(2010 65438+February 29th, China National Intellectual Property Administration DecreeNo. 102. The 60th issue; According to China National Intellectual Property Administration Order No.71issued on May 29th, 20/KLOC-0, China National Intellectual Property Administration's Decision on Amending the Measures for Administrative Enforcement of Patents).
Chapter I General Principles
Article 1 In order to further promote administration according to law, standardize patent administrative law enforcement, protect the legitimate rights and interests of patentees and the public, and maintain the order of socialist market economy, these Measures are formulated in accordance with the Patent Law of People's Republic of China (PRC), the Detailed Rules for the Implementation of the Patent Law of People's Republic of China (PRC) and other relevant laws and regulations.
Article 2 These Measures shall apply to the patent administrative enforcement by the patent administrative department, that is, to handle patent infringement disputes, mediate patent disputes and investigate and deal with patent counterfeiting.
Article 3 The administrative department for patent affairs shall handle patent infringement disputes on the basis of facts, take the law as the criterion and follow the principles of fairness and timeliness.
When mediating patent disputes, the administrative department for patent affairs 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 finding out the facts and distinguishing right from wrong.
The department in charge of patent work shall investigate and deal with counterfeiting of patents on the basis of facts, take the law as the criterion, follow the principles of fairness and openness, and give administrative penalties commensurate with the facts, nature, circumstances and social harm of illegal acts.
Article 4 The department in charge of patent work shall strengthen the construction of patent administrative law enforcement team, strictly manage the qualifications of administrative law enforcement personnel, implement the administrative law enforcement responsibility system, and standardize patent administrative law enforcement.
Patent administrative law enforcement personnel (hereinafter referred to as "law enforcement personnel") shall hold administrative law enforcement certificates issued by China National Intellectual Property Administration or the people's governments of provinces, autonomous regions and municipalities directly under the Central Government. Law enforcement officers should dress seriously when performing official duties.
Article 5 China National Intellectual Property Administration may, according to needs, organize relevant departments for patent administration to investigate and deal with patent infringement disputes and patent counterfeiting cases with great influence.
For major cases involving more than two provinces, autonomous regions and municipalities directly under the Central Government, the departments in charge of patent affairs of the relevant provinces, autonomous regions and municipalities directly under the Central Government may report to China National Intellectual Property Administration for coordinated handling or investigation.
China National Intellectual Property Administration should give necessary guidance and support to the difficult problems encountered by the patent administration department in patent administrative law enforcement.
Article 6 The patent administration department may, according to local conditions, entrust the patent administration department established by the people's government at the city or county level with practical handling capacity to investigate and deal with patent counterfeiting and mediate patent disputes.
The entrusting party shall supervise and guide the entrusted party in investigating and handling counterfeit patents and mediating patent disputes, and bear legal responsibilities.
Article 7 If a law enforcement officer designated by the patent administration department has a direct interest with a party concerned, he shall withdraw, and the party concerned has the right to apply for his withdrawal. If a party applies for withdrawal, it shall explain the reasons.
The withdrawal of law enforcement personnel shall be decided by the person in charge of the patent administration department. Before the decision on whether to withdraw is made, the applicant for withdrawal shall suspend his participation in the case.
Article 8 The patent administrative department shall strengthen administrative law enforcement in the field of exhibitions and e-commerce, quickly mediate and handle patent infringement disputes during exhibitions and on e-commerce platforms, and promptly investigate and deal with patent counterfeiting.
Article 9 The department in charge of patent work shall strengthen the informatization construction of administrative law enforcement and information sharing.
Chapter II Handling of Patent Infringement Disputes
Article 10 A department requesting the administration of patent affairs to handle a patent infringement dispute shall meet the following conditions:
(1) The claimant is the patentee or interested party;
(2) Having a clear respondent;
(three) there are clear requests and specific facts and reasons;
(4) The scope of acceptance and jurisdiction of the patent administrative department;
(5) The parties concerned have not brought a lawsuit to the people's court on the patent infringement dispute.
