China National Intellectual Property Administration has responded to some of the questions that have arisen in specific practices as follows.
- About the continuation of patent mark on the product or its packaging after invalidation or termination of the patent
The behavior belongs to the act of patent counterfeiting. Meanwhile, the Advertising Law could be applied when the packaging of product meets the characteristics of commercial advertising in addition to the text, graphics and images required to be marked by laws, regulations or relevant state rules. Therefore, if the product or its packaging is marked with the patent after being declared invalid or terminated, both the Advertising Law and the Patent Law could be applied for punishment, and the amount of penalty is executed according to Article 29 of the Administrative Penalty Law.
- About labeling the patent number of others and the relevant sales
The Detailed Rules for the Implementation of the Patent Law shall be applied under the circumstances as: unauthorized labeling of patent numbers of others on products or product packaging, unauthorized use of the patent number of others in materials like product specifications, forgery or alteration of patent certificates, patent documents or patent application documents, sale of products with unauthorized patent number of others on the product or product packaging, sale of products with patent markings on the product or its packaging that has not been granted the patent right and, sale of products with patent markings on the product or its packaging after the patent right has been declared invalid or terminated.
- About the use of unauthorized patents in materials like product specifications
For the behavior of calling a patent application as a patent in the material such as product specification, Article 84 of the Detailed Rules for the Implementation of the Patent Law shall be applied. For the use of the above-mentioned product specification as an advertisement or the use of a patent application for which no patent right has been granted as an advertisement, Article 12 of the Advertising Law shall be applied.
- About the standard of patent mark labeling
Advertisements involving patented products or patented methods shall be marked with the patent number and the type of patent. The irregularities of the patent mark logo in sales are applicable to the Provisions on the Patent Marks Marking Methods.
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Mr. Mike Chang (Partner)