In September 2010, the State Intellectual Property Office of the
PRC (SIPO) published its draft amendments to the Patent
Administrative Enforcement Rules (Rules) for public consultation.
The SIPO recently finalised the amended Rules which will come into
effect on 1 February 2011.
The amendments attempt to enhance patent administrative
enforcement in the PRC in light of the revision to the Patent Law
and the Patent Implementation Rules. One of the main purposes of
the Rules is to improve procedural propriety by codifying the
practice and principles of patent enforcement by SIPO and the local
The finalised version of the Rules does not differ significantly
from the draft version, but nonetheless introduces a number of
The draft proposes a 3-month time limit for handing all kinds of
patent enforcement cases which may be extended for an unspecified
period for very complicated cases.
The finalised Rules distinguish between patent infringement
disputes, and "patent passing off" cases whose
liabilities are usually more obvious, e.g. putting on another
person's patent number without authorisation. For the former,
the Rules require a patent authority to complete the case within
four months of the filing date, with an extension of time of no
more than one month for very complicated cases. For "patent
passing off" cases, the pledge is one month with a time
extension of no more than 15 days.
Patent Passing Off Cases
The finalised Rules expressly confer a discretion on patent
authorities to not impose any penalty if the patent passing off is
minor in nature and has been promptly cured. The draft version does
not offer this leeway and implies that if liability is found, a
penalty must follow.
In the authors' view, this discretion reinforces the
impression that the patent authorities often play a conciliatory
role in patent disputes.
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and/or Mayer Brown LLP. All rights reserved. Mayer Brown is a
global legal services organization comprising legal practices that
are separate entities ("Mayer Brown Practices"). The
Mayer Brown Practices are: JSM, a Hong Kong partnership, and its
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limited liability partnership incorporated in England and Wales;
and Mayer Brown LLP, a limited liability partnership established in
the United States. The Mayer Brown Practices are known as Mayer
Brown JSM in Asia.
This article provides information and comments on legal
issues and developments of interest. The foregoing is not a
comprehensive treatment of the subject matter covered and is not
intended to provide legal advice. Readers should seek specific
legal advice before taking any action with respect to the matters
discussed herein. Please also read the JSM legal publications
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