专利实施强制许可办法 Order of the Director of the State Intellectual Property Office

国家知识产权局局长令第31号

颁布日期：20030613 　实施日期：20030715 　颁布单位：国家知识产权局

　　No.31

　　The Measures for Compulsory Licensing of Patent Implementation has passed the review of the directorate meeting， which are hereby promulgated and will come into force on as of July15， 2003.

　　Director

　　June 13， 2003

　　Measures for Compulsory Licensing of Patent Implementation

　　Chapter I General Provisions

　　Article 1 In order to standardize implementing the granting， expenses determination and termination procedures for compulsory licensing of invention patent or patent of utility models （hereinafter referred to as the compulsory licensing）， the Measures are hereby formulated in accordance with the Patent Law of the PRC （hereinafter referred to as the Patent Law）， the Implementation Rules of the Patent Law of the PRC （hereinafter referred to as the Implementation Rules of the Patent Law） and the relevant laws and regulations.

　　Article 2 The State Intellectual Property Office is in charge of the acceptance and investigation of the petitions and makes decisions on compulsory licensing， the adjudication of the use fees of compulsory licensing and the termination of compulsory licensing.

　　Article 3 The petitions for granting compulsory licensing， for adjudication of the use fees of compulsory licensing and for termination of compulsory licensing shall be handled with in Chinese in a written form.

　　In case the certificates， certification document submitted in compliance with the Measures are in foreign languages， the parties concerned shall provide the translation version in Chinese at the same time， and failure to submit the Chinese version will be deemed as failure to provide the relevant certificates or certification documents.

　　Article 4 When petitioning for the right holders of invention or patent of utility models to offer licenses in implementing their patents but failing to obtain such licenses in a reasonable term， the unit eligible for such implementation may petition for granting of the compulsory licensing in implementing the invention patent or patent of utility models according to the provision of Article 48 of the Patent Law.

　　In case an invention or utility model obtaining patent is of material technological advancement in obvious economic significance as compared with the previous one that has obtained patent and its implementation depends on the implementation of the previous invention or utility model， the patent holder thereof may according to the provision of Article 50 of the Patent Law petition for granting the compulsory licensing in implementing the former patent， and vise versa.

　　In emergency or irregular event of the state， or for the purposes of public interest， the competent department under the State Council is entitled to grant the compulsory licensing for implementing the invention patent or patent of utility models as per the petitions based on the provisions of Article 49 of the Patent Law.

　　Article 5 When authorizing the patent agency to submit the petition for compulsory licensing， the petitioner shall provide the power of attorney and the authority indicated.

　　When there are no less than two petitioners without authorized patent agency， unless otherwise stated in the petition， the first petitioner indicated in the petition shall be deemed as the representative.

　　Chapter II Review and Decisions of Petitions for Compulsory Licensing

　　Article 6 When petitioning for grant of compulsory licensing， an application for compulsory licensing should be submitted to the State Intellectual Property Office， indicating the following items：

　　（I） Name and address of the petitioner；

　　（II） Nationality of the petitioner or the country where the headquarters is located；

　　（III） The name， patent number， date of application and date of

authorized announcement of the invention patent or patent of utility models relating to the petitioned compulsory licensing；

　　（IV） Name of the right holders of the invention patent or patent of utility models relating to the petitioned compulsory licensing；

　　（V） Reasons and facts for petitioning for grant of the compulsory licensing；

　　（VI） When authorizing a patent agency， the petitioner shall indicate the relevant items； and in case there is no authorized patent agency， name， address， postcode and contact telephone of the contact person should be indicated；

　　（VII） The signature or stamp of the petitioner； and if there is an authorized agency， the stamp of the agency is required also；

　　（VIII） List of the attached documents；

　　（IX） Other items required to state.

　　The petition and attached documents should be executed in two copies.

　　Article 7 In case a petition for compulsory licensing relating to multiple invention patent or patent of utility models involves two or more patent right holders， different petitions should be submitted to different patent right holders.

　　Article 8 In any of the following cases relating to the compulsory licensing， the State Intellectual Property Office will not accept the petition with notification to the petitioner：

　　（I） the patent number of the invention patent or patent of utility models relating to the petitioned compulsory licensing is not clear or is hard to identify；

　　（II） The petitioning documents without Chinese version；

　　（III） Obviously no reason available for petitioning compulsory licensing.

　　Article 9 In case the petitioning documents do not meet the provisions of Articles 6 and 7 of the Measures， the petitioner shall within 15 days upon receipt of the notice make up for the documents. In case of failure to making up for the documents required， the petition will be deemed as no submission.

　　The petitioner shall within a month upon the petition for compulsory licensing pay the petitioning fees of compulsory licensing； and in case of nonpayment or insufficient payment of such petitioning fees， the petition will be deemed as no submission.

　　Article 10 In terms of the petitions for compulsory licensing in compliance with the provisions of the Patent Law， the Implementation Rules of the Patent Law and the Measures， the State Intellectual Property Office shall send the copy of the petition to the patent right holders. The patent right holders shall state their opinions within the time schedule specified. In case of no reply beyond the time schedule， the State Intellectual Property Office may make a decision as usual.

　　Article 11 The State Intellectual Property Office shall review the reasons stated by the petitioner and the relevant certification documents. In case of field verification required， the State Intellectual Property Office shall assign no less than two persons to carry out the field verification.

　　In case the reasons stated by the petitioner and the relevant certification documents are insufficient or false， the State Intellectual Property Office may prior to the refusal to the petition of compulsory licensing send notification to the petitioner for providing the latter with an opportunity for statement of its opinions.

　　Article 12 In case the petitioner or the patent right holders request for hearing， the State Intellectual Property Office may organize a hearing.

　　The State Intellectual Property Office shall seven days before the hearing send notification to the petitioner， patent right holders and other persons of interest.

　　Except for involvement of state secrets， commercial secrets or personal privacy， the hearing should be held in open session.

　　When the State Intellectual Property Office is holding a hearing， the petitioner， patent right holders and other persons of interest may defend an

d make cross-examination.

　　The hearing should be recorded in writing， which should be singed or stamped upon confirmation without error by the participants.

　　The hearing procedure is not applicable to the petitions for grant of compulsory licensing according to the provisions of Article 49 of the Patent Law.

　　Article 13 In any of the following cases， the State Intellectual Property Office shall made a decision on refusal to the petition for compulsory licensing， with notification sent to the petitioner：

　　（I） the petitioner is not an eligible subject as specified by Article 4 of the Measures；

　　（II） The reasons for petitioning the grant of the compulsory licensing are not in compliance wit the provisions of Articles 48， 49 and 50 of the Patent Law；

　　（III） The reasons are not in compliance with the provision of Article 72 of the Implementation Rules of the Patent Law when the petition for compulsory licensing involves the invention and creation of semiconductor technologies.

　　If objecting to the decision of refusal to the petition of compulsory licensing， the petitioner may institute a lawsuit with the people‘s court within three months upon receipt of the notice.

　　Article 14 The petitioner may withdraw its petitions for compulsory licensing from time to time， and in case the petitioner withdraw its petitions prior to the decision by the State Intellectual Property Office， the review procedures for the petition of compulsory licensing terminates.

　　In case of reaching a licensing contract on patent implementation by and between the petitioner and the patent right holder prior to the decision by the State Intellectual Property Office， timely notice should be given to the State Intellectual Property Office and t

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