State Intellectual Property Office Of Administrative Review Procedures

Original Language Title: 国家知识产权局行政复议规程

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Read the untranslated law here: http://www.chinalaw.gov.cn/article/fgkd/xfg/gwybmgz/201211/20121100378153.shtml

State intellectual property Office of administrative review procedures

    (Published July 18, 2012, State intellectual property Office of the 66th since September 1, 2012) Chapter I General provisions

    First in order to prevent and correct unlawful or improper administrative action, protect the legitimate rights and interests of citizens, legal persons and other organizations, protection and supervision of the State intellectual property office shall exercise functions under the People's Republic of China administration reconsideration law and the People's Republic of China regulations for the implementation of the administrative reconsideration law, this procedure is formulated.

    A citizen, legal person or any other organization that the State intellectual property Office of the violation of their legitimate rights and interests of a specific administrative act, to the State intellectual property office in accordance with this Regulation may apply for administrative reconsideration.

Article of national intellectual property offices in charge of Legal Affairs Agency (hereinafter "the administrative reconsideration") specifically to handle administrative reconsideration matters, carry out the following functions: (a) accept an application for administrative reconsideration;

(B) investigation to relevant departments and personnel, access to relevant documents and information;

(C) the review of the legality of administrative acts and appropriate;

(Iv) handling requests in conjunction with Executive compensation matters;

(E) to develop, produce and send administrative review of legal instruments;

(Vi) handle administrative reconsideration decision litigation litigation matters;

(G) supervise the implementation of the administrative reconsideration decision;

(VIII) handling of administrative reconsideration and administrative litigation case statistics and record major administrative reconsideration decision matters;

    (I) the study found problems in the work of administrative reconsideration, administrative review or recommendations to the departments concerned in a timely manner.

    Chapter II scope of administrative reconsideration and participants

Article fourth unless otherwise prescribed by this regulation article fifth, any of the following circumstances, may apply for administrative reconsideration:

(A) related to the State intellectual property office patent applications, patents, specific administrative acts;

(B) related to the State intellectual property Office of integrated circuits layout-design registration application, the exclusive right in a layout-design of the specific administrative acts;

(C) related to the SIPO Patent Reexamination Board Patent Reexamination, void the procedural decision; (iv) related to the State intellectual property office patent management of specific administrative acts;

    (E) that national intellectual property offices and other specific administrative acts violating the legitimate rights and interests.

Fifth article on any of the following circumstances, cannot apply for administrative review:

(A) the applicant disagrees with the decision on rejected patent applications;

(B) the person making the request for reexamination request review decision, (iii) where the patentee or the person requesting invalidation of examination of the request for invalidation is dissatisfied with a decision and (iv) where the patentee or a compulsory license of patent licensee refuses to accept the decision on compulsory licensing fees;

(E) where an international application applicants accepted to the State intellectual property office as an international application, the International Searching Authority and international preliminary examining authority is dissatisfied with a decision made by;

(F) the registration of layout-design of integrated circuit dismissed the applicant disagrees with the decision of the registration application;

(G) the registration of layout-design of integrated circuits of the applicant is not satisfied with the decision;

(H) the layout-design of integrated circuits to revoke refuses to accept the decision on registration of layout-design;

(I) integrated circuit layout design right holders, non-voluntary licensing access to people not satisfied with the decision of the non-voluntary license paid;

(J) the layout-design of integrated circuits people, accused of infringement infringement of exclusive right of layout-design of integrated circuits is dissatisfied with a decision to settle disputes;

    (11) the provisions of laws and regulations cannot apply for administrative reconsideration cases.

Sixth in accordance with this Regulation may apply for administrative reconsideration of citizens, legal persons or other organizations is the applicant.

    In the specific administrative act of its rights or interests are jeopardized by any other interested person may apply for administrative reconsideration or as a third party to the administrative review.

    Article seventh applicant, the third party may entrust an agent to participate in the administrative review.

    Chapter III application and acceptance

Article citizens, legal persons or other organizations that the State intellectual property Office of the violation of their legitimate rights and interests of a specific administrative act, can know the specific administrative act brought within 60 days from the date an application for administrative reconsideration.

    Due to force majeure or other legitimate reasons to delay the deadline referred to in the preceding paragraph, the period from the date of the obstacle is removed continue to run.

Nineth has the right to apply for administrative reconsideration of the citizens, legal persons or other organizations filed a suit before the administrative proceedings, the people's Court has legally admissible, shall not apply to the State intellectual property Office of administrative review.

To the State intellectual property office to apply for administrative reconsideration, administrative reconsideration is admissible according to law the statutory administrative reconsideration shall not bring administrative proceedings within the time limit.

    State intellectual property office after an application for administrative reconsideration, found before or after accepting the accepting party filed a suit before the administrative litigation and has been accepted by the peoples Court, dismissing an application for administrative reconsideration.

Tenth administrative review to the application shall comply with the following conditions:

(A) the applicant is that the specific administrative act violated its legitimate rights and interests of patent applicants, patentees, integrated circuit layout-design registration applicant, owner of layout-design of integrated circuits or any other interested person; (b) the specific administrative review request and justification;

(C) within the scope of administrative reconsideration;

    (D) the official application is filed within the time limit. 11th may apply for administrative reconsideration should submit two copies of an application for administrative reconsideration, and affix the necessary evidential material.

Be applied for reconsideration of specific administrative behaviors in writing, shall be attached to the instrument or its copy.

    Authorized agent, power of attorney should be attached.

12th application for administrative reconsideration shall set forth the following:

(A) the applicant's name, address, contact telephone number, (ii) specific requests for administrative review;

(C) the main facts and reasons may apply for administrative reconsideration;

(D) the signature or seal of the applicant;

    (E) the date of application for administrative reconsideration.

