Shandong Provincial Patent Disputes And Conciliation

Original Language Title: 山东省专利纠纷处理和调解办法

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  Chapter I General provisions

First in order to regulate the patent dispute and mediation activities, protect the legitimate rights and interests of the parties, in accordance with the People's Republic of China patent law of the People's Republic of China implementation rules of the patent law, the Patents Ordinance, Shandong province, laws and regulations, combined with the facts of the province, these measures are formulated.

Article handling patent disputes and mediation in the administrative area of the province, these measures shall apply.  

The third province into districts according to the client's request the patent Administration Department of the municipal, and mediate patent disputes within their respective administrative areas.

The County (city, district), the patent Administration Department under the people's Government provincial and municipal people's Government, the patent Administration Department of the district delegates, you can handle and mediate patent disputes within their respective administrative areas.

Fourth Party concerned requests handling or mediation of patent disputes, the violation or being governed by the patent Administration Department, where the claimant.

Parties to the patent Administration Department under the jurisdiction of two or more proposed handling the request, by the patent Administration Department of the first accepts jurisdiction.

Dispute to the jurisdiction of the patent Administration Department, by the parties to the dispute jointly specified by the patent Administration Department under the people's Governments at a higher level.

Fifth patent disputes, one of the following circumstances, and mediation by the provincial patent administrative departments:

(A) the other party to foreigners, stateless persons and foreign enterprises and organizations;

(B) the party who is not in the same district of the province, where the city;

(C) major, complex, or have a greater impact.

The second patent disputes in the previous paragraph, provincial patent administrative departments may specify the relevant municipal people's Government, the patent Administration Department under the jurisdiction of the district.

Sixth patent administrative departments to deal with patent disputes to take facts as the basis and law as the criterion, follow the principle of fair and timely.

Patent administration departments to resolve patent disputes shall follow the principle of voluntary, legal, based on the facts, prompted the parties to mutual understanding, reach a mediation agreement.

Article seventh has make a decision or reached a mediated settlement of a patent dispute, parties with the same facts and reason to once again request the patent Administration Department of processing and mediation, the patent Administration Department was inadmissible.

Chapter II patent dispute

The eighth without permission of the patentee, the patent of patent infringement disputes caused by the patentee or interested party may initiate patent infringement to the patent Administration Department to process the request.

Nineth filed patent dispute request, shall comply with the following conditions:

(A) clear by the requested person;

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

(C) belong to the jurisdiction of the patent Administration Department;

(D) the parties did not dispute the suit before a people's Court.

Tenth party concerned requests handling patent disputes, shall submit the following materials:

(A) the request;

(B) the proof of qualification;

(C) the relevant patent documents and patent right valid proof;

(D) evidence of the alleged infringement of patent rights;

(V) other relevant evidence and proof.

Parties should provide original copies of related materials, original or checked by the patent Administration Department as reproductions, photographs, duplicates or extracts of presenting materials in foreign languages, and shall be accompanied by a Chinese translation. 11th party concerned entrusts an agent shall submit the signed or stamped by a delegate of a power of attorney.

Power of attorney shall set forth the matters entrusted and the permissions.

Agent recognition, renunciation, change request, or reconciliation, and should have the special authorization of the client.

Request the patent Administration Department of the 12th article reviewing books and related materials, that meet the conditions for filing shall, within five working days as of receipt of the request file and notifies the parties; do not meet the conditions for filing shall, within five working days as of receipt of the request in writing notify the request inadmissible, together with the reasons. And related materials needed corrections in the request, shall request the patent Administration Department books and related materials within five working days of the date, notify the requesting person rectify it within a specified period.

The correction compliance with filing conditions, the patent Administration Department shall, within five working days from the date of receipt of corrected material filed; fails to correct or not in accordance with the request requires correction, notify the claimant in writing not to accept, and explain the reasons.

13th patent administrative departments to deal with patent disputes, ex officio, investigate and collect relevant evidence.

Because of objective reasons unable to collect relevant evidence by the parties, may in writing request the Administrative Department for patent investigation and evidence, the patent Administration Department decides whether to investigate and collect evidence.

