Since the promulgation of the civil code, the laws on patents, copyrights, advances in science and technology and the protection of new varieties of plants have been amended and amended, as have the regulations for the implementation of the laws on patents, which promote the development of high-quality intellectual property rights。
The “five bright spots” highlight new developments in the intellectual property system in the civil code era
In order to be realistic, a systematic revision of existing legal norms has been introduced. Systematization is the lifeblood of the code and the logical guarantee for the effective functioning of the legal norms of sectoral law。
Accompanying the new rules established in the civil code and seeking full and strict protection of intellectual property rights. In addition to the punitive damages established by the civil code to cover all types of infringement of intellectual property rights, amendments have been made to separate intellectual property laws, such as copyright law and patent law。
Implementation of intellectual property rights (iprs) for the establishment of strong states, optimization of intersectoral cooperation and achievement of synergistic protection. Intellectual property protection is a multi-line, parallel and systemic task that requires synergy between the relevant sectors to achieve good results。
It was emphasized that protection of domestic intellectual property rights should also focus on national security. Intellectual property rights are closely linked to national security and the improvement of policy and regulatory aspects of intellectual property security is an essential way to fully implement the general concept of national security。
As a “fundamental, predictable and long-term fundamental law”, the enactment of the civil code has far-reaching implications for various civil legal norms, including the intellectual property regime. Taking stock of the new developments in the intellectual property regime since the civil code was enacted and combing its bright spots is of great value in promoting the high quality development of intellectual property rights。
A realistic and systematic revision of existing legal norms is the first highlight of new developments in the intellectual property system in the civil code era. Systematization is the lifeblood of the code and the logical guarantee for the effective functioning of the legal norms of sectoral law. Since the promulgation of the civil code, the laws on patents, copyrights, scientific and technological progress and protection of new varieties of plants have been amended and amended, as have the regulations for the implementation of patent laws. In order to give practical effect to intellectual property protection requirements, the supreme people's court has formulated the interpretation of certain issues in the application of the law of the people's republic of china on countering improper competition, amending successive legal normative documents such as the interpretation of certain issues in the application of the law in the trial of civil disputes relating to the protection of visible trademarks, which provide clear guidance for case decisions. In response to the inconsistency in the legal definition of intellectual property law and criminal law, amendments to the criminal code (xi) provide for a new and systematic interpretation of the application of the law in cases of offences against intellectual property rights by the supreme people's court, the supreme people's procuratorate, in conjunction with the supreme people's court, on a number of issues relating to the application of the law in criminal cases of infringement of intellectual property rights. According to this judicial interpretation, the interpretation in criminal law of legal terms such as “reproduction and distribution” “to the public through information networks” is consistent with the provisions of copyright law, ensuring the conceptual unity of criminal legal norms with intellectual property sector law, which is the preconceived law, and enhancing the systemic and judicial authority of legal norms as a whole。
The adoption of the new rules established in the civil code and the pursuit of full and strict protection of intellectual property rights are the second highlight of the new development of the intellectual property regime in the civil code era. Incorporated by the incorporeal character of the subject of the right, the infringement of intellectual property rights is characterized by a large-scale, decentralized and repeated pattern, and the principle of extinguishment of remedies for tort in traditional civil law does not meet the real needs of tort governance, and punitive damages are increasingly becoming an essential tool for intellectual property protection. As early as 2013, the third revision of the trademarks act led to the establishment of punitive liability rules, which were also incorporated in the seed law as amended in 2015 and the anti-improper competition law as amended in 2019. With a view to strengthening the protection of intellectual property rights and raising the cost of infringement, article 1185 of the civil code provides that: “intentional infringement of the intellectual property rights of others, in serious cases, the aggrieved person shall have the right to seek appropriate punitive damages.” in addition to the punitive damages established by the civil code to cover all types of infringement of intellectual property rights, amendments have been made to separate intellectual property laws, such as copyright law and patent law. In order to properly implement the system of punitive compensation for intellectual property rights, in 2021 the supreme people's court issued the interpretation of the application of punitive compensation in civil cases of violations of intellectual property rights (hereinafter referred to as “interpretative”), specifying the scope of application of punitive damages, the determination of intent, gravity, the basis for calculation, the determination of the multiple, etc. The interpretation responds to confusion in judicial practice, detailing the methods, considerations and restrictive conditions applicable to punitive damages, and anchoring the full and strict protection of intellectual property rights are important for further optimizing the rule of law environment for science, technology and innovation。
