Patents
E-mail:mail@cpahkltd.com
9. Q: Is there a compulsory license system in China?
  A:

Yes, there is. According to Chinese Patent Law, under any one of the following circumstances, the State Intellectual Property Office may, at the application of an entity or individual that has the condition to exploit a patent, grant him or it a compulsory license to exploit the patent for the invention or utility model:

 (1) where the patentee, after the expiration of three years from the date of grant of the patent right, and the expiration of four years from the date of filing, does not, or does not sufficiently, exploit his or its patent without justification; or

 (2) where the enforcement of the patent right by the patentee has been legally determined as an act of monopoly, to eliminate or to reduce the adverse effects of the act on competition.
 
And where a national emergency or any extraordinary state of affairs occurs, or where the public interest so requires, the State Intellectual Property Office may grant a compulsory license to exploit the patent for invention or utility model.

And where the invention or utility model for which the patent right has been granted involves important technical advance of considerable economic significance in relation to another invention or utility model for which a patent right has been granted earlier and the exploitation of the later invention or utility model depends on the exploitation of the earlier invention or utility model, the patent administration department under the State Council may, upon the request of the later patentee, grant a compulsory license to exploit the earlier invention or utility model.

In practice, since the compulsory license system was set up in 1984 when China had her first patent law, no compulsory license has been granted.

 

Previous Close