Measures on the Management of the List of Targets for Joint Disciplinary Action Against the Seriously Untrustworthy in the Patent Sector (Provisional)

Promulgation Date: 2019-10-16
Title: 国家知识产权局关于印发《专利领域严重失信联合惩戒对象名单管理办法（试行）》的通知
Document Number:国知发保字〔2019〕52号
Expiration date: 
Promulgating Entities: State Intellectual Property Office
Source of text: http://www.cnipa.gov.cn/gztz/1143068.htm
Chapter I: General Provisions

Article 1: The Measures are drafted so as to strictly protect intellectual property rights, to accelerate the advancement of the establishment of a social credit system in the patent sector, to thoroughly implement the "General Office of the State Council's Notice on the Printing and Distributing of the Key Tasks and Division of Labor from Video-conference on Deepening the Reform of 'Streamlining Administration and Improving Services' to Optimize the Business Environment‘ （Guobanfa (2019 No. 39), the “Memorandum of Understanding on the Implementation of Joint Disciplinary Action Against Seriously Untrustworthy Entities in the Intellectual Property Rights (Patent) Sector" (FaGaiCaiJin(2018)No.1702), and the "National Development and Reform Commission and People's Bank of China's Guiding Opinions on Strengthening and Regulating Efforts on the Management of Lists of Persons Receiving Joint Incentives for Trustworthiness or Joint Punishment for Untrustworthiness" (FaGaiCaiJinGui (2017）No.1798), to establish and complete a system of joint disciplinary action against untrustworthiness in the patent sector, in light of actual work conditions.

Article 2: "Management of the List of Targets for Joint Disciplinary Action Against the Seriously Untrustworthy in the Patent Sector" as used in these Measures refers collectively to measures such as conducting identification, list entry, joint disciplinary action, list removal, and credit restoration.

Article 3: Management of the list of targets for joint disciplinary action against the seriously untrustworthy in the patent sector is to be implemented with 'the person making the entry, responsible for the entry", and persisting in objective and just, open and transparent, dynamic management in accordance with laws and regulations.

Article 4: The targets of joint disciplinary action are entities carrying out serious untrustworthy conduct in the patent field. Where the entity is an enterprise, the targets of joint disciplinary action are the legal person, and its legal representative, principle responsible persons, and directly responsible personnel; where the entitiy is an organization that is not a legal person, the targets of joint disciplinary action are the organization and its responsible party; where the entity is a natural person, the target of joint disciplinary action is the natural person themselves.

Article 5: Situations of seriously dishonest conduct in the patent sector include:Repeated patent violations, not implementing in accordance with law, serious violations in patent agency, linking others to patent agent qualifications, irregular patent applications, or providing false documents.

Chapter II: Identification of Conduct

Article 6: Acts of repeated patent violations and not implementing in accordance with law, are to be identified by the provincial level departments for intellectual property rights management and patent enforcement, in accordance with their duties. Serious violations in patent agency and linking of patent agent qualifications are to be identified by the State Intellectual Property Bureau and provincial departments for intellectual property rights management, in accordance with their duties. Irregular patent applications and providing false documents are to be identified by the State Intellectual Property Bureau.

Article 7: After administrative ruling and decisions indentifying violations by any level of provincial departments for intellectual property rights management take effect, where the violating party violates the same patent right again, and the the departments for intellectual property rights management in that province again find that a violation is established, and the decision become effective, it is considered as being an act of repeated patent violations.

Article 8: Where performance is refused on an effective andministrative ruling or decision targetting patent infringement or patent counterfeiting, or the lawfully conducted investigation and collection of evidence by intellectual property rights managment departments and patent enforcement departments is obstructed, and the circumstances are serious, it is viewed as not implementing in accordance with law.

Article 9: After patent agency establishments are listed in the directory of irregular businesses by the State Intellectual Property Bureau, where they are still not compliant with relevant provisions three years after being listed; or where after receiving administrative punishments for illegal conduct in patent agency, the same type of violation of laws or regulations occurrs again within 3 years; it is viewed as serious illegal conduct in patent agency.

Article 10: Where an administrative punishment is received for modifying, selling, leasing, or lending patent agent credentials, or transferring credentials in another form, and this is done again within 3 years; it is viewed as linking of patent agent credentials.

Article 11: Conduct designated by the State Intellectual Property Bureau as being irregular patent applications as referred to in the "Several Provisions on Standardizing Patent Applications," is viewed as irregular patent applications.

Article 12: Where false materials or false proof documents are provided during the application for a patent, or there are other misrepresentations and falsehoods, it is viewed as providing fake documents.

Chapter III: Entry to the list, joint disciplinary action, removal from the list

Article 13: Where an entity is identified as having serious untrustworthy conduct, a decision shall be made to enter it in the list of targets for joint disciplinary action. The entry decision is to include:

(1) The basic information of untrustworthy entities, including their business name/full name, uniform social credit code/identification number, and so forth;

(2) The reason, basis, and date of entry into the list;

(3) The department making the decision.

