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measures on compulsory licensing for patent enforcement
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measures for compulsory licensing of patents

chapter i general provisions

article 1 for the purpose of regulating the implementation of a patent for invention or utility model patent compulsory license (hereinafter referred to as the compulsory license) of the cost of giving, ruling and termination procedures, according to the patent law of the people's republic of china (hereinafter referred to as "patent law") and the implementing rules for the patent law of the people's republic of china (hereinafter referred to as the implementing rules) patent law and related laws and regulations and these measures.

article 2 the state intellectual property office shall be responsible for accepting and reviewing requests for compulsory license, fee of compulsory license and termination of compulsory license and making decisions.

article 3 a request for a compulsory license, a request for an award of a compulsory license fee and a request for the termination of a compulsory license shall be made in written form in chinese.

if the documents and certificates submitted in accordance with these measures are in foreign languages, the parties concerned shall simultaneously submit their chinese translations. failure to submit the chinese translation as required shall be deemed as failure to submit the certificate or supporting documents.

article 4 for the implementation of the unit on reasonable terms request permission to invention or utility model patent holder to exploit the patent, not within the reasonable time of the permission, may, in accordance with article 48 of the patent law requests to the implementation of a patent for invention or utility model patent compulsory licensing.

than a patented invention or utility model has been made before the invention or utility model for which patent right may be significant economic significance of major technical progress, and its implementation depends on the previous implementation of the invention or utility model, the patent holder may, in accordance with the provisions of article 50 of the request will be given before carrying out a patent compulsory license, before a patent holder can also request will be given after the implementation of the patent compulsory licensing.

in the national state of emergency or very, or for the purpose of public interests, the relevant competent department under the state council shall have the right to request according to article 49 of the patent law gives the implementation of a patent for invention or utility model patent compulsory licensing.

article 5 where a petitioner entrusts a patent agency to make a request for compulsory license, he shall submit a power of attorney stating the entrusted authority.

where there are more than two claimants and no patent agency has been entrusted, the first claimant specified in the request shall be the representative, unless otherwise stated in the request.

chapter ii review and decision of compulsory license request

article 6 where a request for compulsory license is made, a request for compulsory license shall be submitted to the state intellectual property office, stating the following:

(1) the name or address of the requestor;

(2) the nationality of the claimant or the country of his headquarters;

(3) the name, patent number, application date and authorization announcement date of the invention patent or utility model patent subject to compulsory license;

the name or name of the patentee of a patent for invention or utility model for which a compulsory license has been requested;

(5) the reasons and facts for requesting compulsory license;

(6) where the petitioner entrusts a patent agency, the relevant matters to be specified; where the claimant has not entrusted a patent agency, the name, address, postal code and telephone number of the contact person;

(7) the signature or seal of the petitioner; where an agency is entrusted, the seal of the patent agency shall also be affixed;

(viii) list of additional documents;

(9) other matters that need to be noted.

the request and its attached documents shall be made in duplicate.

article 7 of the compulsory license request involves a number of patent for invention or utility model patent, if involve two or more of the patentee, shall submit the written request separately according to the different patent holder.

article 8 in any of the following circumstances, the state intellectual property office shall not accept a compulsory license request and notify the applicant:

(1) the patent number of a patent for invention or utility model for which a compulsory license is requested is unclear or difficult to determine;

(2) the request document is not in chinese;

(3) clearly there is no reason for requesting compulsory license.

article 9 if the request documents do not conform to the provisions of article 6 and article 7 of these measures, the requestor shall make corrections within 15 days from the date of receipt of the notification. if no amendment has been made at the expiration of the time limit, the request shall be deemed not to have been made.

the claimant shall pay the fee for the request for compulsory license within one month from the date of filing the request for compulsory license; if the payment is overdue or the payment is insufficient, the request shall be deemed to have not been submitted.

article 10 the state intellectual property office of the people's republic of china shall send a copy of the request to the patentee for compulsory license in accordance with the patent law, the implementation rules of the patent law and these measures. the patentee shall present his views within a specified time limit. if there is no reply within the time limit, the decision of the state intellectual property office shall not be affected.

article 11 the state intellectual property office shall examine the reasons stated by the claimant and the relevant supporting documents submitted. where field verification is required, the state intellectual property office shall assign more than two staff members to field verification.

request statement of reason and submit the relevant documents of inadequate or not true, the state intellectual property office before the decision to dismiss the compulsory license request shall notify the claimant, given the opportunity of statement.

article 12 where a claimant or a patentee requests a hearing, the state intellectual property office shall organize a hearing.

the state intellectual property office shall notify the claimant, the patentee and other interested parties 7 days prior to the hearing.

the hearings shall be held in public, except in connection with state secrets, trade secrets or personal privacy.

when the state intellectual property office holds a hearing, the claimant, the patentee and other interested parties may apply for and cross-examine the evidence.

