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The Administrative Enforcement Measures for Patents, which have been deliberated and adopted at the executive meeting, are hereby promulgated and shall come into force as of February 1, 2011.

Measures for Patent Administrative Enforcement

Chapter I General Provisions

Article 1 In order to regulate the administrative enforcement of patents, protect the legitimate rights and interests of patentees and the public, and maintain the order of the socialist market economy, these Measures are formulated in accordance with the Patent Law of the People's Republic of China, the Detailed Rules for the Implementation of the Patent Law of the People's Republic of China and other relevant laws and regulations.

Article 2 These Measures shall apply to the administrative enforcement of patents by the administrative departments of patent work, that is, the handling of patent infringement disputes, the mediation of patent disputes, and the investigation and handling of counterfeit patents.

Article 3 The administrative department of patent work shall handle patent infringement disputes on the basis of facts, take the law as the criterion, and follow the principles of fairness and timeliness.

In mediating patent disputes, the administrative department of patent work shall follow the principles of voluntariness and legality, and urge the parties to understand each other and reach a mediation agreement on the basis of ascertaining the facts and distinguishing right from wrong.

The administrative department of patent work shall investigate and deal with the counterfeiting of patents on the basis of facts, take the law as the criterion, and follow the principles of fairness and openness. The administrative punishment given shall be equivalent to the facts, nature, circumstances and social harm degree of the illegal act.

Article 4 The administrative department for patent work shall set up a special agency or assign full-time law enforcement personnel to carry out patent administrative law enforcement.

The case undertaker shall hold the patent administrative law enforcement certificate issued by the State Intellectual Property Office or the people's government of the province, autonomous region or municipality directly under the Central Government. The case handling personnel shall dress seriously when performing their official duties.

Article 5 The State Intellectual Property Office may, when necessary, organize the relevant administrative departments of patent work to handle, investigate and deal with patent infringement disputes and patent counterfeiting cases that have a significant impact.

For major cases involving two or more provinces, autonomous regions, and municipalities directly under the Central Government, the relevant provinces, autonomous regions, and municipalities directly under the Central Government may report to the State Intellectual Property Office for coordination or investigation.

If the administrative department of patent work encounters difficult problems in patent administrative law enforcement, the State Intellectual Property Office shall give necessary guidance and support.

Article 6 The administrative department of patent work may, in accordance with local conditions, entrust the patent administrative department established by the people's government at the city or county level that has the actual handling capacity to investigate and deal with the counterfeiting of patents and mediate patent disputes.

The entrusting party shall supervise and guide the entrusted party's investigation and handling of counterfeit patents and mediation of patent disputes, and shall bear legal responsibilities.

Article 7 If the case handling personnel assigned by the department in charge of patent work has a direct interest with the party concerned, they shall withdraw, and the party concerned shall have the right to apply for his withdrawal. If a party applies for withdrawal, it shall state the reasons.

The withdrawal of the case handling personnel shall be decided by the person in charge of the patent management department. Before the decision on whether to withdraw is made, the person whose withdrawal is applied for shall suspend his participation in the work of the case.

Chapter II Handling of Patent Infringement Disputes

Article 8 To request the administrative department of patent work to deal with patent infringement disputes, the following conditions shall be met:

The (I) claimant is the patentee or an interested person;

(II) there is a definite requested person;

(III) there are clear requirements and specific facts and reasons;

The (IV) falls within the scope of the acceptance and jurisdiction of the department that administers patent work;

(V) parties did not bring a suit in the people's court for the patent infringement dispute.

The interested parties mentioned in the first item include the licensee of the patent implementation license contract and the legal heir of the patentee. Among the licensees of the patent implementation license contract, the licensee of the exclusive implementation license contract may make a separate request; the licensee of the exclusive implementation license contract may make a separate request without the request of the patentee; unless otherwise agreed in the contract, the licensee of the ordinary implementation license contract cannot make a separate request.

