Patent Agency Regulation (2018 Revision)

 2018-12-07  335


· Document Number:Order No. 706 of the State Council of the People's Republic of China

· Area of Law: Patent

· Level of Authority: Administrative Regulations

· Date issued:11-06-2018

· Effective Date:03-01-2019

· Issuing Authority: State Council

· Status: Not Yet Effective

 

Order of the State Council of the People's Republic of China
(No. 706)
The Patent Agency Regulation as revised and adopted at the 23rd executive meeting of the State Council on September 6, 2018, is hereby issued and shall come into force as of March 1, 2019.
Premier Li Keqiang
November 6, 2018
Patent Agency Regulation
(Issued by the Order No. 76 of the State Council of the People's Republic of China on March 4, 1991 and revised and adopted at the 23rd executive meeting of the State Council on September 6, 2018)
Chapter I General Provisions
Article 1 For the purposes of regulating patent agency conduct, protecting the lawful rights and interests of principals, patent agencies and patent agents, maintaining the normal order of patent agency activities, and promoting the sound development of the patent agency industry, this Regulation is developed under the Patent Law of the People's Republic of China.
Article 2 For the purpose of this Regulation, “patent agency conduct” means conduct that a patent agency, as authorized, deals with patent application, declaration of patent invalidity, or any other patent matter in the name of the principal, within the scope of authority of the principal.
Article 3 An entity or individual may apply for a patent and deal with any other patent matter in China by itself, himself or herself, or authorize a patent agency established according to the law to do so, except as otherwise stipulated by law.
A patent agency shall deal with patent matters as authorized by the principal.
Article 4 A patent agency or patent agent shall, when practicing, abide by the laws and administrative regulations, observe professional ethics and practicing discipline, and protect the lawful rights and interests of principals.
A patent agency or patent agent that practices as legally required shall be protected by law.
Article 5 The patent administrative department of the State Council shall be responsible for patent agency administration nationwide.
The department charged with patent administration of the people's government of a province, autonomous region or municipality directly under the Central Government shall be responsible for patent agency administration in its administrative region.
Article 6 A patent agency or patent agent may establish or participate in a patent agency industry organization according to the law.
A patent agency industry organization shall develop self-regulatory rules of the patent agency industry. The self-regulatory rules of the patent agency industry may not contravene any law or administrative regulation.
The patent administrative department of the State Council shall supervise and guide patent agency industry organizations according to the law.
Chapter II Patent Agencies and Patent Agents
Article 7 A patent agency shall be organized in such form as partnership and limited liability company.
Article 8 A patent agency in such form as partnership and limited liability company that engages in patent agency business shall have the following requisites:
(1) A patent agency name in compliance with the provisions of the laws and administrative regulations.
(2) A written partnership agreement or corporate bylaws.
(3) An independent place of business.
(4) Partners or shareholders in compliance with the relevant rules of the state.
Article 9 One that is to engage in patent agency business shall file an application with the patent administrative department of the State Council, submit relevant materials, and obtain a patent agency practicing permit. The patent administrative department of the State Council shall, within 20 days from the date of accepting the application, make a decision on whether to issue a patent agency practicing permit.
For any change in the partner, shareholder, legal representative, or any other matter of a patent agency, the formalities for modification shall be completed.
Article 10 A Chinese citizen who has received an associate's degree or above in science or engaging from an institution of higher education may sit the National Examination for Patent Agent Qualifications; and if he or she qualifies, the patent administrative department of the State Council shall issue a patent agent qualification certificate. Measures for examinations for patent agents' qualifications shall be developed by the patent administrative department of the State Council.
Article 11 A patent agent shall have a patent agent qualification certificate, complete an internship of one year or more at a patent agency, and practice in a patent agency.
Article 12 A patent agent that practices for the first time shall, within 30 days from the date of practicing, report to the department charged with patent administration of the people's government of the province, autonomous region or municipality directly under the Central Government where the patent agency is located.
The departments charged with patent administration of the people's governments of provinces, autonomous regions and municipalities directly under the Central Government shall facilitate filing through the Internet by patent agents.
Chapter III Patent Agency Practicing
