Chinese Intellectual Property Law
Overview of Chinese Intellectual Property Law
The intellectual property regime of the People’s Republic of China has undergone rapid and substantial development since the early 1980s, evolving from a nascent system to one of the world’s most active IP jurisdictions. The principal statutes are the Patent Law (patent administration), the Trademark Law, and the Copyright Law, each subject to multiple revisions reflecting China’s international obligations under the WTO TRIPS Agreement and its growing focus on indigenous innovation. The China National Intellectual Property Administration (CNIPA), formerly SIPO, administers patents and trademarks. The Supreme People’s Court and the specialised IP courts in Beijing, Shanghai, and Guangzhou, together with the Supreme People’s Court IP Tribunal established in 2019, have developed a rapidly maturing body of IP jurisprudence.
Patent Law
The Patent Law 1984 (Revised 2020)
China’s Patent Law, originally enacted in 1984 and most recently revised in 2020 (effective 1 June 2021), provides for three types of patents: invention patents (发明), utility model patents (实用新型), and design patents (外观设计). The 2020 revision introduced significant amendments, including increased damages with punitive damages for intentional infringement, patent term extension for pharmaceutical patents, an open licensing system, and the implementation of the Hague Agreement for international design registration.
Invention Patents
Invention patents protect technical solutions relating to products or processes. The patentability requirements under Article 22 of the Patent Law are novelty (新颖性), inventiveness (创造性), and practical applicability (实用性). The inventiveness test requires that the invention has prominent substantive features and represents notable progress compared with existing technology. The term of invention patents is 20 years from the filing date. Pharmaceutical patents may benefit from patent term extension (PTE) of up to five years to compensate for regulatory approval delays, introduced in the 2020 amendment.
Utility Model Patents
Utility model patents protect the shape, structure, or combination of products, with a lower inventiveness threshold than invention patents. The term is 10 years from the filing date. Utility model applications undergo only formal examination and not substantive examination, making them faster and cheaper to obtain. They are particularly popular among Chinese domestic filers.
Design Patents
Design patents protect the shape, pattern, colour, or combination thereof of products. The 2020 amendment extended the term to 15 years from filing to comply with the Hague Agreement Concerning the International Registration of Industrial Designs, which China acceded to in 2022. Partial designs are now protectable under the amended law.
Patent Examination and CNIPA
The CNIPA receives and examines patent applications. Invention patent applications undergo both preliminary examination and substantive examination, the latter upon request within three years of filing. Utility model and design applications undergo only preliminary examination. The CNIPA has established a network of patent examination centres across the country to handle the volume of filings.
Patent Infringement and Enforcement
The 2020 amendment introduced punitive damages of up to five times the determined damages for intentional infringement. Statutory damages for invention and utility model patents are capped at RMB 5 million. The amendment also introduced a patent linkage system for pharmaceuticals, coordinating patent dispute resolution with the National Medical Products Administration (NMPA) drug approval process. The patent linkage system requires generic applicants to notify the patentee and provides a nine-month stay for patent dispute resolution.
Open Licensing
The 2020 amendment introduced an open licensing system (专利开放许可) under which patentees may declare to the CNIPA their willingness to license on fair terms. This mechanism aims to facilitate technology transfer and reduce patent litigation.
Copyright Law
The Copyright Law 1990 (Revised 2020)
China’s Copyright Law, originally enacted in 1990 and most recently revised in 2020, protects works of authorship in the literary, artistic, and scientific domains. Protected works under Article 3 include written works, oral works, musical and dramatic works, fine and photographic works, cinematographic works, engineering drawings, maps, and computer software.
Economic and Moral Rights
The copyright owner enjoys both economic rights (财产权) and moral rights (人身权) under Article 10. Economic rights include the rights of reproduction, distribution, rental, exhibition, performance, broadcasting, communication via information networks, cinematography, adaptation, translation, and compilation. Moral rights include the right of publication (发表权), the right of attribution (署名权), the right of alteration (修改权), and the right of integrity (保护作品完整权).
Copyright Term
The general term is life of the author plus 50 years (Article 21). Cinematographic works and photographic works are protected for 50 years from first publication. The 2020 revision did not extend the term beyond the Berne Convention minimum of 50 years, maintaining a shorter term than many Western jurisdictions.
Fair Use Exceptions
Article 24 provides a closed list of fair use exceptions (合理使用), including use for personal study, research, and enjoyment; quotation for introduction or commentary; use for news reporting; use for teaching and scientific research; translation for use by ethnic minorities; and use by government authorities. The 2020 revision introduced an additional flexible fair use factor, allowing courts to consider whether the use does not conflict with normal exploitation and does not unreasonably prejudice the legitimate interests of the right holder.
Computer Software Protection
Computer programs are protected under the Computer Software Protection Regulations (计算机软件保护条例), which provide protection similar to literary works. The term is 50 years from first publication. Software copyright registration with the China Copyright Protection Center is voluntary but provides evidentiary advantages in enforcement.
Trademark Law
The Trademark Law 1982 (Revised 2019)
China’s Trademark Law was originally enacted in 1982 and most recently revised in 2019. Trademarks are registered with the CNIPA. The distinctiveness requirement under Article 9 requires that a mark be visually perceptible and capable of distinguishing goods or services. Non-traditional marks, including three-dimensional marks, colour combinations, and sound marks, are now registrable.
Absolute and Relative Grounds
Absolute grounds for refusal under Article 10 include marks identical or similar to state symbols, official hallmarks, and deceptive marks. Relative grounds under Articles 13-15 include conflicts with earlier trademarks, well-known marks, and unregistered marks in certain circumstances.
Bad Faith Registration
A significant feature of the 2019 revision is the strengthened prohibition on bad faith registration (恶意注册). Article 4 now provides that applications not made with intent to use the mark shall be refused. This provision targets trademark squatting and filing mills. The Supreme People’s Court has issued judicial interpretations providing guidance on determining bad faith.
Well-Known Marks
Well-known marks (驰名商标) receive protection under Article 13 even without registration in China. The determination of well-known status is made by the CNIPA or the courts on a case-by-case basis considering, among other factors, the degree of public recognition, the duration of use, and the extent of advertising.
Term and Use Requirement
The term of trademark registration is 10 years from the filing date, renewable indefinitely. Non-use for three consecutive years renders the mark vulnerable to cancellation under Article 49. The 2019 revision increased the evidentiary burden on registrants to demonstrate genuine use.
Enforcement Framework
China maintains a dual-track enforcement system: administrative enforcement through local intellectual property offices and the Administration for Market Regulation, and judicial enforcement through the people’s courts. The specialised IP courts handle patent, trademark, and copyright disputes. Customs authorities have authority to seize infringing goods at the border. The 2019 amendments to the Trademark Law and 2020 amendments to the Patent Law significantly increased statutory damage caps and introduced punitive damages, reflecting China’s stated commitment to strengthening IP protection.