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TABLE OF CONTENTS CHAPTER I GENERAL PROVISIONS CHAPTER II SCOPE OF APPLICATION FOR RECONSIDERATION CHAPTER III PARTICIPANTS IN RECONSIDERATION CHAPTER IV APPLICATION AND ACCEPTANCE CHAPTER V TRAIL AND DECISION CHAPTER VI TIME PERIODS AND SERVICE CHAPTER VII SUPPLEMENTARY PROVISIONS CHAPTER I GENERAL PROVISIONS Article 1. The present Rules are enacted in accordance with the "Administrative Reconsideration Law of the People's Republic of China" with a view to preventing and correcting illegal and inappropriate specific administrative acts, protecting the lawful rights and interests of citizens, legal persons and other organizations, guaranteeing and supervising the State Intellectual Property Office of the People's Republic of China (hereinafter referred to the SIPO) to exercise its powers in accordance with the law. Article 2. A citizen, legal person or any other organization may, if considering that the SIPO's specific administrative act infringes upon his/its lawful rights and interests, apply to the SIPO for reconsideration in accordance with the present Rules. The present Rules shall be applied when the SIPO is accepting applications for reconsideration, trying reconsideration cases and making reconsideration decisions. Article 3. The legal affairs division of the SIPO (hereinafter referred to the legal affairs division) shall be responsible for the specific work on administrative reconsideration, and implementing the following duties: (1) Accepting applications for administrative reconsideration; (2) Carrying out investigations on and obtaining evidences from the relevant departments and persons, as well as referring to the relevant files and materials; (3) Examining whether a specific administrative act is lawful and appropriate; (4) Drafting, making and sending legal documents on reconsideration; and (5) Being responsible for responding to administrative lawsuits brought against the SIPO due to refusal to accept administrative reconsideration decisions. Article 4. The SIPO shall not apply conciliation in trying administrative reconsideration cases. CHAPTER II SCOPE OF APPLICATION FOR RECONSIDERATION Article 5. A party concerned may apply for reconsideration under any of the following circumstances: (1) The patent applicant refuses to obey a decision on not accepting his application; (2) The patent applicant disputes about the determination of the application date; (3) The patent applicant refuses to obey a decision which regards him as failing to make a claim to the right of priority; (4) The patent applicant refuses to obey a decision deeming his patent application or not a confidential patent application; (5) The patent applicant refuses to obey a decision regarding his patent application to have been withdrawn; (6) The patent applicant refuses to obey a decision regarding him to have waived the right to obtain patent right; (7) The patentee refuses to obey a decision terminating his patent right; (8) The patent applicant or the patentee requests for recovering the right which is lost due to his delay in the relevant period but such right has not been recovered; (9) The patentee refuses to obey a decision granting a compulsory license to exploit the patent; (10) The requester for a compulsory license refuses to obey a decision terminating the compulsory license to exploit the patent; (11) The applicant of an international application refuses to obey a decision of the SIPO made in accordance with Article 102 of the Detailed Rules for the Implementation of the Patent Law on terminating his international patent application; (12) The applicant of an international application refuses to obey the reexamination decision made by the SIPO in accordance with Article 115 of the Detailed Rules for the Implementation of the Patent Law; (13) The applicant of layout design registration refuses to obey a decision on not accepting his application for layout design; (14) The applicant of layout design registration refuses to obey a decision regarding his application for layout design to have been withdrawn; (15) The applicant of layout design registration or the obligee of layout design requests the recovery of the right which is lost due to his delay in the relevant period but such right has not been recovered; (16) The obligee of layout design refuses to obey a decision on an involuntary license; (17) The obligee of layout design or the charged infringer refuses to accept an administrative punishment regarding the infringement upon the exclusive right to layout design; (18) The patent agency refuses to accept a punishment on revocation of the agency; (19) The patent agent refuses to accept the punishment on revocation of his "Patent Agent Qualification Certificate"; or (20) A citizen, a legal person or any other organization considers that some other specific administrative acts made by the SIPO have infringed upon his/its lawful rights and interests. Article 6. A party concerned may not apply for administrative reconsideration under any of the following circumstances: (1) The patent applicant refuses to obey a decision on rejecting his patent application; (2) The patent applicant refuses to obey the reexamination decision; (3) The patentee or the requester for declaration of invalidity refuses to obey a decision of the Patent Reexamination Board on the request for declaration of invalidity; (4) The patentee or the licensee under a compulsory license to exploit the patent refuses to accept the order on the royalty of the compulsory license; (5) The applicant of an international application refuses to obey a decision of the SIPO which acts as an entity accepting international applications, an international search entity or an international preliminary examination entity; (6) The applicant of layout design registration refuses to obey a decision on rejecting