Article 60. The amount of compensation for the damage caused by the
infringement of the patent right shall be assessed on the basis of the
losses suffered by the patentee or the profits which the infringer has earned
through the infringement. If it is difficult to determine the losses which the
patentee has suffered or the profits which the infringer has earned, the amount
may be assessed by reference to the appropriate multiple of the amount of the
exploitation fee of that patent under contractual license.
Article 61. Where any patentee or interested party has evidence to
prove that another person is infringing or will soon infringe its or his patent
right and that if such infringing act is not checked or prevented from occurring
in time, it is likely to cause irreparable harm to it or him, it or he may,
before any legal proceedings are instituted, request the people's court to adopt
measures for ordering the suspension of relevant acts and the preservation
of property.
The people's court, when dealing with the request mentioned in
the preceding paragraph, shall apply the provisions of Article 93 through
Article 96 and of Article 99 of the Civil Procedure Law of the People's Republic
of China
Article 62. Prescription for instituting legal proceedings concerning the
infringement of patent right is two years counted from the date on which the
patentee or any interested party obtains or should have obtained knowledge of
the infringing act.
Where no appropriate fee for exploitation of the
invention, subject of an application for patent for invention, is paid during
the period from the publication of the application to the grant of patent
right, prescription for instituting legal proceedings by the patentee to demand
the said fee is two years counted from the date on which the patentee obtains or
should have obtained knowledge of the exploitation of his invention by
another person. However, where the patentee has already obtained or should have
obtained knowledge before the date of the grant of the patent right, the
prescription shall be counted from the date of the grant.
Article 63. None of the following shall be deemed an
infringement of the patent right:
(l) Where, after the sale of a patented
product that was made or imported by the patentee or with the
authorization of the patentee, or of a product that was directly obtained by
using the patented process, any other person uses, offers to sell or sells that
product;
(2) Where, before the date of filing of the application for patent,
any person who has already made the identical product, used the identical
process, or made necessary preparations for its making or using, continues to
make or use it within the original scope only;
(3) Where any foreign means of
transport which temporarily passes through the territory, territorial waters or
territorial airspace of China uses the patent concerned, in accordance with any
agreement concluded between the country to which the foreign means of transport
belongs and China, or in accordance with any international treaty to which both
countries are party, or on the basis of the principle of reciprocity, for its
own needs, in its devices and installations;
(4) Where any person uses the
patent concerned solely for the purposes of scientific research and
experimentation.
Any person who, for production and business purposes, uses
or sells a patented product or a product that was directly obtained by using a
patented process, without knowing that it was made and sold without the
authorization of the patentee, shall not be liable to compensate for the damage
of the patentee if he can prove that he obtains the product from a
legitimate source.
Article 64. Where any person, in violation of the provisions of Article 20 of
this Law, files in a foreign country an application for a patent that divulges
an important secret of the State, he shall be subject to disciplinary sanction
by the entity to which he belongs or by the competent authority concerned at the
higher level. Where a crime is established, the person concerned shall be
prosecuted for his criminal liability according to the law.
Article 65. Where any person usurps the right of an inventor or
creator to apply for a patent for a non-service invention-creation, or usurps
any other right or interest of an inventor or creator, prescribed by this Law,
he shall be subject to disciplinary sanction by the entity to which he belongs
or by the competent authority at the higher level.
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