Patent Administrative Enforcement Approaches

Original Language Title: 专利行政执法办法

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Read the untranslated law here: http://www.chinalaw.gov.cn/article/fgkd/xfg/gwybmgz/201108/20110800347879.shtml

Patent administrative enforcement approaches

    (Announced December 29, 2010, State intellectual property Office of the 60th since February 1, 2011) Chapter I General provisions

    First to standardize the patent administrative enforcement actions, protect the legitimate rights and interests of the patentee and the public, maintaining the order of the Socialist market economy, according to the People's Republic of China patent law and the People's Republic of China implementation rules of the patent law and other relevant laws and regulations, these measures are formulated.

    Second administrative authorities for patent Affairs administrative law enforcement, dealing with patent infringement disputes, mediate patent disputes and investigate acts of counterfeiting a patent, these measures shall apply.

    Article III administrative authorities for patent Affairs handling of patent infringement should be based on the facts, and take law as the criterion, and follow the principles of fair and timely.

    Administrative authorities for patent Affairs to mediate patent disputes shall follow the principle of voluntary, legal, in ascertaining the facts and distinguish on the basis of mutual understanding prompted the parties, mediation agreement is reached.

    Administrative authorities for patent Affairs to investigate acts of counterfeiting a patent shall take facts as the basis and law as the criterion, and follow the principles of fairness, openness, and given administrative penalties should violations of truth, character, plot, and harm.

    Fourth administrative authorities for patent Affairs should set up specialized agencies or full-time law enforcement officers to carry out patent administrative law enforcement. Case contractor shall hold the State intellectual property office or provincial, autonomous regional and municipal people's Government issued the patent certificate of administrative law enforcement.

    Case hosting duties should be taken seriously.

    Fifth to have a major impact on the patent infringement case, fake patent cases, State intellectual property office in may, when necessary, relevant administrative authorities for patent Affairs handling, investigation.

    For acts involving two or more provinces, autonomous regions and municipalities directly under the major cases, the relevant provinces, autonomous regions and municipalities directly under the administrative authority for patent Affairs may report to the State intellectual property office to coordinate treatment or investigation.

    Administrative authorities for patent Affairs administrative law enforcement problems encountered, and the State intellectual property Office should be given the necessary guidance and support.

    Sixth administrative authorities for patent Affairs can be based on local conditions, Entrust has a practical capacity of municipal and County a patent Management Department to investigate counterfeiting Patent Act patent disputes, mediation.

    Clients should be entrusted to investigate counterfeiting a patent and conduct supervision and guidance of the mediate patent disputes, and legal responsibilities. Article seventh cases assigned by the administrative authority for patent Affairs to host staff-client has a direct interest shall recuse themselves, the parties have the right to apply for his withdrawal.

    Challenged by the parties, it shall explain the reasons. Avoidance cases employees, decided by the head of the patent department.

    Evasive before a decision was requested to withdraw personnel should be suspended in the case work.

    Chapter II handling of patent infringement disputes

    Eighth request of the administrative authority for patent Affairs handling of patent infringement, shall comply with the following conditions:

    (A) the claimant is the patentee or interested party;

    (B) clear by the requested person;

    (C) have a clear subject and concrete facts and reasons;

    (D) belong to the administrative authority for patent Affairs cases and jurisdictions;

    (E) the parties in respect of the patent infringement suit before a people's Court. First referred to an interested person, including a patent license contract of licensee and the patentee's legal successor.

    Licensee of the patent licensing contracts and exclusive licensing contract to the licensee may claim by itself; an exclusive licensing contract of the licensee in the case of the patentee does not request, requests can be submitted separately unless otherwise specified in the contract, general licensing contracts licensee cannot claim by itself.

    Nineth request of the administrative authority for patent Affairs handling of patent infringement, shall submit a written request and proof of the following materials:

    (A) the qualification to prove that individuals must submit the identity card or other valid credentials, the unit shall submit a valid business license or other proof of qualifications copy and proof of identity of the legal representative or principal responsible person;

    (B) patent valid proof, copy of the patent register, or the patent certificate and the receipt when paying annual fees.

