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UPDATED: April 28, 2009 NO. 3 JAN. 15, 2009
Progress in IPR Protection
The newly revised Patent Law encourages innovation and guarantees public health while strengthening protection

Chen said that patent abuse is addressed in other laws, such as the Anti-monopoly Law, which sets rules against the abuse of intellectual property rights in limiting competition. According to Chen, many countries or regions address patent abuse in their anti-monopoly laws.

Improving implementation

The third amendment to the Patent Law came eight years after the second amendment. In the eight years, as the socioeconomic situation changed rapidly, patent infringement has become a more pronounced problem. Stronger law enforcement is necessary. Patent administration departments have been authorized to investigate the counterfeit of patent rights and to confiscate products produced under counterfeited patent rights.

Both administrative and judicial departments are involved in protecting patent rights in China, Chen said. According to Chen, law enforcement is problematic because several departments such as patent administration departments, the administrations for industry and commerce, and copyright administration departments are authorized to enforce the Patent Law. As the division of powers between these departments is not clearly defined, effective law enforcement is hampered.

The revised Patent Law has more clearly identified the power of patent administrative departments, as well as their relations with the judicial departments, Chen said.

Compulsory licensing

Patients suffering from such disease as leukemia, HIV/AIDS, tuberculosis, malaria and other epidemics often have to buy expensive patented drugs. The newly revised Patent Law has addressed this issue with a stipulation on compulsory licensing.

The third amendment to the Patent Law provides that to protect public health, the patent administration department under the State Council may grant a designated entity compulsory license to make or export patented drugs as permitted by relevant international treaties that China has ratified.

"The Ministerial Conference of the World Trade Organization (WTO) held in Doha in 2001 adopted the Doha Declaration on the TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement and Public Health," Yin said, introducing the origin of compulsory licensing at a press conference on the revised Patent Law.

The Doha Declaration recognizes the gravity of the public health problems afflicting many developing countries. While reiterating its commitment to the TRIPS Agreement, the declaration stresses that the agreement does not and should not prevent members from taking measures to protect public health.

In 2005, the WTO released the Protocol Amending the TRIPS Agreement. According to the protocol, developing countries confronting public health crises inflicted by epidemics can grant compulsory licensing without permission from the patent holders to eligible entities to make, use and sell patented pharmaceutical products to treat the said epidemics or import such medicines from other countries eligible for compulsory licensing.

While patent rights are property rights, the right to health is a right to life and subsistence. When patent rights clash with the right to health, they should yield. This is the consensus of international society.

In 2007, China officially ratified the Protocol Amending the TRIPS Agreement. The third amendment to China's Patent Law incorporated the new changes to WTO rules in it, to give patients access to affordable medicine, Yin said.

Contents of the Patent Law

Chapter I General Provisions

Chapter II Conditions for the Grant of Patent Rights

Chapter III Application for Patents

Chapter IV Examination and Approval of Patent Applications

Chapter V Term, Termination and Invalidation of Patent Rights

Chapter VI Compulsory License for Exploitation of a Patent

Chapter VII Protection of Patent Rights

Chapter VIII Supplementary Provisions


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