Article 1 In order to standardize implementing the granting,
expenses determination and termination procedures for compulsory
licensing of invention patent or patent of utility models
(hereinafter referred to as the compulsory licensing), the Measures
are hereby formulated in accordance with the Patent Law of the PRC
(hereinafter referred to as the Patent Law), the Implementation
Rules of the Patent Law of the PRC (hereinafter referred to as the
Implementation Rules of the Patent Law) and the relevant laws and
regulations.

Article 2 The State Intellectual Property Office is in charge of the
acceptance and investigation of the petitions and makes decisions on
compulsory licensing, the adjudication of the use fees of compulsory
licensing and the termination of compulsory licensing.

Article 3 The petitions for granting compulsory licensing, for
adjudication of the use fees of compulsory licensing and for
termination of compulsory licensing shall be handled with in Chinese
in a written form.
In case the certificates, certification document submitted in
compliance with the Measures are in foreign languages, the parties
concerned shall provide the translation version in Chinese at the
same time, and failure to submit the Chinese version will be deemed
as failure to provide the relevant certificates or certification
documents.

Article 4 When petitioning for the right holders of invention or
patent of utility models to offer licenses in implementing their
patents but failing to obtain such licenses in a reasonable term,
the unit eligible for such implementation may petition for granting
of the compulsory licensing in implementing the invention patent or
patent of utility models according to the provision of Article 48 of
the Patent Law.
In case an invention or utility model obtaining patent is of
material technological advancement in obvious economic significance
as compared with the previous one that has obtained patent and its
implementation depends on the implementation of the previous
invention or utility model, the patent holder thereof may according
to the provision of Article 50 of the Patent Law petition for
granting the compulsory licensing in implementing the former patent,
and vise versa.
In emergency or irregular event of the state, or for the purposes of
public interest, the competent department under the State Council is
entitled to grant the compulsory licensing for implementing the
invention patent or patent of utility models as per the petitions
based on the provisions of Article 49 of the Patent Law.
Article 5 When authorizing the patent agency to submit the petition
for compulsory licensing, the petitioner shall provide the power of
attorney and the authority indicated.
When there are no less than two petitioners without authorized
patent agency, unless otherwise stated in the petition, the first
petitioner indicated in the petition shall be deemed as the
representative.
Chapter II Review and Decisions of Petitions for Compulsory
Licensing
Article 6 When petitioning for grant of compulsory licensing, an
application for compulsory licensing should be submitted to the
State Intellectual Property Office, indicating the following items:
(I) Name and address of the petitioner;
(II) Nationality of the petitioner or the country where the
headquarters is located;
(III) The name, patent number, date of application and date of
authorized announcement of the invention patent or patent of utility
models relating to the petitioned compulsory licensing;
(IV) Name of the right holders of the invention patent or patent of
utility models relating to the petitioned compulsory licensing;
(V) Reasons and facts for petitioning for grant of the compulsory
licensing;
(VI) When authorizing a patent agency, the petitioner shall indicate
the relevant items; and in case there is no authorized patent
agency, name, address, postcode and contact telephone of the contact
person should be indicated;
(VII) The signature or stamp of the petitioner; and if there is an
authorized agency, the stamp of the agency is required also;
(VIII) List of the attached documents;
(IX) Other items required to state.
The petition and attached documents should be executed in two
copies.
Article 7 In case a petition for compulsory licensing relating to
multiple invention patent or patent of utility models involves two
or more patent right holders, different petitions should be
submitted to different patent right holders.
Article 8 In any of the following cases relating to the compulsory
licensing, the State Intellectual Property Office will not accept
the petition with notification to the petitioner:
(I) the patent number of the invention patent or patent of utility
models relating to the petitioned compulsory licensing is not clear
or is hard to identify;
(II) The petitioning documents without Chinese version;
(III) Obviously no reason available for petitioning compulsory
licensing.
Article 9 In case the petitioning documents do not meet the
provisions of Articles 6 and 7 of the Measures, the petitioner shall
within 15 days upon receipt of the notice make up for the documents.
In case of failure to making up for the documents required, the
petition will be deemed as no submission.
The petitioner shall within a month upon the petition for compulsory
licensing pay the petitioning fees of compulsory licensing; and in
case of nonpayment or insufficient payment of such petitioning fees,
the petition will be deemed as no submission.