his application for registration; (7) The applicant of layout design registration refuses to obey the reexamination decision; (8) The obligee of layout design refuses to obey a decision on cancellation of the layout design registration; (9) The obligee of layout design or the obtainer of an involuntary license refuses to accept the order on the remuneration of the involuntary license; or (10) The obligee of layout design or the charged infringer refuses to obey a decision on the settlement of a dispute over infringement upon the exclusive right to layout design. CHAPTER III PARTICIPANTS IN RECONSIDERATION Article 7. Citizens, legal persons, or other organizations that file an application for reconsideration in accordance with the present Rules are applicants for reconsideration. When a specific administrative act is made, other interested parties whose rights or interests are damaged may either apply for reconsideration, or participate in the reconsideration as the third persons. The SIPO is the defender in the reconsideration procedures. Article 8. Where an application for reconsideration is to be filed with regard to a specific administrative act involving common right, it shall be filed by the co-owners jointly. Article 9. A reconsideration applicant or a third person may authorize a proxy to participate in the reconsideration. CHAPTER IV APPLICATION AND ACCEPTANCE Article 10. Where a citizen, a legal person or any other organization considers that the SIPO's specific administrative act has infringed upon his/its lawful rights and interests, he/it may, within 60 days as of knowing the specific administrative act, file an application for administrative reconsideration. Where the time limit mentioned in the preceding paragraph is delayed due to force majeure or other justified reasons, such time limit shall continue to be counted as of elimination of the hindrance. Article 11. Where a person having the right to apply for reconsideration brings an administrative lawsuit to the people's court, and the people's court has accepted the case, the said person shall not apply to the SIPO for reconsideration. Where, after acceptance of an application for reconsideration, the SIPO finds that the party concerned has brought an administrative lawsuit to the people's court before the application for reconsideration is accepted and that the people's court has accepted the case, it shall reject the application for reconsideration. Where the application for reconsideration filed by a party concerned to the SIPO has been accepted, the said party shall not bring an administrative lawsuit to the people's court within a legal time limit for reconsideration. Article 12. An application for reconsideration shall meet the following conditions: (1) The applicant is the patent applicant, the patentee, the applicant of layout design registration, the obligee of layout design or any other interested party who considers that the SIPO's specific administrative act has infringed upon his lawful rights and interests; (2) There are specific claims for reconsideration and necessary evidence; (3) The case falls within the scope of application for reconsideration; and (4) The application for reconsideration is within the specified time limit. Article 13. A party concerned shall, if applying for reconsideration, submit an application letter for reconsideration in duplicate, with necessary evidential materials attached thereto. Where the SIPO makes the specific administrative act in writing, the document involved or its duplicate shall be attached. A power of attorney shall be attached to the application if a proxy is authorized. Article 14. The application letter for reconsideration shall state the following elements: (1) The name and the mailing address of the applicant; (2) The specific claims and reasons for the reconsideration; and (3) The signature or seal of the reconsideration applicant. Article 15. The application letter for reconsideration may be in a form of standard application form for reconsideration made by the SIPO. The application letter for reconsideration may be either written by hand or typewritten. Article 16. An application letter for reconsideration shall be mailed or submitted to the legal affairs division, and the mailing date or submission date shall be regarded as the date of application for reconsideration. Article 17. The legal affairs division shall, within 5 days as of receipt of the application letter for reconsideration, deal with the application for reconsideration separately as follows: (1) If the application for reconsideration conforms to these Rules, it shall accept the application and send a written notice on acceptance to the reconsideration applicant; (2) If the application for reconsideration does not conform to these Rules, it shall decide not to accept the application and inform the applicant of the reason in writing; (3) If the application letter for reconsideration does not conform to Article 13 or Article 14 of the present Rules, it shall notify the applicant to make up for the application letter within a specified time limit. If the applicant fails to make up, the said application for reconsideration shall be considered not to have been made. CHAPTER V TRAIL AND DECISION Article 18. Administrative reconsideration cases shall be tried in writing. In the process of trial, the legal affairs division may either investigate for information from the relevant departments and individuals, or, upon request, hear the oral opinions of the reconsideration applicant or the third person. Article 19. The legal affairs division shall, within 7 days as of accepting an application for reconsideration, hand over a copy of the application letter for reconsideration to the relevant department. The said department shall, within 10 days as of receipt of the copy of the application letter for reconsideration, give