Article 9 To request the administrative department of patent work to deal with patent infringement disputes, it shall submit a request and the following supporting materials:

The qualification certificate of the (I) subject, that is, the individual shall submit the resident identity card or other valid identity documents, and the unit shall submit a copy of the valid business license or other subject qualification documents and the identity certificate of the legal representative or the main person in charge;

Proof of the validity of the (II) patent right, I .e. a copy of the patent register, or a patent certificate and a receipt for the annual patent fee paid in the current year.

Where a patent infringement dispute involves a utility model or design patent, the department in charge of patent work may require the claimant to issue a patent evaluation report (utility model patent search report) made by the State Intellectual Property Office.

The requesting party shall provide copies of the letter of request and relevant evidence in accordance with the number of the requested party.

Article 10 The written request shall record the following:

The name or title and address of the person requesting the (I), the name and position of the legal representative or the main person in charge, if an agent is entrusted, the name of the agent and the name and address of the agency;

(II) the name or title and address of the person requested;

Matters dealt with by the (III) request and the facts and reasons.

Relevant evidence and supporting materials may be submitted in the form of an annex to the request.

The request shall be signed or sealed by the requester.

Article 11 If the request meets the conditions stipulated in Article 8 of these Measures, the administrative department of patent work shall file a case and notify the requester within 5 working days from the date of receipt of the request, and designate 3 or more odd contractors to handle the patent infringement dispute; if the request does not meet the conditions stipulated in Article 8 of these Measures, the administrative department of patent work shall, within 5 working days from the date of receipt of the request, notify the requester of the rejection and explain the reasons.

Article 12 The administrative department for patent work shall, within 5 working days from the date of filing the case, send a copy of the request and its attachments to the requested person, requiring him to submit a statement of defense within 15 days from the date of receipt and provide a copy of the statement of defense according to the number of the requesting person. If the respondent fails to submit the statement of defense within the time limit, it shall not affect the handling by the department in charge of patent work.

If the respondent submits a statement of defense, the department in charge of patent work shall deliver a copy of the statement of defense to the requester within 5 working days from the date of receipt.

Article 13 When the administrative department for patent work handles patent infringement disputes, it may mediate according to the wishes of the parties. If the two parties reach an agreement, the department in charge of patent work shall make a mediation agreement, affix its official seal, and sign or seal it by both parties. If mediation fails, a decision shall be made in a timely manner.

Article 14 The department for the administration of patent work may decide whether to conduct oral hearings when handling patent infringement disputes according to the needs of the case. If the administrative department for patent work decides to conduct an oral hearing, it shall notify the parties of the time and place of the oral hearing at least three working days before the oral hearing. If a party refuses to participate without justifiable reasons, or withdraws from the party without permission, the requester shall be treated as a withdrawal request, and the requested person shall be treated as absent.

Article 15 Where the department in charge of patent work holds an oral hearing, the participants in the oral hearing and the main points of the hearing shall be recorded in the record, and after verification, the case undertaker and the participants shall sign or seal.

Article 16 The term "the scope of protection of the patent right for invention or utility model shall be subject to the contents of the claims" mentioned in Article 59, paragraph 1 of the Patent Law means that the scope of protection of the patent right shall be subject to the scope determined by the technical characteristics recorded in the claims, and also includes the scope determined by the characteristics equivalent to the technical characteristics recorded. Equivalent features refer to features that are basically the same as the recorded technical features by basically the same means, achieve basically the same function, achieve basically the same effect, and those of ordinary skill in the art can associate without creative labor.

Article 17 In addition to reaching a mediation agreement or the requester withdrawing the request, the department in charge of patent work shall make a decision on handling patent infringement disputes, which shall state the following contents:

The name or address of the (I) party;

(II) the facts and reasons stated by the parties;

(III) the reasons and basis for determining whether the infringement is established;

If the (IV) handling decision determines that the infringement is established and needs to order the infringer to stop the infringement immediately, it shall clearly state the type, object and scope of the infringement that the requested person is ordered to stop immediately; if the infringement is determined not to be established, the request of the claimant shall be rejected;

The channels and time limit for filing administrative proceedings against the (V)'s decision.