    Patent infringement dispute relates to utility models or design patents, issued by the administrative authority for patent Affairs may require the requesting person franchise evaluation reports made by the State intellectual property Office (patent search report).

    Requests shall be provided in accordance with the requested number of requests for copies and related evidence.

    Tenth letter of request shall record the following:

    (A) the claimant's name, address, name of the legal representative or principal responsible person, title, principal-agent, name and agency name and address of that representative;

    (B) the name or name and address of the claimant;

    (C) matters of facts and reasons for the request.

    The evidence and supporting material can be submitted as an attachment in the request.

    Request shall be signed or sealed by the claimant.

    11th article requests meet this approach eighth article provides conditions of, management patent work of sector should in received requests book of day up 5 a days within filed and notification requests people, while specified 3 name or 3 name above singular hosted personnel processing the patent infringement disputes; requests not meet this approach eighth article provides conditions of, management patent work of sector should in received requests book of day up 5 a days within notification requests people not accepted, and description reason. 12th administrative authorities for patent Affairs shall, within 5 working days from the date of filing the request and serve a copy of the attachment to the requested person, requires the respondent in the 15th, the date of receipt and according to the number of requests has provided his written copy.

    Party who fails to submit the statement of Defense, without prejudice to the administrative authority for patent Affairs for processing.

    Of the person filing the request, administrative authorities for patent Affairs shall, within 5 working days from receipt of the statement of Defense, serve a copy of the applicant. 13th administrative authorities for patent Affairs when dealing with patent infringement cases, according to the wishes of the parties to mediate. The parties agree, by the administrative authority for patent Affairs conciliation agreement, stamp its seal and signed or sealed by the parties.

    In case of a dispute, it shall make a decision. 14th administrative authorities for patent Affairs to deal with patent infringement disputes, on the facts you need to decide whether to hold oral hearings. Administrative authorities for patent Affairs decided to conduct an oral hearing shall be at least 3 business days prior to the oral proceedings oral proceedings, time, place, notify the parties.

    Parties without any justified reason, refuses to attend or drop out without permission, according to the request to withdraw the request processing, the requested person, in the absence of treatment.

    15th administrative authorities for patent Affairs to hold oral proceedings, participants in the oral proceedings, and proceedings should be recorded, after they have been checked, hosted by the case officer and participant signature or seal. 16th article 59th of the patent law mentioned in the first paragraph of the "invention or utility model patent protection for its claim as the norm" refers to the scope of patent protection shall be determined by its technical features of claim records prevail, including records and technical features phase as determined by the range.

    Equivalent characteristic refers to the technical characteristics and recorded with essentially the same means to achieve essentially the same function, achieve the same effect, and field technician without creative work will be able to think of the feature.

    17th in addition to reach a conciliation agreement or request to withdraw their request, administrative authorities for patent Affairs handling of patent infringement shall make a written decision, stated the following:

    (A) the name or names and addresses of the parties;

    (B) the parties ' statements of facts and reasons;

    (C) identify whether the infringement is justified reasons and basis;

    (D) the decision finds that infringement is established and need to order the infringer to stop the infringing act immediately, should clearly specify the ordering the applicant to stop the infringing act immediately type, object and scope of infringement acts are not established should be dismissed claimant's request;

    (E) ways to appeal against the decision in administrative proceedings and deadlines.

    The written decision shall bear the seal of the administrative authority for patent Affairs.

    18th the patent or the existence of a people's Court for infringement and order the infringer to stop the infringing act immediately the decision or after the verdict, was renewed by claimant in respect of the same patent infringement of the same type, the patentee or interested party request processing, administrative authorities for patent Affairs may direct shall be ordered to immediately cease the infringement decision. 19th administrative authorities for patent Affairs handling of patent infringement, shall, within 4 months from the date of filing the case. Case is particularly complex needs extension, it should be approved by the head of the administrative authority for patent Affairs.

    Approved extension period, up to 1 month.

    Post in case handling, identification, suspend time is not included in the cases referred to in the preceding paragraph, such as processing time limit.

    Chapter III patent dispute mediation

    20th request of the administrative authority for patent Affairs to mediate patent disputes shall be filed.

