Chapter VII Protection of Patent Right

Article 78 The administrative authority for patent affairs referred to in the Patent Law and these Rules means the department responsible for the administrative work concerning patent affairs set up by the people's government of any province, autonomous region, or municipality directly under the Central Government or by the people's government of any city divided into districts which has a large amount of patent administration work to attend to and has the ability to deal with the matter.

Article 79 In addition to the provisions of Article 57 of the Patent Law, the administrative authority for patent affairs may also mediate in the following patent disputes at the request of the parties concerned:

(1) any dispute over the ownership of the right to apply for patent and the patent right;

(2) any dispute over the qualification of the inventor or creator;

(3) any dispute over the reward and remuneration of the inventor or creator of a service invention-creation;

(4) any dispute over the appropriate fee to be paid for the exploitation of an invention after the publication of the application for patent but before the grant of patent right.

In respect of the dispute referred to in subparagraph (4), where the patentee requests the administrative authority for patent affairs to mediate, the request shall be made after the grant of the patent right.

Article 80 The patent administration department under the State Council shall provide professional guidance to the administrative authorities for patent affairs in handling and mediating patent disputes.

Article 81 Where any party concerned requests for handling or mediation of a patent dispute, it shall fall under the jurisdiction of the administrative authority for patent affairs of the place where the requested party has his location or where the act of infringement takes place.

Where two or more administrative authorities for patent affairs all have jurisdiction over a patent dispute, the party concerned may file his or its request with one of them. Where requests are filed with two or more administrative authorities for patent affairs, the administrative authority for patent affairs that first accepts the request shall have jurisdiction.

Where administrative authorities for patent affairs have a dispute over their jurisdiction, the administrative authority for patent affairs of their common higher level people's government shall designate the administrative authority for patent affairs to exercise the jurisdiction; if there is no such administrative authority for patent affairs of their common higher level people's government, the patent administration department under the State Council shall designate the administrative authority for patent affairs to exercise the jurisdiction.

Article 82 Where, in the course of handling a patent infringement dispute, the defendant requests invalidation of the patent right and his request is accepted by the Patent Reexamination Board, he may request the administrative authority for patent affairs to suspend from handling the matter.

If the administrative authority for patent affairs considers that the reasons set forth by the defendant for the suspension are obviously untenable, it may not suspend from handling the matter.

Article 83 Where any patentee affixes a patent marking on the patented product or on the package of that product in accordance with the provisions of Article 15 of the Patent Law, he or it shall make the affixation in the manner as prescribed by the patent administration department under the State Council.

Article 84 Any of the following acts is an act of passing off the patent of another person as one's own:

(1) without authorization, indicating the patent number of another person on the product made or sold by oneself or on the package of the said product;

(2) without authorization, using the patent number of another person in the advertisement or in any other promotional materials, so as to mislead other persons to regard the technology concerned as the patented technology of another person;

(3) without authorization, using the patent number of another person in the contract, so as to mislead other persons to regard the technology referred to in the contract as the patented technology of another person;

(4) counterfeiting or transforming any patent certificate, patent document or patent application document of another person.

Article 85 Any of the following acts is an act of passing a non-patented product off as patented product or passing a non-patented process off as patented process:

(1) making or selling non-patented products which are affixed with patent marking;

(2) continuing to affix patent marking on the products that are made or sold after the patent right concerned has been declared invalid;

(3) addressing any non-patented technology as patented technology in the advertisements or in any other promotional materials;

(4) stating any non-patented technology as patented technology in any contract;

(5) counterfeiting or transforming any patent certificate, patent document or patent application document.

Article 86 Any party concerned to a dispute over the ownership of the right to apply for a patent or the patent right which is pending before the administrative authority for patent affairs or the people's court, may request the patent administration department under the State Council to suspend the relevant procedures.

The party requesting the suspension of the relevant procedures in accordance with the preceding paragraph, shall submit a written request to the patent administration department under the State Council, and attach a copy of the document acknowledging the receipt of the relevant request by the administrative authority for patent affairs or the people's court.

After the decision made by the administrative authority for patent affairs or the judgment rendered by the people's court has entered into force, the parties concerned shall request the patent administration department under the State Council to resume the suspended procedure. If, within one year from the date when the request for suspension is filed, no decision is made on the dispute relating to the ownership of the right to apply for a patent or the patent right, and it is necessary to continue the suspension, the party making the request shall, within the said time limit, request to extend the suspension. If, at the expiration of the said time limit, no such request for extension is filed, the patent administration department under the State Council shall resume the procedure on its own initiative.

Article 87 Where, in hearing civil cases, the people's court has ordered the adoption of measures for a patent right preservation, the patent administration department under the State Council, for the purpose of assisting the execution of the order, shall suspend the relevant procedure concerning the preserved patent right. At the expiration of the time limit for preservation, if there is no order of the people's court to continue the preservation, the patent administration department under the State Council shall resume the relevant procedure on its own initiative.