The newly revised Implementation Rules of the Patent Law of the People's Republic of China will officially come into effect on January 20, 2024, and the patent open license system has been fully implemented. To promote the efficient operation of the patent open licensing system and expand the modes and channels of patent conversion and application, the relevant matters are hereby notified as follows.
1、 Fully understand the significance of implementing an open licensing system
Patent open license is a special patent license newly established in the fourth amendment of the Patent Law of the People's Republic of China (hereinafter referred to as the "Patent Law"). It is an institutional innovation in the transformation and application of patents, which is conducive to achieving simple and efficient "one to many" patent licensing, improving docking efficiency, reducing institutional transaction costs, and bridging the "last mile" of the transformation of scientific and technological achievements into new quality productivity. The patentee voluntarily submits a patent open license statement, and the patent license fee is "clearly priced". The patent administrative department of the State Council will "publicize" it to the whole society. Any unit or individual who notifies the patentee in writing and pays according to the price can obtain the implementation license, and all licensees will be "treated equally".
Each province (municipality directly under the central government, autonomous region) intellectual property bureau should attach great importance to it, organize relevant units to increase publicity efforts, guide all parties to correctly understand and scientifically apply the patent open license system, especially in the revitalization of existing patents in universities and research institutions, better play the role of open license, support enterprises, especially small and medium-sized enterprises, to obtain patent technology at lower costs, and promote the transformation of the advantages of the patent open license system into new momentum for patent conversion and application. The implementation of the patent open license system will be an important part of evaluating the effectiveness of the special action for patent conversion and application in various regions.
2、 Guide patent owners to submit open license statements in a standardized manner
The intellectual property offices of each province (municipality directly under the central government, autonomous region) shall guide patent owners to submit patent open license statements in accordance with relevant regulations. The patent open license statement should specify the patent number, patent owner, payment method and standards for license fees, license period, and other matters, and be submitted online through the patent business processing system. Patents subject to open licensing shall have been publicly announced and authorized, and shall remain valid. If the patentee makes an open license declaration for utility model and design patents, they shall also provide a patent evaluation report.
3、 Promote the convenient transformation of pilot projects into open licenses
The intellectual property offices of provinces (municipalities, autonomous regions) that have launched open license pilot programs should guide patent owners to select patents with high quality, good market prospects, and that have reached or have intentions to open license in the pilot program, and submit an open license statement. For open license statements of 10 or more different patents with identical content such as patent owners, payment methods and standards for licensing fees, and license periods, patent owners can submit them in bulk in paper form through local patent agencies by the end of 2024. The intellectual property offices of each pilot province (municipality directly under the central government, autonomous region) should support local patent agencies to do a good job in batch acceptance, guide patent agencies to conduct centralized verification of the latest legal status of pilot open license patents, and provide training answers and pre examination services. The China National Intellectual Property Administration will quickly review the above statement.
4、 Guide patent owners to estimate licensing fees reasonably
The intellectual property offices of each province (municipality directly under the central government, autonomous region) should widely promote common payment methods for patent licensing fees, such as one-time payment, commission payment, and additional commission for entry fees. They should guide patent owners to clarify the payment standards and methods for licensing fees, and submit a brief explanation of the calculation basis and methods for licensing fees in accordance with regulations. We need to strengthen the interpretation of the national standards of the "Guidelines for Patent Evaluation" and the "Guidelines for Estimating the Use of Patent Open Licenses (Trial)", guide patent owners to uphold the concept of fairness, reasonableness, mutual benefit, and practicality, accurately grasp the characteristics of "one to many" open licenses and their small, universal, and convenient features, and reasonably estimate license fees. According to the "Guidelines for Patent Examination", if the licensing fee is paid at a fixed fee standard, it generally does not exceed 20 million yuan; Paid as a commission fee, generally not exceeding 20% of net sales or 40% of profit. If the licensing fee is higher than the above standards, the patent holder shall be guided to license through ordinary licensing or other means.