The interested parties mentioned in the first paragraph include the licensee of the patent licensing contract and the legal heir of the patentee. Among the licensees of a patent licensing contract, the licensee who exclusively implements the licensing contract may make a separate request; The licensee who exclusively implements the licensing contract may make a separate request without the request of the patentee; Unless otherwise agreed in the contract, the licensee who generally implements the license contract cannot make a separate request.
Article 11 Where a patent administrative department is requested to handle a patent infringement dispute, a written request and the following supporting materials shall be submitted:
(a) the subject qualification certificate, that is, the individual submits the resident identity card or other valid identity documents, and the unit submits a copy of the valid business license or other subject qualification documents and the identity certificate of the legal representative or principal responsible person;
(2) Proof that the patent right is valid, that is, a copy of the patent register, or the patent certificate of the current year and the receipt for paying the annual patent fee.
Where a patent infringement dispute involves a patent for utility model or design, the administrative department for patent affairs may require the claimant to issue a patent evaluation report (utility model patent search report) made by China National Intellectual Property Administration.
The claimant shall provide a copy of the request and relevant evidence according to the number of the requested persons.
Article 12 The written request shall include the following contents:
(a) the name and address of the claimant, the name and position of the legal representative or principal responsible person, and the names and addresses of the agents and agencies if an agent is entrusted;
(2) The name and address of the requested person;
(three) the matters requested to be handled, as well as the facts and reasons.
Relevant evidence and supporting materials can be submitted in the form of attachments to the request.
The request shall be signed or sealed by the requester.
Article 13 Where the request meets the conditions stipulated in Article 10 of these Measures, the administrative department for patent affairs shall, within 5 working days from the date of receiving the request, file a case and notify the requester, and designate more than 3 law enforcement personnel to handle the patent infringement dispute; Where the request does not meet the conditions as stipulated in Article 10 of these Measures, the administrative department for patent affairs shall notify the requester that it will not be accepted within 5 working days from the date of receiving the request, and explain the reasons.
Article 14 The administrative department for patent affairs shall serve the written request and its attachments to the respondent within 5 working days from the date of filing the case, require the respondent to submit the written defense within 65,438+05 days from the date of receipt, and provide copies of the written defense according to the number of the claimants. If the respondent fails to submit the defense within the time limit, it will not affect the department in charge of patent work to deal with it.
Where the respondent submits the defense, the administrative department for patent affairs shall deliver a copy of the defense to the requester within 5 working days from the date of receipt.
Article 15 When handling patent infringement disputes, the administrative department for patent affairs may mediate according to the wishes of the parties concerned. If both parties reach an agreement, the administrative department for patent affairs shall make a conciliation statement and affix its official seal, which shall be signed or sealed by both parties. If mediation fails, a decision shall be made in time.
Article 16 When handling patent infringement disputes, the administrative department for patent affairs may decide whether to conduct an oral hearing according to the needs of the case. Where the administrative department for patent affairs 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 court without permission, the requester shall be treated as a request for withdrawal, and the respondent shall be treated as an absence.
Article 17 Where the administrative department for patent affairs holds an oral hearing, it shall record the participants in the oral hearing and the main points of the hearing, and after verification, it shall be signed or sealed by law enforcement officers and participants.
Article 18 The scope of protection of the patent right for invention or utility model mentioned in the first paragraph of Article 59 of the Patent Law shall be subject to the content of the claim, which means that the scope of protection of the patent right shall be subject to the scope determined by the technical features recorded in the claim, including the scope determined by the features equivalent to the recorded technical features. Equivalent features refer to features that basically achieve the same functions and effects by basically the same means as the recorded technical features, and can be associated by ordinary technicians in the field without creative labor.
