To regulate the management of national standards, encourage innovation and technological progress, promote reasonable adoption of new technology in national standards, protect legitimate interests of the public, patentees and interested parties, and secure effective implementation of national standards, the Standardization Administration of the PRC and the State Intellectual Property Office formulated Management Regulations for National Standards Involving Patent (provisional) in accordance with Standardization Law, Patent Law and National Standards Management Measures and other relevant laws, regulations and rules, and hereby promulgate the same, which shall go into effect as of January 1, 2014.

Standardization Administration of the PRC State Intellectual Property Office

December 19, 2013 

Management Regulations for National Standards Involving Patent (provisional)

Chapter I General Provisions

Article 1 To regulate the management of national standards, encourage innovation and technological progress, promote reasonable adoption of new technology in national standards, protect the legitimate interests of the public, patentees and interested parties, and secure effective implementation of national standards, this provision is formulated in accordance with Standardization Law, Patent Law and National Standards Management Measures and other relevant laws, regulations and rules.

Article 2 These regulations apply to the disposal of issues relating to patents involved in national standards during the formulation, revision and implementation of national standards.

Article 3 The patents referred to in these regulations include valid patents and patent applications.

Article 4 A patent involved in a national standard shall be an essential patent, namely an indispensable patent for implementation of the standard.

Chapter II Disclosure of Patent Information

Article 5 At any stage of formulation or revision of a national standard, any organization or individual participating in the formulation or revision of the national standard shall disclose the essential patents it holds or knows as soon as possible to the relevant national standardization technical committee or centralized management authority, and also provide related patent information and corresponding proof materials, and is responsible for the authenticity of the proof materials. The organization or individual involved in formulation of the standards shall bear corresponding legal responsibilities if in bad faith it fails to disclose patents it holds as required.

Article 6 Organizations and individuals not participating in formulation or revision of a national standard is encouraged to disclose essential patents they hold or know at any stage of formulation or revision of the national standard, and also submit relevant patent information and corresponding proof materials to the relevant national standardization technical committee or centralized management authority, and is responsible for the authenticity of the proof materials.

Article 7 The national standardization technical committee or centralized management authority shall report patent information it has received to the Standardization Administration of the PRC as soon as possible.

Article 8 Prior to approval and issuance of the national standards involving or possibly involving patents, the Standardization Administration of the PRC shall release the text of the draft standards and known patent information for public review for a period of 30 days. Any organization or individual may notify in written form the Standardization Administration of other patent information it knows.

Chapter III Patent Licensing

Article 9 Where a national standard in formulation or revision involves a patent, the National Standardization Technical Committee or the centralized management authority shall timely require the patentee or patent applicant to make a statement of patent licensing. In the statement the patentee or patent applicant shall select one of the following three clauses:

  1. The patentee or patent applicant agrees to permit any organization or individual to exploit its patent in the implementation of the national standard, for free and on a fair, reasonable and non-discriminatory basis;
  2. The patentee or patent applicant agrees to permit any organization or individual to exploit its patent in the implementation of the national standard, with royalty and on a fair, reasonable and non-discriminatory basis;
  3. The patentee or patent applicant does not agree to issue any patent license in accordance with either of the above two clauses;

Article 10 Except mandatory national standards, in the failure of obtaining the statement of patent licensing made by the patentee or patent applicant in accordance with the provision Article 9 Clause (1) or Article 9 Clause (2), any national standard shall not include any term based on the patent.

Article 11 When reporting a draft national standard involving a patent for approval, the National Standardization Technical Committee or centralized management authority shall also submit the patent information, proof materials and patent licensing statement to the Standardization Administration. Except mandatory national standards, any national standard involving a patent shall not be approved and promulgated in the failure of obtaining the statement of patent licensing made by the patentee or patent applicant in accordance with the provision Article 9 Clause (1) or Article 9 Clause (2).

Article 12 After the promulgation of a national standard, if the standard is found to involve a patent but without patent licensing statement, the Standardization Administration shall instruct the National Standardization Technical Committee or centralized management authority to obtain, within specified time limit, the patent licensing statement made by the patentee or patent applicant, and submit the same to the Standardization Administration. Except mandatory national standards, in the failure of obtaining, within specified time limit, the patent licensing statement made by the patentee or patent applicant in accordance with the provision of Article 9 Clause (1) or Article 9 Clause (2), the Standardization Administration may, as the case may be, suspend the national standard, and instruct the relevant National Standardization Technical Committee or centralized management authority to revise the standard.

Article 13 When assigning or transferring a patent with licensing statement submitted to the National Standardization Technical Committee or centralized management authority, the patentee or patent applicant shall inform the assignee of the content of the licensing statement in advance. The patentee or patent applicant shall guarantee that the assignee agrees to be bound by the licensing statement.

Chapter IV Special Provisions for Mandatory National Standards Involving Patent

Article 14 Generally a mandatory national standard shall not involve any patent.

Article 15 Where it is definitely necessary for a mandatory national standard to involve a patent, but the patentee or patent applicant refuses to make a patent licensing statement specified in Article 9 Clause (1) or Article 9 Clause (2), the Standardization Administration, the State Intellectual Property Office and relevant authorities shall negotiate with the patentee or patent applicant for disposal of the patent.

Article 16 Before approval and promulgation of any mandatory national standard involving or possibly involving any patent, the Standardization Administration shall release the text of the draft standard and known patent information for public review for a period of 30 days. The period for public review may be extended to 60 days by virtue of request. Any organization or individual may notify in written form the Standardization Administration of other known patent information it knows.

Chapter V Supplementary

Article 17 The licensing and royalty for exploiting a patent involved in a national standard shall be negotiated between the user adopting the national standard and the patentee or patent applicant according to the patent licensing statement made by the patentee or patent applicant.

Article 18 Where a national standard was formulated or revised by equivalently adopting international standards of International Organization for Standardization (ISO) or International Electrotechnical Commission (IEC), the patent licensing statements for the patents involved in the international standards are equally applicable to the national standard.

Article 19 Where a standard involving a patent is referenced in formulation or revision of a national standard, the patentee or patent applicant shall be required to make another patent licensing statement in accordance with the provisions in Chapter III.

Article 20 Where a patent is involved in the formulation or revision of a national standard, the specific procedure for patent information disclosure and patent licensing statement shall be in accordance with relevant provisions the national standard of Special Procedure for Formulating Standards - Part 1: Standards Involving Patent.

Article 21 The preparation of patent information in the text of a national standard shall be in accordance with relevant provisions in the national standard of Guidelines for Standardization.

Article 22 Where the formulation or revision of an industrial standard or a local standard involves a patent, these regulations may be referenced.

Article 23 These regulations shall be interpreted by the Standardization Administration and the State Intellectual Property Office.

Article 24 These regulations shall enter into force on January 1, 2014.