Regulation of Beijing Municipality on the Protection and Promotion of Patents
Regulation of Beijing Municipality on the Protection and Promotion of Patents
· Document Number：Announcement No. 2 of the Standing Committee of the People’s Congress of Beijing Municipality
· Area of Law： Patent
· Level of Authority： Provincial Local Regulations
· Date issued：09-27-2013
· Effective Date：03-01-2014
· Status： Effective
· Issuing Authority： Beijing Municipal People's Congress (incl. Standing Committee)
Announcement of the Standing Committee of the People's Congress of Beijing Municipality
The Regulation of Beijing Municipality on the Protection and Promotionof Patents, which was revised at the 6th session of the StandingCommittee of the Fourteenth People's Congress of Beijing Municipality onSeptember 27, 2013, is hereby issued, and shall come into force onMarch 1, 2014.
Standing Committee of the Fourteenth People's Congress of Beijing Municipality
September 27, 2013
Regulation of Beijing Municipality on the Protection and Promotion of Patents
(Adopted at the 20th Session of the Standing Committee of the Twelfth People's Congress of Beijing Municipality on May 20, 2005 and revised at the 6th Session of the Standing Committee of the Fourteenth People's Congress of Beijing Municipality on September 27, 2013)
Chapter I General Provisions
Chapter II Protection of Patents
Chapter III Promotion of Patents
Chapter IV Legal Liability
Chapter V Supplementary Provisions
Chapter I General Provisions
Article 1 For purposes of encouraging invention-creations, protecting the lawful rights and interests of patentees, boosting the application of invention-creations, promoting scientific and technological progress and economic and social development, and improving innovation capabilities, this Regulation has been formulated in accordance with the Patent Law of the People's Republic of China, the Detailed Rules for the Implementation of the Patent Law of the People's Republic of China, and other relevant laws and administrative regulations as well as in light of the actual circumstances of the Municipality.
Article 2 This Regulation shall be applicable to the protection and promotion of patents and the relevant activities within the jurisdiction of the Municipality.
Article 3 The patent work of the Municipality shall follow the principles of encouraging innovation, applying patents properly, protecting patents according to law, conducting scientific management, and improving services.
Article 4 The people's governments of the Municipality and of the districts and counties of this Municipality shall formulate the plan for patent protection and promotion according to the Capital Intellectual Property Strategy, incorporate the patent work into the national economic and social development plan and organize the implementation thereof, guarantee the funds and investment needed by the development of patent undertakings, strengthen the innovation on systems and mechanisms and the building of policy environment, establish and improve patent development and evaluation indicators, and enhance the society's capabilities of patent exploitation, application, protection and administration.
The people's governments of the Municipality and of the districts and counties of this Municipality shall strengthen services, improve market environment that is favorable to patent protection and promotion, and establish a sound overall coordination mechanism for governments, market, and the society.
Article 5 The patent administrative department of the Municipality shall be responsible for the patent work within this administrative region.
The patent administrative departments of the districts and counties of this Municipality shall carry out the work regarding the patent protection and promotion under the guidance of the patent administrative department of the Municipality.
The departments of development and reform, science and technology, economy and information technology, human resources and social security, education, agriculture, industry and commerce, commerce, and state-owned assets administration shall effectively conduct the relevant work according to their respective functions.
Article 6 The relevant departments of the people's governments of the Municipality and of the districts and counties of this Municipality shall guide enterprises and public institutions in carrying out the patent work and direct enterprises and public institutions in establishing sound patent administration systems and rules.
Article 7 The relevant departments of the people's governments of the Municipality, districts, and counties and the relevant entities shall strengthen patent publicity and education, incorporate patent knowledge into the law publicity and education plan and the civil servant training system, strengthen training for staff of enterprises and public institutions, encourage institutions of higher learning to offer patent courses, enhance the whole society's patent consciousness, and create a favorable environment for patent protection and promotion.
Article 8 The relevant departments of the people's governments of the Municipality, districts and counties shall strengthen organization and coordination in the patent information release and news coverage, and collect, analyze, and circulate notices on news coverage and public opinions of major patent events.
Chapter II Protection of Patents
Article 9 The departments of patent administration, industry and commerce, and commerce shall establish work mechanisms for the prevention, investigation, and handling of patent protection, give priority to preventing acts of counterfeiting patents and mass tort, investigate and handle acts of counterfeiting patents, and settle disputes over patent infringement according to law.
