Qingdao Patent Infringement Disputes Administrative Approaches

Original Language Title: 青岛市专利侵权纠纷行政处理办法

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(December 31, 2006, Qingdao municipal people's Government at the 28th Executive meeting on January 12, 2007, people's Government of Qingdao City, 189th promulgated as of March 1, 2007) Chapter I General provisions article to deal effectively with patent infringement disputes, protect the legitimate rights and interests of the parties, to maintain social and economic order, encourage innovation, in accordance with the People's Republic of China patent law and other laws and regulations, combined with the city's actual, these measures are formulated.
    Second patent infringement disputes within the administrative area of the city the administrative processing procedures apply.
    Article on patent infringement in these measures, including patent infringement disputes and recognizes patent infringement dispute.
    Fourth, Qingdao, China intellectual property Office (hereinafter referred to as municipal intellectual property Bureau) is responsible for the administrative processing of patent infringement disputes within their respective administrative areas.
    Chapter II jurisdiction and admissibility article fifth patentee or interested person thinks of infringement of their patent rights, may request the municipal intellectual property Bureau.
    Citizens, legal persons or other organizations are the patentee or interested party warnings infringed on its patent, may request the municipal intellectual property Bureau confirmed its conduct without infringing the patent. Interested persons mentioned in this article include patent licensing contracts licensee and legitimate successors of the patent right and so on.
    In a patent infringement dispute, exclusive licensing contract to the licensee may claim by itself; the exclusive licensee of the licensing contract in the case of the patentee does not request, can be requested separately.
    Sixth article requests processing violations patent disputes, should meet following conditions: (a) requests people is patent people or interest relationship people; (ii) has clear of was requests people; (three) has specific of requests matters and facts, and reason; (four) was requests people residence to or infringement behavior to in this city administrative within; (five) party are not on the disputes to court prosecution.
    Seventh article requests processing confirmed not violations patent disputes, should meet following conditions: (a) requests people is was warning infringement of citizens, and corporate or other organization; (ii) has clear of was requests people; (three) has specific of requests matters and facts, and reason and has was warning of evidence; (four) was requests people residence to or requests people was warning of infringement behavior to in this city administrative within; (five) party are not on the disputes to court prosecution. Eighth article this approach sixth article subsection (four) items, and seventh article subsection (four) items in the by said infringement behavior to including: was control violations invention, and practical new patent of products manufacturing, and using, and promised sales, and sales, and imports, and export, behavior of implementation to; patent method using behavior of implementation to, in accordance with the patent method directly get of products using, and promised sales, and sales, and imports, and export, behavior of implementation to; appearance design patent products of manufacturing, and sales, and imports, and export, behavior of implementation to.
    These violations result of infringement occurred.
    Nineth requests dealing with patent infringement dispute, the claimant shall submit a request for identification, and the evidence and in accordance with the requests and evidence submitted by the requested number of copies.
    Request confirmation does not patent infringement disputes, claimants shall submit the identity and claims, patent license notice text, the patentee or interested party warned its patent infringement evidence and was warned for infringement of a patent product or method and in accordance with the requests and evidence submitted by the requested number of copies.
    Requests shall be submitted as evidence of its materials by classification number, and sources of evidence, proof and a brief description of the contents of the object, signature or seal, indicate the date of submission.
    Tenth request shall contain the following elements: (a) the name, sex, age, nationality, profession and domicile, legal person or other organization names, addresses and name of the legal representative or principal responsible person, position, (ii) specific request and on the basis of facts, reasons and (c) the requestor's signature or seal. 11th municipal Bureau of intellectual property shall receive requests and supporting evidence within 7th day of deciding whether placing, and notify the person filing the request.
    Requests submitted by material insufficiency, municipal Bureau of intellectual property may require the person within the period specified in the request completion. 12th the parties may entrust one or two agents to participate in a patent infringement dispute.
    Party concerned entrusts an agent, power of attorney should be submitted, and matters entrusted and the written permission. Chapter III deals with decision placing 13th of municipal intellectual property office, shall, from the date of filing within the 5th the copy in the request sent to the requested person. The requested person shall receive requests for copies within 15th of the respondent.
    Party who fails to submit the statement of defense shall not affect municipal intellectual property Bureau's handling of the case.
    Article 14th patent infringement case shall form a collegial group, collegiate group has administrative law enforcement personnel shall be determined by the municipal intellectual property Bureau, and with the appropriate expertise, personnel familiar with the law.
    15th dealt with members of the collegiate Panel of patent infringement disputes any of the following circumstances, it shall take the initiative to request a withdrawal from, the parties can also apply for his withdrawal: (a) is the case of close relatives of the client or any person, agent, (ii) have a stake in the case and (iii) other relationships with the parties to the case, which may affect the impartial handling of the case.
