an invention patent if necessary. Decision to grant the patent for invention, issue the patent certificate, register and publish the patent for invention may be made by the patent administration department under the State Council when there is no reason for rejecting the patent application subsequent to the substantive examination. The patent right will come into effect on the publishing date.

Utility model

When there is no reason for rejecting a utility model patent application subsequent to preliminary examination, decision to grant the patent for utility model, issue the patent certificate, register and publish the utility model will be made by the patent administration department under the State Council. The utility model patent right will come into effect on the publishing date.

Flowchart of Examination of Application for Invention Patent - GuangDong

Flowchart of Examination of Application for Invention Patent – GuangDong

Flowchart of Examination of Application for Utility Model Patent – GuangDong

Flowchart of Examination of Application for Utility Model Patent – GuangDong

The Hong Kong Special Administrative Region

If the applicant replies, the application will be processed by the Patents Registry according to the procedures mentioned in the below flowcharts and paragraphs.

Flowchart of Examination of Request to Record for Standard Patent - HKSAR

Flowchart of Examination of Request to Record for Standard Patent – HKSAR

Flowchart of Examination of Request for Registration and Grant for Standard Patent - HKSAR

Flowchart of Examination of Request for Registration and Grant for Standard Patent – HKSAR

Flowchart of Examination of Application for Short-term Patent - HKSAR

Flowchart of Examination of Application for Short-term Patent – HKSAR

The first stage is to accord a date of filing

If the registry receives the application, applicants will be informed by the Patents Registry during the 10 working days period after the filing date.

Standard Patent

Date of Filing a Request to Record

According a date of filing to the request to record will be done by the Patents Registry when the name of the applicant, the designated patent application are stated out in the request, and the designated patent application number, its publication number and date of publication are included.

Date of Filing a Request for Registration and Grant

According a date of filing to the request for registration and grant will be done by the Patents Registry when the name of the applicant and the designated patent application are stated out in the request, and the designated patent publication number, its publication number of the request to record and date of publication are included.

Short-term Patent

A date of filing to a short-term patent application is accorded by the Patents Registry when the name of the applicant is stated and invention is described.

The second stage is to examine on the formal requirements.

Following the notification of the filing date to the applicant, whether the formal requirements are met will be examined by the Patents Registry. Assessment of the information and documents are needed in the application form. No substantive exam for the application (such as the novelty and innovativeness of the patent) need to be conducted and no records of registered patents need to be searched.

If the application is not in sequence, the notification of asking the applicant for correction will be done by the Patents Registry within 2 months. If the applicants fail to make correction before the deadline, the application will be perceived as abandonment.

The third stage is publication and grant.

Meeting all formal requirements of the application, publishing patent application, granting patent, advertising the publication of application, granting patent will be done by the Patents Registry on the website of the Hong Kong Intellectual Property Journal (www.ipd.gov.hk/eng/ip_journal.htm). For the request for registration and grant of standard patent, and short term patent application solely, issuing a certificate of grant of patent will be done by the Patents Registry as well.

The Macao Special Administrative Region

There are four stages for the process examining an application for extension of invention patent to the Mainland from the Macao SAR. The four stages are formal examination, publication of notice of application (merely for extension of patent application submitted in SIPO), approval of application for extension and publication of notice of registration, and lastly, issuance of certificate of registration upon expiry of the appeal period.

Flowchart of Application Process for Extension of the Mainland Application of Invention Patent to the Macao SAR - Macau

Flowchart of Application Process for Extension of the Mainland Application of Invention Patent to the Macao SAR – Macau

Flowchart of Application Process for Extension of Invention Patent from the Mainland to the Macao SAR - Macau

Flowchart of Application Process for Extension of Invention Patent from the Mainland to the Macao SAR – Macau

The First Stage: Formal Examination

After receiving the application for extension of invention patent, the Economic Services will proceed to its formal examination to see if the application form and supporting documents meet the legal requirements.

Lacking of any necessary elements, or being not in sequence, the application ought to be corrected before deadline, notification will be given to the applicant by the Economic Services.

The Second Stage: Publication of Notice of Application (Only Applicable to Extension of Patent Application Submitted in SIPO)

If an application is in sequence, the Official Gazette of the Macao SAR will state the notice of the application out on the website within 18 months starting from submission in the Mainland or from the claimed date (if a priority right was claimed).

The Third Stage: Approval of Application and Publication of Notice of Grant

After the submission of the “The Copy of Extracts from the Patent Register” and “Patent Specification” issued by SIPO, the application will move to the approval stage if application fits all registration requirements under the Industrial Property Code. The Economic Services will issue the notice of grant on the website of the Official Gazette of the Macao SAR.