Article 10 In terms of the petitions for compulsory licensing in
compliance with the provisions of the Patent Law, the Implementation
Rules of the Patent Law and the Measures, the State Intellectual
Property Office shall send the copy of the petition to the patent
right holders. The patent right holders shall state their opinions
within the time schedule specified. In case of no reply beyond the
time schedule, the State Intellectual Property Office may make a
decision as usual.
Article 11 The State Intellectual Property Office shall review the
reasons stated by the petitioner and the relevant certification
documents. In case of field verification required, the State
Intellectual Property Office shall assign no less than two persons
to carry out the field verification.
In case the reasons stated by the petitioner and the relevant
certification documents are insufficient or false, the State
Intellectual Property Office may prior to the refusal to the
petition of compulsory licensing send notification to the petitioner
for providing the latter with an opportunity for statement of its
opinions.
Article 12 In case the petitioner or the patent right holders
request for hearing, the State Intellectual Property Office may
organize a hearing.
The State Intellectual Property Office shall seven days before the
hearing send notification to the petitioner, patent right holders
and other persons of interest.
Except for involvement of state secrets, commercial secrets or
personal privacy, the hearing should be held in open session.
When the State Intellectual Property Office is holding a hearing,
the petitioner, patent right holders and other persons of interest
may defend and make cross-examination.
The hearing should be recorded in writing, which should be singed or
stamped upon confirmation without error by the participants.
The hearing procedure is not applicable to the petitions for grant
of compulsory licensing according to the provisions of Article 49 of
the Patent Law.
Article 13 In any of the following cases, the State Intellectual
Property Office shall made a decision on refusal to the petition for
compulsory licensing, with notification sent to the petitioner:
(I) the petitioner is not an eligible subject as specified by
Article 4 of the Measures;
(II) The reasons for petitioning the grant of the compulsory
licensing are not in compliance wit the provisions of Articles 48,
49 and 50 of the Patent Law;
(III) The reasons are not in compliance with the provision of
Article 72 of the Implementation Rules of the Patent Law when the
petition for compulsory licensing involves the invention and
creation of semiconductor technologies.
If objecting to the decision of refusal to the petition of
compulsory licensing, the petitioner may institute a lawsuit with
the people’s court within three months upon receipt of the notice.
Article 14 The petitioner may withdraw its petitions for compulsory
licensing from time to time, and in case the petitioner withdraw its
petitions prior to the decision by the State Intellectual Property
Office, the review procedures for the petition of compulsory
licensing terminates.
In case of reaching a licensing contract on patent implementation by
and between the petitioner and the patent right holder prior to the
decision by the State Intellectual Property Office, timely notice
should be given to the State Intellectual Property Office and the
petition for compulsory licensing should be withdrawn directly.
Article 15 In case of no reason for refusal to the petition of the
compulsory licensing through review, the State Intellectual Property
Office shall make a decision on granting compulsory licensing, with
the following items stated:
(I) Name and address of the individual or unit obtaining the
compulsory licensing for patent implementation;
(II) The name, patent number, date of application and date of
authorized announcement of the invention patent or patent of utility
models relating to the petitioned compulsory licensing;
(III) Scope, scale and term of the compulsory licensing granted;
(IV) Reasons, facts and legal basis for the decisions;
(V) The stamp of the State Intellectual Property Office and the
signature of the responsible persons;
(VI) Date of decisions; and
(VII) Other relevant matters.
The decisions on granting the compulsory licensing should be timely
notified to the petitioner and the patent right holders.
Article 16 In case the patent right holders object to the decision
of granting compulsory licensing, lawsuit may be brought at the
people’s court in within three months upon the receipt of the
notice.
Article 17 The decision that has come into force on granting
compulsory licensing should be registered on the patent register and
published on the patent gazette of the State Intellectual Property
Office, the government websites and China Intellectual Property
News.
Chapter III Review and Finding of the Petitions for Adjudication of
the Use Fees of the Compulsory Licensing
Article 18 The petitions for the State Intellectual Property Office
to determine the use fees of the compulsory licensing shall be
available for the following conditions:
(I) Publication of the decisions on granting the compulsory
licensing;
(II) The petitioner is the patent right holder or a unit or
individual that obtains the compulsory licensing；
(III) Failure to reach an agreement through mutual consultation.
Article 19 In case of petitioning for determining the use fees of
