Regulations of Jiangsu Province on Patent Promotion
Regulations of Jiangsu Province on Patent Promotion
- Document Number：Announcement No. 14 of the Standing Committee of the Eleventh People's Congress of Jiangsu Province
- Area of Law： Intellectual Property
- Level of Authority： Provincial Local Regulations
- Date issued：05-20-2009
- Status： Effective
- Issuing Authority： Jiangsu Province
Announcement of the
Standing Committee of the Eleventh People's Congress of Jiangsu Province
The Regulations of Jiangsu Province on Patent Promotion, adopted at the Ninth Meeting of the Standing Committee of the Eleventh People's Congress of Jiangsu Province on May 20, 2009, are hereby promulgated and shall enter into effect as of October 1, 2009.
May 20, 2009
Regulations of Jiangsu Province on Patent Promotion
(Adopted at the Ninth Meeting of the Standing Committee of the Eleventh People's Congress of Jiangsu Province on May 20, 2009)
Chapter I General Provisions
Article 1 These Regulations are enacted in accordance with the Patent Law of the People's Republic of China and other laws and administrative regulations, in light of the specific situation of this Province, and for the purpose of encouraging and protecting invention and creation, cultivating independent intellectual property rights, and promoting the construction of a creative province.
Article 2 These Regulations shall apply to patent promotion work and its relevant activities within the administrative region of this Province.
Article 3 Patent promotion work shall be conducted in compliance with the principles of encouraging creation, effective application, scientific administration and reasonable protection and for the purpose of promoting the improvement of the independent creation ability of this Province.
Article 4 The local people's government at or above the county level shall strengthen the leadership over the patent promotion work, incorporate the patent work into the national economic and social development planning, establish and improve patent work coordination mechanism, encourage and support the creation and application of patents, and strengthen management and protection of patents to promote the development of the patent undertaking.
Article 5 The local people's government at or above the county level and its relevant departments shall strengthen education on patents to raise the whole society's awareness of this regard, and create a beneficial environment for patent development.
Article 6 The department in charge of patent work of the local people's government at or above the county level (hereinafter referred to as the patent administration department) is the competent department responsible for patent work within the administrative region of this Province.
The departments such as development and reform, economics and trade, science, finance, taxation, education and public security shall, according to their respective functions and duties, jointly do well their work on patent administration.
Article 7 Various trade associations are encouraged and supported to formulate and implement management systems relevant to patent promotion, and organize events such as information exchange within the same trade, cooperation between different trades or market exploration to promote the application for patents, and protection and application of patents.
Chapter II Stimulation Measures
Article 8 The local people's government at or above the county level and its relevant departments shall strengthen guidance over the patent work conducted by various enterprises and institutions and grant them more services, encourage and support them to formulate and implement patent development strategies and promote the implementation of relevant regulations on patent management to improve independent creative ability and the level of patent application; foster and develop patent intermediary service organs, guiding them to provide high quality and standard patent intermediary services to enterprises and institutions.
Article 9 The local people's government at or above the county level and its relevant departments shall strengthen the construction of patent information service platform and encourage and support the construction of patent information data bank of various trade to promote the co-sharing, development and utilization of patent information.
Article 10 The local people's government at or above the county level shall set up a special fund for patents to be used for the following purposes:
(1) providing financial assistance for patent application;
(2) promoting the exploitation of patent;
(3) carrying out publicity on patent and talent training;
(4) assisting in the protection of patent rights;
(5) supporting the development of patent intermediary service organs;
(6) other matters that promote the patent undertaking.
The special fund for patents shall be used for its special purpose. The specific measures for its use shall be formulated by the patent administration department at or above the county level in conjunction with the financial department at the same level.
Article 11 The Provincial People's Government shall set up patent award to award the excellent patent projects exploited within this Province which have produce good economic effects and social effects or the units or individuals who have made great achievement in the patent work.
Article 12 The local people's government at or above the county level shall support the invention and application of technologies with independent patent. The special fund for patents shall be used in the first place to support the patent exploitation projects which involve independently patented technologies.
