This is to announce.
China National Intellectual Property Administration
July 2, 2024
Measures for Mediation of Patent Open License Implementation Disputes
(Trial)
Chapter 1 General Provisions
Article 1: In order to promote the implementation and application of patented technology, timely resolve disputes arising from the implementation of patent open licenses, and in accordance with relevant provisions such as the Patent Law of the People's Republic of China and the Implementation Rules of the Patent Law of the People's Republic of China, these Measures are formulated.
Article 2: These Measures apply to the mediation of disputes arising from the implementation of patent open licenses as referred to in Article 52 of the Patent Law of the People's Republic of China.
Article 3: The mediation of disputes over patent open license implementation shall follow the following principles:
（1） Voluntary principle. Fully respect the autonomy of the parties' will, ensure that the parties exercise their rights in accordance with the law, and shall not be forced to accept mediation.
（2） Principle of legality. The mediation of disputes arising from patent open license implementation shall comply with the requirements of laws, regulations, and rules, and shall not harm national interests, public interests, or the legitimate rights and interests of others.
（3） The principle of fairness. The mediation of patent open license implementation disputes shall follow the principle of fairness and reasonably determine the rights and obligations of both parties.
（4） Confidentiality principle. The staff, case representatives, experts, etc. involved in mediation shall keep confidential any trade secrets, personal privacy, and other information that should not be disclosed according to law obtained during the mediation process, except where both parties agree to disclose them.
Chapter 2 Case Acceptance
Article 4 Where a party concerned has a dispute over the payment standard and method of the royalty for the exploitation of the patent opening license, the effective time of the patent opening license, the term of the patent license, etc., and voluntarily accepts mediation, it shall file a mediation application in writing, and submit the mediation application in person or mail it to the China National Intellectual Property Administration.
Article 5: When submitting a mediation application, the following documents shall be submitted:
（1） Mediation application form. The mediation application shall specify the names or titles, addresses, contact persons, and contact information of both parties; The reasons for the dispute to be mediated, a brief explanation of the dispute, and the matters to be mediated.
（2） Applicant's identification documents. Mainly including natural person identification documents, copies of business licenses of legal persons or other organizations, or other proof of subject qualification documents. Among them, natural persons shall submit a copy of their ID card and sign and confirm it on the copy. Legal persons or other organizations shall submit a copy of their business license or other proof of subject qualification documents, as well as a copy of the identity certificate of their legal representative or main person in charge, all of which shall be stamped with the official seal.
（3） Relevant evidence materials. Including but not limited to registered patent open license statements, effective patent open license implementation contracts, and other evidence materials related to the case.
（4） Authorization letter. The applicant may appoint 1 to 2 persons as agents to participate in mediation. If the applicant entrusts an agent to participate in mediation, a written authorization letter shall be submitted. The power of attorney shall clearly record the entrusted matters, authority, and duration.
（5） Other materials related to case mediation.
Article 6 When the China National Intellectual Property Administration accepts a mediation case, the two parties may jointly file an application, or one party may file an application.
If the application is made by one party, the China National Intellectual Property Administration shall send a mediation notice to the party to be applied for to inquire about the willingness of mediation. After receiving the mediation notice, the party against whom the application is made shall provide a confirmation letter of whether they agree to the mediation within 10 working days. If mediation is agreed upon, the documents listed in Article 5 shall be submitted simultaneously.
Article 7 The China National Intellectual Property Administration shall decide whether to accept the mediation application within 5 working days and notify both parties. If the case is particularly complex or there are other special circumstances, the filing deadline can be extended by 5 working days.
If the China National Intellectual Property Administration, upon examination, decides not to accept the case, it shall issue a notice of rejection and explain the reasons in writing to the party concerned.
Article 8: Mediation applications that fall under any of the following circumstances shall not be accepted:
（1） One party applies for mediation, but the other party does not accept mediation;
（2） The parties have filed a lawsuit with the people's court and it has been accepted;
（3） The parties have filed an arbitration application with the arbitration institution;
（4） The people's court or arbitration institution has already made a judgment on the dispute;
（5） Other situations that cannot be accepted.
Article 9 The China National Intellectual Property Administration shall register the mediation application accepted, including but not limited to the filing number, patent information involved, applicant information, agency and agent information, main matters of the mediation application, accompanying evidence materials, etc.
Chapter 3 Mediation of Cases
Article 10 After accepting the mediation application, the China National Intellectual Property Administration shall promptly appoint a mediator to preside over the mediation.
The China National Intellectual Property Administration may, according to the needs of case mediation, invite relevant units, professionals or other relevant personnel to participate in mediation.
Article 11: For cases where the facts are clear, the rights and obligations are clear, or the amount involved is not significant, mediation may be conducted by one mediator. For major, difficult, complex, or high-value cases, a mediation panel should be composed of three or more mediators, and the number of members in the panel should be odd, with a maximum of five people.
Article 12: Mediators shall recuse themselves in any of the following circumstances:
（1） Is a close relative of the party or their representative in this case;
（2） Those who have an interest in the dispute in this case;
（3） If there are other relationships with the parties or agents involved in the dispute that may affect the impartiality of the mediation.
Article 13: Mediation personnel shall not engage in the following behaviors during mediation:
（1） Engaging in favoritism and corruption, showing favoritism towards one party;
（2） Suppressing, insulting, and attacking the parties involved;
（3） Soliciting, accepting or seeking other improper benefits;
（4） Disclosing state secrets, trade secrets, and personal privacy;
（5） Other behaviors that affect the fairness of mediation or harm the legitimate rights and interests of the parties involved.