the compulsory licensing, an application should be submitted for
adjudication of the use fees of the compulsory licensing, indicating
the following items:
(I) Name and address of the petitioner;
(II) Nationality of the petitioner or the country where the
headquarters of the petitioner is located;
(III) Document number that making the decisions on granting the
compulsory licensing;
(IV) Name and address of the petitioned;
(V) Reasons for petition of the adjudication of the use fees of the
compulsory licensing;
(VI) When authorizing a patent agency, the petitioner shall indicate
the relevant items; and in case there is no authorized patent
agency, name, address, postcode and contact telephone of the contact
person should be indicated;
(VII) The signature or stamp of the petitioner; and if there is an
authorized agency, the stamp of the agency is required also;
(VIII) List of the attached documents;
(IX) Other items required to state.
The petition and attached documents should be executed in two
copies.
Article 20 In any of the following cases relating to the petitions
for the adjudication of the use fees of the compulsory licensing,
the State Intellectual Property Office may not accept the petitions,
with notification sent to the petitioner:
(I) The decisions involved on granting the compulsory licensing are
not clear or not published;
(II) The petitioning documents without Chinese version;
(III) Obviously no reason available for petition for adjudication of
the use fees of the compulsory licensing.
Article 21 In case the petitioning documents do not meet the
provisions of Articles 49 of the Measures, the petitioner shall
within 15 days upon receipt of the notice make up for the documents.
In case of failure to making up for the documents required, the
petition will be deemed as no submission.
The petitioner shall within a month upon the petition for compulsory
licensing pay the petitioning fees of adjudication of the f\sue fees
of the compulsory licensing; and in case of nonpayment or
insufficient payment of such petitioning fees, the petition will be
deemed as no submission.
Article 22 In terms of the petitions for adjudication of the use
fees of the compulsory licensing in compliance with the provisions
of the Patent Law, the Implementation Rules of the Patent Law and
the Measures, the State Intellectual Property Office shall send the
copy of the petition to the counterpart. The counterpart shall state
their opinions within the time schedule specified. In case of no
reply beyond the time schedule, the State Intellectual Property
Office may make a decision as usual.
During the adjudication of the use fees of the compulsory licensing,
the parties concerned may submit written opinions. The State
Intellectual Property Office may listen to the oral opinions of both
parties as required by the actual circumstances of the case.
Article 23 The petitioner may withdraw its petitions for
adjudication from time to time, and in case the petitioner withdraw
its petitions for adjudication prior to the decision by the State
Intellectual Property Office, the adjudication procedures
terminates.
Article 24 The State Intellectual Property Office shall within three
months upon receipt of the petition make a decision on adjudication
of the use fees of the compulsory licensing.
Article 25 The decision on the adjudication of the use fees of the
compulsory licensing shall indicate the following items:
(I) Name and address of the individual or unit obtaining the
compulsory licensing for patent implementation;
(II) The name, patent number, date of application and date of
authorized announcement of the invention patent or patent of utility
models relating to the petitioned compulsory licensing;
(III) Reasons for the adjudication;
(IV) The stamp of the State Intellectual Property Office and the
signature of the responsible persons;
(V) Date of decisions; and
(VI) Other relevant matters.
The decisions on adjudication of the use fees of the compulsory
licensing should be timely notified to both parties.
Article 26 In case the patent right holder and the unit or
individual obtaining the compulsory implementation licensing objects
to the decision of the adjudication of the use fees of the
compulsory licensing, lawsuit may be brought at the people’s court
in within three months upon the receipt of the notice.
Chapter IV Review and Decision on Terminating the Petition for
Compulsory Licensing
Article 27 The compulsory licensing automatically terminates upon
the expiry of the valid term of the compulsory licensing specified
by the decision on granting the compulsory licensing.
When the compulsory licensing terminates automatically, announcement
should be registered on the patent register and published on the
patent gazette of the State Intellectual Property Office, the
government websites and China Intellectual Property News.
Article 28 In case the reasons for compulsory licensing are
eliminated without reoccurrence prior to the expiry of the valid
term of the compulsory licensing specified in the decision on
granting the compulsory licensing, the patent right holders may
request for the State Intellectual Property Office to make a
decision on terminating the compulsory licensing.
In case of petitioning for terminating the compulsory licensing, an
application should be submitted for terminating the compulsory
licensing, indicating the following items:
(I) Name and address of the patent right holders;
(II) Nationality of the patent right holders or the country where
