Patent agency is a high-end professional service combining technology and law, serving the whole process of intellectual property creation, application and protection. Promoting the healthy development of the patent agency industry has important practical significance for maintaining the legitimate rights and interests of the innovation subject and the public, improving the quality and application level of China's patents, and promoting the construction of an innovative country.
Along with the rapid development of China's patent industry, the patent agency industry has continued to develop. At present, it has shown a good development trend of increasing scale, increasing service capabilities, expanding service scope, and improving the operating system.
By the end of October 2018, 425.569 million people had obtained patent agent qualifications, and the number of practicing patent agents reached 18,468,000, and the number of patent agencies reached 2,126. The number of agencies capable of providing services such as foreign-related services, patent early warning, analysis, licensing, pledge financing, patent litigation, mediation, etc. is increasing. More than 1,000 institutions have submitted international patent application services through the Patent Cooperation Treaty (PCT). The quality of patent agent talents has been comprehensively improved, and the service capacity has been significantly enhanced. A group of compound talents who are familiar with the law and proficient in foreign languages have emerged.
Since the publication of the Regulations on Patent Agents (hereinafter referred to as the "Regulations") in 1991, it has played an active role in regulating patent agency activities, improving the level and quality of innovation, ensuring the sound operation of the patent system, and promoting the development of the patent industry. However, with the continuous development of China's economy and society, in the face of new situations, new requirements, and new problems, some provisions of the current "Regulations" have been unable to meet the development needs of the patent agency industry, and are also incompatible with relevant legal provisions and deepening reform requirements. Need to be improved.
First, the patent agency industry's own situation and development environment have undergone significant changes. When the current "Regulations" were promulgated, China's patent agencies were basically attached to administrative agencies or state-owned enterprises and institutions. With the establishment and improvement of the socialist market economic system, the patent agency has basically completed the decoupling reform in 2000 and transformed it into an independent market entity that is self-employed and self-financing. Some of the main provisions of the current "Regulations" are seriously out of touch with the actual situation and need to be adjusted and improved in a timely manner.
Second, the “distribution service” reform puts higher demands on the development of the patent agency industry. In order to optimize the business environment and implement the reform requirements of the “distribution service”, a number of reform measures in the patent agency industry have been issued one after another, and good results have been achieved, which need to be reflected in the “Regulations”. First, in accordance with the requirements of the reform of the commercial system, the approval of the establishment of a patent agency was changed to the approval of the patent agency business after the establishment of the patent agency in 2014. At the same time, the annual inspection of patent agencies will be abolished, and information disclosure systems such as annual reports of patent agencies, business exception lists and serious illegal lists will be established.
Second, in accordance with the reform requirements of the “distribution service”, the administrative examination and approval process has been greatly simplified. For example, in 2014, the minimum quota for establishing a patent agency and the requirement to submit a capital verification certificate were cancelled. In 2016, the applicant is no longer required to submit the “Partner/Shareholder Personnel File Storage Certificate”, “Partner/Shareholder Retirement Certificate”, “Office Place Certificate” and “Working Facilities Certificate” and other supporting documents. Third, the regulatory ideas and methods of the patent agency industry have changed, and post-event supervision has become the main form of supervision. On the basis of comprehensively promoting the standardization of administrative licenses, we will focus on the implementation of “double random and open disclosure” supervision, publish a list of random spot checks, establish a directory of patent agency administrative law enforcement personnel, and a database of patent agencies and patent attorneys.
Third, the new problems facing the development of the patent agency industry need to be resolved. The patent agency industry has achieved remarkable results in the process of specialization, standardization and marketization. However, there are still some problems in practice, including: the scale of employees and institutions are not compatible with the development speed of patents; service quality and service capacity are still It is unable to meet the increasingly diversified needs of innovative entities; patent agents “hanging certificates” and “black agents” as well as false propaganda, low-priced vicious competition and other illegal and illegal business operations still exist, and the industry supervision mechanism needs to be improved. The resolution of these problems needs to be regulated from the legal system level.
In order to solve the above problems, the State Intellectual Property Office has extensively solicited opinions from various quarters, and repeatedly researched and drafted the "Patent Agent Regulations (Draft for Review)", which was submitted to the State Council for review on January 4, 2011. The State Intellectual Property Office actively cooperated with the legislative department to publicly solicit opinions from the public, and went to innovative enterprises, patent agencies, and industry associations to conduct special research. On the basis of repeated research, coordination and revision of the manuscript, the Patent Agency Regulations (Revised Draft) was formed. On September 6, 2018, the State Council executive meeting reviewed and approved the Patent Agency Regulations (Revised Draft), which will be implemented on March 1, 2019.
