Administrative Reconsideration Rules of the State Intellectual Property Office

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Release time:2016-07-19

Chapter I General Provisions

Article 1 In order to prevent and correct illegal or improper specific administrative acts, protect the legitimate rights and interests of citizens, legal persons and other organizations, and ensure and supervise the State Intellectual Property Office in exercising its functions and powers in accordance with the Law of the the People's Republic of China on Administrative Reconsideration and the Regulations on the Implementation of the Law of the the People's Republic of China on Administrative Reconsideration, these Procedures are formulated.

Article 2 Citizens, legal persons or other organizations that believe that the specific administrative acts of the State Intellectual Property Office infringe upon their legitimate rights and interests may apply to the State Intellectual Property Office for administrative reconsideration in accordance with these Procedures.

Article 3 The institution responsible for legal affairs of the State Intellectual Property Office (hereinafter referred to as the "administrative reconsideration institution") shall specifically handle administrative reconsideration matters and perform the following duties:

(I) the acceptance of applications for administrative reconsideration;

(II) investigate and collect evidence from relevant departments and personnel, and access relevant documents and materials;

(III) review whether the specific administrative act is lawful and appropriate;

(IV) handling the administrative compensation requested together;

(V) the preparation, production and transmission of legal documents for administrative reconsideration;

(VI) handle the matters of responding to an administrative lawsuit brought against the administrative reconsideration decision;

(VII) supervise the implementation of administrative reconsideration decisions;

(VIII) handle administrative reconsideration, administrative litigation case statistics and major administrative reconsideration decision filing matters;

(IX) study the problems found in the administrative reconsideration work, and promptly put forward administrative reconsideration opinions or suggestions to the relevant departments.

Chapter II Scope of Administrative Reconsideration and Participants

Article 4 Except as otherwise provided in Article 5 of these Procedures, an application for administrative reconsideration may be filed in accordance with the law under any of the following circumstances:

The (I) is not satisfied with the specific administrative act of the State Intellectual Property Office in relation to the patent application or patent right;

The (II) is not satisfied with the specific administrative act made by the State Intellectual Property Office concerning the application for registration of integrated circuit layout-design and the exclusive right of layout-design;

The (III) is not satisfied with the procedural decision on patent reexamination and invalidation made by the Patent Reexamination Board of the State Intellectual Property Office;

The (IV) is not satisfied with the specific administrative act on patent agency management made by the State Intellectual Property Office;

(V) considers that other specific administrative acts made by the State Intellectual Property Office infringe upon its legitimate rights and interests.

Article 5 No application for administrative reconsideration shall be filed under any of the following circumstances:

The (I) patent applicant is not satisfied with the decision to reject the patent application;

The requester of (II) review is not satisfied with the decision on the request for review;

Where the (III) patentee or the person requesting the invalidation refuses to accept the decision on the examination of the request for invalidation;

(IV) the patentee or the licensee of the compulsory license for the exploitation of the patent is not satisfied with the ruling on the royalties of the compulsory license;

The applicant of the (V) international application is not satisfied with the decision made by the State Intellectual Property Office as the accepting unit, the international search unit and the international preliminary examination unit of the international application;

The applicant for registration of a (VI) integrated circuit layout-design is not satisfied with the decision to reject the application for registration;

(VII) the applicant for registration of an integrated circuit layout-design is not satisfied with the reexamination decision;

The obligee of the layout-design of (VIII) integrated circuits is not satisfied with the decision to revoke the registration of the layout-design;

The holder of the right to (IX) the layout-design of integrated circuits or the holder of the involuntary license is not satisfied with the award of the involuntary license remuneration;

The obligee of the layout-design of integrated circuits or the alleged infringer of the (X) is not satisfied with the decision on the settlement of the dispute over the infringement of the exclusive right to the layout-design of integrated circuits;

(11) Other circumstances under which an application for administrative reconsideration cannot be made as prescribed by laws and regulations.

Article 6 Citizens, legal persons or other organizations that apply for administrative reconsideration in accordance with these Regulations are reconsideration applicants.

Other interested parties whose rights or interests are harmed when a specific administrative act is made may apply for administrative reconsideration, or may participate in administrative reconsideration as a third party.

Article 7 The applicant for reconsideration and the third party may entrust an agent to participate in the administrative reconsideration on his behalf.

Chapter III Application and Acceptance

Article 8 Where a citizen, legal person or any other organization considers that a specific administrative act of the State Intellectual Property Office infringes upon its legitimate rights and interests, it may file an application for administrative reconsideration within 60 days from the date of knowing the specific administrative act.