its headquarters is located;
(III) Document number that makes the decisions on the compulsory
licensing requested to terminate;
(IV) Reasons for petition of terminating the compulsory licensing;
(V) When authorizing a patent agency, the patent right holder shall
indicate the relevant items; and in case there is no authorized
patent agency, name, address, postcode and contact telephone of the
contact person should be indicated;
(VI) The signature or stamp of the patent right holder; and if there
is an authorized agency, the stamp of the agency is required also;
(VII) List of the attached documents;
(VIII) Other items required to state.
The patent right holder shall submit the petition application and
attached documents in two copies.
Article 29 In any of the following cases relating to the petitions
for terminating the compulsory licensing, the State Intellectual
Property Office may not accept the petitions, with notification sent
to the petitioner:
(I) The petitioner is not the right holders of the invention patent
or the patent of utility model requested under the compulsory
licensing;
(II) The document number is not clear for the decision on granting
the compulsory licensing requested to terminate are not clear or not
published;
(III) The petitioning documents without Chinese version;
(IV) Obviously no reason available for terminating the compulsory
licensing.
Article 30 In case the petitioning documents do not meet the
provisions of Articles 28 of the Measures, the petitioner shall
within 15 days upon receipt of the notice make up for the documents.
In case of failure to making up for the documents required, the
petition will be deemed as no submission.
Article 31 In terms of the petitions for terminating the compulsory
licensing in compliance with the provisions of the Measures, the
State Intellectual Property Office shall send the copy of the
petition to the unit or individual that obtains the compulsory
implementation licensing. The unit or individual that obtains the
compulsory implementation licensing shall state their opinions
within the time schedule specified. In case of no reply beyond the
time schedule, the State Intellectual Property Office may make a
decision as usual.
Article 32 The State Intellectual Property Office shall review the
reasons stated by the patent right holder and the relevant
certification documents. In case of field verification required, the
State Intellectual Property Office shall assign no less than two
persons to carry out the field verification.
In case the reasons stated by the patent right holder and the
relevant certification documents are insufficient or false, the
State Intellectual Property Office may prior to making decision send
notification to the patent right holder for providing the latter
with an opportunity for statement of its opinions.
Article 33 When holding that the reasons for petition of terminating
the compulsory licensing do not hold water through review, the State
Intellectual Property Office shall make a decision on rejecting the
petition of terminating the compulsory licensing.
If objecting to the decision on rejecting to the petition of
terminating the compulsory licensing, the patent right holder may
institute a lawsuit with the people’s court within three months upon
receipt of the notice.
Article 34 The patent right holder may withdraw its petitions for
terminating the compulsory licensing from time to time, and in case
the patent right holder withdraws its petitions prior to the
decision by the State Intellectual Property Office, the relevant
procedures terminates.
Article 35 In case of no reason for refusal to the petition of
terminating the compulsory licensing through review, the State
Intellectual Property Office shall make a decision on terminating
the compulsory licensing, with the following items stated:
(I) Name and address of the patent right holder;
(II) Name and address of the individual or unit obtaining the
compulsory licensing for patent implementation;
(III) The name, patent number, date of application and date of
authorized announcement of the invention patent or patent of utility
models relating to the petitioned compulsory licensing;
(IV) Document number of deciding the grant of the compulsory licensing;
(V) Facts and legal basis for the decisions;
(VI) The stamp of the State Intellectual Property Office and the
signature of the responsible persons;
(VII) Date of decisions; and
(VIII) Other relevant matters.
The decision on the petition of terminating the compulsory licensing
should be timely notified to the patent right holders and the unit
or individual obtaining the compulsory implementation licensing.

Article 36 In case the unit or individual obtaining the compulsory
implementation licensing objects to the decision on terminating the
compulsory licensing, lawsuit may be brought forth at the people’s
court in within three months upon receipt of the notice.

Article 37 The decision that has come into force on terminating the
compulsory licensing should be registered on the patent register and
published on the patent gazette of the State Intellectual Property
Office, the government websites and China Intellectual Property
News.

Chapter V Supplementary Provisions

Article 38 The interpretation of the Measures is vested with the
State Intellectual Property Office.

Article 39 The Measures shall come into force as of July 15, 2003.

Bright Jon  Attorney-at-law  Fax: +86-512-53516040  email@colaw.cn
g