The patent Administration Department survey to obtain evidence, and associated personnel shall assist the parties objectively reflect the situation, and may not refuse or obstruct, or concealment, falsification, transfer and destruction of evidence.

14th patent administrative departments to deal with patent disputes, shall require the parties to produce evidence and cross-examination.

Evidence relating to trade secrets, personal privacy, the party can apply for public cross-examination. 15th parties on professional issues involved in patent disputes, may appeal to the Administrative Department for patent application.

Deemed necessary by the Administrative Department for patent, determined through consultation by the parties have the qualification of persons identified through consultation, and specified by the patent Administration Department.

Patent administration departments can hire experts or institutions concerned, the patent dispute involving professional issues for consultation. 16th patent Administrative Department shall, within five working days from the date of filing the request and other related materials sent by the requested person, within the 15th since the date of receipt of a request the respondent.

Party who fails to submit, without prejudice to the patent Administration Department for processing.

Patent Administration Department shall, within five working days as of receipt of the answer to send the respondent claimant.

17th patent administrative departments to deal with patent disputes, on the facts you need to decide whether to hold oral hearings. An oral hearing shall be at least three working days before the oral proceedings, and notify the parties.

Parties without any justified reason, refuses to attend or drop out without permission, persons on the basis of the withdrawal requests are processed on request, on the absence of the claimant in accordance with the process.

18th under any of the following circumstances, a hearing may be postponed:

(A) the parties and other participants must be present justified is not present;

(B) temporary in applying for the withdrawal of the parties;

(C) necessary to summon new witnesses, obtain new evidence, a new expert, Inspector, or the need for a supplementary investigation;

(D) other circumstances as stipulated by laws and regulations may be extended.

After filing the patent Administration Department of the 19th article, that require additional units or individuals participate in the patent dispute, it shall notify the relevant units or individuals.

20th under any of the following circumstances, suspending patent dispute:

(A) one of the parties dies, you need to wait for the successor to indicate whether they participate in the dispute;

(B) incapacity of a party, legal representatives has not been determined;

(C) legal persons or other organizations as one of the parties terminates and successor rights and obligations has not been determined;

(D) due to causes of force majeure a party cannot take part in the dispute;

(E) in this case should be based on the results of other cases, other cases have not been concluded;

(Vi) other circumstances as stipulated by laws and regulations shall be suspended. 

Reason for discontinuation is eliminated, should be restored in a timely manner.

Article 21st of the following circumstances, revocation of the patent dispute cases: (a) after placing the finds do not belong to the jurisdiction of the Administrative Department for patent;

(B) in the process found to be admissible;

(C) other laws and regulations, the case shall be dismissed.

The 22nd under any of the following circumstances, ending the patent dispute: (a) request death without an heir or heirs gave up processed requests;

(B) if the requested death, no obligation one;

(C) legal persons or other organizations as one of the parties terminates without successor rights and obligations; (d) the claimant of the withdrawal or deemed withdrawal request;

(E) in connection with the patent right has been declared invalid;

(F) the mediation agreement is reached by the parties;

(VII) other laws and regulations should be ended.

23rd the patent Administration Department to deal with patent disputes, can mediate in case of a dispute, it shall make a decision. 24th handling patent disputes the patent Administration Department should be closed within three months from the date of filing.

Case is particularly complex needs extension, should be approved by the head of the Administrative Department for patent approval be extended by a period not exceeding one month.

Not included in the provisions of the preceding paragraph during the following cases processing time limit:

(A) the duration of the notice, identification;

(B) during discontinued to the recovery process;

(C) jurisdictional disputes during processing;

(D) the parties during the mediation;

(E) collect new evidence, and again during the inspection.

25th article handles patent infringement dispute the patent Administration Department, finds that infringement is established, it shall make a decision, to order the infringer to stop the infringing act immediately in accordance with law; not established infringement acts, should reject the request.

Chapter III patent dispute mediation

Upon request the patent Administration Department of the 26th article, can mediate the following patent disputes:

(A) the publication of the application for a patent for invention, and before the grant of the patent right to use the invention without paying the proper fee disputes;

(B) the right of patent application and patent ownership disputes;

(Iii) qualification of the inventor, design disputes;

(D) the invention inventor, designer of the reward and remuneration disputes;

(E) other patent disputes stipulated in laws and regulations.

