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(Judicial Review)
1 Proceedings for Grant
& Maintenance of IPRs
1.1 General Proceedings
Application (for patents,
trademarks, new varieties of plant and integrated circuits)→ Examination →
Acquisition (grant or registry) or Rejection→ (Challenge) → Re-examination
(revocation or maintenance) → Administrative Litigation (1st
instance in the Intermediate Courts of Beijing → 2nd instance in
the High Court of Beijing → maybe launching a retrial proceeding in the
Supreme People's Court).
1.2 Patents
General proceedings:
Application → Examination by the Patent Office (CPO) →①Acquisition
(no cause for rejection, making decision of grant, issuing certificate,
registry and announcement) or ②Dismissal
of Application →②Application
of Re-examination to the Patent Re-examination Board (PRB)(by applicant
within 3 months from the date of receipt of the notification of the
rejection) →①Revocation
in PRB (by anyone starting from the date of the announcement of the grant of
the patent) → Litigation (instituted by any party within 3 months from
receipt of the notification of the decision of PRB, 1st instance
in No.1 Intermediate Court of Beijing).
Invention Patents:
Examination by Patent Office (CPO): Preliminary Examination → Publication
(after the expiration of 18 months from the date of filing or earlier
publication upon request of applicant) → Substantial Examination (any time
within 3 years from the date of filing upon the request of applicant) →
Grant or rejection → Re-examination → Litigation.
Utility Model Patents and
Design Patents: Preliminary Examination → Grant.
(As to integrated circuits,
the SIPO is in charge of acceptance of application and preliminary
examination, and the PRB is responsible for re-examination after the grant
or rejection and litigation may follow then.)
1.3 Trademarks
General Proceedings:
Application → Preliminary Approval and Publication by the Trademark
Office(TMO) (or Dismissal of Application, within 15 days→ the Trademark
Review & Adjudication Board <TRAB>) → Period of Opposition (against a
application, 3 months): ①Acquisition
(no opposition, registry) or ②Opposition
(decision of TMO, within 15 days → TRAB) → Revocation in TMRB (anyone at any
time after acquisition except for some cases within 5 years) → Litigation
(challenge of any decision of TRAB by anyone, within 30 days, 1st
instance in No.1 Intermediate Court of Beijing).
1.4 New Varieties of
Plant
Application → Preliminary
Examination (within 6 months) →
①Substantial
Examination → Acquisition (Grant and Announcement) or
②Dismissal
of Application (after preliminary or substantial examination, within 3
months → the New Variety of Plant Re-examination Board <NPVRB>) → Revocation
in NPVRB (anyone at any time after acquisition) → Litigation (challenge of
any decision of NPVRB by anyone, within 15 days, 1st instance in
No.2 Intermediate Court of Beijing).
1.5 Topography of
Integrated Circuits
Application to SIPO →
Preliminary Examination → ①Registry
and Announcement (no cause for rejection) or
②Dismissal
of Application (within 3 months → PRB) → Revocation in PRB (any one at any
time after acquisition) → Litigation (challenge of any decision of PRB by
anyone, within 3 months, 1st instance in No.1 Intermediate Court
of Beijing).
2 Proceedings for Court
Actions against Other Administrative Decisions
2.1 Actions against
Administrative Punishment
The administrative
punishment decisions are against any activities in violation of IP laws,
including copyright piracy, trademark and patent counterfeiting, other
general IP infringement, etc., in which the designated
administrations actively or passively investigate and impose administrative
liability.
The power for hearing cases
against administrative punishment should be brought to the court in the
location of the administration, i.e., non-exclusive jurisdiction
exists.
The term of filing complaint
in court is 15 days except for copyright (3 months) from the receipt of
decision of the administration.
2.2 Actions against
Administrative Decision of Issuing Compulsory License
The actions are against
administrative decision of issuing compulsory license and of exploitation
fee of compulsory license, which are issued by the SIPO for invention
patents, utility model patent and integrated circuits, and by the Ministry
of Agriculture or the National Administration of Forest for new varieties of
plant. According to the locations of the administrations, the competent
courts for judicial review of such decisions are the Intermediate Courts of
Beijing in 1st instance and the High Court of Beijing in 2nd
instance. Up to now, there does not appear a real case.
The term of filing complaint
in court is 3 months from the receipt of decision of the administration.
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