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PATENT - SIPO's Rules on Administrative Reconsideration

2013.12.12

On July 18, 2012, the State Intellectual Property Office (SIPO) issued Rules of the State Intellectual Property Office on Administrative Reconsideration (Order of SIPO No. 66, “the Rules”), which took effective on September 1, 2012. The Rules provide for the scope, application, time line and decision making of administrative reconsideration cases.

  • Scope of reconsideration. An administrative reconsideration case may be raised if the applicant or patentee:

    1. Refuses to obey the SIPO’s specific administrative acts regarding patent application and patent right or the application for registration of integrated circuit layout design; or refuses to obey the SIPO’s specific administrative acts regarding the administration of patent agency;

    2. Refuses to accept the relevant procedural decisions on patent reexamination and invalidation made by the Patent Reexamination Board of the SIPO. Alternatively, any party is dissatisfied with such decisions may also bring a lawsuit to the people’s court within three months as of receipt of the notification; or

    3. Believes that other specific administrative acts of the SIPO have infringed upon his or its lawful rights and interests.

  • Application and acceptance. Where any citizen, legal person or any other organization believes that a specific administrative act of the SIPO has infringed upon his or its lawful rights and interests, he or it may file an application for administrative reconsideration within 60 days of knowing the specific administrative act.

    • Time line. After receiving an application, an administrative reconsideration department shall make a decision to accept the application or not within 5 days of receipt of such application. If the application is accepted, then the department shall transfer such application to relevant department within 7 days, and such relevant department shall respond within within 10 days. The reconsideration decision shall be made within 60 days of receipt of application.

      • Decision Making

        • Revoke/alter a decision/order a new decision to be made. Where a specific administrative act falls under any of the following circumstances, the reconsideration department shall decide to revoke or alter, or confirm the act being illegal, and order the respondent to make a new specific administrative act:

          1. the main facts are unclear and evidence is insufficient, or the basis is wrongly applied;

          2. the statutory procedures are violated or the powers are overstepped or abused;

          3. the specific administrative act is obviously inappropriate; or

          4. there is new evidence and it is more reasonable to revoke or alter the original specific administrative act.

        • Alter a decision. Where a specific administrative act falls under any of the following circumstances, the reconsideration department may decide to alter the specific administrative act in question:

          1. the facts found are clear, evidence is conclusive, and procedures are legal; however, the specific administrative act is obviously inappropriate or the basis is wrongly applied; or

          2. the facts found are unclear and evidence is insufficient; however, upon trial according to administrative reconsideration procedures, the facts are ascertained and evidence is conclusive.

        • Reject an application. Under any of the following circumstances, an application for administrative reconsideration shall be rejected and the reasons shall be notified in writing:

          1. the reconsideration applicant files an application for administrative reconsideration because he or it maintains that the respondent fails to perform its statutory duties; however, an administrative reconsideration department, upon acceptance of such application, finds that the respondent does not have the corresponding statutory duties or the respondent has performed statutory duties prior to the acceptance; or

          2. An administrative reconsideration department, upon acceptance of an application for administrative reconsideration, finds that this application does not satisfy the acceptance conditions.

      • Exclusive jurisdiction. Once administrative reconsideration procedure commences, the parties are exclusively prevented from taking administrative actions before the People’s Court. On the other hand, if the case is accepted in the administrative litigation before the Court, the reconsideration department shall reject the application for reconsideration in respect of the same subject matter.

      • Requesting compensation. A reconsideration applicant may request an administrative compensation when filing an application for administrative reconsideration, and an administrative reconsideration department shall make a decision on the claim for compensation together with that on administrative reconsideration.

      • Filing an administrative law suit. Any party refuses to accept an administrative reconsideration decision may bring an administrative lawsuit before a people's court. Based on territorial jurisdiction, Beijing First Intermediate People’s Court will be responsible for all the first instance trial of such lawsuit.

      • Other important provisions. The Rules also provide that the application of administrative reconsideration is free of charge, and the decision of such reconsideration shall come into force once it is served. During the period of administrative reconsideration, the execution of a specific administrative act shall not be suspended.