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Patent Agency Regulations

Release time: 2018-12-07 15:16

Decree of the State Council of the People's Republic of China

706号 No. 706

 

2018年9月6日国务院第23次常务会议修订通过,现将修订后的《专利代理条例》公布,自2019年3月1日起施行。 The "Patent Agency Regulations" have been revised and approved by the 23rd Executive Meeting of the State Council on September 6, 2018. The revised "Patent Agency Regulations" are now promulgated and will come into effect on March 1, 2019.

  

 

Li Keqiang

November 6, 2018

 

 

Patent Agency Regulations

1991年3月4日中华人民共和国国务院令第76号发布2018年9月6日国务院第23次常务会议修订通过) ( Promulgated by Order No. 76 of the State Council of the People's Republic of China on March 4, 1991, revised and adopted at the 23rd Executive Meeting of the State Council on September 6, 2018)

 

Chapter I General Provisions

 

为了规范专利代理行为,保障委托人、专利代理机构和专利代理师的合法权益,维护专利代理活动的正常秩序,促进专利代理行业健康发展,根据《中华人民共和国专利法》,制定本条例。 Article 1 In order to regulate the behavior of patent agencies, protect the legitimate rights and interests of clients, patent agencies and patent agents, maintain the normal order of patent agency activities, and promote the healthy development of the patent agency industry, Regulations.

本条例所称专利代理,是指专利代理机构接受委托,以委托人的名义在代理权限范围内办理专利申请、宣告专利权无效等专利事务的行为。 Article 2 The term "patent agency" as mentioned in these Regulations refers to the act of accepting a commission by a patent agency to handle patent applications, declare patent invalidation, and other patent matters within the scope of agency authority in the name of the client.

任何单位和个人可以自行在国内申请专利和办理其他专利事务,也可以委托依法设立的专利代理机构办理,法律另有规定的除外。 Article 3 Any unit or individual may apply for a patent and handle other patent matters in China by itself, or entrust a patent agency established in accordance with the law, unless otherwise provided by law.

The patent agency shall handle patent affairs as entrusted by the client.

专利代理机构和专利代理师执业应当遵守法律、行政法规,恪守职业道德、执业纪律,维护委托人的合法权益。 Article 4 The practice of patent agencies and patent agents shall abide by laws and administrative regulations, abide by professional ethics, practice discipline, and safeguard the legitimate rights and interests of clients.

Patent agencies and patent attorneys are protected by law when they practice according to law.

国务院专利行政部门负责全国的专利代理管理工作。 Article 5 The patent administration department of the State Council is responsible for the administration of patent agencies nationwide.

The patent administration departments of the people's governments of provinces, autonomous regions, and municipalities directly under the Central Government are responsible for the administration of patent agencies in their respective administrative regions.

专利代理机构和专利代理师可以依法成立和参加专利代理行业组织。 Article 6 Patent agencies and patent agents may establish and participate in patent agency industry organizations in accordance with law.

Patent agency industry organizations shall formulate self-discipline specifications for the patent agency industry. The self-discipline norms of the patent agency industry must not conflict with laws and administrative regulations.

The patent administrative department of the State Council supervises and guides the organization of patent agencies in accordance with the law.

 

Chapter II Patent Agencies and Patent Attorneys

 

专利代理机构的组织形式应当为合伙企业、有限责任公司等。 Article 7 The organization of a patent agency shall be a partnership enterprise, a limited liability company, etc.

合伙企业、有限责任公司形式的专利代理机构从事专利代理业务应当具备下列条件: Article 8 A patent agency in the form of a partnership or a limited liability company shall meet the following requirements for patent agency business:

(1) The name of the patent agency that complies with the laws and administrative regulations;

(2) Having a written partnership agreement or the company's articles of association;

(3) having an independent place of business;

(4) Partners and shareholders meet relevant state regulations.

从事专利代理业务,应当向国务院专利行政部门提出申请,提交有关材料,取得专利代理机构执业许可证。 Article 9 To engage in patent agency business, an application shall be submitted to the patent administration department of the State Council, relevant materials shall be submitted, and a patent agency license shall be obtained. 20日内作出是否颁发专利代理机构执业许可证的决定。 The patent administration department under the State Council shall make a decision on whether to issue a license for a patent agency within 20 days of receiving the application .