Article 14: Before the entry decision is made, the untrustworthy entity is to be informed of the facts of the serious untrustworthiness, the basis for entry into the list of targets for joint disciplinary action, the listing department, the date of entry, and rights and remedies.

Article 15: The entry decision shall be sent to the State Intellectual Property Bureau within 5 days being made.

Article 16: The State Intellectual Property Bureau shall send information on seriously untrustworthy entities to the national credit information sharing platform within 5 days of receiving the decision, and announce it to the public through means such as the "Credit China" website, the national enterprise credit information announcement system, the State Intellectual Property Bureau government website, and the State Intellectual Property Bureau 'Internet+regulation" system.

Article 17: The State Intellectual Property Bureau is to use the national credit information sharing platform to provide information on seriously untrustworthy entities to the other departments that have signed the "Memorandum of Understanding on Carrying out Joint Disciplinary Action Against Seriously Untrustworthy Entities in the Intellectual Property Rights (Patent) Field", uniting with other departments to adopt one or more types of punishment measure against seriously untrustworthy entities in accordance with laws, regulations, rules, and normative documents. The period for joint disciplinary action is generally 3 years, calculated from the date of announcement.

Article 18: The departments that make entry decisions are to conduct reviews of units they listed as targets for joint disciplinary action for which the period of joint disciplinary action is complete, and where enterprises have not had further seriously untrustworthy conduct occur during the period of joint disciplinary action, make a decision for removal within 5 working days of the verification, and send this to the State Intellectual Property Bureau. The removal decision is to include:

(1) The basic information of entities being removed, including their business name/full name, uniform social credit code/identification number, and so forth;

(2) The matter being removed from list, and date of removal;

(3) The department making the decision.

The State Intellectual Property Bureau is to remove the entity from the list of targets for joint disciplinary action within 5 working days of receiving the removal decision, and each department carrying out joint disciplinary action is to stop joint disciplinary action against that entity.

Article 19: Where as a result of changes in the standards for identifying seriously untrustworthy conduct, the untrustworthy conduct of an entity listed as a target for joint disciplinary action no longer meets the requirements for list entry, the entity may apply in writing to the State Intellectual Property Bureau for removal, and the State Intellectual Property Bureau shall make a decision on whether to accept it within 5 working days of receiving the application, and where not accepting it, should inform the applicant of the reasons; and where it is accepted, should conduct a review and inform the applicant of the outcome within 5 working days of verification.

Where the requirements for removal are met, a removal decision shall be made to remove that entity from the list of targets of joint disciplinary action, and each department carrying out joint disciplinary action is to stop joint disciplinary action against that entity.

Article 20: The State Intellectual Property Bureau may apply to have the list of seriously untrustworthy entities that are targets for joint disciplinary action to industry associations, professional service bodies, platform enterprises, and so forth, and to carry out public joint-governance.

Chapter IV: Credit Restoration

Article 21: Where entities included in the list of targets for joint disciplinary action can actively correct their untrustworthy conduct and eliminate negative social impacts, and have already been listed for a full year, they may apply in writing for credit restoration to the department that made the listing decision.

Article 22: Applications for credit restoration should submit the following application materials:

(1) The basic information of the applicant entities, including their business name/full name, uniform social credit code/identification number, and so forth;

(2) Materials showing that the untrustworthy conduct has already been corrected;

(3) Materials on public credit pledges or credit reports;

Within 5 working days of receiving the application materials, the department that made the entry decision shall make a decision on whether to accept it, and where not accepting it, should inform the applicant of the reasons; and where it is accepted should conduct a review, and when necessary speak with relevant personnel, and and inform the applicant of the outcome within 5 working days of verification. A decision approving credit restoration shall be made where credit restoration is approved, and is to be sent to the State Intellectual Property Bureau within 5 working days of being made.

The State Intellectual Property Bureau is to remove the entity from the list of targets for joint disciplinary action within 5 working days of receiving the decision approving credit restoration, and each department carrying out joint disciplinary action is to stop joint disciplinary action against that entity.

Article 23: Except as provided otherwise by law, in any of the following situations, credit restoration is not to be granted:

(1) The untrustworthy entity was again included in the list of targets of joint disciplinary action due to seriously untrustworthy conduct within a year of applying for credit restoration;

(2) The untrustworthy entity was again included in the list of targets of joint disciplinary action action within 1 year of the last time they had credit restoration approved;

(3) Serious consequences were caused, endangering national security, public safety, market business order, or the lawful rights and interests of others.

Chapter V: Supplemental Provisions

Article 24: The State Intellectual Property Bureau is to uniformly draft sample documents related to management of the list of seriously untrustworthy targets of joint disciplinary action in the patent field.

Article 25: Personnel of the State Intellectual Property Bureau and provincial level departments for intellectual property rights management and patent enforcement, who are responsible for credit management work, are to accept public oversight and have an obligation to protect the confidentiality of related information before it's announcement.

Article 26: The State Intellectual Property Bureau is responsible for the interpretation of these Measures.

Article 27: These measures take effect on December 1, 2019.