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Regulations of the People's Republic of China on Recordal of Licensing Contracts for Patent Enforcement - 2001

(Promulgated on December 17, 2001)

 

Article 1. In accordance with the "Contract Law of the People's Republic of China", "Patent Law of the People's Republic of China" and "Implementing Regulations for the Patent Law of the People's Republic of China" and other pertinent regulations, these rules are enacted to reinforce the protection of patent rights and regulate business acts.

Article 2. The State Intellectual Property Office of the People's Republic of China is responsible for the nationwide recordal of licensing contracts for patent enforcement (including licensing contracts for patent application enforcement, hereinafter referred to as "patent contracts").

Authorized by the State Intellectual Property Office, the competent departments for patent work under the People's governments of provinces, autonomous regions and municipalities directly under the central government (hereinafter referred to as "local recordal branches") are responsible for the patent contract recordal of their own administrative areas respectively.

Article 3. The assignor refers to the patentee, patent applicant or other right owner, while the assignee is the other party who will sign the patent contract.

Article 4. The assignor shall be the legitimate patentee, patent applicant or other right owner.

The assignor shall all be patentees or applicants, provided there are two or more than two co-patentees for one patent or patent application.

Article 5. The parties concerned shall submit the recordal within three months starting from the effective date of the patent contract.

Article 6. The assignee, whose patent enforcement licensing contract has been recorded, may request to the People's court for an injunction against related acts before filing an action, if he can provide any reasonable evidence demonstrating that his right is being infringed upon or that such infringement is imminent, and that any delay to stop the acts is likely to cause irreparable harm to his legitimate rights.

The assignee of sole licensing patent contract can independently request an injunction with the People's Court, under the circumstances that the patentee does not intend to request the injunction. The assignee of the exclusive licensing patent contract can also request such injunction directly.

The assignee of whom the patent enforcement licensing contract is recorded and his right is being infringed upon or that such infringement is imminent, he may also request the intervention in accordance with Article 57 of the Patent Law.

Article 7. When the parties concerned file recordals for foreign currency and customs, the certificate of the recordal for the patent contract shall be requested.

Article 8. The nature of the license, the coverage and time limit, and the amount of the royalty concerning the patent contract that has been recorded can be accepted as a reference by a People's Court or competent department for patent work under the People's governments of provinces, autonomous regions and municipalities directly under the central government used for mediation and damage judgments.

Article 9. The patent contract reached by the parties concerned should be in written form.

Article 10. The patent contract shall be made according to the uniform contract wordings stipulated by the State Intellectual Property Office; the relevant regulations should be followed if other contract wordings are adopted.

Article 11. If any foreigner, foreign enterprise or other foreign organization having no habitual residence or business office in China files an recordal of the patent contract, it shall appoint a patent agency licensed by the State Intellectual Property Office.

For any Chinese entity or individual who intends to file a recordal of the patent contract, he or it may appoint a patent agency.

Article 12. The parties concerned shall fill in, sign and seal the recordal application form based on the provisions of the patent contract.

Article 13. Two copies of each of the following documents are required for the proper recordal of the patent contract:

1. Application form of recordal;
2. Copy of patent contract;
3. Patent certificate or copy of the patent official filing receipt;
4. Identity certificate of the assignor;
5. Other necessary documents.

Article 14. All the required documents shall be made in Chinese, printed on a single page of A4 size. For those documents in any other language, the parties concerned shall submit the Chinese translation within a period of time required. It is deemed as not submitted if the translation has not been filed in time.

Article 15: Applications under following circumstances shall not be recorded:
1. patent right has been terminated, announced invalid; or patent application has been rejected or deemed as rejected; or
2. without the approval of other co-patentee or co-applicant, one single party unilaterally signs patent contract with others; or
3. the patent contract has been recorded; or
4. the term of the patent contract is longer than the term of patent; or
5. other circumstances that conflict with any laws or regulations.

Article 16. After receiving an application for recordal, the local recordal branch shall duly forward the recordal to the State Intellectual Property Office to affirm the patent right and the legal status of the patent application.

Article 17. If the recordal application has met all the requirements, the local recordal branch shall, within 7 days, grant the recordal certificate; if the application has not met all the requirements, the local recordal branch shall notify the parties concerned on the non-recording reason.

Article 18. The local recordal branch shall, within three days starting from the date that all the recordal procedure is finished, forward the recordal certificate and documents submitted by the parties with the State Intellectual Property Office.

Article 19. The State Intellectual Property Office shall establish and maintain a patent contract recordal database and make it available to the public.

Article 20. The State Intellectual Property Office is responsible for the registration of the recordal of the patent contract in the patent register and announcement of the registration in the official gazette with the following information: file number of contract, assignor, assignee, main IPC symbol, patent number, patent filing date, granting date, nature of the contract, date of recordal, term of the contract, change of the contract, etc.

Article 21. If the parties concerned terminate the contract prior to expiration, they shall file the recordal of this repudiation within 10 days. The following documents are required for a proper termination: agreement document, recordal certificate and other relevant documents.

If the parties fail to register the termination in advance, the original recordal will remain effective until the expiration of the term of the original patent contract.

Article 22. If a patent contract will be extended, the parties shall, within 2 months prior to the expiration of the original term, register the change with the original local recordal branch.

This requirement applies to all other change of patent contracts.

Article 23. If there is an assignment of patent right based on the patent contract that is being enforced, the assignment has no effect on the original patent contract, unless otherwise provided for by the contract between the interested parties.

Article 24. If a patent application is granted, the parties concerned shall timely register the change of name from the patent application enforcement licensing contract and the articles thereof to the patent enforcement license.

If a patent application is rejected or deemed as withdrawn, the parties concerned shall timely go through the procedure of cancellation.

Article 25. If the patent right is invalidated during the period that the patent contract is enforced, the parties concerned shall timely go through the procedure of cancellation.

Article 26. If the interest parties forward the false recordal documents or forge the patent contract recordal by other illegal means, the local recordal branch shall cancel the recordal pursuant to law.

Article 27. The local recordal branch shall provide professional training to the staff taking charge of the recordal, and regulate the trade business pursuant to law.

Article 28. If the local recordal branch does not function well, the State Intellectual Property Office shall suspend or cancel its recordal qualification.

Article 29. "Dates" as stipulated in this Regulation all refer to working days.

Article 30. These Regulations shall be interpreted by the State Intellectual Property Office.

These Regulations shall take effect from January 2002.

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