Article 14: The parties shall enjoy the following rights:
（1） Expressing one's own will and voluntarily reaching a mediation agreement;
（2） Request for mediation to be conducted publicly or privately;
（3） Accept mediation, refuse mediation, or request to suspend or terminate mediation;
（4） Other rights stipulated by laws, regulations, and rules.
Article 15: The parties shall fulfill the following obligations:
（1） Truthfully state the facts of the dispute;
（2） Submit relevant evidence comprehensively in accordance with the law;
（3） Adhere to the mediation order, respect the mediation staff and the opposing parties;
（4） Consciously fulfill the mediation agreement reached;
（5） Other obligations stipulated by laws, regulations, and rules.
Article 16: If a party has any of the following circumstances and constitutes a violation of public security, the public security organ shall impose administrative penalties; Those who commit crimes shall be held criminally responsible in accordance with the law.
（1） Threatening or assaulting mediation personnel or opposing parties;
（2） Disrupting the order of mediation;
（3） Providing forged evidence materials;
（4） Other behaviors that interfere with or obstruct mediation.
Article 17: Mediation personnel may carry out mediation according to the following steps:
（1） Verify identity and inform rights and obligations. At the beginning of mediation, the mediation staff should verify the identity of the parties, announce the mediation discipline, and inform both parties of their rights and obligations under the law.
（2） Clarify the facts. Mediation personnel can clarify the facts of the case through questioning, cross examination, viewing materials related to the case, on-site investigation, and convening coordination meetings.
（3） Mediation and handling. Mediation staff can conduct mediation through various methods such as on-site mediation, telephone mediation, written mediation, and online mediation. Multiple mediation methods can be used comprehensively in the same case. For on-site mediation, the parties shall be informed in writing of the time, location, and mediator of the mediation three working days in advance. If the parties are unable to participate in on-site mediation, they shall apply for a rescheduling at least one working day in advance. If the case is mediated by a panel, the panel leader shall preside over the mediation process.
（4） Make mediation records. The mediator or mediation panel shall make a mediation record, briefly recording the mediation time, location, participants, negotiation matters, parties' opinions, and mediation results, which shall be signed or stamped by the parties after verification.
Article 18 The China National Intellectual Property Administration shall complete the case mediation within 30 working days from the date of accepting the mediation application. If the situation is complex or there are other special circumstances, with the consent of both parties, it may be appropriately extended, and the extension period shall not exceed 30 working days.
If consultation with experts or appraisal of relevant facts is required during the mediation process, the time for expert consultation or appraisal shall not be included in the mediation period.
Article 19: In any of the following circumstances, the parties may request to suspend the handling, and the decision on whether to suspend shall be made by the mediator or the mediation panel:
（1） Due to legitimate reasons and with the recognition of the other party, temporarily unable to participate in mediation or requesting to suspend mediation midway;
（2） A request for invalidation of a patent right has been filed;
（3） Force majeure or unexpected events;
（4） Other circumstances stipulated by laws, regulations, and rules that require suspension of processing.
Article 20: After the reason for suspension is eliminated, mediation may be resumed upon the application of the parties, and the suspension time shall not be counted towards the mediation period.
Chapter 4 Closure
Article 21: In cases where on-site mediation can be carried out immediately or both parties believe that a mediation agreement is not necessary, a mediation agreement may not be required, and the mediation result shall be recorded in the mediation transcript by the mediator or mediation panel.
Article 22: If an agreement is reached through mediation and any of the following situations occur, a mediation agreement shall be prepared:
（1） One party requests the production of a mediation agreement;
（2） There are financial payment contents that cannot be fulfilled immediately;
（3） The matters to be mediated involve significant, difficult, and complex dispute situations;
（4） Other circumstances where a mediation agreement should be made.
Article 23: The mediation agreement shall include the following contents:
（1） Basic information of the parties and their authorized agents;
（2） Disputes and controversies;
（3） The mediation results, including the method and deadline for fulfilling the agreement.
（4） Other agreed matters.
Article 24: The mediation agreement shall come into effect from the date of signature and seal. If the mediation agreement specifies the specific effective time, the effective time stated shall prevail.
Article 25 Each party shall hold one copy of the mediation agreement, and the China National Intellectual Property Administration shall keep one copy.
Article 26: In any of the following circumstances, the mediator shall terminate the mediation:
（1） One party requests to terminate the mediation;
（2） The mediation period has expired and no mediation agreement has been reached;
（3） If the parties are absent or withdraw from mediation without justifiable reasons;
（4） The mediation result involves the interests of a third party, and the third party does not agree to the mediation;
（5） If a citizen dies or a legal person or other organization terminates, and there is no right or obligation recipient or the right and obligation recipient waives mediation;
（6） The parties file a lawsuit or arbitration regarding the dispute;
（7） Other circumstances that require termination of mediation as stipulated by laws, regulations, and rules.
If mediation is terminated, a notice of termination of mediation shall be made or recorded in the mediation transcript.
Article 27: After the mediation is concluded or terminated, the parties shall not apply for mediation again based on the same facts and reasons.
Article 28 After the mediation is concluded or terminated, the China National Intellectual Property Administration shall file and keep the mediation case materials. Archival materials should be established in accordance with the principle of one case, one number, and one volume for each case.
Chapter 5 Supplementary Provisions
Article 29 These Measures shall be interpreted by the China National Intellectual Property Administration.
Article 30: These Measures shall come into effect from the date of their promulgation.
Home