In order to implement the decisions and arrangements of the CPC Central Committee and the State Council on comprehensively strengthening the protection of intellectual property rights, maintain the fair competition in market order, protect the legitimate rights and interests of patentees and the general public, and handle administrative patent disputes that have significant domestic impacts in accordance with laws and regulations, the China National Intellectual Property Administration formulates the Measures on Administrative Adjudication for Major Patent Infringement Disputes based on the Patent Law of the People's Republic of China and relevant laws, regulations, and rules. These measures are hereby released and will take effect on June 1, 2021.

 

Hereby Noticed.

China National Intellectual Property Administration

May 26, 2021

 

 

 

Article 1 In order to implement the decisions and arrangements of the CPC Central Committee and the State Council on comprehensively strengthening the protection of intellectual property rights, maintain the fair competition in market order, protect the legitimate rights and interests of patentees and the public, these measures are formulated based on the Patent Law of the People's Republic of China (hereinafter referred to as the Patent Law) and relevant laws, regulations, and rules.

 

Article 2 These Measures are applicable to the first paragraph of Article 70 of the Patent Law called the patent infringement disputes that have a significant domestic impact (hereinafter referred to as major patent infringement disputes), which is handled by the China National Intellectual Property Administration

 

Article 3 Any of the following circumstances belongs to the major patent infringement disputes:

(1) Involving major public interests.

(2) Seriously affecting the development of the industry.

(3) Major pertain to involving cross-provincial administrative regions.

(4) Other patent infringement disputes that may cause significant impact.

 

Article 4 Any request for an administrative adjudication on major patent infringement disputes shall fit the conditions described in Article 3, as well as the following conditions:

(1) The claimant is the patentee or stakeholder. 

(2) There is a clear the person against whom a claim is made.

(3) There are clear requests and specific facts and reasons.

(4) The people's court did not file a case on the patent infringement dispute.

 

Article 5 Where an administrative adjudication on a major patent infringement dispute is requested, the petition and relevant evidentiary materials shall be submitted in accordance with the relevant provisions of the Measures on Patent Administrative Enforcement. At the same time, the evidential materials provided by patent administrative department of the province, autonomous region, or municipality where the person against whom a claim is made is located or the infringement is committed, which fit the conditions described in Article 3 of these Measures, shall be submitted. 

 

Article 6 If the request complies with the provisions of Article 4 of these Measures, the China National Intellectual Property Administration shall file a case and notify the claimant within 5 workdays as of the date of receiving petition. The Administration shall designate 3 or more odd-numbered case handlers to form a collegiate group to handle the case at the same time. If the case is particularly complicated or there are other special circumstances, the time limit for filing the case can be extended by 5 workdays upon approval.

If the request does not comply with the provisions of Article 4 of these Measures, the China National Intellectual Property Administration shall notify the claimant not to file a case and explain the reasons within 5 workdays as of the date of receiving petition. 

 

For a request that does not belong major patent infringement disputes, the China National Intellectual Property Administration shall not file a case and inform the claimant to apply for competent local patent administrative department for handling. 

 

Article 7 The patent administrative departments of provinces, autonomous regions, and municipalities may report to the China National Intellectual Property Administration for administrative adjudication if they believe that a case is a major patent infringement dispute regarding the request for handling patent infringement disputes within their jurisdiction.

 

Article 8 The case handler shall hold a case-handling certificate issued by the China National Intellectual Property Administration.

 

Article 9 The case handler shall make a voluntary recusal in any of the following circumstances:

(1) The case handler is the party or the close relative of the agent. 

(2) The case handler is an interested party in the patent application or patent right.

(3) The case handler has other relationships with the parties or their agents, which may affect the fair handling of the case.

The party also has the right to apply for the recusal of the case handler. If a party applies for recusal, the reasons shall be explained.

The recusal of case handler shall be decided by the department responsible for handling the case.

