Substantial revisions have been made to the patent law. Previously, design patents lacked substantive examination prior to approval, meaning that such rights were often granted in contravention of earlier existing rights - this is still an ongoing issue. The remedies of original right owners have now been strengthened: design patents may not conflict with another's prior legal rights; the rights of an original patent holder shall prevail over those of the later in a patent dispute. Prior legal rights include trademarks, copyrights, enterprise names and unique packaging or branding associated with well-known products.
Offering for sale infringing goods is now accepted as an infringing activity, meaning that preemptive action can be taken against those offering to sell infringing goods but who have not participated in their manufacture, distribution, or wholesale.
Prosecuting patent infringements is now easier as pre-litigation injunctions and requests for evidence preservation will now be accepted by the court, provided there is sufficient evidence and that the plaintiff provides a guarantee.
However, administrative remedies are still problematic. The revised law specifies that patent administrative authorities have the power to handle infringement cases and to order the infringing party to stop all such acts immediately. However, due to the current lack of resources, the prospect of this method being an effective administrative remedy remains unlikely.
The newly revised laws endeavor to ensure that the patent owner will receive some form of compensation by giving presiding judges alternative methods for calculating the compensation, such as, an amount equivalent to the royalties the patent owner should have received for such use. Where this is impracticable, the sum of RMB 5,000 to 300,000 (US $600 to $36,000), or in serious circumstances even RMB 500,000 (US $60,000) may be awarded in compensation. However, these sums are arguably still too low to provide an effective deterrent.