The revision aims to implement the major decision-making arrangements of the Party Central Committee and the State Council, adapt to the requirements of the “distribution management” reform, optimize the business environment, stimulate market vitality and social creativity, and improve patents according to the actual changes in the patent agency industry. Acting system to promote the healthy development of the patent agency industry. The general idea reflects the following points: First, the administration of decentralization, improvement of the patent agency, patent agent practice access system, support for innovation and entrepreneurship, reduce the burden on applicants, and stimulate market vitality and social creativity. The second is to combine management, strengthen supervision during and after the event, standardize market order, and protect the legitimate rights and interests of innovative entities. The third is to optimize services, facilitate the people and benefit the people, and improve service efficiency. The revision mainly includes the following contents:
First, improve the patent agency's practice access system
The current "Regulations" stipulates the examination and approval system for the establishment of patent agencies, and clarifies the conditions for the establishment of patent agencies and the approval procedures. In addition, Document No.  No. 51 of the State Council issued a document requesting that the social intermediaries of economic forensics, including patent agencies, be decoupled and restructured, and that the organization and establishment of intermediaries and the number of sponsors and qualifications after the restructuring were made. Combined with the requirements for the reform of the industrial and commercial registration system and the development needs of the patent agency industry, the revised Regulations will adjust the patent agency's practice access system.
On the one hand, the administrative approval process is further simplified. Specifically, it is reflected in: First, according to the reform requirements before the industrial and commercial registration, the pre-approval of the establishment of the patent agency as stipulated in the current "Regulations" is revised into a patent agency to obtain the business license and then apply for the examination and approval of the patent agency business. The second is to further improve the efficiency of administrative examination and approval, and to increase the time limit for approval, and stipulate that the patent administration department under the State Council shall make a decision within 20 days from the date of accepting the application. The third is to implement the reform of the administrative examination and approval system for patent agents, and to abolish the “provisional establishment of offices and offices of patent agencies and the revocation of examination and approval” and the “initial review of the establishment of patent agencies”. In the future, the establishment of patent agencies will be subject to the first-level approval by the State Intellectual Property Office, simplifying the approval process and reducing the burden on applicants.
On the other hand, it further enriches the organization type of patent agencies. The current "Regulations" do not clearly define the organization of patent agencies. In practice, according to the provisions of Document No.  No. 51 issued by the State Council, the patent agency adopts two organizational forms: partnership and limited liability company. In order to meet the diversified needs of social public innovation and entrepreneurship for the organization of agencies, the revised Regulations do not limit other forms of organization on the basis of clarifying the existing two forms of organization, and are diverse for future forms of agency organization. The development provides a legal basis.
Second, improve the patent agent's practice access system
The revised "Regulations" fulfilled the long-cherished desire of the patent agency industry and the public, and revised the title of the patent agent into a "patent agent". At the same time, according to the reform requirements of the administrative examination and approval system, the patent agent's practice access system was made. Adjustment: First, lower the threshold for taking the test, and cancel the requirements for applying for a patent agent “should be a foreign language, familiar with the patent law and relevant legal knowledge, and have engaged in scientific and technical work or legal work for more than two years”. Chinese citizens with a professional degree or above can participate in the national patent agent qualification examination to attract more talents to enter the patent agency industry and solve the current shortage of patent agent talents. The second is to cancel the practice license and change it to the matter and afterwards. The revised Regulations stipulate that a patent attorney can practise as long as he meets the prescribed conditions, that is, obtains a qualification certificate, has one year of internship, and is engaged in agency services at a patent agency. At the same time, in order to simplify the examination and approval, strengthen the supervision of the matter and the after-the-fact, the revised "Regulations" established a patent agent's practice filing system, which stipulates that the patent agent needs to carry out the practice filing after practicing.
Third, improve the practice of patent agency practice
In order to protect the interests of the client and maintain the normal order of the patent agency industry, the revised Regulations add provisions: First, the patent agent is responsible for the patent agency business of his signature. Second, patent agencies and patent attorneys may not apply for a patent in their own name or request that the patent right be invalid. Third, the patent agency may not accept the entrustment of other parties with conflicts of interest in the same patent application or patent right. The patent agent and its close relatives designated by the patent agency may not have conflicts of interest with the patent agency business they undertake. The fourth is to strengthen forward guidance and encourage patent agencies and patent attorneys to provide patent agency assistance services for small and micro enterprises and inventors and designers with no income or low income.
Fourth, improve inspection and supervision system and legal responsibility
The revised "Regulations" further clarified the legal responsibility of patent agency behavior, and strengthened the supervision of patent agency activities in the event of post-event supervision: First, stipulate the patent administration department of the State Council and the provincial-level administrative patent work department for patent agencies and patent agents. The division's practice activities are inspected and supervised, and the illegal activities are dealt with in a timely manner, and the inspection and treatment results are announced to the public. The second is to stipulate that the patent agency industry organization should strengthen the self-discipline management of members and impose disciplinary actions against members who violate the industry's self-regulation. The third is to improve the legal responsibility for patent activists and patent agencies in violation of the law, especially to clarify: the patent agency business is carried out without authorization, the so-called "black agent", the department that manages the patent work by the people's government of the province, autonomous region or municipality directly under the Central Government. Ordered to stop the illegal act, confiscate the illegal income, and impose a fine of 1 time or more and 5 times the illegal income. (Intellectual Property Report)