Article 19 Unless a mediation agreement is reached or the claimant withdraws his request, the administrative department for patent affairs shall make a decision on the handling of patent infringement disputes, which shall contain the following contents:
(1) The name and address of the party concerned;
(2) The facts and reasons stated by the parties;
(three) the reasons and basis for determining whether the infringement is established;
(4) If it is necessary to order the infringer to stop the infringement immediately after the establishment of the infringement, it shall specify the type, object and scope of the order to stop the infringement immediately; If it is found that the infringement is not established, the request of the claimant shall be rejected;
(five) the way and time limit for bringing administrative proceedings against the decision.
The written decision shall be stamped with the official seal of the department in charge of patent work.
Article 20 After the patent administration department or the people's court has made a ruling or judgment that the infringement is established and ordered the infringer to stop the infringement immediately, if the respondent commits the same type of infringement on the same patent right again and the patentee or interested party requests to deal with it, the patent administration department may directly make a ruling ordering the infringement to stop immediately.
Article 21 The administrative department for patent work shall complete the handling within 3 months from the date of filing the case. If the case is particularly complicated and needs to be postponed, it shall be approved by the person in charge of the patent administration department. The approved extension period shall not exceed 1 month at the longest.
The time of announcement, comment and suspension in the process of handling a case shall not be included in the time limit for handling a case stipulated in the preceding paragraph.
Chapter III Mediation of Patent Disputes
Article 22 Anyone who requests the administrative department for patent to mediate a patent dispute shall submit a written request.
The request shall record the following contents:
(a) the name and address of the claimant, the name and position of the legal representative or principal responsible person, and the names and addresses of the agents and agencies if an agent is entrusted;
(2) The name and address of the requested person;
(three) the specific matters and reasons for the request for mediation.
Where a separate request for mediation of the amount of compensation for patent infringement is made, a copy of the decision made by the relevant administrative department for patent affairs that the infringement is established shall be submitted.
Article 23 After receiving the request for mediation, the administrative department for patent affairs shall promptly send a copy of the request to the respondent by mail, direct delivery or other means, and require him to submit an opinion statement within 5 days from the date of receipt.
Article 24 If the respondent submits a statement of opinion and agrees to mediation, the administrative department for patent affairs shall file a case within 5 working days from the date of receiving the statement of opinion, and notify the applicant and the respondent of the time and place of mediation.
If the respondent fails to submit the statement of opinions within the time limit, or indicates in the statement of opinions that it does not accept mediation, the administrative department for patent affairs shall not file a case and notify the requester.
Article 25 The administrative department for patent affairs may invite relevant units or individuals to assist in the mediation of patent disputes, and the invited units or individuals shall assist in the mediation.
Article 26 If the parties reach an agreement through mediation, the administrative department for patent affairs shall make a mediation agreement and affix its official seal, which shall be signed or sealed by both parties; If no agreement is reached, the administrative department for patent affairs shall close the case by withdrawing the lawsuit and notify both parties.
Article 27 Where a dispute over the right to apply for a patent or the ownership of a patent requests mediation, the parties concerned may, on the strength of the notification of acceptance by the patent administration department, request China National Intellectual Property Administration to suspend the relevant procedures of the patent application or patent right.
If an agreement is reached through mediation, the parties shall go through the restoration procedures in China National Intellectual Property Administration with the mediation agreement; If no agreement can be reached, the parties concerned shall go through the restoration procedures in China National Intellectual Property Administration with the revocation notice issued by the patent administration department. If no extension of suspension is requested within 1 year from the date of suspension request, China National Intellectual Property Administration will resume relevant procedures on its own.
Chapter IV Investigation and Punishment of Patent Counterfeiting
Article 28 Where the administrative department for patent affairs discovers or accepts reports or complaints about suspected counterfeit patents, it shall file a case within 5 working days from the date of discovery or within 10 working days from the date of receiving the reports or complaints, and assign two or more law enforcement officers to investigate.