If the time limit mentioned in the preceding paragraph is delayed due to force majeure or other justifiable reasons, the time limit shall continue to be calculated from the date on which the obstacle is removed.

Article 9 Citizens, legal persons or other organizations that have the right to apply for administrative reconsideration shall not apply to the State Intellectual Property Office for administrative reconsideration if the people's court has accepted the case in accordance with the law.

If an application for administrative reconsideration is filed with the State Intellectual Property Office, and the administrative reconsideration agency has accepted it in accordance with the law, it shall not bring an administrative lawsuit to the people's court within the statutory administrative reconsideration period.

After the State Intellectual Property Office accepts the application for administrative reconsideration, if it finds that the party concerned has filed an administrative lawsuit with the people's court before or after the acceptance and the people's court has accepted it in accordance with the law, the application for administrative reconsideration shall be rejected.

Article 10 An application for administrative reconsideration shall meet the following conditions:

An applicant for (I) reconsideration is a patent applicant, patentee, applicant for registration of an integrated circuit layout-design, holder of the right to an integrated circuit layout-design, or other interested person who believes that a specific administrative act infringes his or her legitimate rights and interests;

(II) there are specific administrative reconsideration requests and reasons;

(III) fall within the scope of administrative reconsideration;

The (IV) is filed within the statutory application period.

Article 11 An application for administrative reconsideration shall be submitted in duplicate, together with the necessary evidentiary materials. If the specific administrative act for which reconsideration is applied for is made in writing, the instrument or a copy thereof shall be attached.

Where an agent is entrusted, a power of attorney shall be attached.

Article 12 An application for administrative reconsideration shall contain the following contents:

The name or title, correspondence address and contact telephone number of the applicant for (I) reconsideration;

(II) specific requests for administrative reconsideration;

(III) the main facts and reasons for applying for administrative reconsideration;

The signature or seal of the applicant for (IV) reconsideration;

(V) the date of applying for administrative reconsideration.

Article 13 An application for administrative reconsideration may use the standard form made by the State Intellectual Property Office.

The application for administrative reconsideration may be written or printed.

Article 14 An application for administrative reconsideration shall be submitted to the administrative reconsideration body by mail, fax or face-to-face submission.

Article 15 The administrative reconsideration body shall, within 5 days from the date of receipt of the application for administrative reconsideration, make the following treatment according to the circumstances:

If the application for (I) administrative reconsideration conforms to the provisions of these Regulations, it shall be accepted and a notice of acceptance shall be sent to the applicant for reconsideration;

If the application for (II) administrative reconsideration does not conform to the provisions of these Regulations, it shall decide not to accept the application and inform it of the reasons in writing;

If the application for (III) administrative reconsideration does not conform to the provisions of Articles 11 and 12 of these regulations, the applicant for reconsideration shall be notified to make a correction within the specified time limit; if the application for administrative reconsideration is not made after the expiration of the time limit, the application for administrative reconsideration shall be deemed to have been abandoned.

Chapter IV Trial and Decision

Article 16 In the course of hearing an administrative reconsideration case, the administrative reconsideration body may investigate the situation with the relevant departments and personnel, and may also hear the oral opinions of the reconsideration applicant or a third party upon request.

Article 17 The administrative reconsideration body shall, within 7 days from the date of accepting the application for administrative reconsideration, transmit a copy of the application for administrative reconsideration to the relevant department. The department shall, within 10 days from the date of receiving the copy of the application for administrative reconsideration, submit a written reply to maintain, cancel or change the original specific administrative act, and submit the evidence, basis and other relevant materials for the specific administrative act at that time. If no reply is made at the expiration of the time limit, the administrative reconsideration decision shall not be affected.

The applicant for reconsideration and the third party may consult the written reply mentioned in the preceding paragraph and the evidence, basis and other relevant materials on which the specific administrative act is based, except for the confidential content.

Article 18 Before an administrative reconsideration decision is made, the applicant for reconsideration may request to withdraw the application for administrative reconsideration. If the withdrawal is granted, the administrative reconsideration procedure shall be terminated.

Article 19 During the period of administrative reconsideration, the execution of the specific administrative act shall not be suspended in principle. If the administrative reconsideration institution considers it necessary to stop the execution, it shall issue a notice to the relevant department to stop the execution and notify the applicant for reconsideration and the third party.

