Regulations of Henan Province on Patent Protection

• Document Number：Announcement No. 59 of the Standing Committee of the People’s Congress of Henan Province
• Area of Law： Patent
• Level of Authority： Provincial Local Regulations
• Date issued：12-02-2005
• Effective Date：03-01-2006
• Status： Effective
• Issuing Authority： Henan Province

Announcement of the Standing Committee of the People's Congress of Henan Province
(No. 59)
The Regulations of Henan Province on Patent Protection have been amended and adopted at the 20th Meeting of the Standing Committee of the 10th People's Congress of Henan Province on December 2, 2005,and are hereby promulgated and shall be effective as of March 1, 2006.
Standing Committee of the People's Congress of Henan Province
December 2, 2005
Regulations of Henan Province on Patent Protection

(Adopted at the 19th Meeting of the Standing Committee of the 9th People's Congress of Henan Province on November 25, 2000 and amended at the 20th Meeting of the Standing Committee of the 10th People's Congress of Henan Province on December 2, 2005)
Chapter I General Provisions
Article 1 These Regulations are formulated for the purposes of strengthening patent protection, encouraging inventions-creations, boosting the capability of independent innovation, and promoting the advancement of science and technology and socio-economic development in accordance with the Patent Law of the People's Republic of China and the relevant laws and regulations of the State and in light of the actual conditions of this Province.
Article 2 The people's governments at or above the county level shall strengthen leadership over the work relating to patents, incorporate the work relating to patents into the plan for national economic and social development, and list the funds required for patent protection and administration in the fiscal budgets, coordinate in a timely manner in relation to the major issues concerning patent protection and administration, thus promoting the development of the intellectual property economy.
Article 3 The departments of patent administration under the provincial people's government and the people's governments of the municipalities directly under the provincial government shall be responsible for protecting patents withiri their respective administrative areas, handle disputes over patents, and investigate and punish acts of infringing on the patents of other persons and falsifying patents.
The departments of patent administration of the people's governments of the counties (cities and districts) shall be responsible for protecting patents within their administrative areas, assist the departments of patent administration at a higher level in settling the disputes over patents and investigate and punish acts of infringing upon the patents of other persons and falsifying patents.
Other relevant administrative departments shall, in line with their respective functions and duties, effectively execute the work of patent protection together with the competent department of administration of patent protection.
Article 4 The provincial people's government shall set up prizes for patents to reward the patentees who have pursued inventions-creations and implemented them within the administrative region of this Province, thus making outstanding contributions to promoting the economic and social development of this Province.
The people's governments at or above the county level shall, in keeping with the relevant provisions of the State and those of this Province, grant rewards to the entities or individuals that have scored outstanding achievements in inventions-creations, in promoting the industrialization of patented technologies and in protecting and administering patents.

Chapter II Patent Protection and Administration
Article 5 Enterprises and institutions shall formulate and perfect patent administration rules, nurture, develop and protect core technologies with independent intellectual property rights, educate their employees in respecting the patent rights of other persons, and safeguard the legitimate rights and interests of their respective entities.
Schools shall pay serious attention to the publicity for and education in the laws and regulations related to patents. Institutions of higher learning and secondary specialized schools shall encourage and support teachers and students to engage in activities of inventions- creations and to apply for patents. Correspondent rewards shall be given to those who have been granted patents.
The departments of patent administration shall provide services to enterprises and institutions in terms of patent affairs.
Article 6 The state-owned enterprises or institutions to which patent rights have been granted shall, within 3 months as of the date of the announcement of the patent rights, award pecuniary prizes to the inventors or the designers. The pecuniary prize for an invention patent shall be not less than RMB 3,000yuan, and the prize for the patent for a new utility model or the patent for a design shall be not less than RMB 1,000 yuan each.