Twenty-ninth investigation and punishment of counterfeiting of patents shall be under the jurisdiction of the administrative department for patent work in the place where the act occurred.
Where the department in charge of patent work disputes the jurisdiction, the department in charge of patent work of the people's government at a higher level shall designate the jurisdiction; If there is no department in charge of patent work under the people's government at a higher level, the jurisdiction shall be designated by China National Intellectual Property Administration.
Article 30 The department in charge of patent affairs shall seal up or detain products suspected of counterfeiting patents, and shall obtain the approval of the person in charge. When sealing up or detaining, relevant notice shall be issued to the parties concerned.
When the patent administration department seals up or distrains products suspected of counterfeiting patents, it shall make an inventory on the spot, make a record and a list, which shall be signed or sealed by the parties and law enforcement personnel. If the party refuses to sign or seal, the law enforcement officer shall indicate it in the record. The list shall be submitted to all parties.
Article 31 After the investigation of a case is completed, with the approval of the person in charge of the patent administration department, the following treatments shall be made respectively according to the situation:
(1) If the act of counterfeiting patents is established and should be punished, administrative punishment shall be given according to law;
(2) If the act of counterfeiting patents is minor and has been corrected in time, it shall be exempted from punishment;
(three) if the act of counterfeiting patents is not established, the case shall be revoked according to law;
(four) suspected of committing a crime, transferred to the public security organs according to law.
Article 32 Before making a decision on administrative punishment, the administrative department for patent affairs shall inform the parties concerned of the facts, reasons and basis for making the decision on punishment, and inform them of their rights according to law.
The administrative department for patent affairs shall inform the parties of the right to request a hearing before making a decision on a large fine. If a party requests a hearing, it shall organize a hearing according to law.
Article 33 The parties concerned have the right to make statements and defend themselves, and the administrative department for patent affairs shall not aggravate the administrative punishment because of the defense of the parties concerned.
The administrative department for 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 administrative department for patent work shall adopt them.
Article 34 To impose heavier administrative penalties on complex or major illegal acts shall be decided by the heads of departments in charge of patent work through collective discussion.
Article 35 If the act of counterfeiting patents is verified through investigation and should be punished, the administrative department for patent affairs shall make a decision on punishment, which shall contain the following contents:
(1) The name and address of the party concerned;
(two) the evidence, reasons and basis for the establishment of the act of counterfeiting patents;
(three) the content and the way to perform the punishment;
(four) the way and time limit for applying for administrative reconsideration and bringing an administrative lawsuit against the punishment decision.
The written decision on punishment shall be stamped with the official seal of the department in charge of patent work.
Article 36 When investigating and handling counterfeit patent cases, the administrative department for patent affairs shall close the case within 1 month from the date of filing the case. If the case is particularly complicated and needs to be postponed, it shall be approved by the person in charge of the patent administration department. The approved extension period shall not exceed 15 days at most.
The time of hearing and announcement in the process of handling a case shall not be counted in the time limit for handling a case stipulated in the preceding paragraph.
Chapter v investigation and evidence collection
Article 37 In the process of handling patent infringement disputes, if the parties concerned are unable to collect some evidence by themselves due to objective reasons, they may request the administrative department for patent affairs to investigate and collect evidence in writing. The department in charge of patent work decides whether to investigate and collect relevant evidence according to the situation.
In the process of handling patent infringement disputes and investigating patent counterfeiting, the administrative department for patent affairs may, if necessary, investigate and collect relevant evidence according to its functions and powers.
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 and cooperate, truthfully reflect the situation, and shall not refuse or obstruct.
Article 38 When investigating and collecting evidence, the administrative department for patent affairs may consult and copy contracts, account books and other relevant materials related to the case; Questioning the parties and witnesses; Conduct on-site inspection by means of measurement, photography and video recording. Where the patent right of a manufacturing method is suspected of being infringed, the administrative department for patent affairs may require the respondent to give a live demonstration.