    Provisions of the preceding paragraph, applies to case reporters, interpreters, expert witnesses, investigators, and so on.
    16th municipal intellectual property Bureau to deal with patent infringement cases on the facts need to be written or oral. Article 17th facts are clear cases can be dealt with in writing.
    Writing cases, municipal intellectual property Bureau should request copies and related evidence, serve a copy of the requested person. Apply to the parties, intellectual property rights, or when the Council considers it necessary, oral processing is allowed. Decision orally, 7th in advance to notify the parties of the time and place.
    People without good reason refused to attend or drop out without permission, deemed to be withdrawn automatically process requests; by the requested person without any justified reason, refuses to attend or drop out without permission, the hearing and make a decision. Record shall be made orally, after party checked, the record shall be signed or sealed.
    The parties refused to sign, shall be indicated in the record. 18th in the processing of patent infringement, invalidation request by the person filing the request is accepted by the patent reexamination Board, can apply for municipal intellectual property Bureau to suspend the disposal.
    Discontinued by claimants apply for, you should reply in writing within the period.
    In the processing of patent infringement dispute, the parties may initiate litigation to the people's Court of the disputes, municipal Bureau of intellectual property rights can be terminated.
    In the processing of patent infringement disputes, claimants apply for withdrawal of the request, whether to approve the municipal intellectual property Bureau.
    Article 19th of patent infringement, infringement behavior can make an infringement decision, to order the infringer to stop the infringing act immediately; acts of infringement are not formed, the claimant provided insufficient evidence or trial is not admissible and dismissed the claimant's request.
    Confirm the patent infringement dispute, found that the claimant's conduct does not violate the patent, you can confirm the settlement of non-infringement; finds claimant actions for infringement of a patent, the evidence provided by the claimant does not fully or with the trial not admissible and dismissed the claimant's request.
    Not satisfied with the decision of the parties, May 15th days after receipt of the decision, to a people's Court according to law in administrative proceedings. 20th dealt with patent infringement, shall make a decision within four months from the date of filing.
    Discontinued, entrust identification and announcements during the period were not included in the processing. Article 21st infringement, the municipal Bureau of intellectual property rights under the Shandong provincial patent protection Ordinance to order the infringer to stop the infringing act immediately.
    If necessary, you can also order the infringer to stop the infringing act immediately in the following ways: (a) the destruction or dismantling of infringing products, (ii) destroyed or dismantled patented process, direct access to the product, (iii) the destruction or dismantling manufacturing special molds and special equipment of the infringing products; (d) the destruction or dismantling using special molds and special equipment of the patented method.
    Fourth chapter investigation article 22nd of self claim has the responsibility to provide evidence. Party due to objective reasons cannot collect evidence, can apply for municipal intellectual property Bureau surveys. Requires investigating and collecting evidence by the parties, shall submit a written application, set forth the need for investigation and collection of evidence and clues, intended to prove that fact and the reasons for difficulty in obtaining.
    Municipal intellectual property Bureau may require the applicant to provide security.
    Municipal Bureau of intellectual property needed to investigate and collect evidence ex officio. 23rd parties, intellectual property offices, to provide evidence, it shall provide originals or original.
    If you need to save the evidence themselves, original and original or if there is difficulty in providing original, original, shall be provided to the Bureau of intellectual property checking is copying or reproduction.
    The copying or reproduction of material evidence, the supplier refuses to provide original, original or its clues, no other material can be verified, the other party was not recognized, not as the basis for ascertaining the facts.
    Foreign evidence provided by the parties, and shall be accompanied by a Chinese translation. 24th when investigators asked the parties and witnesses, shall make inquiry record. Record shall be checked by the person questioned, interrogated and investigators on the record signed or sealed.
    Person questioned refuses to sign or seal shall be indicated in the record. 25th investigators to conduct on-site inspection and examination shall make a written record, record shall be checked by the parties, signed or sealed by the parties and investigators. Party scene or the scene not refuse to sign or seal shall be indicated in the record.

    Article 26th investigators take a sample evidence, sealed or measures such as withholding of registration, sample evidence, sealed or withholding of registration items should be counted on the spot, and to draw up a clear statement, checked by the holder of the goods or witnesses, by investigators, holder or a witness signature or seal.
    Holders or witness refuses to sign or seal, the investigation personnel shall indicate on the list.
    Applying for municipal intellectual property Bureau take a sample evidence, registration seal or withholding errors, resulting in losses of the other party, the applicant shall be liable. 27th of municipal intellectual property Bureau may upon application of the parties or the needs of the case, commissioned by an accreditation body for identification. Accreditation bodies can be negotiated by the parties, through consultation, designated by the municipal Bureau of intellectual property rights.
    Identification of expenses shall be borne by the parties. 28th of municipal intellectual property Office at the time of investigation, relevant units and individuals shall assist in the investigation and provide related material.