    The request shall record the following:

    (A) the claimant's name, address, name of the legal representative or principal responsible person, title, principal-agent, name and agency name and address of that representative;

    (B) the name or name and address of the claimant;

    (C) specific items and reasons to request mediation.

    Separate requests for mediation of patent infringement damages, shall be submitted to the relevant acts of infringement of the administrative authority for patent Affairs set up a copy of the written decision.

    21st administrative authorities for patent Affairs after the mediation request was received, shall promptly request a copy by mail, by personal delivery or by other means being served on the claimant, require the date of its receipt in the 15th to submit statements.

    22nd article submitted statement of opinion and consent to mediation, administrative authorities for patent Affairs should be filed in a timely manner, and inform the claimant and the claimant is the time and place of mediation.

    Statement by claimant fails to submit comments, said in a statement of opinion or does not accept mediation, administrative authorities for patent Affairs shall not be filed and notify the claimant.

    23rd administrative authorities for patent Affairs to mediate patent disputes can invite the relevant units or individuals to assist, units or individuals invited shall assist in mediation.

    24th the parties reached an agreement through mediation, by the administrative authority for patent Affairs conciliation agreement, stamp its seal and signed or sealed by the parties; failed to reach agreement, the administrative authorities for patent Affairs to dismiss the case closed, and notify the parties.

    25th due to disputes over the ownership of the right of patent application or patent right request for mediation, the parties may accept the notice of administrative authorities for patent Affairs request the State intellectual property office to suspend the patent application or of the patent right of the procedure. Reached an agreement through mediation, the Parties shall take the mediation agreement the State intellectual property Office for the recovery procedures; no agreement is reached, the parties concerned shall take notice of a dismissal of the case issued by the administrative authority for patent Affairs to the State intellectual property Office for the recovery procedures.

    Requests requests for suspension of 1 year after the date of the extension of the suspension, State intellectual property office resume the relevant procedure.

    The fourth chapter of counterfeiting patent investigation

    Article 26th administrative authorities for patent Affairs found or accepted reporting suspected acts of counterfeiting a patent shall be filed in a timely manner, and specify two or more case officers to carry out the investigation.

    27th investigating patent counterfeiting by the acts of administrative authorities for patent work have jurisdiction.

    Administrative authorities for patent Affairs to the jurisdiction dispute, common higher level people's Government by the administrative authority for patent Affairs under no common superior administrative authority for patent Affairs, designated by the State intellectual property Office's jurisdiction. 28th administrative authorities for patent Affairs attachment, arrest of suspected fake patented products shall be approved by the Director.

    When sealing up, distraining, parties should be issued the notice. Administrative authorities for patent Affairs attachment, arrest suspected fake patented products, should be counted on the spot, making notes and lists employees who signed or sealed by the parties and cases. The party refuses to sign or seal, by the hosting staff indicated on the record of the case.

    Shall give the parties a copy of the list.

    29th end investigations, approved by the head of the administrative authority for patent Affairs, separately according to the circumstances of the case be handled as follows:

    (A) the establishment should be punishment for counterfeiting patents, given administrative penalty according to law;

    (B) patent counterfeiting slightly and has been corrected in a timely manner, exemption from punishment;

    (C) patent counterfeiting is not established, a dismissal of the case in accordance with law;

    (D) a suspected crime, transferred to the public security organs according to law.

    Article 30th administrative authorities for patent Affairs before making a decision of administrative penalty shall inform the party made the decision the facts, grounds, and basis, and inform the Parties shall enjoy the rights. Administrative authorities for patent Affairs before taking a large amount of fine decision, it shall inform the parties have the right to request hearings.

    Hearing requests made by the parties, it shall organize the hearing.

    31st party the right to State and defend administrative authorities for patent Affairs may not plead aggravated by the parties to administrative penalties. Administrative authorities for patent Affairs of parties the facts, reason, and evidence should be verified.

    Established facts are true, the reasons given by the parties, administrative authorities for patent Affairs should be adopted.

    32nd on the intricate plot or grave violations of administrative punishment should be decided collectively by the head of the administrative authority for patent Affairs.