Any change in matters such as the partnership, shareholders or legal representative of a patent agency shall go through the change formalities.

具有高等院校理工科专业专科以上学历的中国公民可以参加全国专利代理师资格考试;考试合格的,由国务院专利行政部门颁发专利代理师资格证。 Article 10 Chinese citizens with a college degree in science or engineering may take the national patent agent qualification examination; if they pass the examination, the patent administration department of the State Council shall issue a patent agent qualification certificate. The examination methods for the qualification of patent agents shall be formulated by the patent administration department under the State Council.

专利代理师执业应当取得专利代理师资格证,在专利代理机构实习满1年,并在一家专利代理机构从业。 Article 11 A patent attorney practicing shall obtain a patent attorney qualification certificate, practice for at least one year in a patent agency, and practice in a patent agency.

专利代理师首次执业,应当自执业之日起 30日内向专利代理机构所在地省、自治区、直辖市人民政府管理专利工作的部门备案。 Article 12 The first practice of a patent agent shall be filed with the department in charge of patent work of the people's government of the province, autonomous region, or municipality directly under the Central Government where the patent agency is located within 30 days from the date of practice .

The departments of the people's governments of provinces, autonomous regions, and municipalities directly under the Central Government that manage patent work shall provide convenience to patent agents for filing on the Internet.

 

Chapter III Patent Agency Practice

 

专利代理机构可以接受委托,代理专利申请、宣告专利权无效、转让专利申请权或者专利权以及订立专利实施许可合同等专利事务,也可以应当事人要求提供专利事务方面的咨询。 Article 13 Patent agencies may accept entrustment, represent patent applications, declare patent rights invalid, assign patent application rights or patent rights, and enter into patent implementation licensing contracts. They may also provide patent matters in consultation with parties concerned.

专利代理机构接受委托,应当与委托人订立书面委托合同。 Article 14 When accepting a commission, a patent agency shall conclude a written commission contract with the client. After the patent agency accepts the entrustment, it shall not accept the entrustment of other parties with conflicts of interest in the same patent application or patent right.

Patent agencies shall designate patent agents practicing in their own institutions to handle patent agency business, and the assigned patent agents themselves and their close relatives shall not have a conflict of interest with the patent agency business they undertake.

专利代理机构解散或者被撤销、吊销执业许可证的,应当妥善处理各种尚未办结的专利代理业务。 Article 15 Where a patent agency is disbanded or revoked, or its business license is revoked, it shall properly handle various pending patent agency services.

专利代理师应当根据专利代理机构的指派承办专利代理业务,不得自行接受委托。 Article 16 Patent agents shall undertake patent agency business according to the designation of patent agencies, and shall not accept entrustment by themselves.

Patent attorneys may not engage in patent agency business in more than two patent agencies at the same time.

Patent attorneys are responsible for the patent agency business handled by their signatures.

专利代理机构和专利代理师对其在执业过程中了解的发明创造的内容,除专利申请已经公布或者公告的以外,负有保守秘密的义务。 Article 17 Patent agencies and patent attorneys have the obligation to keep secrets of the contents of inventions and inventions they have learned in the course of their practice, except for those patent applications that have been published or announced.

专利代理机构和专利代理师不得以自己的名义申请专利或者请求宣告专利权无效。 Article 18 Patent agencies and patent agents shall not apply for patents in their own names or request the invalidation of patent rights.

国务院专利行政部门和地方人民政府管理专利工作的部门的工作人员离职后,在法律、行政法规规定的期限内不得从事专利代理工作。 Article 19 After leaving the post, the staff of the patent administration department under the State Council and local patent administration departments shall not engage in patent agency work within the period prescribed by laws and administrative regulations.

Patent agents who have served in the patent administration department under the State Council or the local people's government in charge of patent work shall not act as agents for patent applications or patent cases that they have examined, tried or handled.

