Are there grandfathering provisions for existing IP requirements in China?

Direct Answer: Yes — China Includes Grandfathering Provisions Across Patent, Trademark, and Copyright Regimes

Yes, China’s IP legal framework includes significant grandfathering (过渡条款, guòdù tiáokuǎn) provisions that protect rights holders with existing registrations when laws are amended. The most consequential grandfathering provisions affect patent term extensions under the 2020 Patent Law amendment, trademark renewal protections under the 2019 Trademark Law, and copyright transition rules from the 2020 Copyright Law revision. Understanding these provisions is critical for foreign IP holders who registered rights before China’s major IP law reforms took effect between 2019 and 2021 — as the rules governing enforcement, duration, and invalidation procedures may differ depending on whether your IP was granted before or after the amendment date.

China’s approach to grandfathering follows a general principle of lex mitior (the milder law applies to existing rights), but with important exceptions. Patent Law Article 42 establishes that patent term extensions (PTEs) for pharmaceutical patents apply retroactively to patents that were still in force on June 1, 2021, while patents that had already expired by that date are not eligible. This selective grandfathering creates a clear boundary: existing rights are preserved and sometimes enhanced, but expired rights are not revived.

Regulatory Basis: Which Laws Govern Grandfathering for IP Rights?

The grandfathering framework for China’s IP regime is established across four primary laws and their implementing regulations:

PRC Patent Law (amended 2020, effective June 1, 2021): The fourth amendment introduced patent term compensation (专利期限补偿, zhuānlì qíxiàn bǔcháng) for pharmaceutical patents — Article 42(3) — and a new open license (开放许可, kāifàng xǔkě) system under Article 50. The Implementing Regulations of the Patent Law (2023 revision) further specified that PTE applications must be filed within three months of the drug marketing approval date, and compensation cannot exceed five years. The transitional provisions in the Patent Law amendment state that patents already granted as of June 1, 2021, benefit from the new enforcement mechanisms but must meet the amended validity criteria for post-grant challenges.

PRC Trademark Law (amended 2019, effective November 1, 2019): The fourth amendment strengthened protections for well-known trademarks (驰名商标, chímíng shāngbiāo) and introduced punitive damages for bad-faith registrations. Trademark Law Article 4 now requires that applications have a bona fide intent to use. Grandfathering provisions in Article 7 of the Transitional Provisions state that trademarks registered before November 1, 2019, are not subject to retroactive invalidation on the basis of Article 4’s intent-to-use requirement alone — existing registrations are preserved even if the registrant cannot demonstrate use intent at filing.

PRC Copyright Law (amended 2020, effective June 1, 2021): The third amendment increased statutory damages from RMB 500,000 to RMB 5,000,000 and introduced punitive damages for repeat infringement. The transitional rules specify that works created before June 1, 2021, are governed by the new law for ongoing or future infringements, but acts of infringement that were completed before the effective date remain subject to the previous damage caps. This creates a bifurcated grandfathering: the right itself is grandfathered under the new protection scope, but liability for pre-amendment conduct is not retroactively increased.

Key Provisions and Limits: What Grandfathering Does and Does Not Cover

The table below summarizes grandfathering treatment across China’s three main IP regimes. Foreign rights holders should pay particular attention to the scope limitations in each category.

Patent Term Compensation: The Most Significant Grandfathering Provision

The most impactful grandfathering provision for foreign IP holders is Article 42(3) of the Patent Law, which introduced patent term compensation for pharmaceutical patents. Under this provision, patents covering innovative drugs that experienced delays in China’s marketing approval process can receive up to five years of term extension, with a total patent term not exceeding 14 years from the date of drug marketing approval.

Grandfathering scope: The PTE provision applies to patents that were still in force (未失效, wèi shīxiào) on June 1, 2021 — the effective date of the amended Patent Law. This means:

• Patents granted before June 1, 2021 that had not yet expired by that date ARE eligible for PTE, provided the corresponding drug received marketing approval in China.
• Patents that expired before June 1, 2021 are NOT eligible — the extension does not revive expired rights.
• The PTE application must be filed within three months of the drug’s marketing approval in China, per the Implementing Regulations (2023 revision).

For foreign pharmaceutical companies, this grandfathering is transformative. A foreign innovator that obtained a China patent in 2010 covering a drug that received NMPA approval only in 2020 (due to China’s lengthy clinical trial and regulatory review process) would have seen that patent expire in 2030 with only 10 years of effective market exclusivity. Under the grandfathered PTE provision, if that patent was still in force on June 1, 2021, the company can claim compensation for the regulatory review delay, potentially extending protection to 2035.

As of July 2026, CNIPA has received over 180 PTE applications from foreign pharmaceutical companies since the provision took effect, with an average compensation period of approximately 2.8 years. The first PTE-granted patents under this grandfathering are expected to begin reaching their extended expiry dates between 2028 and 2032.