    Article 33rd after investigation, the establishment should be punishment for counterfeiting a patent, administrative authorities for patent Affairs shall make a written decision, stated the following:

    (A) the name or names and addresses of the parties;

    (B) recognized patent counterfeiting set up the evidence, the reasons and basis;

    (C) the content and implementation of the punishment;

    (Iv) appealed against the punishment decision may apply for administrative reconsideration or bring an administrative suit the ways and terms.

    The written decision shall bear the seal of the administrative authority for patent Affairs. Article 34th administrative authorities for patent Affairs to investigate cases of passing off the patent shall, within 1 month from the date of filing the case. Case is particularly complex needs extension, it should be approved by the head of the administrative authority for patent Affairs.

    Approved extension period, up to 15th.

    In the course of the case hearings, notice time is not included in the cases referred to in the preceding paragraph, such as processing time limit.

    The fifth chapter, investigation and evidence collection 35th during processing of the patent infringement dispute, because of objective reasons can not be collected some evidence by the parties, may request in writing the administrative authority for patent Affairs investigation and evidence collection.

    Administrative authorities for patent Affairs decides whether to investigate and collect evidence.

    In dealing with patent infringement disputes, investigating patent counterfeiting process, administrative authorities for patent work needed to investigate and collect evidence ex officio. While law enforcement officers investigate and collect relevant evidence, shall provide the party or the relevant administrative law enforcement personnel to show their documents.

    Parties and associated personnel shall assist and cooperate, faithfully reflect the situation, and may not refuse or obstruct. Article 36th administrative authorities for patent Affairs to investigate and collect evidence can read and copy and contracts, account books and other relevant documents relating to the case; ask parties and witnesses; measure, photograph, camera, such as on-site inspection.

    Suspected violations of manufacturing method patent, administrative authorities for patent Affairs may require that the person be a live demo. Administrative authorities for patent Affairs to investigate and collect evidence should make a written record. Record shall be undertaken by a case officer under investigation unit or individual signature or seal.

    Units or individuals being investigated refuses to sign or seal, by the hosting staff indicated on the record of the case.

    37th administrative authorities for patent Affairs to investigate and collect evidence can take the form of sampling and evidence. Product patent, part can be drawn from the allegedly infringing products as samples involving patents, products can be obtained directly from the connection in accordance with the methods to extract a part as a sample.

    Is the number of samples shall be limited to to prove that fact. Sample administrative authorities for patent Affairs to evidence a record shall be kept and list States that samples save the number of the names, characters, and locations hosted by case officers, units or individuals being investigated for signature or seal. Units or individuals being investigated refuses to sign or seal, by the hosting staff indicated on the record of the case.

    Those surveyed list should be one.

    38th after that evidence may be destroyed or lost or difficult to obtain, and can't sample evidence cases, administrative authorities for patent Affairs may register save and making decisions in the 7th.

    The registration and preservation of evidence, survey units or individuals shall not be destroyed or transferred. Administrative authorities for patent Affairs to register record shall be kept and the list, clearly state the name of the registration and preservation of evidence, characteristics, quantity and save locations by contractor personnel, investigation of cases of units or individual signature or seal. Units or individuals being investigated refuses to sign or seal, by the hosting staff indicated on the record of the case.

    Those surveyed list should be one. 39th administrative authorities for patent Affairs need to entrust other administrative authorities for patent Affairs to help investigate and collect evidence, should put forward a clear requirement.

    Entrusted to the departments should promptly and seriously to help investigate and collect evidence, and reply as soon as possible.

    40th on the suspected infringing goods detained by the customs investigation, and request the administrative authority for patent Affairs to provide assistance, and administrative authorities for patent Affairs shall give assistance.

    Administrative authorities for patent Affairs handling patent cases involving import and export goods, you can request assistance from the customs.