Article 13 Institutions of higher learning, science and technology institutions and enterprises are encouraged and supported to carry out cooperation in various forms through different channels to jointly research into, develop and exploit patent technologies.
Article 14 The venture capital investment fund or the venture capital investment organs established with government financial fund shall increase their investment in patent technology industrialization projects.
Commercial banks are encouraged to increase their credit supply to patent technology industrialization projects; the local people's government at or above the county level may, in their local budgets, arrange a certain amount of fund in the special fund for patents to be used for subsidizing the interest payment on loans to the patent technology industrialization projects; and the guaranty institutions are encouraged to provide finical guaranty to patent technology industrialization projects with priority.
Article 15 Institutions of higher learning are encouraged to spread patent knowledge and cultivate patent talents through means such as incorporating the patent knowledge into their course selections or setting up special institutions for intellectual property education. The competent administrative departments such as education shall grant them with assistance.
Article 16 Enterprises and institutions are encouraged and supported to increase their input in the research and development of patent technologies and products.
The research and development fees incurring to an enterprise when developing new technologies, new products and new process may, in case the fees haven't constituted the part of an intangible asset and have been recorded into the profit or loss for the current period, be deducted from the taxable income as the real expense and a further 50% of the research and development fees may also be deducted from the taxable income; where the fees have constituted a part of an intangible asset, a total 150% of the cost of the intangible asset can be recorded for amortization.
Article 17 The income of a patent intermediary service organ obtained through assignment or development of patent technologies or relevant services such as patent technology services or technical consulting business may, where the technical transaction contract is certified by the local science or patent administrative departments according to their respective functions and duties and reported to the taxation organ for record, be exempted from the business tax according to law.
The various prescribed fees charged by the State or international patent fees collected or withheld by the patent intermediary service organ may be deducted from the taxable turnover according to law when counting the business tax.
Article 18 Enterprises, institutions and individuals are encouraged to take such means according to law to promote the exploitation of patent as taking the patent right as shares, pledging or assigning the patent right or giving license for the use of the patent right. In case of taking the patent right as shares, the shares can make up to as high as 70% of the company's registered capital; transactions such as assigning patent right or licensing others to exploit the patent right may enjoy preferential tax rate according to law.
New products created during the exploitation of patent may, according to the relevant provisions, enjoy preferential policies designed for supporting the development of new products.
Article 19 When a unit which is granted the patent right assigns its patent right, the inventor or the designer shall have the right of first refusal under the same condition.
Where there is agreement between the inventor or designer of a service invention-creation and his unit on his award and remuneration, the agreement shall prevail; where there is no such agreement, the following regulations shall be implemented:
(1) after the patent is exploited and economic effect is obtained, a fee of not less than 5% of the profit after tax, obtained after the exploitation of an invention patent or utility model patent, shall be withdrawn every year to pay to the inventor or designer as remuneration during the duration of the patent, or not less than 5‰ in case of a design patent; the remuneration can also be paid in a lump sum with reference to the above-mentioned ratios;
(2) where the unit licenses others to exploit the patent, it shall withdraw not less than 20% of the after-tax patent license fee to pay to the inventor or designer as his remuneration within 3 three months after it gets the patent license fee;
(3) where the unit assigns the patent right, it shall withdraw not less than 20% of the after-tax patent right assignment fee to pay to the inventor or designer as his remuneration within 3 months after it gets the patent right assignment fees;
(4) where a patent technology is exploited through converting it into shares, the inventor or designer may take not less than 20% of the appraised value of the patent technology when it is contributed as investment as his shares or remuneration.
Article 20 The relevant units shall take the relevant patents owned by an inventor or designer as a reference when evaluating and checking his qualification for a professional title.
Patent which has great impact on technical improvement or has achieved considerable economic result may be used as a basis by its inventor or designer to apply for relevant professional title beyond the normal rules. Main inventors of patents which win the China golden prize or excellent award for patents or excellent patent projects or excellent patent inventor prize of this Province may apply for the relevant professional title beyond the normal rules.
