China IP SME Helpdesk Newsletter

On 1 June 2021, less than 1.5 months, the new Patent Law of China will come into force, bringing significant changes with it such as the introduction of patent linkage system, patent term extension and the open license system. In this article, China IP SME Helpdesk external expert Toby Mak explores in detail one of these significant changes – the patent term extension for drug patents.

Despite the changes in the recent Trade Mark Law, bad faith trade mark registrations are still commonplace in China. While it is often difficult to prove bad faith in opposition or invalidation cases, legal practice demonstrates that in some cases, it is possible to rely on the prior copyright to invalidate a trade mark registered in bad faith. This article discusses the issue in detail, while offering practical tips. For SMEs, copyright registration in China is strongly recommended as it offers an additional layer of protection to trade marks.

In 2021, the State Administration for Market Regulation (SAMR) will strengthen legislation in key areas, including the area of intellectual property rights. Amongst others, the SAMR plans to revise the regulations on the protection of trade secrets, as well as “formulate certain regulations on prohibiting acts of unfair competition on the Internet”. Stronger IP laws and regulations are definitely welcomed by the SMEs, especially as trade secret protection still remains challenging.

The Supreme People’s Court of China has issued a draft of Judicial Interpretations on the Protection of Plant Varieties for public comments. When adopted, the Judicial Interpretations aim to harmonise the burden shifting provisions of Chinese IP Laws. It is expected that the Judicial Interpretations, when adopted, will also provide for a “reversal of burden of production in order to prove damages”.