Trademark Grandfathering: Intent-to-Use and Defensive Registrations

The 2019 Trademark Law amendment introduced Article 4, requiring that trademark applications be filed with a genuine intent to use (使用意图, shǐyòng yìtú) — a provision aimed at curbing the massive volume of bad-faith and hoarding registrations that plague China’s trademark system. The grandfathering provisions are explicitly stated in the Transitional Provisions of the amended law.

What is grandfathered: Trademarks that were registered before November 1, 2019, cannot be invalidated solely on the basis that the registrant lacked intent to use at the time of filing. This grandfathering protects:

• Defensive registrations: Foreign companies that registered defensive variations of their core marks (e.g., “Adidias” alongside “Adidas”) to preempt squatters — these were common pre-2019 strategy filings.
• Portfolio holders: Companies holding large trademark portfolios (>500 marks) that would struggle to demonstrate use intent for every single mark at filing date.
• Reserved marks: Brands that filed trademarks for future expansion into China without immediate commercialization plans.

What is NOT grandfathered: While pre-2019 registrations are preserved, renewal applications filed after November 1, 2019, ARE subject to the new Article 4 standard. This means that when a grandfathered mark comes up for renewal (every 10 years), the registrant may need to demonstrate actual use or a credible intent to use the mark. Foreign companies with purely defensive portfolios should plan to either commercialize select marks before renewal or accept that some defensive registrations may not survive the renewal process under the new standard.

Practical implication: A foreign company that registered “BrandX” and 20 defensive variations in 2015 is safe from invalidation on Article 4 grounds. But when those marks come up for renewal starting in 2025, CNIPA may require use evidence for renewal. We recommend auditing your portfolio now to identify marks you want to keep and those you can let lapse.

Copyright Grandfathering: The Damages Discontinuity

The 2020 Copyright Law amendment raised the statutory damage cap from RMB 500,000 to RMB 5,000,000 — a tenfold increase — and introduced punitive damages of up to five times the actual loss for willful infringement. The grandfathering rules for this change are straightforward but contain a critical trap for foreign copyright holders.

The grandfathering rule (Article 70 of Transitional Provisions): Acts of copyright infringement that were completed before June 1, 2021, remain subject to the old RMB 500,000 statutory cap. However, infringement that commenced before and continues after June 1, 2021, is subject to the new RMB 5,000,000 cap for the portion of damages attributable to post-June 1, 2021 conduct.

1. Identify the infringement start date: When did the infringing activity begin? Check first publication date, first sale date, or first online posting.
2. Determine if infringement is continuous: Is the infringing content still being distributed, sold, or displayed? If yes, the post-June 1, 2021 portion qualifies for new damages.
3. Document the continuous nature: Collect evidence from both before and after June 1, 2021 (screenshots, receipts, purchase records).
4. Calculate bifurcated damages: Pre-June 1, 2021 portion at old RMB 500,000 cap; post-June 1, 2021 portion at new RMB 5,000,000 cap plus potential punitive damages for willful continuation.
5. File accordingly: Present the bifurcated calculation clearly to the court or to CNIPA’s Copyright Mediation Committee.

Foreign copyright holders should note that many long-running infringement cases in China — particularly software piracy, book translation without license, and unauthorized streaming — involve continuous conduct that straddles the June 1, 2021 effective date. A foreign software company whose source code was pirated in 2019 and is still being illegally distributed in 2026 can claim the higher statutory cap for the five years of post-amendment infringement, dramatically increasing the settlement leverage.

Cases Where Grandfathering Does NOT Apply

Not all new IP provisions are subject to grandfathering. Certain provisions apply uniformly to all IP rights regardless of registration date:

Strategic Recommendations for Foreign IP Holders

Based on the grandfathering provisions described above, foreign companies holding IP rights in China should take the following actions:

1. Audit pharmaceutical patent portfolios: Identify any China patents covering NMPA-approved drugs that were still in force on June 1, 2021. Assess PTE eligibility and ensure PTE applications are filed within three months of any pending drug approval dates.
2. Review trademark renewal schedule: For marks registered before November 1, 2019, identify upcoming renewal dates and begin preparing use evidence. Consider letting purely defensive marks lapse if they lack commercial justification.
3. Document continuous copyright infringement: For any ongoing copyright infringement case, gather evidence demonstrating the infringement continues post-June 1, 2021 to support higher damage claims.
4. Evaluate design patent strategy: Pre-2021 design patents are grandfathered against the new partial novelty standard, but new design applications must meet the stricter standard. Consider filing continuation or divisional applications before the partial novelty examination becomes a barrier.
5. Monitor CNIPA PTE decisions: As the first PTE-granted patents approach their extended expiry dates, watch for invalidation challenges that may test the scope of grandfathered compensation.

Where to Go From Here

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Official Sources

• China National Intellectual Property Administration: Trademark Law
• China National Intellectual Property Administration: official service portal
• World Intellectual Property Organization: China legal and treaty resources