The handling decision shall be stamped with the official seal of the department that manages patent work.

Article 18 After the department in charge of patent work or the people's court has made a decision or judgment to determine that the infringement is established and order the infringer to stop the infringement immediately, if the requested person commits the same type of infringement on the same patent right again, the patentee or interested party requests processing, the department in charge of patent work may directly make a decision to order the immediate stop of the infringement.

Article 19 The administrative department dealing with patent infringement disputes shall close the case within 4 months from the date of filing the case. If the case is particularly complicated and needs to be extended, it shall be approved by the person in charge of the department managing patent work. The approved extension shall not exceed 1 month at most.

The time of announcement, appraisal and suspension in the process of handling the case shall not be included in the time limit for handling the case mentioned in the preceding paragraph.

Chapter III Mediation of Patent Disputes

Article 20 Where the administrative department for patent work is requested to mediate a patent dispute, it shall submit a written request.

The request shall record the following:

The name or title and address of the person requesting the (I), the name and position of the legal representative or the main person in charge, if an agent is entrusted, the name of the agent and the name and address of the agency;

(II) the name or title and address of the person requested;

(III) the specific matters and reasons for requesting mediation.

If a separate request is made for mediation of the amount of compensation for patent infringement, a copy of the handling decision made by the relevant administrative department for patent work that the infringement is established shall be submitted.

Article 21 After receiving the request for mediation, the administrative department for patent work shall promptly send a copy of the request to the requested person by sending it, directly sending it or other means, and require it to submit a statement of opinions within 15 days from the date of receipt.

Article 22 Where the person against whom the request is made submits a statement of opinions and agrees to conduct mediation, the department in charge of patent work shall file the case in a timely manner and notify the requester and the person against whom the request is made of the time and place for the mediation.

If the requested person fails to submit the statement of opinions within the time limit, or indicates in the statement of opinions that he does not accept mediation, the department in charge of patent work shall not file a case and notify the requesting person.

Article 23 The administrative department of patent work may invite relevant units or individuals to assist in the mediation of patent disputes, and the invited units or individuals shall assist in mediation.

Article 24 If the parties reach an agreement through mediation, the department in charge of patent work shall make a mediation agreement, affix its official seal, and sign or seal it by both parties; if no agreement can be reached, the department in charge of patent work shall cancel the case The case is closed and the parties are notified.

Article 25 Where mediation is requested due to a dispute over the ownership of a patent application right or a patent right, the party concerned may request the State Intellectual Property Office to suspend the relevant procedures for the patent application or patent right by holding the notice of acceptance of the department in charge of patent work.

If an agreement is reached through mediation, the parties shall go through the restoration procedures with the State Intellectual Property Office with the mediation agreement; if no agreement is reached, the parties shall go through the restoration procedures with the State Intellectual Property Office with the notice of cancellation case issued by the department in charge of patent work. If the suspension has not been extended for one year from the date of the request, the State Intellectual Property Office shall resume the relevant procedures on its own.

Chapter IV Investigation and Handling of Counterfeiting Patents

Article 26 If the administrative department of patent work discovers or accepts reports of suspected counterfeiting of patents, it shall promptly file a case and designate two or more case contractors to investigate.

Article 27 The investigation and handling of counterfeit patent acts shall be under the jurisdiction of the administrative department for patent work in the place where the act occurred.

If the administrative department for patent work disputes over jurisdiction, the administrative department for patent work of the people's government at a higher level shall designate jurisdiction; if there is no administrative department for patent work of the people's government at a higher level, the State Intellectual Property Office shall designate jurisdiction.

Article 28 Where the administrative department for patent work seals up or detains suspected counterfeit patent products, it shall be approved by the person in charge. When sealing up or detaining, the relevant notice shall be issued to the party concerned.