Article 10 When investigating and punishing an act of counterfeiting patent and settling patent infringement disputes, the patent administrative department of the Municipality shall investigate and collect evidence according to law. The relevant entities and individuals shall offer assistance and cooperation, faithfully report the situation, and may not refuse or obstruct investigations.
When investigating and punishing an act of counterfeiting patent, the patent administrative department of the Municipality shall legally seize or impound the products where there is evident proof proving that they are counterfeited patented ones.
Article 11 Where, in the handling of disputes over patent infringement, the municipal patent administrative department determines that a patent infringement has been committed and makes a decision on punishment, it shall take measures to stop the tort in accordance with the following provisions:
(1) If the infringer manufactures patent-infringing products, it, he or she shall be ordered to cease the manufacturing act immediately, destroy the special equipment or moulds for manufacturing the patent-infringing products, and shall not sell or use the unsold patent-infringing products, or put them on the market by other means;
(2) If the infringer uses a patented process without approval of the patentee, it, he or she shall be ordered to cease the use immediately, destroy the special equipment or moulds for exploitation of the patented process, and shall not sell or use the unsold patent-infringing products which are obtained from the patented process, or put them on the market by other means;
(3) If the infringer sells patent-infringing products or products directly obtained from a patented process, it, he or she shall be ordered to cease the sale immediately, and shall not use the unsold patent-infringing products or put them on the market by other means;
(4) If the infringer promises to sell patent-infringing products or products directly obtained from a patented process, it, he or she shall be ordered to cease the promise of selling the patent-infringing products immediately, eliminate the ill effects, and shall not commit any actual sale thereof;
(5) If the infringer imports patent-infringing products or products directly obtained from a patented process, and the products have entered the Municipality, it, he or she shall be ordered not to sell or use such patent-infringing products or not to put them on the market by other means;
(6) If the infringer uses any patent-infringing product for the purpose of production and operation, it, he or she shall be ordered to cease the use immediately;
(7) Other necessary measures for ceasing the infringement.
Article 12 The Municipality shall establish a coordination mechanism for the patent protection work, improve the law enforcement collaboration platform, establish the cohesive mechanism of administrative law enforcement and justice for patent cases, and improve the transfer and clues notification system between administrative organs and between administrative organs and judicial authorities.
Article 13 In case of any patent dispute, the parties concerned may resolve it through negotiation, apply for administrative mediation with the municipal patent administrative department in the administrative resolution, or bring a lawsuit to the people's court. Industry associations or other intermediary organizations may accept the authorization of the administrative organ or the people's court to conduct mediation and the relevant work.
Article 14 When the municipal patent administrative department settles patent disputes, it shall preferentially adopt the mediation method to resolve disputes on a voluntary basis. The parties concerned may request the municipal patent administrative department to mediate the following patent disputes:
(1) the dispute over the amount of indemnity due to infringement upon a patent right;
(2) the dispute over the attribution of the right to apply for a patent or of a patent right;
(3) the dispute over the qualification as an inventor or designer;
(4) the dispute over the award or remuneration of the inventor or designer of a service invention-creation;
(5) the dispute over the failure to pay an adequate amount of royalty for the exploitation of an invention after the publication of the application for the patent but before the grant of the patent right, which is put forward after the grant of the patent right;
(6) other patent disputes.
Article 15 The municipal patent administrative department shall mediate patent disputes on a voluntary and lawful basis, encourage the parties concerned to understand each other and resolve disputes through negotiation on the basis of finding facts and distinguishing right from wrong. If the parties concerned conclude an agreement through mediation, the municipal patent administrative department shall prepare a mediation agreement and notify both parties concerned to apply for judicial confirmation with the people's court; if an agreement fails to be concluded, the municipal patent administrative department shall resolve disputes according to law.
Article 16 The patentee or interested party shall properly apply the patent systems, may not abuse patent rights to restrict technological competition and technological development, and shall maintain the market order with fair competition and safeguard public interests and the lawful rights and interests of others.
Article 17 Large-scale retail enterprises shall conclude an agreement on patent protection issues with suppliers, specify both parties' responsibilities for patent protection, and prevent counterfeited patented products and patent-infringing products from entering the circulation market; the suppliers of the patented products shall provide patent certificates or patent exploitation license contracts and the relevant certificates.