专利代理机构收费应当遵循自愿、公平和诚实信用原则,兼顾经济效益和社会效益。 Article 20 The fees of patent agencies shall follow the principles of voluntariness, fairness, and good faith, and take into account both economic and social benefits.

The State encourages patent agencies and patent agents to provide patent agency assistance services to small and micro enterprises and inventors and designers with no or low income.

专利代理行业组织应当加强对会员的自律管理,组织开展专利代理师业务培训和职业道德、执业纪律教育,对违反行业自律规范的会员实行惩戒。 Article 21: Patent agency industry organizations shall strengthen the self-discipline management of members, organize the training of patent agent business and professional ethics and practice discipline education, and punish members who violate industry self-discipline norms.

国务院专利行政部门和省、自治区、直辖市人民政府管理专利工作的部门应当采取随机抽查等方式,对专利代理机构和专利代理师的执业活动进行检查、监督,发现违反本条例规定的,及时依法予以处理,并向社会公布检查、处理结果。 Article 22 The patent administrative department of the State Council and the administrative departments of patents of the people's governments of provinces, autonomous regions, and municipalities directly under the Central Government shall adopt random sampling and other methods to inspect and supervise the practice activities of patent agencies and patent agents and find that they violate the provisions of these regulations. If necessary, they shall be disposed of in a timely manner in accordance with the law, and the results of the inspection and treatment shall be announced to the public. No fees shall be charged for the inspection.

国务院专利行政部门和省、自治区、直辖市人民政府管理专利工作的部门应当加强专利代理公共信息发布,为公众了解专利代理机构经营情况、专利代理师执业情况提供查询服务。 Article 23 The patent administrative department of the State Council and the departments of patent administration of the people's governments of provinces, autonomous regions and municipalities directly under the Central Government shall strengthen the release of public information on patent agencies and provide inquiries for the public to understand the operation of patent agencies and the practice of patent agents.

 

Chapter IV Legal Liability

 

以隐瞒真实情况、弄虚作假手段取得专利代理机构执业许可证、专利代理师资格证的,由国务院专利行政部门撤销专利代理机构执业许可证、专利代理师资格证。 Article 24 Where a patent agency practice license or patent agent qualification certificate is obtained by concealing the real situation or falsification, the patent administration department of the State Council shall revoke the patent agency practice license or patent agent qualification certificate.

After a patent agency obtains a practice license and, due to changes in circumstances, it no longer meets the conditions specified in these regulations, the patent administrative department of the State Council shall order a rectification within a time limit; if it fails to make corrections within the time limit or fails to rectify, the practice license shall be cancelled.

专利代理机构有下列行为之一的,由省、自治区、直辖市人民政府管理专利工作的部门责令限期改正,予以警告,可以处 10万元以下的罚款;情节严重或者逾期未改正的,由国务院专利行政部门责令停止承接新的专利代理业务6个月至12个月,直至吊销专利代理机构执业许可证: Article 25 Where a patent agency commits one of the following acts, the patent administration department of the people's government of the province, autonomous region, or municipality directly under the Central Government shall order correction within a time limit, give a warning, and may impose a fine of less than 100,000 yuan; , The patent administration department of the State Council orders to stop undertaking the new patent agency business for 6 to 12 months, until the practice license of the patent agency is revoked:

(1) The partners, shareholders or legal representatives have not changed the formalities for changes;

(2) accepting the entrustment of other parties with conflicts of interest regarding the same patent application or patent right;

(3) designating a patent agent to handle patent agency business that has a conflict of interest with himself or his close relatives;

(4) Disclosure of the contents of the client's invention or creation, or applying for a patent in his own name or requesting the patent right to be invalidated;

(5) Negligence of management and serious consequences.

Where professional agencies disclose the contents of the client's inventions and creations in the course of their practice, if they disclose state secrets or infringe on trade secrets, or provide bribes to the staff of the relevant administrative or judicial organs and provide false evidence, they shall comply with the provisions of relevant laws and administrative regulations. Take legal responsibility; the patent administration department of the State Council revokes the practice license of the patent agency.