5、 Strengthen the open sharing of information in open license statements
After the patent opening license declaration has passed the examination of the China National Intellectual Property Administration, it will be announced to the public through the Patent Gazette. The public can query the patent opening license declaration, license completion filing and other announcement information through the China Patent Publication and Announcement System. The patent open license announcement data is fully open to the public through the intellectual property data resource public service system, facilitating access, retrieval, and retrieval by all parties.
Each province (municipality directly under the central government, autonomous region) intellectual property bureau should guide relevant parties such as intellectual property operation service platforms and industrial intellectual property operation centers to make good use of patent open license announcement data, match and push it to enterprises in related industrial fields, and expand the audience of patent declaration information.
6、 Fully leverage the roles of all parties to promote supply-demand integration
The intellectual property bureaus of each province (municipality directly under the central government, autonomous region) should make patent open licensing an important part of formulating policies related to patent transformation and application, and organically combine it with the revitalization of existing patents in universities and research institutions, the promotion of small and medium-sized enterprise growth through patent industrialization, and the strengthening of intellectual property chains and efficiency in key industries. Guide universities and research institutions to inventory existing patents, select patents with strong practicality, wide application fields, and suitable for implementation in multiple regions for open licensing, and connect with small and medium-sized enterprises such as "specialized, refined, unique, and new" with strong technological digestion capabilities. Guide public service institutions such as the Technology Innovation and Support Center, the National Intellectual Property Information Service Center of universities, and the National Intellectual Property Information Public Service Network to provide consulting services in handling open licensing procedures and estimating usage fees. Encourage market-oriented intellectual property service institutions to provide open licensing related docking, trading, and other services. Encourage insurance institutions to develop open license related insurance products to provide risk protection for license implementation.
7、 Guide the completion of open licensing and record keeping
For the patent open license reached, the intellectual property offices of all provinces (municipalities directly under the Central Government, autonomous regions) shall urge and guide the patentee or licensee to file with the China National Intellectual Property Administration in a timely manner in accordance with relevant regulations. For ordinary licenses reached through negotiation between patent owners and licensees who implement open licensing regarding licensing fees, guide the parties to file the ordinary license contract in accordance with relevant regulations. The reduction or exemption of annual patent fees during the implementation of the open license stipulated in the Patent Law will be implemented after the implementation of the policy on reduction of patent fees issued by the National Development and Reform Commission, the Ministry of Finance and the China National Intellectual Property Administration.
8、 Strengthen open license supervision and dispute mediation
The China National Intellectual Property Administration will strengthen the monitoring of abnormalities in patent open licensing business and the investigation of clues to violations of laws and regulations. Each province (municipality directly under the central government, autonomous region) intellectual property bureau shall conduct credit supervision in accordance with laws and regulations on dishonest behavior during the process of patent open licensing. For the illegal and irregular behavior of patent owners who make open license statements or obtain patent annual fee reductions during the implementation of open licenses by providing false materials, concealing facts, etc., they shall be punished in accordance with Article 100 of the Implementing Regulations of the Patent Law. According to the relevant provisions of the "Measures for Mediation of Patent Open License Implementation Disputes (Trial)", parties should be guided to resolve open license disputes through self negotiation, application for mediation, and other means.
9、 Strengthen institutional publicity, interpretation, and promotion of typical cases
The China National Intellectual Property Administration has issued the Guidelines for Intellectual Property Government Service Matters (Second Edition) to guide and answer the frequently asked questions about patent open licensing business. Each province (municipality directly under the central government, autonomous region) intellectual property bureau should promote, interpret, and train on the patent open license system through various means such as new media, short videos, and training courses. The China National Intellectual Property Administration will strengthen publicity and promotion by summarizing and refining typical experiences and cases in the implementation of the open licensing system and submitting them in a timely manner.
China National Intellectual Property Administration
July 3, 2024
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