The state-owned enterprise or an institution to which patent rights were granted shall, within the term of validity of the patent rights and since the implementation of the inventions- creations, draw not less than 5% from the after-tax profits accruing from the implementation of the invention or utility model patents or not less than 1% from the after-tax profits accruing from the implementation of the design patent each year to pay the remuneration to the inventors or designers; where the state-owned enterprise or the institution has assigned the said patents or has licensed other entities or individuals to utilize the said patents, they shall draw not less than 30% from the after-tax proceeds of the assignment or those of the license to pay the inventors or the designer as remuneration within 30 days as of the date of receipt of the proceeds. They may also award lump sums of money to the inventors or designers as remuneration with reference to the afore-mentioned ratios.
Where state-owned enterprises or institutions to which patent rights were granted contribute patents as equity shares, the patentees shall draw not less than 30% from the proceeds from the shares to pay the inventors or the designers.
The provisions of the preceding 3 paragraphs related to prizes and remunerations may be referred to by other entities.
Article 7 Patents derived from the R&D or industrialization projects supported by governments shall belong to the entities undertaking the projects. The scientific and technological personnel who have made outstanding contributions thereto may be rewarded with a certain proportion of the patent rights in accordance with the relevant provisions of the provincial people's government.
Article 8 Where entities or individuals need assistance due to the special difficulties they encounter in the course of inventions-creations, patent applications and implementations, they may apply to the governments for financial aid. The departments of patent administration shall, together with the finance departments, draw up the concrete measures for the provision of financial aid.
Article 9 No entity or individual may, in the absence of permission, implement the patents of other persons, or infringe upon the patents of other persons, or pass off a nonpatented product or process as a patented one.
No entity or individual may provide funds, venues, means of transport, production equipment, printing marks or other types of facility to any acts that infringe upon the patents of other persons or pass off non-patents as patents intentionally.
Article 10 Anyone who commits any of the following acts shall be investigated and punished by the department of patent administration:
(1) Infringing upon the patents of other persons;
(2) Passing off non-patents as patents;
(3) Continuing to infringe upon patent rights after being punished according to law; or
(4) Other serious acts of infringing upon patent rights.
Article 11 The social forces shall be encouraged and supported in the establishment of patent intermediary service agencies according to law.
Patent intermediary service agencies and the staff members thereof shall not solicit business by improper means, seek improper interests in collusion with the parties concerned, disclose the business secrets of the parties concerned or jeopardize the legitimate rights and interests of other parties concerned or the public interests of society.
The departments of patent administration shall strengthen guidance to and supervision over the patent intermediary service agencies according to law.
Article 12 The relevant industry associations shall publicize and impart knowledge of patents, encourage their members to apply for or implement patents, urge their members to respect the patent rights of other persons and provide consulting services relating to patents to their members.
Article 13 Where technology transactions, asset evaluations, and import and export trade operations involving patent rights are carried out, the patentees or the licensees of patents shall provide valid certification documents of the related patent rights.
Where patented products or technologies are promoted through advertisements, the advertisers shall have to provide the valid certification documents of patent rights. Advertising agencies and advertisement carriers shall not design, make or publish advertisements for the advertisers who have failed to provide the required certification documents.
The valid certification documents of patent rights shall be processed by the department of patent administration under the provincial people's government.
Article 14 Where sponsors hold exhibitions, shows, promotion fairs, trade fairs, tendering and bidding conferences, auctions, etc., they shall check the valid certification documents of patent rights of the products or technologies with patent markers or patent serial numbers. The relevant participants therein who can not provide the said certifications shall not be allowed to participate in the said activities in the name of the patented products or patented technologies.
The departments of patent administration shall be responsible for the control and supervision over the products or technologies involving patents in the said activities.
Article 15 Assets evaluation institutions established according to law shall conduct patented assets evaluation where the enterprises in possession of state-owned patented assets are found to be in any of the following circumstances;
(1) Assigning patent application rights or patent rights;
(2) Requiring a patented assets evaluation before the replacement and termination of the legal person;
(3) Establishing Chinese-foreign equity joint ventures or Chinese-foreign contractual joint ventures with the patented assets;
(4) Establishing limited liability companies or joint stock limited companies by virtue of the fixation of the value of patented technologies;
(5) Importing patented technologies from abroad;
(6) Any pledge of patent rights; or
(7) Other circumstances that require patented assets evaluation.