The department in charge of patent work that seals up or detains suspected counterfeit patent products shall make an inventory on the spot, make a record and list, and sign or seal it by the parties and the case undertaker. If the parties refuse to sign or seal, the case handling personnel shall indicate it on the record. A copy of the list shall be submitted to the parties.

Article 29 After the investigation of a case is concluded, with the approval of the person in charge of the patent management department, the following treatment shall be made according to the circumstances of the case:

If the (I) acts of counterfeiting patents are established and should be punished, administrative penalties shall be imposed in accordance with the law;

If the (II) acts of counterfeiting patents are minor and have been corrected in time, they shall be exempted from punishment;

If the (III) act of counterfeiting a patent is not established, the case shall be revoked according to law;

If the (IV) is suspected of committing a crime, it shall be transferred to the public security organ according to law.

Article 30 Before making a decision on administrative punishment, the administrative department for patent work shall inform the party concerned of the facts, reasons and basis for making the decision on punishment, and inform the party concerned of the rights enjoyed according to law.

Before the administrative department for patent work makes a decision on a relatively large fine, it shall inform the parties of their right to request a hearing. If a party requests a hearing, it shall organize a hearing in accordance with the law.

　　

Article 31 The parties shall have the right to make statements and defense, and the department in charge of patent work shall not increase the administrative penalty due to the party's defense.

The administrative department of patent work shall verify the facts, reasons and evidence put forward by the parties. If the facts put forward by the parties are true and the reasons are established, the department in charge of patent work shall adopt them.

Article 32 Where heavier administrative penalties are imposed on complicated circumstances or major violations of the law, decisions shall be made by the heads of the departments in charge of patent affairs through collective discussion.

Article 33 If, after investigation, the act of counterfeiting a patent should be punished, the department in charge of patent work shall make a written decision on punishment, which shall state the following contents:

The name or address of the (I) party;

The evidence, reasons and basis for the (II) to determine the establishment of the act of counterfeiting patents;

The content of (III) penalties and the manner of performance;

The channels and time limit for the (IV) to apply for administrative reconsideration and bring an administrative lawsuit against the penalty decision.

The penalty decision shall be stamped with the official seal of the department in charge of patent work.

Article 34 The administrative department of patent work investigating and dealing with counterfeit patent cases shall close the case within one month from the date of filing the case. If the case is particularly complicated and needs to be extended, it shall be approved by the person in charge of the department managing patent work. The approved extension shall not exceed 15 days at most.

The time of hearing and announcement in the process of handling the case shall not be included in the time limit for handling the case mentioned in the preceding paragraph.

Chapter V Investigation and Evidence Collection

Article 35 In the process of handling patent infringement disputes, if the parties are unable to collect part of the evidence on their own due to objective reasons, they may request in writing the department in charge of patent work to investigate and collect evidence. The department that administers patent work decides whether to investigate and collect relevant evidence according to the circumstances.

In the process of handling patent infringement disputes and investigating and dealing with counterfeit patent acts, the department in charge of patent work may investigate and collect relevant evidence according to its authority.

When investigating and collecting relevant evidence, law enforcement officers shall show their administrative law enforcement certificates to the parties or relevant personnel. The parties and relevant personnel shall assist, cooperate and truthfully respond to the situation, and shall not refuse or obstruct.

Article 36 The department in charge of patent work may consult and copy the relevant documents such as contracts and account books related to the case in investigation and collection of evidence; inquire the parties and witnesses; conduct on-site inspection by means of measurement, photographing and video recording. Where an infringement of the patent right for a manufacturing method is suspected, the department in charge of the patent work may require the person under investigation to make a live demonstration.

The administrative department of patent work shall make a transcript of the investigation and collection of evidence. The record shall be signed or sealed by the case undertaker, the unit or individual under investigation. If the unit or individual under investigation refuses to sign or seal, it shall be indicated on the record by the case contractor.

