Application and Rights

Exceptions to infringement of the patent right

Updated: Dec 14, 2018 Print
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Under the Patent Law, none of the following shall be deemed an infringement of the patent right:

(1) Where any person uses, offers to sell or sell patent products or products produced by using the patented process which were sold by the patent holder or any of his licensees;

(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 the 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.

(5) Where any person uses the patent concerned solely for the purpose of providing information for administrative examination and approval by making, using and importing patent medicine or patent medical device.

Any person who, for production and business purposes, uses or offers to sell or sells a patented product without knowing that it was made and sold without the authorization of the patentee or that it was directly obtained by a patented process, 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.


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