Article 18 The sponsors of exhibitions, shows, expositions, and fairs shall conclude agreements on patent protection issues with participants and conduct well the patent protection work in accordance with the relevant provisions. Where a participant participates in the exhibition in the name of patented products or patented technologies, the participant shall submit patent certificates or patent exploitation license contracts and the relevant certificates; where it is necessary to make declaration to the customs according to law, the relevant materials shall be submitted.
During an exhibition, the sponsors, organizers, and participants of the exhibition shall cooperate in the work of the patent administrative departments and other departments.
Article 19 The municipal patent administrative department shall set up archives on enterprises' illegal acts of counterfeiting patents and infringing patent, incorporate such archives into the enterprise credit information system of the Municipality, and timely announce to the public the circumstances of administrative penalties imposed according to law or investigation of criminal liabilities.
Article 20 The Municipality shall establish a work platform for patent reports and complaints, announce the methods of reports and complaints, and keep informers confidential.
Any entity and individual shall have the right to report complaints regarding acts of counterfeited patents to the patent administrative departments of the Municipality, districts and counties, and provide clues to illegal acts. Whoever truthfully reports a complaint shall be given an award.
Article 21 The patent right safeguarding and assistance agencies of the Municipality shall actively carry out the work of patent safeguarding and assistance, and priorities of assistance and support shall be given to persons with difficulties and small and medium-sized enterprises so as to implement the public welfare, professionalization, and standardization of right safeguarding and assistance.
Article 22 The municipal patent administrative department and the relevant departments shall guide enterprises and industry associations in establishing the mechanism for overseas assistance for safeguarding patents, and encourage industry associations and service agencies to provide enterprises with services for response to overseas patent disputes, conflicts, and emergencies. Industry associations shall formulate schemes for overseas patent emergencies of their industries and guide their members in establishing the overseas patent protection systems.
Chapter III Promotion of Patents
Article 23 The Municipality shall encourage enterprises, scientific research institutes, and institutions of higher learning to formulate patent strategies, strengthen their research and development of science and technologies and exploitation, application, protection, and administration of patents; and encourage individuals to make invention-creations and to apply for patents.
Article 24 The Municipality shall focus on the improvement of independent innovation capabilities, innovate on organization patterns, and establish and improve the technological innovation system with projects as the carriers, with enterprises as the mainstay, with market orientation, and with a combination of industries, academia, research institutes, and users.
Article 25 The Municipality shall encourage institutions of higher learning and scientific research institutes to apply for patents in accordance with law and to exploit patents; and support enterprises, institutions of higher learning, and scientific research institutes in carrying out multi-channel and multi-form cooperation, and jointly conducting research and development and exploiting patents.
Article 26 The Municipality shall establish the patent review system for major economic activities, conduct patent evaluation and deliberation of economic activities that use a large amount of government fiscal funds, involve a large amount of state-owned assets, or have great impacts on the economic and social development, prevent hidden troubles of patent disputes and market risks, avoid low-level repeated researches, and provide basis for the government's scientific decision-making. The specific review measures shall be prescribed by the Municipal People's Government.
Article 27 The Municipality shall establish the patent alert system, and collect, analyze, release, and give feedback on such information as overseas and domestic patent situations in key areas and industries, development trends, and competitive situations. The people's governments of the Municipality, districts and counties shall encourage enterprises to conduct the patent alert work and offer guidance thereto, support industry associations and patent intermediary service agencies in providing patent alert services for governments' decision-making and enterprises' development, maintain industry security, and enhance enterprises' capabilities of dealing with patent disputes.
Article 28 The Municipality shall establish the service system for the research and development, exploitation, and trading of patents, establish infrastructure for patent public information services and patent databases for various specialties and special topics, conduct patent information data retrieval, processing, and analysis, promote the transmission and use of patent information, and drive the trading and application of patents.
Article 29 The Municipality shall set up patent awards to reward the patentees who have made and exploited invention-creations in this Municipality, and have made prominent contributions in promoting the economic and social development of this Municipality.
The patent awards shall be used to reward inventors, designers, and personnel of patent administration and technology transfer who have made substantial contributions to the exploitation, transfer, and licensing of patents.
Article 30 The Municipality may give financial support to an entity or individual that needs assistance in respect of invention-creation, patent application, patent exploitation, patent protection, and patent alert. The specific measures therefor shall be formulated by the municipal patent administrative department and municipal public finance department jointly with the municipal departments of science and technology, development and reform, and economy and information technology.
