Regarding the Patent Open License System

2024-07-19
1.What is the patent open license system?
The patent open license system refers to the voluntary submission of an open license statement by the right holder to the national patent administrative department after obtaining the patent right, and the clear pricing of the patent license usage fee, which is widely publicized by the patent administrative department of the State Council to the whole society. During the patent open license period, any unit or individual who notifies the patent holder in writing and pays according to the pricing can obtain the implementation license, and all licensees are treated equally.

This system is an innovative system for patent conversion and application, which is conducive to achieving simple and efficient "one to many" patent licensing.


2. Patent open license and traditional license
Patent open license is the active and public expression of the patentee's intention to license, clarifying key conditions such as licensing fees and payment methods in advance. It is aimed at many non-specific objects and does not have exclusivity or exclusivity. Its open and transparent characteristics can effectively reduce transaction costs and improve licensing efficiency.

In contrast, traditional licensing methods usually involve potential licensees actively seeking licenses, with relatively few and specific license objects. License conditions often require both parties to spend time and energy repeatedly negotiating and determining, which makes the transaction process more complex, costly, and relatively inefficient, and the scope of dissemination of relevant information is relatively narrow.

3.What types of patents can be applied for?

Invention patents, utility models, and designs can all apply for patent open licenses, and the latter two also require a patent evaluation report.


4.What preferential policies are available for patent holders?

During the implementation of the open license, corresponding reductions or exemptions will be granted to patent owners for paying patent annual fees. (To be implemented after the implementation of the patent fee reduction policy issued by the National Development and Reform Commission, the Ministry of Finance and the China National Intellectual Property Administration)


5.How to file a patent open license statement?
The patent open license statement should specify the patent number, patent owner, payment method and standards for license fees, license period, and other matters, and be processed through the patent business processing system( https://cponline.cnipa.gov.cn/ )Submit online.

(Download link for patent open license related forms) https://www.cnipa.gov.cn/col/col187/index.html )


6. Situations where patent open licenses are not granted
(1) The patent right is within the exclusive or exclusive license validity period;
(2) The relevant procedures have been suspended due to disputes over the ownership of patent rights or court rulings on the adoption of preservation measures for patent rights;
(3) Not paying the annual fee according to regulations;
(4) The patent right is pledged without the consent of the pledgee;
(5) The patent right has been terminated;
(6) The patent right has been declared completely invalid;
(7) The patent for utility model or design has not been issued with a patent evaluation report by the China National Intellectual Property Administration;
(8) The conclusion of the patent evaluation report is that the utility model or design patent does not meet the conditions for granting patent rights;

(9) Other circumstances that hinder the effective implementation of patent rights.


7. Estimation of patent open license usage fees

According to the "Guidelines for Patent Examination", the licensing fee is paid at a fixed fee standard, generally not exceeding 20 million yuan; Paid as a commission fee, generally not exceeding 20% of net sales or 40% of profit. If the licensing fee is higher than the above standard, the patentee may license it through ordinary licensing or other means.


8. Announcement information inquiry

After the patent opening license declaration has passed the examination of the China National Intellectual Property Administration, it will be announced to the public through the Patent Gazette. The public can use the China Patent Publication System( http://epub.cnipa.gov.cn/ )Search for announcement information such as patent open license statements and license achievement filings.


9.Can the open license statement be withdrawn after being announced?

It can be withdrawn, and the patentee shall submit a written request for withdrawal to the Patent Office, which shall be reviewed and published by the Patent Office. The revocation of an open license statement by announcement does not affect the validity of the previously granted open license.


10.How to resolve open license disputes?

According to the Patent Law, if there is a dispute between the parties regarding the implementation of an open license, it shall be resolved through consultation between the parties; Those who are unwilling to negotiate or cannot reach an agreement through negotiation can request mediation from the patent administrative department of the State Council (refer to the "Measures for Mediation of Patent Open License Implementation Disputes (Trial)"), or file a lawsuit with the people's court.


If enterprises or the public have relevant service needs, they can contact Zhongyi Intellectual Property. Our professional team will provide you with professional and efficient services. The hotline is 0755-82094518.
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