专利代理师有下列行为之一的,由省、自治区、直辖市人民政府管理专利工作的部门责令限期改正,予以警告,可以处 5万元以下的罚款;情节严重或者逾期未改正的,由国务院专利行政部门责令停止承办新的专利代理业务6个月至12个月,直至吊销专利代理师资格证: Article 26 If a patent attorney commits one of the following acts, the patent administration department of the people's government of the province, autonomous region, or municipality directly under the Central Government shall order correction within a time limit, warn him , and may impose a fine of less than 50,000 yuan; , The State Council ’s patent administration department ordered it to stop undertaking new patent agency business for 6 to 12 months until the patent attorney qualification was revoked:

(1) failing to carry out the filing in accordance with the provisions of these regulations;

(2) accepting entrustment to handle patent agency business by themselves;

(3) Engaging in patent agency business in two or more patent agencies at the same time;

(4) Acting on patent applications or patent cases that have been examined, tried or handled in violation of the provisions of these Regulations;

(5) Disclosure of the contents of the client's invention or creation, or applying for a patent in his own name or requesting the patent right to be invalidated.

If a patent agent discloses the contents of the client's invention and creation during his practice, if it involves leaking state secrets or infringes on trade secrets, or bribes staff of the relevant administrative or judicial organs and provides false evidence, it shall be in accordance with the relevant laws and administrative regulations. Take legal responsibility; the patent administration department of the State Council revokes the patent attorney qualification.

违反本条例规定擅自开展专利代理业务的,由省、自治区、直辖市人民政府管理专利工作的部门责令停止违法行为,没收违法所得,并处违法所得 1倍以上5倍以下的罚款。 Article 27 Anyone who engages in patent agency business in violation of the provisions of these Regulations shall be ordered by the province, autonomous region, or municipality ’s people ’s government to manage patent work to stop illegal acts, confiscate the illegal proceeds, and impose a fine of 1 to 5 times the illegal proceeds. .

国务院专利行政部门或者省、自治区、直辖市人民政府管理专利工作的部门的工作人员违反本条例规定,滥用职权、玩忽职守、徇私舞弊的,依法给予处分;构成犯罪的,依法追究刑事责任。 Article 28 Staff members of the patent administration department under the State Council or the people's governments of provinces, autonomous regions, and municipalities that manage patent work violate the provisions of these regulations, abuse their powers, neglect their duties, and engage in malpractice for personal gain, and shall be punished according to law; if they constitute a crime, they shall be investigated in accordance with law criminal responsibility.

 

Chapter V Supplementary Provisions

 

外国专利代理机构在中华人民共和国境内设立常驻代表机构,须经国务院专利行政部门批准。 Article 29 The establishment of a resident representative office within the territory of the People's Republic of China by a foreign patent agency must be approved by the patent administration department of the State Council.

律师事务所可以依据《中华人民共和国律师法》、《中华人民共和国民事诉讼法》等法律、行政法规开展与专利有关的业务,但从事代理专利申请、宣告专利权无效业务应当遵守本条例规定,具体办法由国务院专利行政部门商国务院司法行政部门另行制定。 Article 30 A law firm may conduct patent-related business in accordance with laws and administrative regulations such as the Lawyers Law of the People ’s Republic of China and the Civil Procedure Law of the People ’s Republic of China, but it shall abide by the business of acting for patent applications and declaring patent rights invalid. These regulations provide that specific measures shall be formulated separately by the patent administration department of the State Council and the judicial administration department of the State Council.

代理国防专利事务的专利代理机构和专利代理师的管理办法,由国务院专利行政部门商国家国防专利机构主管机关另行制定。 Article 31 The measures for the administration of patent agencies and patent attorneys representing national defense patent affairs shall be formulated separately by the patent administration department of the State Council and the competent authority of the national defense patent agency.

本条例自 2019年3月1日起施行。 Article 32 These Regulations shall become effective on March 1, 2019.

Patent agencies established in accordance with the law before the implementation of these Regulations and patent agents practicing in accordance with the law may continue to carry out patent agency business in the name of patent agencies and patent attorneys after the implementation of these Regulations.


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