The patent Administration Department under the requests of the parties, mediation or infringement of a patent damages.

For the first paragraph of the first dispute, the parties request the patent Administration Department under the mediation should be submitted after the grant of the patent right.

27th request the patent Administration Department under the mediation of patent disputes, shall submit a written request and the relevant evidence.

Separate request for mediation against patent infringement damages, shall be submitted to the Administrative Department for patent infringement behavior of the decision.

28th patent administrative departments shall, from the date of request for mediation is received within five working days from the request sent to the requested person, require the date of its receipt in the 15th to submit statements, indicate whether they agree to mediation request fails to submit, as does not agree to mediation.

Statement of 29th requesting people to make submissions and agree to mediation, the patent Administration Department shall receive opinions within five working days of the date of the statement, shall inform the parties in writing the manner, time and place of mediation.

Statement by claimant fails to submit comments, said in a statement of opinion or does not accept mediation, the patent Administration Department shall promptly inform the requesting person. 30th party reached an agreement through mediation, made by the patent Administration Department under the mediation agreement and when the agreement is signed or sealed by the parties.

Deemed necessary by the parties, may apply to a people's Court according to law for judicial confirmation.

The fourth chapter during the exhibition and e-commerce patent dispute

31st article in this province administrative within held of various economic technology trade exhibition, and fairs, and Expo, and fair, and show, exhibition during, patent people or interest relationship people to exhibition location patent administrative sector proposed patent disputes processing requests of, patent administrative sector should since received patent disputes processing requests book Hou 24 hours within decided whether accepted, and notification requests people, and was requests people, and Exhibition hosted party. Processing of patent dispute request the patent Administration Department of the 32nd article, may require that the applicant in reply within the specified period.

Requested fails to reply, without prejudice to the patent Administration Department's handling of the case.

33rd under any of the following circumstances, the patent Administration Department shall not accept:

(A) the claimant has to deal with the patent Administration Department request or initiate litigation to the people's Court;

(B) the patent invalidation request handler;

(C) patent ownership disputes, proceedings in the Court or the patent Administration Department under the conciliation procedure.

34th the patent Administration Department under the review finds that patent infringement was established, should order a withdrawal request from the fair exhibits of patent infringement, destruction or storage-related promotional material holds for patent infringement is not a determination is made, and shall inform the parties and continue after the end of the exhibition.

35th patent Administrative Department as patent infringement is established on an e-commerce platform and make a decision, shall notify the e-commerce platform provider for patent infringement in a timely manner the product related pages deleted, blocked or broken links and other measures.

The fifth chapter legal liability

36th article violates these rules, laws and regulations on administrative penalties, application of its provisions.

37th patent administrative departments and their staff to perform their duties of patent disputes and mediation, rectification by the superior administrative departments; the circumstances are serious, the directly responsible person in charge and other direct liable persons shall be given administrative sanctions.

The patent Administration Department staff in handling patent disputes and conciliation activities, dereliction of duty, abuse of power, favoritism, and shall be given sanctions; caused damage to the legitimate rights and interests of citizens, legal persons and other organizations, compensation in accordance with law constitutes a crime, criminal responsibility shall be investigated according to law.

The 38th article violates these rules, concealment, falsification, interested parties transferring, destroying evidence in connection with the case, the patent Administration Department fined 10,000 yuan and 30,000 yuan fine.

39th article violates these rules, parties to a designated patent infringement is established during the exhibition, refuses to withdraw from the show exhibits of infringement, destruction or storage-related promotional material by the patent Administration Department fined 10,000 yuan and 30,000 yuan fine.

40th article violates these rules, products e-commerce platform provider refuses to patent infringement-related pages deleted, blocked or broken links and other measures, by the patent Administration Department fined 10,000 yuan and 30,000 yuan fine.

The sixth chapter supplementary articles 41st these measures come into force May 1, 2016. On April 14, 1993 issued by the provincial people's Government, the Shandong provincial patent dispute settlement (provincial governments, 44th) repealed simultaneously.