 

Article 10 The China National Intellectual Property Administration shall send the petition and the copy of the attachments to the person against whom a claim is made within 5 workdays as of the date of filing the case and request the person against whom a claim is made to submit an answer within 15 days as of the date of receipt, as well as the copy in accordance with the number of claimants. If the person against whom a claim is made fails to submit an answer within the time limit, the handling of the case will not be affected.

 

Where the person against whom a claim is made submits the answer, the China National Intellectual Property Administration shall transfer the copy to claimant within 5 workdays as of the date of receipt.

 

The China National Intellectual Property Administration may consolidate the cases that infringe the same patent right.

 

Article 11 In the process of handling a case, if the claimant applies for the addition of the person against whom a claim is made, the China National Intellectual Property Administration shall judge the addition and notify other parties if the application meets the conditions of a co-persons against whom a claim is made. If the application does not meet the conditions of a co-persons against whom a claim is made but meets the conditions of the request, the additional application shall be rejected, and the claimant shall be notified to make another request. Where the person against whom a claim is made proposes to add other parties as one of them, the claimant shall be notified. If the claimant agrees to the addition, it shall be judged to allow the addition. If the claimant does not agree, the other parties could be added as the third party. The request to add the person against whom a claim is made, or a third party shall be made before the oral hearing, otherwise it shall not be supported.

 

Article 12 The party has the responsibility to provide evidence for their claims. If the party cannot collect evidence due to objective reasons, they may submit preliminary evidence and reasons, and a written application to the China National Intellectual Property Administration for investigation or inspection. Based on the need to ascertain the facts of the case, the China National Intellectual Property Administration may also investigate or inspect according to law.

 

The case handler shall not be less than two during the investigation or inspection, and they shall show the case-handling certificates to the parties or relevant personnel.

 

Article 13 The case handler may exercise the following powers during investigation or inspection:

(1) Inquire the relevant parties and other relevant units and individuals, and investigate the circumstances related to the suspected patent infringement.

(2) Conduct scene investigation of the premises where the parties are suspected of patent infringement.

(3) Inspect products related to suspected patent infringement.

 

During the investigation or inspection, the parties or related personnel shall assist and cooperate, rather than refuse or obstruct.

 

The China National Intellectual Property Administration may entrust the investigation of related cases to local patent administrative department according to the work needs and actual situation.

 

Article 14 Where patent infringement disputes involve complex technical issues that require inspection and appraisal, the China National Intellectual Property Administration may, at the request of the party concerned, entrust relevant units to conduct inspection and appraisal. Where a party requests inspection and appraisal, the inspection and appraisal unit may be determined by both parties through negotiation; if the negotiation fails, the unit shall be designated by the China National Intellectual Property Administration. The opinions of inspection and appraisal that have not been cross-examined shall not be used as the basis for the verdict.

 

If there is an agreement on appraisal fee between the parties, they shall follow their agreement. If there is no agreement, the appraisal fee shall be paid by the party that applies for the appraisal in advance, and then be borne by the responsible party as the case is closed.

 

Article 15 The China National Intellectual Property Administration may designate technical investigators into case handling to provide technical survey opinions. The relevant technical survey opinions can be used as a reference for collegiate group to determine the technical facts. Measures on the management of technical investigators shall be stipulated separately 

 

Article 16 The China National Intellectual Property Administration shall decide whether to conduct an oral hearing based on the needs of the case. For the case that needs oral hearings, the parties shall be notified of the time and place at least 5 workdays before the oral hearing. If the party refuses to participate in the oral hearing without justified reasons, or withdraws halfway without permission, the claimant shall be treated as withdrawing request, while the person against whom a claim is made shall be treated as absent.

 

Article 17 In any of the following circumstances, the party concerned may apply for suspension of the case, and the China National Intellectual Property Administration may also decide to suspend the case according to its authority:

(1) The person against whom a claim is made applies to declare the patent right involved in the case invalid and was accepted by the China National Intellectual Property Administration.

(2) One of the parties has died and needs to wait for the heir to indicate whether to participate in the settlement of the case. 

(3) One of the parties has lost the capacity for civil conduct, and the legal agent has not yet been determined.