The entities or individuals in possession of non state-owned patented assets may apply for patented assets evaluation with reference to the provisions in the preceding paragraphs.
Article 16 An entity or individual that is in one of the following circumstances may produce a patent retrieval report to the relevant government departments:
(1) Applying for government-sponsored R&D or technology transformation projects;
(2) Applying for government-sponsored high and new technology industrialization projects;
(3) Applying for governmental rewards for science and technology;
(4) The importation of technologies from abroad or the conduct of processing trade on materials supplied by foreign clients involving patent rights; or
(5) The export items of technologies and products involving the patent rights of the importing countries or regions.
Article 17 The economic and social benefits from the acquisition and implementation of patent rights shall be an important factor in the assessment of the scientific and technological plans or the technological transformation programs, in the authentication of the qualifications of high and new technology enterprises or products, in the evaluation of the rewards for science and technology.
The acquisition of patent rights shall be one of the bases for evaluating the qualifications for technical and professional positions.
Article 18 The departments of patent administration shall strengthen the administration of patent information, regulate patent information services, make public the state of patent protection and patent data, set up patent information service networks, intensify the dissemination, development and utilization of patent information, and promote the implementation of patents.
Chapter III Handling, Mediation, and Investigation and Punishment
Article 19 Where a dispute over the infringement upon patents satisfies the following conditions, the department of patent administration shall accept the dispute over patents;
(1) The claimant parties are the entities or individuals that have direct interests in the dispute over patents;
(2) There is a clear respondent, specific claims, facts and reasons;
(3) Neither party concerned has brought a lawsuit at the people's court or there is no arbitration agreement between them; and
(4) The dispute over patents is within the jurisdiction of the department of patent administration.
Article 20 Where the department of patent administration accepts a dispute over patents, it shall, within 7 days as of the date of registration of the case, inform the respondent party to reply. The respondent party shall submit written representations and relevant evidences within 15 days as the date of receipt of the notification to reply.
Where the respondent party has failed to submit the written representations within the given time limit or failed to submit the written representation, the handling of the case by the department of patent administration shall not be affected.
Article 21 When the department of patent administration handles the dispute over the infringement upon utility model and design patents, the respondent party may request the department of patent administration to suspend the procedures of the handling of the case if they have requested the patent reexamination board to declare the said patents invalid within the period to reply. The department of patent administration shall, upon receipt of the written request submitted by the respondent party and the notification of acceptance of the patent reexamination board, make a decision on whether the procedures of handling the case should be suspended or not, and inform the parties concerned in writing.
Article 22 The department of patent administration may, on the basis of the complaints of the patentees and the interested parties, deal with the acts of the multi-party infringement upon the same patent right at the same time according to law.
Article 23 The department of patent administration may exercise the following functions and powers in enforcing the law:
(1) Questioning the parties concerned and witnesses;
(2) Perusing, photocopying or sealing up the archives, drawings, materials, account books, and other original documents related to the case; and
(3) Examining the articles related to the case, and collecting evidential samples according to law.
When the department of patent administration exercises the functions and powers prescribed in the preceding paragraphs, the relevant entities or individuals shall provide assistance, and they may not refuse or obstruct the exercise of its official functions and powers.
Article 24 Where it is proved to be necessary through examination and verification, the department of patent administration may temporarily withhold or seal up the goods, materials, special tools, equipment and other items related to the case upon the application of claimants, and produce the list of the articles temporarily withheld or sealed up to the respondent parties.
Where the claimants apply for the measures of sealing up or temporarily withholding the items, they shall provide property security. Where the respondent parties provide property security, the goods sealed up or withheld may be released or returned upon consent of the department of patent administration through due examination.
When the patent administrative enforcement personnel take the measures mentioned above, they shall notify the parties concerned and the interested parties or the relevant persons to be present at the scene; and where they refuse to show up, third persons may be present at the scene as witnesses.