Article 21 For an individual's non-service invention and creation, the relevant departments and units shall grant him assistance and help in patent application, assignment of patent right and patent exploitation.
Chapter III Standardized Administration
Article 22 The applicant seeking for government's financial assistance in his projects such as research and development of major technologies, technical innovation, introduction of techniques, and industrialization of technical achievement shall provide the index report of relevant technical patent papers to the competent department in charge of the projects. Where, after the joint examination by the competent department in charge of the relevant projects and the patent administration department, the project is found under the suspicion of infringement on other people's patent right or repeated research and development, the government fund shall not be granted.
Where a project under government's financial assistance is likable to produce patent, the relevant administrative department shall reach into agreement with the unit undertaking the project on the patent targets, and incorporate the on-going status of patent achievement into the scope of project administration. The patent obtained through the project shall be owned by the unit undertaking the project, unless otherwise agreed by the department in charge of the project and the unit undertaking the project.
Article 23 The unit possessing the state-owned patent asset shall conduct evaluation on the patent asset according to the relevant provisions under any one of the following situations:
(1) establishing limited-liability company or stock limited company with patent asset, based on its appraised value, as its capital contributions;
(2) licensing foreign companies, enterprises, other economic organizations or individuals to use its patent right while there is no referential price in the market;
(3) engaging in business transactions such as transformation, listing in the stock market, merger, division, liquidation, investment, transferal, replacement, auction or debt payment which involve the patent asset;
(4) other situations which require evaluation on the patent asset.
Article 24 When the patentee or the person who is licensed to exploit the patent makes a patent sign on his products, product packaging or product brochures, he shall illustrate the patent category and patent number according to the relevant provisions of the State.
Article 25 The relevant unit or individual shall produce the copy of the patent register book, and the person who is licensed to exploit the patent shall produce the patent exploitation licensing contract under any one of the following situations:
(1) applying for government financial assistance or government award for a project which has patent products or patent technology as its main contents;
(2) in the exhibition events such as exhibitions, product promotion conferences or commodity fairs, the parties involved make a patent sign on their products, display boards or publicity materials;
(3) organizing commodities bearing the patent signs to enter into circulation fields such as shopping malls or supermarkets for sale;
(4) commissioning the relevant units or individuals to design, make, or release advertisement which contains information on patent right;
(5) other situations under which the ownership of the patent right or the legal status of the patent right needs to be confirmed.
No financial assistance or service may be granted if the copy of the patent register book cannot be produced.
Article 26 Patent intermediary service organs shall meet the qualifications as provided by the State and register according to law.
The patent intermediary service organ and its staff members shall provide patent intermediary service according to law. They may not issue fake index or evaluation reports or engage in illegal activities which infringe upon the public interests or lawful rights and interests of patent applicants, patentees, and other units and individuals such as soliciting business with devious means, seeking unlawful gains by colluding with its clients, or disclosing the commercial secrets of its clients.
The patent administration department and its staff members may not engage in or participate in the patent intermediary services.
Article 27 The person who leaves his employing unit due to termination or discharge of labor service relationship or other reasons shall, before leaving the unit, return the unit the following items relevant to his service invention and creation such as the experiment materials, experiment data, sample products or machines or other technical data which are not open to others.
Article 28 When exporting technology, equipment or commodities, the enterprise shall search the patent documents on the technology concerned of the country or the place where the importer is located to avoid the export products' infringement on the patent right of the country or the place. Where the enterprise meets the conditions of applying for patent in the country or place where the importer is located, it shall be encouraged to apply for the patent in advance or at the same time. When the enterprise is engaged in patent right protection, the relevant administrative department shall render its support and assistance.
Chapter VI Administrative Protection
Article 29 The patent administration department shall establish a cooperative patent law enforcement mechanism to handle disputes on patents and investigate into acts in violation of patent laws according to law and protect the lawful rights and interests of patentees and other units and individuals.
Article 30 Where a patent infringement dispute case accepted by the patent administration organ concerns patent on new product manufacturing methods, the patent administration organ may, during the investigation, request the person under investigation to prove, through live demonstration or other means, that his manufacturing method is different from the patented method.