its written opinion of reply on sustaining, rescinding or modifying the original specific administrative act, and shall submit the evidence, basis and other relevant materials for the specific administrative act to be made originally. In case the said department fails to give its opinion of reply within the time limit, the making of the reconsideration decision shall not be affected. The reconsideration applicant or the third person may consult the written opinion of reply mentioned in the preceding paragraph and the evidence, basis and other relevant materials for the specific administrative act to be made, with the exception of the contents involving confidentiality. Article 20. Before a reconsideration decision is made, the reconsideration applicant may withdraw his application for reconsideration. In case an application for reconsideration is withdrawn, the reconsideration proceedings shall be terminated. Article 21. During the reconsideration, it is the general principle that the execution of a specific administrative act shall not be suspended. Where the legal affairs division considers it necessary to suspend the execution, it shall send a written notice on suspension of the execution to the relevant department, and notify the reconsideration applicant and the third person. Article 22. The legal affairs division shall, when trying reconsideration cases, be based on laws, administrative regulations and departmental rules. Article 23. The legal affairs division shall, after examining a specific administrative act in application for reconsideration, make a reconsideration decision in accordance with the following provisions: (1) If the laws, regulations and rules are correctly applied to the specific administrative act, the facts are clearly ascertained, and the statutory scope of power and procedures are complied with, the specific administrative act shall be sustained by way of decision; (2) If there are some inadequacies in the specific administrative act in terms of procedures, a decision shall be made for the relevant department to make them up and improve them; (3) If the relevant department fails to perform its duties provided for by laws, regulations and rules, a fixed time shall be set by way of decision for the said department to perform the duties; (4) If a specific administrative act is under any of the following circumstances, the act shall be rescinded or modified by way of decision, and the relevant department may be required by decision to make the specific administrative act anew. If the specific administrative act cannot be rescinded, such an act shall be confirmed to be illegal: a. The main facts are unclear and the evidence is insufficient; b. The laws, regulations or rules are wrongly applied; c. Legal procedures are violated; d. The powers are exceeded or abused; e. The specific administrative act is obviously inappropriate; or f. There arises reversed evidence, thus it would be more reasonable to rescind or modify the original specific administrative act. After the reconsideration decision on rescinding or modifying the original specific administrative act, the legal affairs division may, when necessary, propose written suggestions on the follow-up proceedings to the relevant department. Article 24. A reconsideration applicant may, when filing the application for reconsideration, claim an administrative compensation, and the legal affairs division shall try the claim for compensation in accordance with the State Compensation Law, and shall, after going through the stipulated procedures for approval, make a decision on the claim for compensation together with the reconsideration decision. Article 25. An administrative reconsideration decision shall be made within 60 days as of the date when it is accepted. However, if the said decision is unable to be made within the specified time limit due to difficult situation, the time limit may be extended after the procedures for approval have been gone through, and the reconsideration applicant and the third person shall be notified of the extension. The time extended shall be no more than 30 days. Article 26. An administrative reconsideration decision shall be made in the name of the SIPO. The written reconsideration decision shall be affixed with the SIPO's special seal of administrative reconsideration. CHAPTER VI TIME PERIODS AND SERVICE Article 27. The day from which a time period begins shall not be counted as within the time period. If the expiration date of a time period falls on a holiday, then the day immediately following the holiday shall be regarded as the expiration date. The days in the provisions containing "5 days", "7 days" or "10 days" in the present Rules shall mean workdays, instead of holidays. Article 28. If a written reconsideration decision is directly served, the date noted on the receipt by the reconsideration applicant shall be regarded as the date of service. If the written reconsideration decision is served by mail, it shall be regarded to have been served upon expiration of the 15 days as of delivery of it for mailing. The written reconsideration decision shall become legally binding once it is served. Article 29. Where the reconsideration applicant or the third person authorizes an agent, the written reconsideration decision shall, in addition to being served to the agent, be served to the reconsideration applicant or the third person pursuant to the domestic mailing address. CHAPTER VII SUPPLEMENTARY PROVISIONS Article 30. The present Rules shall apply to the applications of foreigners, foreign enterprises and other foreign organization who apply to the SIPO for administrative reconsideration. Article 31. No fees shall be charged in administrative reconsiderations. Article 32. The present Rules shall come into force as of September 1, 2002. |
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