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Measures for the Administration of Patents Involved in the Engineering Construction Standards

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Measures for the Administration of Patents Involved in the Engineering Construction Standards

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Legal Updates
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Chapter I General Provisions

 

Article 1 For the purposes of regulating the management of patents involved in the engineering construction standards, encouraging innovation and rational adoption of new technologies, and protecting the lawful rights and interests of the public, patentees, and relevant right owners, these Measures are developed in accordance with the Standardization Law, the Patent Law, and other relevant provisions.

 

Article 2 These Measures shall apply to the management of matters concerning patents involved in the process of project initiation, development, and implementation of national standards, industry standards, and local standards of engineering construction (hereinafter collectively referred to as the “standards”).

 

For the purposes of these Measures, “patents” includes valid patents and applications for patents.

 

Article 3 The patents involved in the standards shall be essential patents which are advanced and applicable within the applicable scope of the standards as proved by construction practices. Essential patents are patents indispensable for the implementation of the standards.

 

Article 4 Mandatory standards generally do not involve patents licensed for exploitation with royalties.

 

Article 5 Matters concerning patents involved in the standards shall be managed under the principles of scientific, open, fair, impartial, and uniform management.

 

Article 6 The relevant departments of the State Council and the relevant departments of the people's governments of provinces, autonomous regions, and municipalities directly under the Central Government shall be responsible for the management of matters concerning patents involved in the standards approved by them.

 

Chapter II Disclosure of Patent Information

 

Article 7 An entity that files an application for initiation of a standards project shall, when filing the application, submit a statement on retrieval of information on the patents involved in the standards.

 

Article 8 On the covers of the first draft, consultation paper, and draft for review of the standards, there shall be a reminder for collecting potential patent information. In the prefaces of the first draft, consultation paper, draft for review, and draft for approval of the standards, information on the patents involved in the standards shall be included.

 

Article 9 At any stage of the development or revision of the standards, an entity or individual drafting the standards shall, in a timely manner, notify the primary standards drafting entity of the essential patents owned or known by the entity or individual, provide patent information and supporting materials at the same time, and be responsible for the authenticity thereof.

 

Article 10 At any stage of the development and revision of the standards, an entity or individual not participating in the drafting of the standards are encouraged to disclose the essential patents owned or known by the entity or individual, provide patent information and supporting materials to the primary standards drafting entity, and be responsible for the authenticity thereof.

 

Article 11 The primary standards drafting entity shall, in a timely manner, verify information on patents owned and obtained by it, and assess the essentiality, advancement, and applicability of the patents.

 

Article 12 Any entity or individual may directly submit information on patents known by the entity or individual and relevant materials to the standards approval department.

 

Chapter III Patent Exploitation License

 

Article 13 Where the standards involve any patents during the process of development or revision, the primary standards drafting entity shall contact the patentee or patent applicant in a timely manner, notifying the patentee or patent applicant of the estimated time of completing the development or revision of the standards and a request for consultation over signing a patent exploitation license statement, and request the patentee or patent applicant to sign a written patent exploitation license statement according to the following options:

 

(1) The patentee or patent applicant agrees that any entity or individual is licensed to freely exploit the patent in the implementation of the standards on the basis of fairness, rationality, and non-discrimination.

 

(2) The patentee or patent applicant agrees that any entity or individual is licensed to exploit the patent with royalties in the implementation of the standards on the basis of fairness, rationality, and non-discrimination.

 

Article 14 Without a patent exploitation license statement signed by the patentee or patent applicant, the standards shall not contain clauses based on the patent.

 

Article 15 When any revision of the standards makes a license statement no longer applicable, a written patent exploitation license statement shall be re-signed under the provisions of these Measures. When the standards are repealed, the patent exploitation license statement signed shall be concurrently terminated.

 

Article 16 Where a patent exploitation license statement has been submitted to the primary standards drafting entity, the patentee or patent applicant shall, when assigning or transferring the patent, guarantee that the transferee agrees to be bound by the patent exploitation license statement, and notify in writing the primary standards drafting entity of the assignment or transfer with supporting materials.

 

Chapter IV Approval and Implementation of Standards Involving Patents

 

Article 17 When the standards involving patents are submitted for approval, the primary standards drafting entity shall submit the supporting materials on the patents involved, the patent exploitation license statements, the assessment report, and other relevant documents altogether. The standards approval department shall review the relevant documents submitted by the primary standards drafting entity.

 

Article 18 Where, after the standards are released, there is no patent exploitation license statement on a patent involved in the standards, the standards approval department shall order the primary standards drafting entity to obtain the patent exploitation license statement signed by the patentee or patent applicant and submit it to the standards approval department during a specified period. If the patent exploitation license statement is not obtained during the specified period, the standards approval department shall, according to the circumstances, take measures such as suspending the implementation of the standards and launching the procedures of revising or repealing the standards.

 

Article 19 Where any information on the patents involved changes after the standards are released, the primary standards drafting entity shall make a handling plan in a timely manner, and handle the standards accordingly after the plan is confirmed by the standards approval department.

 

Article 20 Issues concerning royalties for the exploration of patents involved during the implementation of the standards shall be resolved through consultations between the users of the standards and the patentees or patent applicants according to the patent exploitation license statements signed.

 

Chapter V Supplemental Provisions

 

Article 21 Where, in the process of development or revision of any standards, any clauses involving patents of other standards are cited, the primary standards drafting entity shall, under the provisions of Chapter III of these Measures, handle the patent exploitation license statements.

 

Article 22 Matters concerning patents involved in the process of project initiation, development, and implementation of engineering construction standards of social groups may be governed, mutatis mutandis, by these Measures.

 

Article 23 These Measures shall be subject to interpretation by the Ministry of Housing and Urban-Rural Development.

 

Article 24 These Measures shall come into force on June 1, 2017.