When investigating and collecting evidence, the department in charge of patent work shall make a written record. The written record shall be signed or sealed by law enforcement officers, units or individuals under investigation. If the unit or individual under investigation refuses to sign or seal, law enforcement officers shall indicate it in the record.
Article 39 The administrative department for patent work may collect evidence by sampling.
Where a product patent is involved, a part of the suspected infringing product may be taken as a sample; Where a method patent is involved, a part of the product suspected of being directly obtained according to this method may be taken as a sample. The number of samples should be limited to the facts it can prove.
When conducting sampling and evidence collection, the administrative department for patent affairs shall make a record and list, indicating the name, characteristics, quantity and storage place of the sampled samples, which shall be signed or sealed by law enforcement officers, units or individuals under investigation. If the unit or individual under investigation refuses to sign or seal, law enforcement officers shall indicate it in the record. The list should be given to the respondent.
Article 40 In case the evidence may be lost or difficult to obtain later, if the evidence cannot be collected by sampling, the administrative department for patent affairs may register and keep it, and make a decision on handling it within 7 days.
The unit or individual under investigation shall not destroy or transfer the evidence registered and preserved.
The department in charge of patent work shall make records and lists for registration and preservation, indicating the name, characteristics, quantity and storage place of the registered and preserved evidence, which shall be signed or sealed by law enforcement officers, units or individuals under investigation. If the unit or individual under investigation refuses to sign or seal, law enforcement officers shall indicate it in the record. The list should be given to the respondent.
Article 41 Where the administrative department for patent affairs needs to entrust other administrative departments for patent affairs to assist in the investigation and collection of evidence, it shall make a clear request. The entrusted department shall promptly and seriously assist in the investigation and evidence collection, and reply as soon as possible.
Article 42 Where the customs investigates the detained suspected infringing goods and requests the patent administration department to provide assistance, the patent administration department shall provide assistance according to law.
When handling patent cases involving import and export goods, the patent administration department may request the customs to provide assistance.
Chapter VI Legal Liability
Article 43 Where the administrative department for patent affairs finds that patent infringement is established, makes a decision on handling it and orders the infringer to stop the infringement immediately, it shall take the following measures to stop the infringement:
(1) Where an infringer manufactures an infringing patented product, he shall be ordered to immediately stop manufacturing and destroy the special equipment and molds for manufacturing the infringing product, and shall not sell or use the infringing product that has not 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;
(2) If the infringer uses the patented method without the permission of the patentee, he shall be ordered to stop using it immediately, destroy the special equipment and molds for implementing the patented method, and shall not sell or use the unsold infringing products directly obtained by the patented method or put them on the market in any other form; If the infringing product is difficult to preserve, the infringer shall be ordered to destroy the product;
(3) If the infringer sells the patented infringing products or the infringing products directly obtained according to the patented method, he shall be ordered to stop selling immediately, and shall not use the unsold infringing products or put them on the market in any other form; If unsold infringing products are difficult to preserve, the infringer shall be ordered to destroy the products;
(4) If the infringer promises to sell the patented infringing products or the infringing products directly obtained according to the patented method, he shall be ordered to immediately stop the promised sales behavior and eliminate the influence, and shall not engage in any actual sales behavior;
(5) If the infringer imports a patented infringing product or an infringing product directly obtained according to the patented method, the infringer shall be ordered to stop importing immediately; Infringed products that have entered the country shall not be sold, used or put 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 infringing product has not yet entered the country, it may notify the relevant customs of the decision;
(six) to order the infringing exhibitors to take measures such as withdrawing the infringing exhibits from the exhibition, destroying or sealing up the corresponding promotional materials, replacing or covering the corresponding exhibition boards;
(seven) other necessary measures to stop the infringement.
Where the patent administrative department finds that the patent infringement of the e-commerce platform is established and makes a decision, it shall notify the e-commerce platform provider to take timely measures such as deleting, shielding or disconnecting the related webpage of the patented infringing product or the infringing product directly obtained according to the patent method.