13th administrative reconsideration applications can use the standard form produced by the State intellectual property.

    Application for administrative reconsideration can be handwritten or printed.

    14th administrative reconsideration application should either by mail, fax, or personally, to the administrative review bodies.

15th administrative reconsideration institutions on the date of receipt of the application for administrative reconsideration within 5th, in light of the circumstances as follows:

(A) an application for administrative reconsideration in accordance with the regulations, to be admissible, and sent to the applicant to receive notices;

(B) an application for administrative reconsideration does not meet the requirements of this regulation, decide not to accept and shall inform the reason;

    (C) the application for reconsideration does not comply with the procedures set forth in 11th, 12th, inform the applicant in corrections within a specified period; the expiration of correction is not deemed abandoned an application for administrative reconsideration.

    The fourth chapter proceedings and decisions

    16th in the process of conducting administrative reconsideration cases, administrative reconsideration institutions can contribute to the relevant departments and personnel to investigate the situation, can also be heard the oral observations of the applicant or a third party. 17th administrative reconsideration institutions shall from the date of accepting an application for administrative reconsideration within 7th administrative review a copy of the application to the relevant authorities. The Department shall from the date of receipt of the copy of the application for administrative reconsideration within 10th maintenance, revocation or change the original specific administrative act a written reply comments and submit a specific administrative act at the time of evidence, evidence and other relevant material.

Expired responses had been submitted, does not affect the decisions of administrative reconsideration.

    The applicant or the third party referred to in the preceding paragraph may be consulted written replies to specific administrative act on the basis of the evidence, evidence and other relevant material, but except for confidential content. 18th before administrative reconsideration decision, the applicant may request to withdraw an application for administrative reconsideration.

    Grant withdrawn, the administrative review process to terminate. During the 19th administrative reconsideration, in principle do not stop execution of specific administrative acts.

    The administrative reconsideration deems it necessary to suspend, issued a notice of suspension to the relevant departments, and notify the applicant and the third party.

    Administrative review cases before the 20th, according to the laws and administrative regulations, departmental rules.

    Article 21st specific administrative act, the facts are clearly ascertained, is conclusive, the application properly, procedure, as appropriate, should be decided.

    22nd the applicant fails to perform the statutory duties of, should decide to perform legal duties within a certain period.

Article 23rd has one of the following specific administrative acts, shall decide to revoke or alter the specific administrative act or identify the specific administrative act unlawful, and can determine new specific administrative act is made by the applicant: (a) the main facts are not clear that the evidence is insufficient;

(B) the applicable based on the error;

(C) the violation of legal procedures;

(D) exceed or abuse;

(E) the obvious inappropriateness of a specific administrative act;

    (Vi) the emergence of new evidence, more reasonable cancellation or change the original specific administrative act.

24th a specific administrative act has any of the following circumstances, you can decide to change the specific administrative act:

(A) the facts are clearly ascertained and the evidence procedure is legal, but the appearance of impropriety or applicable according to the error;

    (B) unclear facts, insufficient evidence, facts are clearly identified by the administrative review procedure, substantiated.

25th under any of the following circumstances, shall dismiss an application for administrative reconsideration and written reasons:

(A) the applicant considers that the applicant fails to perform the statutory duties shall apply for administrative reconsideration, administrative reconsideration bodies found after accepting the respondent does not have a corresponding legal duties or in the complaint before the fulfilment of statutory duties;

    (B) the administrative reconsideration after accepting an application for administrative reconsideration, finds that an application for administrative reconsideration is not admissible. Article 26th when the applicant may apply for administrative reconsideration request administrative compensation can be.
Administrative reconsideration institutions according to the State compensation law provides for administrative claims brought before the request for compensation in the administrative reconsideration decision decision together.

    27th administrative reconsideration decision shall from the date of accepting an application for administrative reconsideration within 60 days, but complex cannot be made within the prescribed period, approval to extend the deadline, and notify the applicant and the third party.

    Maximum extension period shall not exceed 30th. 28th administrative reconsideration decision made in the name of the State intellectual property office.

    Administrative reconsideration decision shall bear the seal of the State intellectual property Office of administrative reconsideration. 29th during the administrative reconsideration, administrative reconsideration institutions found illegal administrative acts or the need of doing rehabilitation work, you can make a submission of administrative reconsideration.

Relevant departments shall receive administrative reconsideration within 60 days of the date of submission will correct the related administrative violations or inform the administrative reconsideration of doing rehabilitation work.

    During the administrative review, administrative reconsideration institutions found that laws, rules and regulations in the implementation of a universal problem, can create administrative reconsideration of proposals to the relevant authorities to improve systems and recommendations for improving administrative enforcement.

    During the fifth chapter and served Article 30th period start date does not count in the period. Period expires on the last day of a holiday, and holidays during the first day after the expiration date.

    This practice in the "5th", "7th" and "10th" requirement refers to working days, excluding holidays. 31st administrative reconsideration decision direct service, review the certificate of service of the applicant on the receipt date is the date of service.

Administrative reconsideration decision is served by post from 15th after the date of mailing shall be deemed delivered.

    Once the administrative reconsideration decision is served, shall come into legal effect.

    32nd the applicant or authorized agent of the third party, administrative reconsideration decision books in addition to outside agents, under its domestic mailing address should also be sent to the applicant and the third party.

    The sixth chapter supplementary articles

    Article 33rd foreigner, foreign enterprise or other foreign organization to apply to the State intellectual property Office of administrative review, these procedures shall apply.

    34th administrative reconsideration does not charge a fee. 35th article of the regulation come into force on September 1, 2012. Released 24th July 25, 2002 the State intellectual property office, the State intellectual property Office of administrative review of regulations repealed at the same time.