Article 31 The Municipality shall encourage enterprises and other organizations to increase input to patent research and development through various preferential policies. In the calculation of taxable income, expenses incurred from patent research and development may be super-deducted or amortized according to the prescribed proportion on the basis of actual costs.
The expenses incurred from an enterprise's purchase of a patent may be included in the costs as required.
Article 32 Where a patent right assignment contract, a contract on assignment of the right to apply for a patent, or a contract on the licensing of patent exploitation is ascertained and registered in accordance with law, the party concerned may enjoy the relevant taxation preferential policies of the State and the Municipality on technology trading.
Article 33 The municipal patent administrative department shall, jointly with the relevant municipal departments of science and technology, development and reform, economy and information technology, education, and agriculture, establish a patent evaluation indicator system that is ascertained by various innovators including enterprises, institutions of higher learning, scientific research institutes, and social organizations, and treat the ascertained evaluation results as one of the bases for the relevant departments' support and award to innovators.
Article 34 The Municipality shall encourage enterprises to participate in government procurement activities with patent products and technologies under their independent research and development.
Article 35 Where a project of research and development, of technological innovation, or of technology introduction, which applies for the support of government fiscal funds of the Municipality, involves a patent for invention or a patent for utility model, the applicant shall, in light of specific project situations, submit the patent literature retrieval report or the patent analysis report in accordance with the relevant provisions and the requirements of the administrative department in charge of the project.
The municipal patent administrative department shall, jointly with the relevant municipal departments of science and technology, and development and reform, issue the recommendation catalogue of institutions that may issue the patent literature retrieval report or the patent analysis report.
Article 36 Where a patent is likely to arise out of a project supported by government fiscal funds of the Municipality, the project undertaker shall report the patent achievements in a comprehensive, accurate, and truthful manner. The administrative department in charge of the project and the project undertaker shall conclude an agreement on the following matters:
(1) Research and development objectives and acceptance standards involving patent achievements.
(2) Plan for use of funds. Where it is a scientific and technological program project, the expenses incurred as planned and as required may, upon acceptance of the project, be disbursed out of the funds for the scientific and technological program project in accordance with the relevant provisions.
(3) Attribution of the patent right and the relevant rights and interests. Where there is no agreement on the attribution of the patent, the patent right shall be owned by the project undertaker and the project undertaker may independently decide on the exploitation of the patent, licensing others to exploit the patent, assigning the patent, or converting the patent into shares, and may obtain proceeds accordingly, unless otherwise as prescribed in laws and regulations.
(4) Right to apply for a patent and the reasonable time limit for the application for a patent. Where the project undertaker fails to apply for a patent within the reasonable time limit, the inventor or designer may apply for a patent. After a patent is granted, the project undertaker shall enjoy the right of patent exploitation free of charge.
(5) Patent exploitation and application plan and the time limit thereof. Where the project undertaker does not exploit the patent as agreed, the administrative department in charge of the project may license other persons to exploit the patent and the charges collected thereby shall be given to the project undertaker.
(6) Reasonable time limit of patent maintenance.
Article 37 Where an enterprise is established by patent investment, the proportion of patent investment in the registered capital of the enterprise shall be agreed upon by investors in accordance with law. Where an enterprise is established by capital contribution in patent at the evaluated price, the evaluation report issued by an evaluation authority and the capital verification certificate issued by a capital verification authority shall be provided. Where a state-owned enterprise or public institution is involved, the relevant provisions on the administration of state-owned assets shall be followed.
Article 38 The state-owned enterprises and public institutions of the Municipality shall establish patent administration rules as required and establish a sound patent administration system. Under any of the following circumstances, a patent evaluation shall be conducted in accordance with the relevant provisions:
(1) An enterprise is established in patent at the evaluated price.
(2) An overseas enterprise, other organization, or individual is licensed to utilize the patent right.
(3) The restructuring, listing, investment, assignment, swap, auction, or repayment of debts involves a patent.
(4) The merge, split, dissolution, or liquidation involves a patent.
(5) Other circumstances where patent evaluation is needed.
Article 39 The entity that is granted the patent right shall, as required and as agreed, give awards and remunerations to the inventor and designer of service invention-creation, and the personnel of patent administration and technology transfer who have made substantial contributions to the patent exploitation, transfer, and licensing.
