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Implementing Regulations of the Patent Law of the People's Republic of China (2010)

(Promulgated by Decree No. 306 of the State Council of the People's Republic of China on June 15, 2001, amended the first time on December 28, 2002 according to the Decision of the State Council on Amending the Implementing Regulations of the Patent Law of the People's Republic of China, and amended the second time on January 9, 2010 according to the Decision of the State Council on Amending the Implementing Regulations of the Patent Law of the People's Republic of China)

Protection of Patent Right

Rule 79. The administrative authority for patent affairs referred to in the Patent Law and these Implementing Regulations means the department responsible for the administrative work concerning patent affairs set up by the people's government of any province, autonomous region, or municipality directly under the Central Government, or by the people's government of any city which consists of districts, has a large amount of patent administration work to attend to and has the ability to deal with the matter.

Rule 80. The patent administration department under the State Council shall provide professional guidance to the administrative authorities for patent affairs in handling patent infringement disputes, investigating and prosecuting acts of passing off a patent and mediating patent disputes.

Rule 81. Where any party concerned requests handling of a patent infringement dispute or mediation of a patent dispute, it shall fall under the jurisdiction of the administrative authority for patent affairs where the alleged infringer has his location or where the act of infringement has taken place.

Where two or more administrative authorities for patent affairs all have jurisdiction over a patent dispute, any party concerned may file his or its request with one of them to handle or mediate the matter. Where requests are filed with two or more administrative authorities for patent affairs with proper jurisdiction, the administrative authority for patent affairs that first accepts the request shall have jurisdiction.

Where administrative authorities for patent affairs have a dispute over their jurisdiction, the administrative authority for patent affairs of their common higher level people's government shall designate the administrative authority for patent affairs to exercise the jurisdiction; if there is no such administrative authority for patent affairs of their common higher level people's government, the patent administration department under the State Council shall designate the administrative authority for patent affairs to exercise the jurisdiction.

Rule 82. Where, in the course of handling a patent infringement dispute, the alleged infringer requests invalidation of the patent right and his request is accepted by the Patent Reexamination Board, he may request the administrative authority for patent affairs concerned to suspend the handling of the matter.

If the administrative authority for patent affairs considers that the reasons set forth by the alleged infringer for the suspension are obviously untenable, it may not suspend the handling of the matter.

Rule 83. Where any patentee affixes a patent indication on the patented product or on the package of that product in accordance with the provisions of Article 17 of the Patent Law, he or it shall make the affixation in the manner as prescribed by the patent administration department under the State Council.

Where any patent indication is not in conformity with the provision of the preceding paragraph, the administrative authority for patent affairs shall order to correct it.

Rule 84. Any of the following is an act of passing off a patent as prescribed in Article 63 of the Patent Law:

(1) affixing patent indication on a product or on the package of a product which has not been granted a patent, continuing to affix patent indication on a product or on the package of a product, after the related patent right has been declared invalid or is terminated, or affixing the patent number of another person on a product or on the package of a product without authorization;

(2) sale of the product as prescribed in subparagraph (1);

(3) indicating a technology or design to which no patent right has been granted as patented technology or patented design, indicating a patent application as patent or using the patent number of another person without authorization, in such materials as specification of product etc., which could mislead the public to regard the related technology or design as patented technology or patented design;

(4) counterfeiting or transforming any patent certificate, patent document or patent application document;

(5) any other act which might cause confusion on the part of the public, misleading them to regard a technology or design to which no patent right has been granted as patented technology or patented design.

Affixing patent indication legally on a patented product, or on a product directly obtained by a patented process, or on the package of such products before the termination of the patent right, offering for sale or sale of such products after the termination of the patent right is not an act of passing off a patent.

Where any person sells a product passing off a patent without knowing it , and can prove that it or he obtains the product from a legitimate channel, it or he shall be ordered to stop selling the product by the administrative authority for patent affairs, but be exempted from being imposed a fine.

Rule 85. In addition to the provisions of Article 60 of the Patent Law, the administrative authority for patent affairs may also mediate in the following patent disputes at the request of the parties concerned:

(1) any dispute over the ownership of the right to apply for patent and the patent right;

(2) any dispute over the qualification of the inventor or creator;

(3) any dispute over the award and remuneration of the inventor or creator of a service invention-creation;

(4) any dispute over the appropriate fee to be paid for the exploitation of an invention after the publication of the application for patent but before the grant of patent right;

(5) any other patent dispute.

In respect of the dispute referred to in subparagraph (4), where the party concerned requests the administrative authority for patent affairs to mediate, the request shall be made after the grant of the patent right.

Rule 86. Any party involving in a dispute over the ownership of the right of patent application or patent right, who has already applied for mediation with the administrative authority for patent affairs or instituted legal proceedings before the people's court, may request the patent administration department under the State Council to suspend the relevant procedures.

Any party requesting the suspension of the relevant procedures in accordance with the preceding paragraph, shall submit a request to the patent administration department under the State Council, accompanied by a copy of the document acknowledging that the administrative authority for patent affairs or the people's court has accepted the case, in which the filing number or the patent number concerned has been indicated.

After entering into force of the mediation made by the administrative authority for patent affairs or the judgment rendered by the people's court, the parties concerned shall request the patent administration department under the State Council to resume the suspended procedure. If, within one year from the date when the request for suspension is filed, no decision is made on the dispute relating to the ownership of the right to apply for a patent or the patent right, and it is necessary to continue the suspension, the party who made the request shall, within the said time limit, request to extend the suspension. If, at the expiration of the said time limit, no such request for extension is filed, the patent administration department under the State Council shall resume the procedure on its own initiative.

Rule 87. Where, in hearing civil cases, the people's court has ordered the adoption of preservation measures on the right of patent application or patent right, the patent administration department under the State Council shall suspend the relevant procedure concerning the patent application or patent under preservation on the date of receiving the judgment order and the notification on assisting the execution of the order indicated with the filing number or the patent number. At the expiration of the time limit for preservation, if there is no order of the people's court to continue the preservation, the patent administration department under the State Council shall resume the relevant procedure on its own initiative.

Rule 88. The suspension of relevant procedures carried out by the patent administration department under the State Council in accordance with Rule 86 and Rule 87 of these Implementing Regulations , refers to the suspension of such procedures as preliminary examination, examination as to substance, reexamination of a patent application, granting of patent right and the announcement of invalidation of patent; the suspension of the procedures on handling the abandonment of patent right, changing or transferring patent right or right of patent application, pledge of patent right and the cessation of patent right before the expiration of its duration.