    Hinder investigators to investigate cases, can be fined 1000 Yuan fine.
    Fifth chapter, intellectual property office, served on the 29th served on related instruments can be taken directly, Lien service, mail delivery, service by public announcement.
    30th article directly served Shi, by served people is citizens of, should by I sign, I is not of, make its with live adult family sign; by served people is corporate or other organization of, should by corporate of statutory representative people, and the Organization of main head or the corporate, and organization of Office, and mailroom, and Office, is responsible for received pieces of people sign; by served people has delegate agent of, can sent its agent sign; by served people has specified generation received people of, sent generation received people sign.
    Direct service shall be received by the recipient indicated on the certificate of service date and signature or seal, recipient in the receipt date on the certificate of service for service. 31st to adopt a direct service recipient refused to sign, detaining served.
    Service service rejected the subject matter and the date written on the card, the instruments remain in the recipient's home, and witnesses or evidence such as photographs, audio, video, the service shall be considered.
    Article 32nd mailing shall be made according to the mail.
    Mailing served of, to from post office query of by served people actual received date for served date; for by served people provides of served address not accurate, and served address change not Shi told city intellectual property Council, and by served people or by served people specified of generation received people refused to sign, led to about instruments failed to was by served people actual received of, instruments returned of day considered served of day. Article 33rd addressee unknown, refusing to provide service, or use other means could not be delivered as provided herein, municipal Bureau of intellectual property rights can take the newspaper, posting notices to be served.
    From the date of announcement, after 60 days, the service shall be considered.
    Patent infringement disputes during the sixth chapter events held within the administrative area of the city, the special provisions of article 34th exhibition, trade fairs, expositions, fairs, exhibitions and other events during the patentee or interested party believes has violated its patent, can complain to the municipal Bureau of intellectual property rights, ordering the suspension of alleged infringement of a patent the exhibits on display during the show; may also make requests for patent infringement dispute. Municipal Bureau of intellectual property rights set out in the preceding paragraph of complaints and requests for patent infringement dispute, applies the provisions of this chapter.
    No provision of this chapter, other provisions prevail, otherwise prescribed by laws and regulations, from its provisions.
    35th complaints to the municipal Bureau of intellectual property rights, shall submit a patent license notice text, the patentee or interested party identification, as well as the complaint, the complaint shall set forth the complaints and basic information, the alleged infringement of the allegedly infringing party facts and grounds, suspend the alleged infringement of a patent the exhibits during the exhibition display requirements and signed or sealed by the complainants.
    Patent infringement dispute request to the municipal administration of intellectual property, materials shall be submitted in accordance with the relevant provisions of this approach. 36th of municipal intellectual property office shall, when receiving a complaint or incorporated within 24 hours to decide whether to accept after the request, and notify the complainant or person filing the request. Decision of admissibility, and should be notified within 24 hours after placing the case on the complainant or claimant and inform the show organizers.
    Municipal Bureau of intellectual property can be specified according to the extension of the show was the complainant or applicant reply deadline, was requested by a complaint or fails to reply, does not affect municipal intellectual property Bureau's handling of the case.
    Municipal Bureau of intellectual property when dealing with fair complaints of alleged patent infringement cases, as required according to the terms of reference of the investigation to collect relevant evidence.
    37th municipal Bureau of intellectual property when dealing with complaints, initially identified the allegedly infringing products, technologies falling into the scope of protection of a patent, may require the respondent to withdraw products booth; respondent refused to evacuate, municipal Bureau of intellectual property rights on the basis of the complainant's request to register storage or withhold the complainant's related articles.
    Municipal intellectual property Bureau initially identified the allegedly infringing products, technology does not fall into the scope of protection of a patent, the complaints could not be processed. Municipal Bureau of intellectual property rights during the show on the allegedly infringing products, fall into the scope of protection of the patent of the technology cannot make a preliminary determination, shall inform the complainant.
    Complainants may be proposed in accordance with the relevant provisions of the measures dealing with patent infringement dispute request. Article 38th complainant or claimant requests taken municipal Bureau of intellectual property registration when the hold or suspend measures, it shall submit a written application and provide security. Complainant or claimant to provide security, the municipal Bureau of intellectual property should be taken within 24 hours of registration seal or temporary suspension of measures does not provide guarantees, you can reject the application.
    A complaint or claim provided the counter guarantee may terminate a registered seal or temporary suspension measures.
    Municipal intellectual property Bureau registered seal or temporary suspension measures taken, after the closing may terminate a registration hold or temporarily suspended.
    Seventh chapter supplementary articles article 39th foreign-related patent infringement agent, service of and reference to the relevant provisions of the civil procedure of reply.
                        40th these measures shall come into force on March 1, 2007.