Article 31 When collecting evidences for investigation into acts in violation of patent laws, where the evidences may be destroyed or lost, or difficult to obtain in the future, the patent administration department may, with the approval of the person in charge, register the evidences and keep them in custody in the first place, and make its handling decision within 7 days. No unit or individual may destroy or move the evidences that have thus been registered and kept in custody.
Article 32 In a dispute accepted by the patent administration department concerning infringement upon patent rights, where the person against whom the claims are brought up applies for declaration invalid of the patent right and requests the termination of the handling of the dispute, the patent administration department shall terminate the handling of the dispute, however, it may refuse to terminate the case under any one of the following situations:
(1) the patent right which the person against whom the claims are brought up applies for declaration invalid is a patent right for invention, or a patent right for utility model or design which the patent review committee considers to still be valid or partly valid after its review;
(2) the patent right evaluation report holds that the patent right or utility model or design meets the conditions provided by laws or administrative regulations for granting the patent right;
(3) the evidences presented by the person against whom the claims are brought up are sufficient to prove that the technologies or designs he uses are existing ones;
(4) the evidences or reasons adopted by the person against whom the claims are brought up to support his application for declaration invalid of the patent right are obviously insufficient;
(5) the technology or design accused of infringement on a patent right is obviously not one to be protected by that patent right;
(6) other situations as provided by the State.
Article 33 When handling a patent dispute, the patent administration department may, upon the request of the parties concerned or when necessary, consult the experts, organize the experts to conduct an argument, or commission the relevant units to make a technical appraisal.
Where a technical appraisal is conducted, the responsible party shall bear the appraisal cost. If the parties concerned have agreed otherwise upon the appraisal cost, that agreement shall prevail.
Article 34 When handling a patent infringement dispute according to law, the patent administration department may, where it decides that an act of infringement is constituted, take the following measures to stop the act of infringement:
(1) in case the infringer manufactures the patented products or uses the patented process without license, it shall order him to stop manufacturing of the products and using of the patented process and to destroy the relevant molds and equipment, and forbid them to move away the patented products that have been manufactured or obtained directly through using the patented process without license or place them on the market in any way;
(2) in case the infringer sells, promises to sell the patented products or obtains the products using the patented process without license, it shall order him to stop the selling or making promise to sell the products and forbid him to move away the unsold products in any way;
For the patented products or products obtained through using the patented process without license as mentioned in the preceding paragraphs, where, after the negotiation of the parties concerned, an agreement is reached into, the products can be disposed according to the agreement; where no agreement can be reached into, the patent administration department may order the infringer to destroy or dismantle the products.
Article 35 The provincial patent administration department shall establish an archive recording the enterprises which counterfeit patents or repeatedly infringe patent rights on purpose, incorporate it into the credit information system of the enterprises of this Province and make it public.
Units and individuals are encouraged to report against acts of patent counterfeiting. The patent administration department shall investigate into and deal with the cases in time, and keep the reporters secret.
Chapter V Legal Liabilities
Article 36 The patent administration department shall confiscate and destroy the counterfeited patent marks; where the patent marks are pasted, recorded or attached to the products, it shall order the relevant party to remove them; where the patent marks are difficult to be removed, it shall order the relevant party to destroy the products.
Article 37 In the exhibition events such as exhibitions, product promotion conferences or commodity fairs, where there are proofs evidencing an exhibitor's infringement on other people's patents rights or counterfeit of patents, the patent administration department may order it to withdraw from the exhibition and deal with the case according to law.
Article 38 Where the staff members of the relevant administrative departments abuse their powers, neglect their duties, engage in malpractices for personal gains or infringe upon the lawful rights and interests of the administered party in their patent administration activities, the unit which they belong to or the relevant competent departments shall give them administrative sanctions; where a crime is constituted, the criminal liabilities shall be investigated into.
Chapter VI Supplementary Provisions
Article 39 These Regulations shall enter into effect as of October 1, 2009.