Article 13 A patent agency may, as authorized, act on behalf in patent application, declaration of patent invalidity, transfer of the right to apply for a patent, conclusion of a contract of license for exploitation of a patent, or any other patent matter, or provide consulting in the aspect of patent matters at the request of a party.
Article 14 When a patent agency accepts authorization, it shall enter into a written engagement contract with the principal. Upon the patent agency accepting the authorization, it may not accept the authorization from another party with a conflicting interest in respect of the same patent application or matter regarding a patent right.
The patent agency shall appoint its practicing patent agent to undertake patent agency business, and neither the patent agent so appointed nor his or her close relatives may have an interest in conflict with the patent agency business he or she undertakes.
Article 15 Where a patent agency is dissolved, or its practicing permit is revoked or suspended, it shall duly deal with various pending patent agency business.
Article 16 A patent agent shall undertake patent agency business as appointed by the patent agency, and shall not accept authorization by himself or herself.
A patent agent may not engage in patent agency business concurrently in two or more patent agencies.
A patent agent shall be responsible for the patent agency business transacted with his or her signature affixed.
Article 17 A patent agency or patent agent shall have the obligation to keep any content of the invention-creation known to it, him or her in the course of practicing confidential, unless the patent application has been published or announced.
Article 18 A patent agency or patent agent may not apply for a patent, or seek a declaration of patent invalidity, in its, her or his own name.
Article 19 A functionary of the patent administrative department of the State Council, or the department charged with patent administration of a local people's government, shall not, upon dismissal, engage in patent agency work within the period as prescribed by any law or administrative regulation.
A patent agent who served at the patent administrative department of the State Council, or the department charged with patent administration of a local people's government, may not serve as an agent in respect of a patent application or patent case which he or she has examined, adjudicated or processed.
Article 20 A patent agency shall charge by the principles of voluntariness, fairness and good faith, taking into account economic and social benefits.
The state shall encourage patent agencies and patent agents to provide patent agency assistance services for micro and small-sized enterprises as well as inventors and designers who have no income or a low income.
Article 21 A patent agency industry organization shall strengthen the self-regulatory management of its members, organize business training as well as professional ethics and practicing discipline education for patent agents, and take disciplinary action against a member who violates industry self-regulatory rules.
Article 22 The patent administrative department of the State Council and the departments charged with patent administration of the people's governments of provinces, autonomous regions and municipalities directly under the Central Government shall inspect and supervise the practicing activities of patent agencies and patent agents by random inspection and other means, and if any violation of this Regulation is discovered, address the violation in a timely manner as legally required, with the results of inspection and addressing disclosed to the public. No fee may be collected for the inspection.
Article 23 The patent administrative department of the State Council and the departments charged with patent administration of the people's governments of provinces, autonomous regions and municipalities directly under the Central Government shall strengthen the release of public information on patent agency conduct and provide access services for public to understand the operation of patent agencies and the practicing by patent agents.
Chapter IV Legal Liability
Article 24 Where a patent agency practicing permit or patent agent qualification certificate is obtained by concealing the truth or making falsehood, the patent administrative department of the State Council shall revoke the said permit or certificate.
If a patent agency ceases to meet the conditions as specified in this Regulation as a result of changes in the situation, upon obtainment of a practicing permit, the patent administrative department of the State Council shall order it to take corrective action within a specified period; and if it fails to do so or disqualifies notwithstanding the corrective action, its practicing permit shall be revoked.
Article 25 Where a patent agency commits any of the following conduct, the department charged with patent administration of the people's government of the province, autonomous region or municipality directly under the Central Government shall order it to take corrective action within a specified period and issue a warning to it, and may fine it not more than 100,000 yuan; and if the circumstances are serious or no corrective action is taken upon expiration of the period, the patent administrative department of the State Council shall order it to cease undertaking new patent agency business for six months to 12 months, or suspend its patent agency practicing permit:
(1) Failing to complete the formalities for modification for a change in partner, shareholder, legal representative, or any other matter.
(2) Accepting the authorization from another party with a conflicting interest in respect of the same patent application or matter regarding a patent right.
(3) Appointing a patent agent to undertake a patent agency business in conflict of interest with him or her, or his or her close relatives.
(4) Divulging any content of the principal's invention-creation, or applying for a patent or seeking a declaration of patent invalidity in its own name.
(5) Causing serious consequences by negligent management.
If a professional agency divulges any content of the principal's invention-creation in the course of practicing, which involves the disclosure of a state secret or infringement of a trade secret, or bribes a functionary of the relevant administrative or judicial agency, or provides false evidence, it shall assume legal liability in accordance with the provisions of relevant laws and administrative regulations, and the patent administrative department of the State Council shall suspend its patent agency practicing permit.
Article 26 Where a patent agent commits any of the following acts, the department charged with patent administration of the people's government of the province, autonomous region or municipality directly under the Central Government shall order him or her to take corrective action within a specified period and issue a warning to the same, and may fine the same not more than 50,000 yuan; and if the circumstances are serious or no corrective action is taken upon expiration of the period, the patent administrative department of the State Council shall order him or her to cease undertaking new patent agency business for six months to 12 months, or suspend his or her patent agent qualification certificate:
(1) Failing to submit filing in accordance with the provisions of this Regulation.
(2) Accepting authorization on his or her own to transact patent agency business.
(3) Engaging in patent agency business concurrently at two or more patent agencies;
(4) Serving as an agent in respect of a patent application or patent case which he or she has examined, adjudicated or processed, in violation of the provisions of this Regulation.
(5) Divulging any content of the principal's invention-creation, or applying for a patent or seeking a declaration of patent invalidity in his or her own name.
If a patent agent divulges any content of the principal's invention-creation in the course of practicing, which involves the disclosure of a state secret or infringement of a trade secret, or bribes a functionary of the relevant administrative or judicial agency, or provides false evidence, he or she shall assume legal liability in accordance with the provisions of relevant laws and administrative regulations, and the patent administrative department of the State Council shall suspend his or her patent agent qualification certificate.
Article 27 Where patent agency business is conducted in violation of the provisions of this Regulation, the department charged with patent administration of the people's government of the province, autonomous region or municipality directly under the Central Government shall order the illegal conduct to be ceased, confiscate illegal income, and fine a sum not less than one times nor more than five times the illegal income.
Article 28 Where a functionary of the patent administrative department of the State Council, or the department charged with patent administration of the people's government of a province, autonomous region or municipality directly under the Central Government, in violation of the provisions of this Regulation, misuses power, neglects duties, practices favoritism, or makes falsehood, disciplinary action shall be taken against him or her according to the law; and if a crime is committed, the offender shall be held criminally liable in accordance with the law.
Chapter V Supplemental Provisions
Article 29 A foreign patent agency shall establish a resident representative office within the territory of the People's Republic of China, with the approval of the patent administrative department of the State Council.
Article 30 A law firm may conduct patent-related business in accordance with the laws and administrative regulations such as the Lawyers Law of the People's Republic of China and the Civil Procedure Law of the People's Republic of China, but it shall represent others in patent application and declaration of patent invalidity business under the provisions of this Regulation, for which specific measures shall be developed separately by the patent administrative department of the State Council in consultation with the judicial administrative department of the State Council.
Article 31 Administrative measures for patent agencies and patent agents representing others in defense patent matters shall be separately developed by the patent administrative department of the State Council in consultation with the national authority in charge of defense patent institutions.
Article 32 This Regulation shall come into force on March 1, 2019.
A patent agency established in accordance with the law, or patent agent practicing as legally required, before the operation of this Regulation may continue to carry out patent agency business as a patent agency or patent agent after its operation.