Regulations on the Administration of Setting and Revision of the National Standard Involving Patent (Interim) (Exposure Draft) (2009-11-02)

Translated by: G·IPRs (Michael Ni, Katherine,  Shanghai Runhe Law Firm, Version: R1.0, Nov 19, 2009 )

Chapter I. General Provisions

Article 1 With the purpose of appropriately coping with the issues on national standards involving patent, standardizing the setting and revision of national standards, encouraging independent innovation, promoting the proper application of new technology in national standards, protecting the rights and interests of the public, patentees and relevant right owners, ensuring the effective implementation of national standards, Regulations on the Administration of Setting and Revision of the National Standard Involving Patent (hereinafter "Regulations") was hereby enacted in accordance with Standardization Law of the People's Republic of China, Patent Law of the People's Republic of China, Measures for Administration of National Standards and other relevant laws and regulations.

Article 2 These Regulations hereof are applicable to the disposal of the issues involving patents during the setting and revision of national standards.

Article 3 A patented technology involved in a national standard shall be indispensible to implement such standard and no material ground of rejecting such patent to be involved exists.

Chapter II. Disclosure of Patent Information

Article 4 Professional Standardization Technical Commission (hereinafter "PSTC") or Body in Charge (hereinafter "BIC") shall disclose the proposals for the projects involving patent to the public in a familiar manner to the public.

Article 5 Organizations or individuals who participate in the setting and revision of national standards shall disclose the relevant patent they acknowledge promptly to the PSTC or BIC and provide patent information and relevant evidentiary materials.

Article 6 Organizations or individuals not participating in the drafting of standards but acknowledging patent information regarding national standards may promptly inform patent information in writing to such PSTC or BIC at any stage during the setting and revision of the standards.

Article 7 When a national standard involving patent is submitted for approval, the PSTC or BIC shall verify the authenticity of the patent information form and relevant evidentiary materials and report the materials in writing which prove the authenticity and the introduction to the patent to National Administrative Department of Standardization.

Article 8 That patentees and their affiliates participating in the drafting of the standards fail to disclose in accordance with the above requirements shall be regarded as licensing for free and where they conceal the patent information, which bring losses to the setting and implementation of the national standards, they shall bear corresponding legal liabilities.

Chapter III. Licensing Statement on Patent Right

Article 9 When the setting and revision of national standards involve patents, PSTC or BIC shall obtain promptly the irrevocable licensing statements in writing issued by the patentees on implementing the patents.

Such statements shall include following contents from which the patentees shall choose one item,

(1) the patentee agrees to, on the basis of reasonableness and non-discrimination, license to any organization or individual for free to implement the patent when implementing the national standard simultaneously;

(2) the patentee agrees to, on the basis of reasonableness and non-discrimination, license to any organization or individual for free to implement the patent, provided, however, that the amount of royalty shall be considerably low compared with the normal;

(3) the patentee does not agree to license in accordance with the above two methods.

Under the condition that the patentee chooses item (3), the standard shall not include provisions based on such patent.

Article 10 The written licensing statement on implementing patents shall be treated as one of the materials submitted for approval of national standards. A draft national standard involving patent without a written licensing statement on the implementation thereof shall be temporarily withheld.

Article 11 After the national standard is promulgated finding that the standard involving patent without a licensing statement on the implementation, PSTC and BIC shall promptly obtain the licensing statement on implementing a patent issued by the patentee which shall be reported to the National Administrative Department of Standardization at the same time. Where the patentee refuses to make the above licensing statement on implementing a patent, the National Administrative Department of Standardization shall revise such standard.

Chapter IV. Special Requirements on Mandatory National Standards Involving Patent

Article 12 A mandatory national standard shall not involve patent in principle.

Article 13 Where a mandatory national standard which has to involve a patent, the patentee shall grant license for free or the National Administrative Department of Standardization shall make a proposal and request relevant department to negotiate with patentees on the disposal of the patent. Where the relevant department and the patentee fail to reach an agreed way of disposing the patent, the related national standard shall be temporally withheld or the patent shall be mandatorily licensed.

Article 14 The National Administrative Department of Standardization shall make a public announcement of the full text of the patent and the known patent information before the mandatory national standard involving patent is promulgated, and the period of public announcement shall be 30 days. Other patent information acknowledged by any organization or individual may be informed to the National Administrative Department of Standardization in writing.

Chapter V. Supplement Provisions

Article 15 When an international standard is adopted to set the national standard, all endeavors shall be made to get a full acknowledgement on relevant information involving the patent and the disposal of patent right shall refer to provisions of Chapter Ⅱ and Chapter Ⅲ.

Article 16 As to the accepted application for patent, its disposal shall refer to the provisions of Chapter Ⅱ and Chapter Ⅲ.

Article 17 The implementation of the disclosure of patent information and the licensing statement of patent rights shall be carried out as stipulated by the Rules for Disposal of the Patents Involved in National Standards.

Article 18 Relevant patent information in national standard instruments shall be compiled in accordance with the provisions of GB/T 1 Guide to Standardization Work.

Article 19 When the setting and revision of industrial standard and local standard involve patent, these Regulations may be referred to.

Article 20 The power to interpret these Regulations shall remain with the Standardization Administration of the People’s Republic of China.

Article 21 These Regulations shall enter into force on_____, 200___.

(Source:www.giprs.org)