The rewards and remunerations may be paid in cash, return on equity, or in other manner that is agreed upon by the parties concerned. The amount, time, and manner of payment shall be agreed upon between parties concerned. Where the amount is not agreed upon, it may be determined according to the following proportions:
(1) Where an entity assigns the patent or licenses others to exploit the patent, the amount may not be lower than 20% of the net income of assignment charge or royalty.
(2) Where the patent right is taken as shares, the amount may not be lower than 20% of return on share or equity.
Article 40 In the evaluation of qualification for professional and technical titles, the Municipality shall take the relevant patents owned by an inventor or designer that have been exploited and have achieved economic or social benefits as major factors in the evaluation; and the patent that can play an important role in technical progress or achieve marked economic returns or social benefits may be used as an important factor in the evaluation of qualification for relevant professional titles of inventors, designers, and personnel that have made substantial contributions to the patent exploitation, assignment, and licensing, beyond the normal rules.
Article 41 For the patent owned by an entity that meets the exploitation conditions but fails to be exploited in proper time, the Municipality shall encourage the inventor or designer of the service invention-creation or any other entity and individual to exploit the patent by concluding a contract with the entity enjoying the patent right.
Article 42 The Municipality shall encourage financial innovation in the patent field, support financial institutions in launching patent pledge business, innovate on the handling mechanism of patent pledge, establish the mechanism of pledge loans and risk compensation, encourage enterprises with patents to finance by utilizing the capital market, and support overseas and domestic individuals and institutions in conducting investment for the purpose of patent application.
The venture investment guide capitals and funds that are established by the people's governments of the Municipality, districts and counties as well as the relevant departments in accordance with law shall apply such measures as staged purchase of shares, follow-up investment, and risk subsidies to support the industrialization and commercialization of patents.
Article 43 The Municipality shall encourage the development of the patent service industry, support the development of patent intermediary service agencies, strengthen the building of the talent teams of the patent intermediary service sector, cultivate the patent intermediary service market, and improve the patent intermediary service system.
Article 44 Patent intermediary service agencies and their practitioners shall provide services in accordance with law, may not canvass business by utilizing commercial bribes, and may not divulge the commercial secretes of their clients.
Article 45 The municipal patent administrative department shall conduct supervision and administration of patent intermediary service agencies and their practitioners in accordance with law. The patent intermediary service agencies engaging in patent agency business that are legally established in the Municipality shall submit information about themselves and their practitioners to the municipal patent administrative department for recordation as required, and the municipal patent administrative department shall disclose such information.
The municipal patent administrative department shall establish the information management system for violations of patent intermediary service agencies and their practitioners and disclose the violation information in a timely manner.
Article 46 The relevant industry associations of the Municipality shall carry out publicity and training on patent knowledge, intensify patent awareness of members, standardize behavior of members, guide and support the members' establishment of patent alliances and patent pools, and provide members with patent information consultancy, alert, right assistance, and other services.
Industry associations shall strengthen their cooperation with institutions of higher learning and scientific research institutes, make full use of advantages of institutions of higher learning and scientific research institutes, and promote cooperation among industries, academia, and research institutes.
Chapter IV Legal Liabilities
Article 47 After a decision on administrative punishment for disputes over patent infringement or a judgment rendered by a court takes effect, where the same infringer infringes upon the same patent right again, it shall be ordered to make corrections by the municipal patent administrative department, with confiscation of any illegal income, and be fined not less than 20,000 yuan but not more than 200,000 yuan.
Article 48 The municipal patent administrative department shall, in accordance with Article 11 of this Regulation, adopt measures to stop the infringement. Where the infringer refuses to execute the decision on administrative punishment, the municipal patent administrative department may confiscate products and equipment or moulds and other means of production involved.
Article 49 Where a patent intermediary service agency or any of its practitioners violates Article 44 of this Regulation, it, he or she shall be punished by the municipal industry and commerce department according to law.
Article 50 Where the relevant departments that are responsible for the protection and promotion of patents and their staff violate this Regulation, fail to perform, illegally perform, or improperly perform functions of the protection and promotion of patents, they shall be subject to administrative liabilities according to law; and where the acts of the relevant staff constitute a crime, the relevant staff shall be subject to criminal liabilities according to law.
Chapter V Supplementary Provisions
Article 51 This Regulation shall come into force on March 1, 2014.