(4) The legal person or other organization of one of the parties terminates, and the successor of rights and obligations has not been determined.

(5) One of the parties is unable to participate in the trial due to force majeure.

(6) The case must be based on the trial result of another case which has not yet been closed.

(7) Other situations that need to be suspended.

 

Article 18 In any of the following circumstances, the China National Intellectual Property Administration may not suspend the case processing:

(1) The search report or patent right evaluation report issued by the claimant is not found any defects in the utility model or design patent right that do not meet the requirements for granting patent right.

(2) The invalidation proceeding has decided to maintain the validity of the utility model or design patent.

(3) The reasons for suspension proposed by the parties are obviously untenable.

 

Article 19 In any of the following circumstances, the China National Intellectual Property Administration may quash the case:

(1) It is found the acceptance conditions are not met after filing the case. 

(2) The claimant withdraws the request for processing.

(3) There is no heir after the claimant dies or is cancelled the identity, or the heir gives up processing the request.

(4) The person against whom a claim is made dies or is cancelled the identity, or there is no person to bear the obligations.

(5) Other circumstances that needs to be quashed.

 

Article 20 During the period of administrative adjudication, if the relevant patent right is declared invalid by the China National Intellectual Property Administration, the case may be terminated. Where there is evidence to prove that the decision to invalidate the above-mentioned rights has been revoked by an effective administrative judgment, the obligee may file another request.

 

Article 21 The China National Intellectual Property Administration may organize the parties to mediate. If the both parties reach an agreement, the China National Intellectual Property Administration shall formulate a mediation document with an official seal, and make it be signed or sealed by both parties. If the mediation fails, an administrative adjudication shall be made in a timely manner. 

 

Article 22 When handling patent infringement disputes, the China National Intellectual Property Administration shall close the case within three months as of the date of filing the case. If the case cannot be closed within the prescribed time limit due to the complexity of the case or other reasons, it may be extended by one month upon approval. If the case cannot be closed after the extension because it is particularly complicated or there are other special circumstances, it may be extended upon approval, at the same time, a reasonable time limit for extension shall be determined.

 

In the process of case handling, the time for suspension, announcement, inspection, and appraisal shall not be included in the case processing time limit mentioned in the preceding paragraph. For the case of changing request and adding a co-person against whom a claim is made or a third party, the time limit for handling the case shall be recalculated from the date of the change of request or the determination of the co-persons against whom a claim is made or a third party.

 

Article 23 When making an administrative adjudication, the China National Intellectual Property Administration shall formulate an administrative adjudication and affix it with an official seal. If the administrative adjudication considers that the infringement is established, the Administration may order to stop the infringing act immediately and notify as necessary the relevant competent authority and the relevant departments of the local people's government to assist in stopping the infringement in a timely manner. If the party is dissatisfied, he may file a suit in people's court based on the Administrative Litigation Law of the People's Republic of China within 15 days as of the date of receipt of the administrative adjudication. The execution of administrative adjudication shall not be suspended during the period of litigation, except for the circumstances stipulated by law. If the person against whom a claim is made does not sue, as well as not stop the infringement, the China National Intellectual Property Administration may apply to the people’s court for compulsory execution.

 

After the administrative adjudication is made, it shall be disclosed to the public in accordance with the Provisions on the Disclosure of Government Information and related regulations, during which the information involving trade secrets should be deleted.

 

Article 24 Case handlers and other personnel who abuse power, neglect duties, practice favoritism, or disclose trade secrets learned in the process of handling cases shall be given government sanction in accordance with the law, if they do not commit a crime. If they are suspected of committing a crime, they shall be transferred to judiciary authorities for handling.

 

Article 25 If there are no provisions in these Measures, it shall be implemented in accordance with the Measures on Patent Administrative Enforcement and the provisions of the administrative adjudication of the China National Intellectual Property Administration on patent infringement disputes.

 

Article 26 These Measures shall be interpreted by the China National Intellectual Property Administration.

 

Article 27 These measures shall come into force as the date of June 1^st, 2021.