Measures for Handling Patent Authorization Advice by the Patent Reexamination Board

In accordance with the provision of Rule 80 of the Implementing Regulations of the Patent Law of the People’s Republic of China(hereinafter referred to as the Implementing Regulations) and the responsibilities of the Patent Reexamination Board of the SIPO (hereinafter referred to as the Patent Reexamination Board) approved by the State Commission Office for Public Sector Reform (No.[2003]156), the Patent Reexamination Board, entrusted by the patent administration department and the People’s Court, may provide authorization advice for handling patent authorization cases. The present Measures are enacted in order to regulate the work.

1. The Patent Reexamination Board, entrusted by the following entities, may provide authorization advice:

1.1. The patent administration departments as prescribed by Rule 78 of the Implementing Regulations;

1.2. The People’s Courts that have the power to hear the patent infringement cases; and

1.3. The other entities whose entrustments the Patent Reexamination Board think should be accepted .
 
2. Where the above entities raise the entrustments, the following requirements shall be met:

2.1. The entity has accepted a case concerning patent infringement dispute;

2.2. The party concerned does not submit a request for invalidation to the accused patent right; and

2.3. A publication is used as the evidence in the prior art.

3. Where the Patent Reexamination Board is entrusted to provide authorization advice, a power of attorney and the relevant evidence materials shall be submitted before the Patent Reexamination Board. The power of attorney shall conform to the format of the special form prescribed by the Patent Reexamination Board. The evidence materials usually include the Notification of Acceptance of a case concerning patent infringement dispute, the pamphlet of patent for the accused patent, the reference documents, and the relevant observations made by the party concerned.

4. The Filing and Flow Management Department of the Patent Reexamination Board may accept the entrustment to provide authorization advice. Where the requirements of acceptance have been met after approval, the Patent Reexamination Board shall determine the acceptance number, file the case and notify the entrusting entity.

5. Where, for the accepted entrustment, the proceeding cannot continue for special reasons, it will be terminated after the approval of the Patent Reexamination Board and then notified to the entrusting entity.

6. After the entrustment is accepted, the Patent Reexamination Board shall establish a panel as soon as possible, so as to finish a report of the technical advice concerning infringement in time and transfer it to the entrusting entity.

7. The authorization advice presented by the Patent Reexamination Board is merely for the entrusting entity’s reference, and the Patent Reexamination Board does not assume the obligation of giving testimony concerning the authorization advice in court.

8. The Patent Reexamination Board shall be responsible for the interpretation of the Measures.

9. The Measures will take effect as of the date of promulgation.