Chinese Online Class - Implementing Regulations of the Patent Law of the People's Republic of

China

BIZCHINA / Intellectual property

Implementing Regulations of the Patent Law of the People's Republic of
China

Updated: 2006-04-17 14:40

Article 71 The person requesting invalidation may withdraw his request
before the Patent Reexamination Board makes a decision on it.
Where the person requesting invalidation withdraws his request before the
Patent Reexamination Board makes a decision on it, the examination of the
request for invalidation is terminated.

Chapter V Compulsory License for Exploitation of Patent

Article 72 After the expiration of three years from the date of the grant
of the patent right, any entity may, in accordance with the provisions of
Article 48 of the Patent Law, request the Patent Administration
Department under the State Council to grant a compulsory license.
Any entity requesting a compulsory license shall submit to the Patent
Administration Department under the State Council a request for
compulsory license, state the reasons therefor, and attach relevant
certifying documents each in two copies.
The Patent Administration Department under the State Council shall send a
copy of the request for compulsory license to the patentee, who shall
make his or its observations within the time limit specified by the
Patent Administration Department under the State Council. Where no
response is made within the time limit, the Patent Administration
Department under the State Council will not be affected in making a
decision concerning a compulsory license.
The decision of the Patent Administration Department under the State
Council granting a compulsory license for exploitation shall limit the
exploitation of the compulsory license to be predominately for the supply
of the domestic market. Where the invention-creation involved in the
compulsory license relates to the semi-conductor technology, the
exploitation of the compulsory license shall be limited only for public
non-commercial use or to remedy a practice determined after judicial or
administrative process to be anti-competitive.

Article 73 Where any entity or individual requests, in accordance with
the provisions of Article 54 of the Patent Law, the Patent Administration
Department under the State Council to adjudicate the fees for
exploitation, it or he shall submit a request for adjudication and
furnish documents showing that the parties concerned have not been able
to conclude an agreement in respect of the amount of the exploitation
fee. The Patent Administration Department under the State Council shall
make an adjudication within three months from the date of receipt of the
request and notify the parties concerned accordingly.

Chapter VI Reward and Remuneration of Inventors or Creators of Service
Inventions-Creations

Article 74 The State-owned enterprise or institution to which a patent
right is granted shall, within three months from the date of the
announcement of the grant of the patent right, award to the inventor or
creator of a service invention-creation a sum of money as prize. The sum
of money prize for a patent for invention shall not be less than RMB 2000
yuan; the sum of money prize for a patent for utility model or design
shall not be less than RMB 500 yuan.
Where an invention-creation is made on the basis of an inventor's or
creator's proposal adopted by the entity to which he belongs, the
State-owned enterprise or institution to which a patent right is granted
shall award to him a money prize on favorable terms.
For the money prize awarded to the inventor or creator, the enterprise
may have it included into its production cost, and the institution may
have it disbursed out of its operating expenses.

Article 75 The State-owned enterprise or institution to which a patent
right is granted shall, after exploiting the patent for
invention-creation within the duration of the patent right, draw each
year from the profits after taxation earned from exploitation of the
invention or utility model a percentage of not less than 2%, or from the
profits after taxation earned from exploitation of the design a
percentage of not less than 0.2%, and award it to the inventor or creator
as remuneration. The entity may, as an alternative, by making reference
to the said percentage, award a lump sum of money to the inventor or
creator as remuneration once and for all.

Article 76 Where any State-owned enterprise or institution to which a
patent right is granted authorizes any other entity or individual to
exploit its patent, it shall draw from the profits it receives for
exploitation of the said patent after taxation a percentage of not less
than 10% and award it to the inventor or creator as remuneration.

Article 77 The provisions of this Chapter may be implemented by any other
Chinese entity by making reference thereto.

Chapter VII Protection of Patent Right

Article 78 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.

Article 79 In addition to the provisions of Article 57 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.
In respect of the dispute referred to in subparagraph (4), where the
patentee requests the administrative authority for patent affairs to
mediate, the request shall be made after the grant of the patent right.

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