If an application does not fit the registration requirements under the Industrial Property Code, the ruling of refusal of registration will be published by the Economic Services on the website of the Official Gazette of the Macao SAR.

The Fourth Stage: Upon Expiry of the Appeal Period, Issue of Certificate of Registration

An appeal to the Court of First Instance can be lodged against the decision by the applicants, during 1 month period from publishing the notice of grant in the Official Gazette of the Macao SAR. The submission of the original receipt of the application fees should be done by the applicants at the Industrial Property Application Counter of Reception Center of the Economic Services to get the registration certificate, at the end of the appeal period, or 5 working days after the decision making of the court in the event of an appeal.

There are five stages for the examination of an application for invention patent and utility patent registration. They are formal examination, publication of notice of application (anyone may oppose the application), substantial examination and preparation of examination report by SIPO, registration and publication of notice of registration, and lastly, issuance of certificate of registration (upon expiry of the appeal period).

Flowchart of Application Process for Invention Patent and Utility Patent Macao SAR - Macau

Flowchart of Application Process for Invention Patent and Utility Patent Macao SAR – Macau

The First Stage: Formal Examination

After receiving the application for patent registration, the Economic Services will move on to the formal exam within two months to see if the application form and supporting documents fits the legal requirements.

Lacking of any necessary elements, or being not in sequence, the application ought to be corrected within 2 months after the notification which will be given to the applicant by the Economic Services. Without notification, applicants will have a maximum of 4 months from the filing application to correct it.

The Second Stage: Publication of Notice of Application (if there is opposition to the application)

If an application is in sequence, the Official Gazette of the Macao SAR will state the notice of the application out on the website following 18 months starting from the submission date in the Mainland or from the claimed date (if a priority right was claimed).

If anyone wants to oppose to a specific application for patent registration, it is a must for them to make an objection to their application, from the time of publication of the application notice till the time the patent is granted, by completing the “Application of Other Actions” form. The Economic Services will send another copy of opposition to the applicant. A response should be made by the applicant, and the “Application of Other Actions” form should be filled in during the 4-month notification period. More about the application form can be referred to the website of the Economic Services.

More about the opposition to patent applications can be referred to Article 84 of the Industrial Property Code.

The Third Stage: Substantial examination; Preparation of Examination Report by SIPO

A request of substantial examination for preparing the examination report by SIPO should be filed by the invention patent’s applicant to the Economic Services during 7 years period from the filing date. “Application of Other Actions” forms and examination fee (MOP 2,500) are required. A request of substantial examination for preparing the examination report by SIPO should be filed by the utility patent’s applicant to the Economic Services during the 4 years period from the filing date.

Rejection of the application for invention patent and utility patent will be made if the request for examination is not done before the deadline respectively. More about the application form and fee can be referred to the website of the Economic Services.

Patent application and supporting documents will be forward to SIPO right after the request of substantial examination is filed by the applicants. Technical assistance will be provided by SIPO to the Economic Services for the conduction of substantial examination and the elaboration of the searching report with comment and examination report. The reports are the basis for registering the patent application.

The Fourth Stage: Registration, Publication of Notice of Registration

Following the substantial examination, decision on registering patent application depends on the examination report prepared by SIPO will be made by the Economic Services. If the registration requirements under the Industry Property Code are met, and no successful objection is made before the deadline, the application will move on to the registration stage. The notice of registration will be published by the Economic Services on the website of the Official Gazette of the Macao SAR. For the application not meeting the registration requirements under the Industrial Property Code, the ruling of refusal of registration will be stated out by the Economic Services in the Official Gazette of the Macao SAR.

The Fifth Stage: Upon Expiry of the Appeal Period, Issue of Certificate of Registration

An appeal to the Court of First Instance against the decision can be made by the applicant within 1 month from the date of publishing the notice of registration in the Official Gazette of the Macao SAR. For getting the certificate of registration, the original receipt of the application fees should be submitted by the applicants at the Industrial Property Application Counter of Reception Center of the Economic Services upon the end of the appeal period, or 5 working days after the date of the court decision in the event of an appeal.

Means of Relief for Infringement of Patents

Guangdong Province

The Right of Patentee

After granting the patent right for an invention or utility model, other than the specification in the Chinese Patent Law, no one can exploit the patent by making, using, selling, importing the goods directly acquired by the process of patent, for manufacture or business uses, without any permission.

For the grant of the patent right for a design, no one can exploit the patent by making , offering to sell, selling or importing the goods integrating his patented design, for manufacture or business uses, without any permission, under Articles 11 of the Chinese Patent Law of the People’s Republic of China.