Article 20 The trial of administrative reconsideration cases shall be based on laws, administrative regulations and departmental rules.

Article 21 Where the facts of a specific administrative act are clear, the evidence is conclusive, the basis for its application is correct, the procedure is legal and the content is appropriate, a decision shall be made to maintain it.

Article 22 If the respondent fails to perform its statutory duties, it shall be decided to perform its statutory duties within a certain period of time.

Article 23 Where a specific administrative act is under any of the following circumstances, it shall decide to revoke or change the specific administrative act or confirm that the specific administrative act is illegal, and may decide that the respondent of the application shall make a specific administrative act again:

The main facts of the (I) are unclear and the evidence is insufficient;

The (II) application basis is wrong;

(III) violation of legal procedures;

(IV) overstepping or abusing power;

(V) specific administrative act is obviously improper;

(VI) new evidence appears, it is more reasonable to revoke or change the original specific administrative act.

Article 24 Where a specific administrative act falls under any of the following circumstances, a decision may be made to change the specific administrative act:

The facts of the (I) determination are clear, the evidence is conclusive, and the procedure is legal, but it is obviously inappropriate or the basis of application is wrong;

(II) the facts are not clear, the evidence is insufficient, the administrative reconsideration procedure to find out the facts are clear, the evidence is conclusive.

Article 25 Under any of the following circumstances, the application for administrative reconsideration shall be rejected and the reasons shall be informed in writing:

The applicant for (I) reconsideration believes that the respondent does not perform its statutory duties and applies for administrative reconsideration, and the administrative reconsideration agency finds that the respondent has no corresponding statutory duties or has performed statutory duties before acceptance;

After the (II) administrative reconsideration body accepts the application for administrative reconsideration, it finds that the application for administrative reconsideration does not meet the conditions for acceptance.

Article 26 When applying for administrative reconsideration, the applicant for reconsideration may file a request for administrative compensation together. The administrative reconsideration body shall hear the request for administrative compensation in accordance with the provisions of the State Compensation Law and make a decision on the request for compensation in the administrative reconsideration decision.

Article 27 The administrative reconsideration decision shall be made within 60 days from the date of accepting the application for administrative reconsideration, but if the situation is complicated and cannot be made within the prescribed time limit, the time limit may be extended after examination and approval, and the applicant for reconsideration and the third party shall be notified. The maximum period of extension shall not exceed 30 days.

Article 28 The administrative reconsideration decision shall be made in the name of the State Intellectual Property Office. The written decision on administrative reconsideration shall be stamped with the special seal of the State Intellectual Property Office for administrative reconsideration.

Article 29 during the period of administrative reconsideration, if the administrative reconsideration institution finds that the relevant administrative act is illegal or needs to do a good job in the aftermath, it may make an administrative reconsideration opinion. The relevant departments shall, within 60 days from the date of receipt of the administrative reconsideration opinion, notify the administrative reconsideration institution of the situation of correcting the relevant administrative illegal acts or doing a good job in the aftermath.

During the period of administrative reconsideration, if the administrative reconsideration institution finds that there are universal problems in the implementation of laws, regulations and rules, it may make an administrative reconsideration proposal and put forward suggestions to the relevant departments to improve the system and improve the administrative law enforcement.

Chapter V Period and Service

Article 30 The date on which the period begins shall not be counted as the period. If the last day of the period is a holiday, the first day after the holiday shall be the date of expiration of the period. The provisions of "5 days", "7 days" and "10 days" in this regulation refer to working days, excluding holidays.

Article 31 If the administrative reconsideration decision is served directly, the date of receipt signed by the reconsideration applicant on the service receipt shall be the date of service. If the administrative reconsideration decision is delivered by mail, it shall be deemed to have been delivered on the 15th from the date of delivery.

Once the administrative reconsideration decision is served, it shall have legal effect.

Article 32 If the applicant for reconsideration or a third party entrusts an agent, the administrative reconsideration decision shall be sent to the applicant for reconsideration and the third party according to the domestic mailing address in addition to the agent.

Chapter VI Supplementary Provisions

Article 33 Where a foreigner, foreign enterprise or other foreign organization applies to the State Intellectual Property Office for administrative reconsideration, these Procedures shall apply.

Article 34 No fees shall be charged for administrative reconsideration.

Article 35 This Regulation shall come into force as of September 1, 2012. The Administrative Reconsideration Regulations of the State Intellectual Property Office promulgated by Order No. 24 of the State Intellectual Property Office on July 25, 2002 shall be repealed simultaneously.