when a hearing is held, a written record of the hearing shall be prepared and submitted to the participants in the hearing for signature or seal after confirmation.

where a compulsory license is requested under article 49 of the patent law, the hearing procedure prescribed in this article shall not apply.

article 13 in any of the following circumstances, the state intellectual property office shall make a decision to reject the request for compulsory license and notify the claimant:

(1) the claimant does not have the qualification as the subject specified in article 4 of these measures;

(2) the reasons for requesting compulsory license do not conform to the provisions of articles 48, 49 and 50 of the patent law;

(3) the invention-creation involved in the request for compulsory license is semiconductor technology, and the reasons are not in accordance with the provisions of article 72 of the rules for the implementation of the patent law.

if the petitioner is not satisfied with the decision to reject the request for compulsory license, he may bring a suit in a people's court within 3 months from the date of receipt of the notice.

article 14 the claimant may withdraw his request for compulsory license at any time. where the claimant withdraws his request before the decision is made by the state intellectual property office, the examination of the compulsory license request shall be terminated.

where, prior to the decision of the state intellectual property office, the requestor and the patentee enter into a patent licensing contract for the implementation of the patent, it shall promptly notify the state intellectual property office and withdraw its request for compulsory license.

article 15 where a request for compulsory license is examined and no reason for rejection is found, the state intellectual property office shall make a decision to grant compulsory license, stating the following:

(1) the name or address of an individual or unit that has obtained the compulsory license for implementation;

(2) the name, patent number, application date and authorization announcement date of a compulsory license for a patent for invention or utility model;

(3) the scope, scale and duration of the compulsory license granted;

(4) the reasons, facts and legal basis for the decision;

(5) the seal of the state intellectual property office and the signature of the person in charge;

(6) the date of decision;

(7) other relevant matters.

the decision to grant a compulsory license shall be promptly notified to the claimant and the patentee.

article 16 if the patentee is not satisfied with the decision to grant a compulsory license, he may bring a suit in a people's court within 3 months from the date of receipt of the notification.

article 17 the decision to grant compulsory license that has taken effect shall be registered in the patent register and published in the patent gazette of the state intellectual property office, the government website and the chinese intellectual property newspaper.

chapter iii examination and adjudication of requests for compulsory licensing fee adjudication

article 18 a request for a compulsory license fee by the state intellectual property office shall meet the following conditions:

(1) the decision to grant compulsory license has been announced;

(2) the claimant is the patentee or the entity or individual that has obtained the compulsory license for implementation;

the two parties cannot reach an agreement through consultation.

article 19 where a request for an award of compulsory license fee is made, a written request for an award of compulsory license fee fee shall be submitted stating the following:

(1) the name or address of the requestor;

the nationality of the requesting person or the country in which the requesting person's headquarters are located;

(3) the document number of the decision to grant compulsory license;

(4) the name or address of the person requested;

(5) the reasons for requesting a ruling on the compulsory licensing fee;

(6) where the petitioner entrusts a patent agency, the relevant matters to be specified; where the claimant has not entrusted a patent agency, the name, address, postal code and telephone number of the contact person;

(7) the signature or seal of the petitioner; where an agency is entrusted, the seal of the patent agency shall also be affixed;

(viii) list of additional documents;

(9) other matters that need to be noted.

the requestor shall submit the request and its attached documents in duplicate.

article 20 in any of the following situations, the state intellectual property office of the people's republic of china shall not accept the application for a compulsory license for use of royalties and notify the claimant:

(1) the decision in question to grant a compulsory license is unclear or has not been announced;

(2) the request document is not in chinese;

(3) there is no obvious reason for requesting a compulsory license fee.

article 21 if the request documents do not conform to the provisions of article 19 of these measures, the requestor shall correct the request within 15 days from the date of receipt of the notification. if no amendment has been made at the expiration of the time limit, the request shall be deemed not to have been made.

the claimant shall, within one month from the date of filing the request, pay the fee for the award of the compulsory license fee; if the payment is overdue or the payment is insufficient, the request shall be deemed to have not been submitted.

article 22 the in conformity with the patent law, patent law, the detailed rules for the implementation and the measures of compulsory license fee ruling request, the state intellectual property office of the written request shall be sent to the other party, the other party shall state his opinions within a specified time limit. if there is no reply within the time limit, the decision of the state intellectual property office shall not be affected.

in the course of an award of compulsory license fee, both parties may submit written opinions. the state intellectual property office may listen to the oral opinions of both parties according to the circumstances of the case.

article 23 the claimant may withdraw his request for an award at any time. if the claimant withdraws his request for an award before the decision is made by the state intellectual property office, the ruling procedure shall be terminated.

article 24 the state intellectual property office shall, within 3 months from the date of receipt of the request, make a decision on the compulsory licensing fee.

article 25 the following items shall be clearly stated in the decision on an award of compulsory license fee:

(1) the name or address of an individual or unit that has obtained the compulsory license for implementation;

(2) the name, patent number, application date and authorization announcement date of a compulsory license for a patent for invention or utility model;

(3) the content of the award and its reasons;

(4) the seal of the state intellectual property office and the signature of the person in charge;

(5) the date of decision;

(6) other relevant matters.

the decision on the award of compulsory license fee shall be promptly notified to both parties.

article 26 of the patent holder and the units or individuals that have made compulsory license that disagrees with the decision of the ruling of the compulsory license fee can be within 3 months from the date of receipt of the notification to the people's court.

chapter iv review and decision on termination of compulsory license request

article 27 when the period of compulsory license stipulated in the decision to grant compulsory license expires, the compulsory license shall automatically terminate.

where the compulsory license terminates automatically, the state intellectual property office shall register the patent registration book and make a public announcement in the patent gazette of the state intellectual property office, the government website and the chinese intellectual property newspaper.

article 28 for compulsory licensing decision rules of the compulsory license prior to the expiration of the period, the reasons for compulsory license and no longer occur, the patentee shall have the right to request the state intellectual property office of the decision to terminate the compulsory license.

where a request for the termination of a compulsory license is made, a request for the termination of a compulsory license shall be submitted, stating the following:

(1) the name or address of the patentee;

the nationality of the patentee or the country in which the patentee's head office is located;

(3) the text number of the decision to grant compulsory license upon request for termination;

(4) the reasons and facts for requesting the termination of the compulsory license;

(5) where the patentee entrusts a patent agency, the relevant matters to be specified; where the patentee has not entrusted a patent agency, the name, address, postal code and telephone number of the contact person;

(6) the signature or seal of the patentee; where an agency is entrusted, the seal of the patent agency shall also be affixed;

(7) list of additional documents;

(8) other matters that need to be noted.

the patentee shall submit the request and its attached documents in duplicate.

article 29 in any of the following circumstances, the state intellectual property office shall not accept a request for termination of a compulsory license and notify the claimant:

(1) the claimant is not the holder of a compulsory license for a patent for invention or utility model;

(2) failing to specify the document number of the decision to grant a compulsory license to request termination;

(3) the request document is not in chinese;

(4) clearly there is no reason to terminate the compulsory license.

article 30 where the request documents for the termination of compulsory license do not conform to the provisions of article 28 of these measures, the requestor shall make corrections within 15 days from the date of receipt of the notification. if no amendment has been made at the expiration of the time limit, the request shall be deemed not to have been made.

article 31 the state intellectual property office shall send a copy of the request for termination of the compulsory license in accordance with the provisions of these measures to the unit or individual that has obtained the compulsory license for implementation. units or individuals that have obtained the compulsory license for implementation shall present their opinions within the specified time limit. if there is no reply within the time limit, the decision of the state intellectual property office shall not be affected.

article 32 the state intellectual property office shall examine the reasons stated by the patentee and the relevant supporting documents submitted. where field verification is required, the state intellectual property office shall assign more than two staff members to field verification.

the patentee statements on the inadequate and submit relevant documents or untrue, state intellectual property office shall notify the patent holder before making the decision, given the opportunity of statement.

article 33 if, upon examination, the reasons for requesting the termination of compulsory license are found to be invalid, the state intellectual property office shall make a decision to reject the request for the termination of compulsory license.

if the patentee is not satisfied with the decision to reject the request for the termination of a compulsory license, he may bring a suit in a people's court within 3 months from the date of receipt of the notification.

article 34 the patentee may at any time withdraw his request to terminate the compulsory license. where the patentee withdraws his request before the decision is made by the state intellectual property office, the relevant procedures shall be terminated.

article 35 where a request for the termination of a compulsory license is examined and no reason for rejection is found, the state intellectual property office shall make a decision to terminate the compulsory license, stating the following:

(1) the name or address of the patentee;

(2) the name or address of an individual or unit that has obtained the compulsory license for implementation;

(3) the name, patent number, application date and authorization announcement date of the patent for invention or utility model;

(4) the document number of the decision to grant compulsory license;

the facts and legal basis of the decision;

(6) the seal of the state intellectual property office and the signature of the person in charge;

(7) the date of decision;

(8) other relevant matters.

the decision to terminate the compulsory license request shall be promptly notified to the patentee and to the entity or individual that has obtained the compulsory license.

article 36. if a unit or individual that has obtained a compulsory license for implementation is not satisfied with the decision to terminate the compulsory license, it may bring a suit in a people's court within 3 months from the date of receipt of the notice.

article 37 after the decision to terminate the compulsory license shall be registered in the patent register and the state intellectual property office patent gazette, government website and china's intellectual property rights shall be published in the newspapers.

chapter v supplementary provisions

article 38 the state intellectual property office shall be responsible for the interpretation of these measures.

article 39 these measures shall come into force on july 15, 2003.


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