The implementation of intellectual property rights powers, the optimization of intersectoral cooperation and the achievement of coordinated protection are the third highlight of the new development of the intellectual property regime in the civil code era. Intellectual property protection is a multi-line, parallel and systemic task that requires synergy between the relevant sectors to achieve good results. To this end, the supreme people's procuratorate and the state intellectual property administration have issued the opinions on enhancing the co-operative protection of intellectual property, and the supreme people's court and the state intellectual property administration have issued the opinions on strengthening the co-operative protection of intellectual property. This has deepened the division of labour between the judiciary, the judicial administration and the intellectual property administration in the protection of intellectual property rights. In terms of specific initiatives, these include, inter alia, the establishment of a regularized liaison mechanism, a sound information-sharing mechanism, enhanced operational collaboration, and enhanced operational security. Multisectoral cooperation and concerted protection contribute to creating a good business environment and an innovative environment, deeply involved in global governance of intellectual property rights and providing strong support for the building of socialist modern and powerful nations。
The emphasis on national protection of intellectual property rights should also focus on national security is the fourth highlight of new developments in the intellectual property system in the civil code era. Intellectual property rights are closely linked to national security and the improvement of policy and regulatory aspects of intellectual property security is an essential way to fully implement the general concept of national security. Seeds are the “chips” of agriculture that strengthen the protection of intellectual property rights in farming industries and promote autonomous innovation in farming, and are of fundamental and decisive strategic importance for the development of quality farming and the maintenance of national food security. After 2020, the state council amended the regulations on the protection of new varieties of plants, the supreme people's court amended the interpretation of certain questions on the trial of disputes over new varieties of plants, and formulated a number of provisions (ii) on the specific application of laws to hear disputes over infringement of the rights of new varieties of plants, bringing intellectual property legislation and judicial protection in the field to a new level. At the legislative level, the right to new varieties of plants extends to harvesting materials, the protection chain extends to processing for reproduction, promising to sell, importing, exporting, storing, expanding the effectiveness of rights and extending the duration of protection. The overall increase in the level of protection is accompanied by strict control of the conditions for the authorization of new varieties of plants and the denial of rights to new varieties of plants that are contrary to the law and are detrimental to the public interest and the ecological environment. The registration department for applications for oligopoly rights abroad will be restructured from the provincial people's government agricultural and savannah authorities to the state council's agricultural and savannah authorities, and will require that the supply of reproductive material abroad should comply with the provisions of the seeds act on the supply of seed resources abroad, and that the safe country of the right to new plant varieties should be secured through the adaptation of the registration department and the introduction of accompanying legal norms. At the judicial level, protection is expanded mainly through the creation of a chain of blows to violations, the introduction of pre-suit injunctions and punitive damages, the reduction of difficulties in the defence of rights through the transfer of the burden of proof, the provision of orders and impediments to proof, and the elaboration of exceptions to the protection of rights such as scientific exceptions, exhaustion of rights and defences of lawful origin to reconcile individual rights protection with the realization of the public interest. The link between legislation and the judiciary, the full empowerment of creative industries, and the establishment of a security barrier to intellectual property protection in the farming industry。
The autonomous response to foreign intellectual property disputes is the fifth highlight of the new development of the intellectual property regime in the civil code era. On 13 march 2025, the state council published the state council's regulation on the treatment of intellectual property disputes related to foreign countries (hereinafter referred to as “the regulation”), which provides a systematic solution to intellectual property disputes faced by chinese enterprises in accelerating their access to sea. As my country's first comprehensive administrative regulation dedicated to the settlement of foreign-related intellectual property disputes, the regulations demonstrate the government's autonomous response to foreign-related intellectual property disputes. Articles 2 to 11 of the regulations provide for a whole chain of services covering pre-emptive prevention, response, and ex post remedies, and provide for solid guarantees for the resolution of disputes. Articles 12 and 13 provide for a two-way system of cross-border investigation and evidence gathering, which effectively protects against data security risks while preserving our judicial sovereignty. In articles 14 to 17, the regulation establishes a multilayered system of counter-measures, introduces trade counter-measures, diplomatic counter-measures, etc., and equips with legal weapons to deal with the international bullying of intellectual property rights; the bottom-up clause was created, in particular to “lock” the legal arsenal for the maintenance of national security and the competitive order. With my predominance, nationalism and law-basedism, the provisions once again demonstrate the fundamental attitude of my government in dealing with a range of important issues through autonomous responses to foreign intellectual property disputes. Although there are only 18 articles, the provisions are a powerful tool for our country to address intellectual property disputes involving foreign countries and will certainly play an extremely important role in the future。
New developments could not be changed, new changes had given rise to new ideas based on new practices that were driving new developments. Driven by the “new”, the building of our intellectual property power is bound to reach a new height。
[professor at the school of civil and commercial law of the university of south-west political law, this is the result of the national fund for social science's general project, " a separate legislative study on the protection of business secrets in the context of codification " (23bfx184), 2023]
