Draft Service Invention Regulations Out For Public Comment

On April 2, 2015, the State Council Legislative Affairs Office (“SCLAO”) published a draft of the Service Invention Regulations along with an accompanying explanation.  The draft was prepared with the assistance of SIPO and the Ministry of Science and Technology.   Comments are due by May 2, 2015.

Here is a quick translation of what the explanation says about the “hot issue” of the balance between contracting autonomy and providing mandatory minimum rewards for inventors:

The draft fully respect the autonomy of the parties, and adopts the principle of priority of the agreement on the rights of ownership and incentive remuneration reached by the parties according to law.  At the same time, in order to prevent a disguised deprivation or restriction of the rights of the inventor by the employer, the draft establishes a certain restriction on the principle of priority of the agreement of the parties. The draft provides that whenever there is nullification of the inventor’s rights under these regulations, or when the enjoyment or exercise of these rights is subject to unreasonable contractual provisions or rules, those conditions are invalid.

草案充分尊重当事人的意思自治,在权利归属和奖励报酬方面采取约定优先的原则,即当事人依法达成的协议对权利归属和奖励报酬有约定的,优先适用其约定。同时,为了防止单位变相剥夺或者限制发明人的权利,草案对约定优先原则进行了一定限制,规定任何取消发明人依据条例享有的权利或者对该权利的享有和行使附加不合理条件的约定或者规定无效。

SAIC Solicits Comments on New Well Known Mark Provisions

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The website of the State Council Legislative Affairs Office made the draft of the proposed changes to the SAIC rules on well known trademarks《驰名商标认定和保护规定》(修订征求意见稿) available for public comment on April 14 through its “ministerial rules” website portal, at: http://www.chinalaw.gov.cn/article/cazjgg/201404/20140400395679.shtml.  Comments are due May 13, 2014.

These proposed rules clarify prior practice, and also require greater reporting and coordination.  For example, it requires reporting of a well known trademark infringement cases and greater supervision of these cases throughout the SAIC system, and provides for withdrawal of well known mark recognition if the recognition was granted based on false pretenses, in addition to supporting existing CTMO and TRAB procedures in this regard, and providing for rectification by supervising AIC’s when well known mark recognition was inappropriately granted at lower levels.  It also notes that not all factors identified in the Trademark Law (Art. 14.1) and implementing regulations regarding recognition of well known marks need to be proved in order for well known mark status to be determined.

Attached are non-official translations of the draft rule and the official explanation, as provided by USPTO.  Note also that these are ministerial rules, not State Council regulations, lest an undue hierarchical importance be attached to them: SAIC solicit opinions on revision of Provisions on Recognition and Protection of Well-known Trademarks.