Administrative and Civil Remedies

Referring to the provisions of the Chinese Patent Law adjusted on 27 December 2008, if there is a conflict caused by the exploitation of a patent without patentee’s permission, which is an act of patent right’s infringement, the conflict should be solved by negotiating between the regarding parties. If the parties do not want to negotiate with each other or the negotiation is failed, legal proceeding may be done in the People’s Court, or the administrative authority for patent affairs can be asked for handling the matter.

If administrative authority determines that infringement exists, the infringer may be asked to end his or her act of infringement at once. If any of the party does not comply with the arrangement, legal proceeding can be pursued by the regarding parties during 15 days period from the date of receipt of the notification of the order in the People’s Court under the Administrative Procedure Law of the People’s Republic of China. In case no legal proceeding is requested before the deadline or no infringement act is done, the People’s Court will make an enforced execution which is requested by the administrative authority for patent affairs. Due to the parties’ request, the amount of reimbursement for the damage followed by the infringing act will be mediated by the authority which handles the matter. With the failure of the mediation, legal proceedings will be done in the People’s Court under the Civil Procedure Law of the People’s Republic of China.

The amount of reimbursement for the damage leading by the infringing act will be evaluated based on the real losses undergone by the patentee due to infringement. When there are difficulties to find the amount of losses, it will be evaluated based on the profits earning by the infringer. If there are difficulties to evaluate the real losses undergone by the patentee or the profits earning by the infringer, the payment can be evaluated based on the suitable multiple of the patent’s exploitation fee under the contractual license. Reimbursement should involve the logical expense on stopping the infringement by the patentee.

When there are difficulties to find the amount of losses, the profits of the infringer, and the royalty gained from the patent, few factors will be considered by the People’s Court for calculating the reimbursement , e.g. the patent’s type, infringement’s nature or specification, etc. The reimbursement will be the amount between RMB10, 000 and RMB1, 000,000.

Provided that there is evidence from the any party concerned proving that another party has done, or is about to do the infringement act towards the exclusive right to the use of patent, unless the infringement act stops immediately, there will be irretrievable damage to the legitimate rights and interests, then the infringed one may ask the People’s Court to forbid the related act and preserve the property before filing a lawsuit.

For forbidding the infringement act, any concerned party can ask the People’s Court to preserve the evidence before filing a lawsuit if there are difficulties of obtaining evidence or preserving the evidence. Applicant maybe asked to offer a surety to the People‘s Court. Without offering surety, the application may be refused.

Criminal Remedies

As said by the provisions of Article 63 of the Chinese Patent Law adjusted on 27 December 2008, anyone who counterfeits the patent of others needs not only bear the civil liabilities under the law, but also needs to make a rectification and be broadcasted by the administrative authority for patent affairs. The illegal gains from the infringer will be confiscated, and the fine to the infringer will be the amount of the illegal gains multiply by four. For the infringer without illegal gain, the maximum fine is RMB200, 000. When constituting any crime, the one will need to bear criminal liabilities under the law. As said by the provisions of the Criminal Law of the People’s Republic of China, when anyone who counterfeits other’s patent, and the case involved is serious, the maximum imprisonment will be 3 years or criminal detention, at the same time or separately, fine will be charged. More can be referred to Articles 60 to 67 of the Chinese Patent Law modified on 27 December 2008, and Article 216 of the Criminal Law of the People’s Republic of China.

The Hong Kong Special Administrative Region

For the infringement of patent, civil proceedings against infringement can be made by the patent’s proprietor or the exclusive licensee. There are forms of relief that need to grant the plaintiff through setting up legal proceedings against the infringement. For example, damages, an injunction, orders for delivery up (the court requests the defendant to surrender the infringing goods, materials or articles), an account of the profits obtained from the infringement or other forms of relief.

The Macao Special Administrative Region

Through administration and jurisdiction, patent infringement’s remedy can be acquired in the Macao SAR.

The relative protection, which is the administrative protection in the field of intellectual property, is available in Macau. Preventing, striking, forbidding infringing activities in intellectual property are what the administrating and enforcing department does. For the situation of an infringement of the exclusive right of a registered patent, an action for protecting the owner’s right can be done by the right owner through the Macao Customs and other empowered entities.

Judicial measures are adopted in Macau SAR in the respect of remedy of the intellectual property area. For the situation of an infringement of the exclusive right of a registered patent, legal process at judicial authorities can be used by the right owner to solve the conflict. Thus, sanction is imposed on the infringer against the infringement so as to prevent violating the right of owner. Hence, interest of patent’s right owner can be guarded.