    The sixth chapter legal liability

    41st administrative authorities for patent Affairs found that patent infringement was established, make a decision, to order the infringer to stop the infringing act immediately, shall take the following measures to curb the abuses:

    (A) the infringer to manufacture products for patent infringement, shall be ordered to immediately stop making and destruction of special equipment for manufacturing infringing products, molds, and may not be sold, used unsold infringing products on the market or in any other form; infringing product is difficult to preserve, to order the infringer to destroy the product;

    (B) infringer, without the authorization of the patentee to use the patented process, to order the infringer to stop using them immediately and destroyed the patent method of special equipment, tooling, and may not be sold, using a patented process, that are not yet direct access to infringing products on the market or in any other form; infringing product is difficult to preserve, to order the infringer to destroy the product;

    (C) the infringer selling patent infringing products or the infringing products directly obtained by patented method, shall be ordered to immediately cease sales acts, and shall not be used yet to sell infringing products on the market or in any other form; not sell infringing products difficult to save, to order the infringer to destroy the product;

    (D) the infringer is offering for sale a patent infringement or the infringing products directly obtained by patented method shall be ordered to immediately stop offering for sale, removal, and no actual sales may be made;

    (Five) infringement people imports patent infringement products or in accordance with patent method directly get of infringement products of, ordered infringement people immediately stop imports behavior; infringement products has entry of, shall not sales, and using the infringement products or to any other form will its put market; infringement products to save of, ordered infringement people destroyed the products; infringement products yet entry of, can will processing decided notification about customs;

    (Vi) other necessary measures to stop the infringing act.

    42nd administrative authorities for patent Affairs to identify patent infringement is established and order the infringer to stop the infringing act immediately after the decision, claimant filed a suit before the administrative litigation, in implementation of the decision shall not be suspended during the proceedings.

    Infringer for infringement of the administrative authority for patent Affairs established to deal with expiry of the decision not to prosecute was not to stop the infringing act, administrative authorities for patent Affairs may request the people's Court for compulsory execution.

    Article 43rd administrative authorities for patent Affairs identified patent counterfeiting was founded, it shall order the person to take the following corrective measures:

    (A) in not was grant patent of products or its packaging Shang mark patent identifies, and patent was declared invalid Hou or terminated Hou continues to in products or its packaging Shang mark patent identifies or without license in products or products packaging Shang mark others of patent, of, immediately stop mark behavior, elimination yet sold of products or its packaging Shang of patent identifies; products Shang of patent identifies to elimination of, destroyed the products or packaging;

    (B) sales (a) products referred to in subparagraphs immediately cease sales acts;

    (Three) in products manual, material in the will not was grant patent of technology or design called patent technology or patent design, will patent application called patent, or without license using others of patent,, makes public will by involved of technology or design errors think is others of patent technology or patent design of, immediately stop issued the material, destroyed yet issued of material, and elimination effect;

    (D) forging or altering the patent certificate, patent documents or patent application documents and immediately stop forging or altering behavior, destruction of forging or altering the patent certificate, patent documents or patent application documents and remove;

    (E) other necessary corrective measures.

    44th administrative authorities for patent Affairs identified patent counterfeiting set up, making the decision, should be announced.

    Article 45th administrative authorities for patent Affairs identified patent counterfeiting set up, can determine the perpetrator of illegal income in the following ways:

    (A) sales of counterfeiting patent product, the product sale price multiplied by the number of products sold as part of its illegal income;

    (B) contract to make counterfeiting the patent to charge fees as part of its illegal income.

    Article 46th after the administrative authority for patent Affairs made the decision, the parties may apply for administrative reconsideration or bring administrative proceedings, in the course of administrative reconsideration or litigation does not stop execution of the decision.

    47th patent counterfeiting Act shall, from the date of receipt of the written decision in the 15th, to the designated bank to pay penalty decision State fines due is not paid, 3% Add a fine in amount of the daily penalty.

    48th refuses or obstructs the administrative authority for patent affairs according to law in performing their duties, by the public security organs in accordance with the People's Republic of China public security management punishment law provides for penalties if the case is serious enough to constitute a crime, they shall be investigated for criminal responsibility by judicial organs.

    The seventh chapter by-laws

    49th administrative authorities for patent Affairs can be sent, by personal delivery, Lien served, service or other service-related legal instruments and materials.

    This approach by the State intellectual property office is responsible for the interpretation of the 50th article. 51st these measures come into force on February 1, 2011. December 17, 2001, released by the State intellectual property office, 19th abrogated in the patent administrative enforcement measures.