Article 37 The administrative department of patent work may collect evidence through sampling.

Where a product patent is involved, a part of the product suspected of infringement may be taken as a sample; where a method patent is involved, a part of the product suspected of being directly obtained in accordance with the method may be taken as a sample. The number of samples taken should be limited to the extent that the facts can be proven.

The department in charge of patent work shall make a record and list for sampling and evidence collection, stating the name, characteristics, quantity and place of preservation of the samples taken, and shall be signed or sealed by the case contractor, the unit or individual under investigation. If the unit or individual under investigation refuses to sign or seal, it shall be indicated on the record by the case contractor. A copy of the list should be given to the person being investigated.

　　

Article 38 In the case that the evidence may be lost or difficult to obtain later, and it is impossible to collect evidence by sampling, the administrative department of patent work may register and keep it and make a decision within 7 days.

The unit or individual under investigation may not destroy or transfer the evidence that has been registered and kept.

The department in charge of patent work shall make a record and list for registration and preservation, indicating the name, characteristics, quantity and place of preservation of the evidence to be registered and preserved, and shall be signed or sealed by the case undertaker, the unit or individual under investigation. If the unit or individual under investigation refuses to sign or seal, it shall be indicated on the record by the case contractor. A copy of the list should be given to the person being investigated.

Article 39 Where the administrative department for patent work needs to entrust other administrative departments for patent work to assist in the investigation and collection of evidence, it shall put forward clear requirements. The entrusted department shall assist in the investigation and collection of evidence in a timely and serious manner, and reply as soon as possible.

Article 40 Where the Customs investigates the detained suspected infringing goods and requests the department in charge of patent work to provide assistance, the department in charge of patent work shall provide assistance in accordance with the law.

If the department in charge of patent work handles patent cases involving import and export goods, it may request the Customs to provide assistance.

Chapter VI Legal Liability

Article 41 Where the administrative department for patent work determines that a patent infringement is established, makes a decision to deal with it, and orders the infringer to immediately stop the infringement, it shall take the following measures to stop the infringement:

If the (I) infringer manufactures a patent-infringing product, he shall be ordered to immediately stop the manufacture, destroy the special equipment and molds used to manufacture the infringing product, and shall not sell or use the infringing product that has not yet been sold or put it on the market in any other form; if the infringing product is difficult to preserve, the infringer shall be ordered to destroy the product;

If the (II) infringer uses the patented method without the permission of the patentee, the infringer shall be ordered to stop the use immediately, destroy the special equipment and molds for the implementation of the patented method, and shall not sell or use the unsold infringing products directly obtained according to the patented method or put them on the market in any other form; if the infringing products are difficult to preserve, the infringer shall be ordered to destroy the products;

If a (III) infringer sells a patent infringing product or an infringing product directly obtained in accordance with a patent method, he shall be ordered to immediately stop the act of selling it, and shall not use the infringing product that has not been sold or put it on the market in any other form; if the infringing product that has not been sold is difficult to preserve, the infringer shall be ordered to destroy the product;

If the (IV) infringer promises to sell the patent-infringing products or the infringing products directly obtained by means of the patent, he shall be ordered to immediately stop the promise and eliminate the influence, and shall not engage in any actual sales;

If the (V) infringer imports a patent infringing product or an infringing product directly obtained by a patent method, the infringer shall be ordered to stop the import immediately; if the infringing product has already entered the country, the infringing product shall not be sold, used or put on the market in any other form; if the infringing product is difficult to preserve, the infringing product shall be ordered to destroy; if the infringing product has not yet entered the country, the country, the relevant customs shall be notified of the handling decision;

(VI) other necessary measures to stop the violation.

Article 42 After the administrative department for patent work has made a decision to determine the establishment of a patent infringement and order the infringer to immediately stop the infringement, if the requested person brings an administrative lawsuit to the people's court, the execution of the decision shall not be stopped during the litigation period.