The Standardization Administration of China (SAC), the standards organization governed by the State Council, has released the Regulatory Measures on National Standards Involving Patents (Interim) last month to seek comments from the public.

Below contents are the detailed articles.

Regulatory Measures on

National Standards Involving Patents (Interim)

(Draft for Public Comments)

I           General Principles

 1             These Measures are formulated to appropriately deal with the issues of national standards which involve patents, to regulate the management of national standards, to encourage innovation, to promote the rational adoption of new technologies by national standards, to protect the legitimate rights and interests of the public, patentees and relevant right holders, and to ensure the effective implementation of national standards, pursuant to the Standardization Law of the People’s Republic of China, the Patent Law of the People’s Republic of China, the Regulatory Measures on National Standards, and other relevant laws, regulations and regulatory measures.
2              These Measures are applicable to the handling of patent-related issues during the formulation or revision and implementation of national standards.
3              The term ‘patents’ as used in these Measures includes active patents and pending patent applications.
4              Patents involved in national standards shall be essential patents, which would be required to implement the standards.
5              The department of standardization administration under the State Council is not responsible for identifying whether national standards involving patents, not responsible for verifying the authenticity of materials submitted by patentees/patent applicants, and not responsible for identifying the validity of patents involved in national standards and the scope of claims of patent applications.

II             Disclosure of Patent Information

1              Organizations or individuals participating in the formulation or revision of national standard shall timely disclose to the technical committee or the responsible entity the essential patents known to them, and provide patent information and corresponding verification materials thereof.
2              Organizations or individuals who have not participated in the formulation or revision of national standard, and yet have knowledge of patents essential to the standard, are encouraged to notify in writing such information to the relevant technical committee or the responsible entity at any stage of the formulation or revision of such standard.
3              When the department of standardization administration under the State Council publishes information regarding the initiation of national standard project proposals, it shall publicize information on patents involved therein submitted by the technical committee or the responsible entity.
4              Organizations or individuals participating in the formulation or revision of national standards shall be legally liable for their failure to follow the aforementioned requirements to disclose the essential patents held by them.

III            Patent Licensing Declaration

1              During the formulation or revision of national standard involving patents, the technical committee or the responsible entity shall timely obtain the patent licensing declarations from the patentees/patent applicants.
Such declarations shall include one option selected by the patentee/patent applicant from the following three options:
(1)The patentee/patent applicant is willing to license to any organization or individual, free of charge, and on reasonable and non-discriminatory basis, to practice his/her patent when implementing the national standard;
(2)The patentee/patent applicant is willing to license to any organization or individual, on reasonable and non-discriminatory basis, to practice his/her patent when implementing the national standard; or
(3)The patentee/patent applicant is not willing to license pursuant to either one of the aforesaid options.
2       If option (3) is chosen by the patentee/patent applicant, the standard shall not include any provision based upon such patent.
3              When submitting national standard involving patents for approval, the technical committee or the responsible entity shall provide patent information, corresponding verification materials and patent licensing declarations. Draft national standards involving patents but with no corresponding licensing declarations shall be put on hold and shall not be authorized for publication.
4              [Licensing Declaration] Whereby a published national standard is found involving patents but with no licensing declaration after its publication, the department of standardization administration under the State Council shall instruct the technical committee or the responsible entity to obtain patent licensing declarations from the patentees/patent applicants within the stipulated time, and report to the department of standardization administration under the State Council. Whereby the patentees/patent applicants refuse to make the aforesaid licensing declaration, the affected national standards shall be suspended, and the department of standardization administration under the State Council shall instruct the technical committee or the responsible entity to revise such standards.
5      When patentees/patent applicants transfer or assign patents which the patentees/patent applicants have made licensing declaration to the technical committee or the responsible entity, the patentees/patent applicants shall have the assignees or transferees agree to be bound by the above license declaration.

IV            Special Requirements for Mandatory National Standards Involving Patents

1              In principle, mandatory national standards shall not involve patents.
2              Whereby a mandatory national standard indeed must involve patents, the department of standardization administration under the State Council, the department of patent administration under the State Council, relevant departments and the patentees/patent applicants shall jointly negotiate a disposition resolution. Whereby agreement with respect to the patent disposition is unable to be reached, such national standard shall be put on hold and shall not be authorized for publication.
3              Before allowing the publication of a mandatory national standard which involves patents, the department of standardization administration under the State Council shall publish the full text of the standard and the known patent information for a period of 30 days. Any organization or individual may notify the department of standardization administration under the State Council in writing additional patent information known to him/her.

V             Supplementary Rules

1              Whereby identical adoption of an international standard developed by the International Organization for Standardization (ISO) and the International Electrotechnical Commission (IEC) as a national standard, the licensing declarations made upon the patents involved in such international standard are equally applicable to the national standard. In all other situations of adopting international standards, I, II, III, IV of these Measures shall be followed.
2              During the formulation or revision of national standard involving patents, the specific disclosure of patent information and patent licensing declaration shall follow the requirements set by GB/T “Special Procedures for the development of Standards Part 1: Standard Related to Patents”.
3              The compilation requirements for patent information in the text of national standards shall follow the rules set by GB/T 1 “Directives for Standardization”.
4              The formulation or revision of sector standards and local standards involving patents may refer to these Measures.
5              The power to interpret these Measures is vested upon the department of standardization administration under the State Council.
6              These Measures shall put into effect as of DD/MM/YY.