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New Amendments to the Implementing Regulations of the PRC's Patent Law issued

05.02.10 01:30 Age: 8 yrs
New Amendments to the Implementing Regulations of the PRC's Patent Law issued

BEIJING, China, February 05, 2010 - China's recent amendments to the Patent Law's implementing regulations comes into effect.

The Decisions of the State Council to Amend the Implementing Regulations of the Patent Law of the People's Republic of China ("the Amended Regulations"), passed by the sixth session of the Standing Committee of the 11th National People's Congress became effective as from February 01, 2010. The Amended Regulations make a number of modifications to the Patent Law's previous implementing regime; in total adding nine new rules, removing five previous rules, and amending forty-seven remaining rules.

The third amendment to China's Patent Law, the Patent Law of the People's Republic of China ("the Act"), came into effect on October 01, 2009, resulting from domestic drive to improve domestic IPR protection and in accordance with the country's National IP Strategy. One area where the Amended Regulations expand upon, and clarify is the issues surrounding compulsory licensing located under Article 50 of the Act.

Article 50 states the following, "For the purpose of public health, the patent administrative department of the State Council may grant a compulsory license for a patented pharmaceutical so as to produce and export it to the country or region which conforms to the provisions of the relevant international treaty to which the People's Republic of China has acceded." The proviso outlines that a compulsory license would allow the State to be exempt from the PRC's Patent Law, where a public health issues arises. The Act, however omits from providing details or definitions as to what constitutes a ‘patented pharmaceutical'. The Amended Regulations fills in the void, in accordance with the WTO's Protocol Amending the TRIPS Agreement which China ascended to in December 2007, and defines ‘patented pharmaceuticals' as "any patented product or product directly obtained according to patented processes in the medical and pharmaceutical field to address public health issues, including patented active ingredients needed in the production of the product and diagnostic supplies necessary for the application of the product." Additionally, the Amended Regulations go on to state that the granting of compulsory licenses under Article 50 of the Act, should conform with various issues outlined under international agreements China are a binding signatory to.

Managing Director of Lehman, Lee & Xu, Mr. Edward Lehman welcomed the introduction of such amendments, "Previous to the amendments coming into effect there was potential for the exploitation of patents without express permission, through the wide scope of Article 50 under the PRC's Patent Law." He continues, "With the implementation of these amendments, the remit of Article 50 is clarified, and China's commitment to strengthening its domestic IPR regime has once again been highlighted."

Lehman, Lee & Xu is one of the first five private law firms established in the People's Republic of China. After nearly twenty years of practice and development, Lehman, Lee & Xu now has more than two hundred patent, trademark and PRC-licensed attorneys working in numerous branch offices located in the most-developed cities in China. As one of the leading IP firms in China, Lehman, Lee & Xu provides high quality legal service to its clients and has been consistently rated among the top five IP law firms in China. Lehman, Lee & Xu is also a top-three commercial law firm, and has provided a variety of commercial legal services to hundreds of clients, many of them multinational corporations (MNCs) and Fortune 100 companies. The firm's diverse catalog of commercial services covers foreign direct investment (FDI), merger and acquisition (M&A), tax, employment and many other areas.

For more information about Lehman, Lee & Xu, please visit the firm's website at www.lehmanlaw.com, or alternatively, email us on mail@lehmanlaw.com.

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