Article 44 After the administrative department for patent affairs has made a decision that the patent infringement is established and ordered the infringer to stop the infringement immediately, if the respondent brings an administrative lawsuit to the people's court, the execution of the decision will not be stopped during the lawsuit.
If the infringer refuses to prosecute or stop the infringement after the expiration of the decision made by the patent administration department that the infringement is established, the patent administration department may apply to the people's court for compulsory execution.
Article 45 Where the administrative department for patent affairs finds that the act of counterfeiting patents is established, it shall order the actor to take the following corrective measures:
(1) If a patent mark is marked on a product or its packaging that has not been granted a patent right, or if the patent mark continues to be marked on the product or its packaging after the patent right is declared invalid or terminated, or if another person's patent number is marked on the product or its packaging without permission, it shall immediately stop marking and eliminate the patent mark on the unsold product or its packaging; If the patent mark on the product is difficult to eliminate, the product or packaging shall be destroyed;
(two) sales of products listed in item (a), immediately stop the sales behavior;
(3) If a technology or design that has not been granted a patent right is called a patented technology or design, a patent application is called a patent, or another person's patent number is used without permission, so that the public will mistake the technology or design involved for another person's patented technology or design, immediately stop distributing the materials, destroy the materials that have not been distributed, and eliminate the influence;
(4) Whoever forges or alters a patent certificate, patent document or patent application document shall immediately stop forging or altering, destroy the forged or altered patent certificate, patent document or patent application document, and eliminate the influence;
(5) Ordering exhibitors with counterfeit patents to take measures such as withdrawing the counterfeit patent exhibits from the exhibition, destroying or sealing up the corresponding publicity materials, replacing or covering the corresponding exhibition boards;
(six) other necessary rectification measures.
Where the patent administrative department finds that the counterfeiting of patents on the e-commerce platform is established, it shall notify the e-commerce platform provider to take timely measures such as deleting, blocking or disconnecting the related webpages of counterfeit patented products.
Article 46 Where the administrative department for patent affairs makes a decision that the patent infringement is established and orders the infringer to stop the infringement immediately, or the counterfeit patent is established and makes a decision on punishment, it shall make it public within 20 working days from the date of making the decision, and timely release law enforcement information through government websites and other means.
Article 47 Where the administrative department for patent affairs finds that the act of counterfeiting a patent is established, it may determine the illegal income of the actor in the following ways:
(a) the sale of counterfeit patented products, the product sales price multiplied by the number of products sold as their illegal income;
(two) the fees charged for concluding a fake patent contract shall be regarded as their illegal income.
Article 48 If a party applies for administrative reconsideration or brings an administrative lawsuit to a people's court after the patent administration department has made a decision on punishment, the execution of the decision on punishment shall not be stopped during the administrative reconsideration or lawsuit.
Forty-ninth patent counterfeiters shall pay the fine specified in the penalty decision at the designated bank within 05 days from the date of receiving the penalty decision; If it is not paid at the due date, a late fee of 3% of the fine amount will be added daily.
Fiftieth refusal or obstruction of the patent administration department to perform official duties according to law shall be punished by the public security organ in accordance with the Law of People's Republic of China (PRC) on Public Security Administration Punishment; If the circumstances are serious enough to constitute a crime, criminal responsibility shall be investigated by judicial organs according to law.
Chapter VII Supplementary Provisions
Article 51 The administrative department for patent affairs may serve relevant legal documents and materials by mail, direct service, lien service, announcement service or other means.
Fifty-second approach by China National Intellectual Property Administration is responsible for the interpretation of.
Article 53 These Measures shall come into force as of February 65438, 20 1 year. 200 1 12 17 The Measures for Patent Administrative Enforcement promulgated by China National Intellectual Property Administration DecreeNo. 19 shall be abolished at the same time.