11. Current: Article 31
An application for a patent for invention or utility model shall be limited to one invention or utility model. Two or more inventions or utility models belonging to a single general inventive concept may be filed as one application.

An application for a patent for design shall be limited to one design incorporated in one product. Two or more designs which are incorporated in products belonging to the same class and are sold or used in sets may be filed as one application.

New: Article 32
An application for a patent for invention or utility model shall be limited to one invention or utility model. Two or more inventions or utility models belonging to a single general inventive concept may be filed as one application. An application for a patent for design shall be limited to one design incorporated in one product. Two or more similar designs for the same product, or two or more designs which are incorporated in products belonging to the same class and are sold or used in sets may be filed as one application.

Comments: According to current Article 31,an applicant cannot obtain patents for both the basic design and similar designs (associated designs) for one identical product: if one application seeks to protect a plurality of similar designs, the application will be rejected as not complying with the requirement on unity; if the applicant files these associated designs in a plurality of applications, respectively, the applications will be rejected for not complying with the provisions that require “only one patent right shall be granted for any identical invention-creation.” To solve this dilemma, new Article 32 allows for the filing of a consolidated application for all associated designs.

12. Current: Article 56
The extent of protection of the patent right for invention or utility model shall be determined by the terms of the claims. The description and the appended drawings may be used to interpret the claims. The extent of protection of the design patent shall be determined by the product incorporating the patented design as shown in the drawings or photographs.

New: Article 60
The extent of protection of the patent right for invention or utility model shall be determined by the terms of the claims. The description and the appended drawings may be used to interpret the claims. The extent of protection of the design patent shall be determined by the product incorporating the patented design as shown in the drawings or photographs. The brief description may be used to interpret the product incorporating the patented design as shown in the drawings or photographs.

Comments: According to current Article 56, the extent of protection of the design patent is determined by the drawings or photographs. In practice, it seems difficult to determine the protection scope of the design patent in that pictures or photographs usually reflect various details. It is undoubtedly too rigid if no infringement of a design patent shall be held unless the alleged infringing product completely represents all the details of the design patent. To alleviate this problem, this Bill proposes to use the brief explanation to help interpret the protection scope of a design patent shown in the drawings or photographs. More specifically, the applicant may indicate the main points of the design in the brief description, which would be put more emphasis than other minor details to some extent in infringement judgment.

13. Current: Article 57.2
…… In a dispute of patent infringement where a utility model patent is involved, a people’s court or department for patent administration may request the patent owner to forward a search report provided by the patent administration department under the State Council.

New: Article 62
In a dispute of patent infringement where a utility model patent or a design patent is involved, a people’s court or department for patent administration may request the patent owner or interested party to forward a patent assessment report provided by the patent administration under the State Council.

The patent administration under the State Council, based on the petition by a patent owner or interested party, conducts search, analysis and assessment, and provides a patent assessment report on the relevant utility model or design. A patent assessment report is preliminary evidence for the people’s court and the department for patent administration to decide on validity of the patent.

Comments: Current Article 57, in the second paragraph, provides that in any dispute of patent infringement where a utility model patent is involved a patent search report on the utility model patent may be required. Based on the proposed revision, this issue is emphasized by being singled out into an inserted article. In new Article 62, design patent is also included for the requirement for the purposes of enhancing the quality and enforceability of design patents. Also, in addition to the patent owner as defined in the current law, an interested party of the patent may also be requested to forward the report, which is reasonable if the interested party may also bring a lawsuit for patent infringement. Further, search report is changed to patent assessment report, which more accurately reflects the nature of the patent. Finally, one paragraph is added to define the legal use of the patent assessment reports as preliminary evidence for validity evaluation in court or administrative proceedings.

14. New: Article 63 (Added)
In a patent infringement dispute, where the accused infringer has evidence to prove that the technology or design exploited by it or him belongs to prior art or prior design, the exploiting act shall not be considered as constituting an infringing act.

Comments: According to the current Patent Law, in a patent infringement dispute, if the accused infringer holds that the patent right is an invalid patent right, it or he shall file an invalidation request with the Patent Reexamination Board. Only after the Patent Reexamination Board declares the patent right invalid, can the people’s court judges the accused infringer does not infringe the patent right. In order to prevent the patentee from maliciously applying for a patent for prior art or prior design and obstructing the implementation of the prior art or prior design and to help the prior art or prior design implementer to be off with the patent infringement dispute, it is proposed in the Bill to add this article allowing the defense of prior art and the prior design. In accordance with this article, the accused infringer, without the necessity of filing an invalidation request with the Patent Reexamination Board, can be judged by the people’s court as not constituting an infringing act.

15. Current: Article 58
Where any person passes off the patent of another person as his own, he shall, in addition to bearing his civil liability according to law, be ordered by the administrative authority for patent affairs to amend his act, and the order shall be announced. His illegal earnings shall be confiscated and, in addition, he may be imposed a fine of not more than three times his illegal earnings and, if there is no illegal earnings, a fine of not more than RMB 50,000 yuan. Where the infringement constitutes a crime, he shall be prosecuted for his criminal liability.

New: Article 64
Where any person passes off the patent of another person as his own, he shall, in addition to bearing his civil liability according to law, be ordered by the administrative authority for patent affairs to amend his act, and the order shall be announced. His illegal earnings shall be confiscated and, in addition, he may be imposed a fine of not more than four times his illegal earnings and, if there is no illegal earnings, a fine of not more than RMB 200,000 yuan. Where the infringement constitutes a crime, he shall be prosecuted for his criminal liability.

Comments: In order to enhance the punishment for illegal activities concerning patent, compared with current Article 58, new Article 64 proposes to raise , for the specific illegal act of passing off the patent of another person, a fine of not more than three times the illegal earnings to four times that much and, in the case of no illegal earnings, a fine of not more than RMB 50,000 yuan to RMB 200,000 yuan.