Article 25 Where the department of patent administration ascertains that a patent infringement has been committed, and makes a decision on the punishment, it shall take measures as follows to stop the infringement in accordance with the extent of its competency and the procedures as prescribed in laws:
(1) In a case of using a patented process, it shall order the offenders to cease the use, and not to use or transfer the products obtained from the patented process, or market the products by any means;
(2) In a case of manufacturing patented products, it shall order the offenders to cease the manufacture of the patented products, to destroy or disassemble the special equipment for manufacturing the patented products, and the respondent party and the relevant business operator may not use or transfer the patented products they have manufactured, or market them by any means;
(3) Where patented products or products derived directly from a patented process are sold, it shall order the sellers to cease the sale thereof and the respondent party may not transfer the unsold patented products or products derived directly from a patented process;
(4) Where an entity or individual has commissioned some sellers to sell patented products or products derived directly from patented processes, it shall order the offenders to cease all the activities relating to the commissioned sale of the said products; and
(5) At the instance of the patentees and the interested parties thereof, the department of patent administration shall request the departments of the Customs administration, entry-exit inspection and quarantine, etc. to dispose of the imported goods or the goods to be exported according to law.
Article 26 Where mediation of patent disputes is requested, the department of patent administration shall work out a mediation statement if an agreement is reached between the two parties through mediation; where the mediation effort has failed to produce an agreement, the parties concerned may bring a lawsuit in a people's court in accordance with the Civil Procedure Law of the People's Republic of China.
The costs incurred in mediating disputes over patents shall be governed by the relevant provisions of the provincial competent departments of finance and price.
Article 27 Where necessary, the department of patent administration may invite relevant experts to provide advice about special technical matters, or entrust statutory appraisal institutions to make appraisals relating thereto according to law.
Article 28 Any entity or individual shall have the right to inform on the acts of infringing upon the patents of other persons and passing off non-patents as patents to the department of patent administration.
The department of patent administration shall establish an offence reporting system, make public the channels of offence reporting and contact details of the recipient institutions, and keep the identities of the informants confidential.
The department of patent administration shall set up archives on infringement upon the patents of other persons, passing off non-patents as patents and deliberate execution of acts of patent infringement, and the archives shall be included in the enterprise creditability and information system of this Province, and may be made public if and when necessary.
Article 29 The department of patent administration shall make decisions on the handling of the cases involving infringement upon the patents of other persons and passing off non-patents as patents within six months as of the date of registration of the cases.
Chapter IV Legal Liabilities
Article 30 Where an entity or individual has passed off non-patents as patents, the department of patent administration shall order it/him to rectify, eliminate the pernicious influence and impose a fine of not more than RMB 50,000 yuan. The department of patent administration shall impound and destroy the imitation patent identifiers, remove the imitation patent identifiers of exiting products. Where it is difficult to separate the imitation patent identifiers from the products, the offenders shall be ordered to destroy the products.
Article 31 Where anyone has violated the provisions of Paragraph 2 of Article 9, Item 3 of Article 10 and Paragraph 2 of Article 11 of these Regulations, the department of patent administration shall confiscate its/his unlawful incomes, impose a fine of not less than 1 time but not more than 3 times the unlawful incomes; impose a fine of not less than RMB 2,000 yuan but not more than RMB 20,000 yuan in the absence of any unlawful incomes.
Article 32 An entity or individual that has refused or obstructed the performance of the official duties by the patent administrative law enforcement personnel, concealed, transferred or destroyed the relevant documents such as contracts, account books, etc. relating to the case or violated the provisions on public security control shall be dealt with by the public security organ according to law. Where a crime is constituted, criminal liabilities shall be investigated for according to law.
Anyone who has, without authorization, removed the seals from the sealed goods or disposed of the sealed goods shall be ordered by the department of patent administration to make rectifications, and may be imposed a fine of not less than 1 time but not more than 3 times the value of the sealed goods simultaneously.
Article 33 Any staff members of the department of patent administration, or any staff members of the relevant State organs who have neglected their duties, abused their powers or committed malfeasance for personal gains shall be investigated for criminal liabilities according to law, if crimes are constituted; they shall be given administrative sanctions according to law if no crime has yet been constituted.
Chapter V Supplementary Provision
Article 34 These Regulations shall be effective as of March 1, 2006.