Answer: Patent open licensing means that the patentee voluntarily declares to the National Intellectual Property Administration in writing that he is willing to license any unit or individual to implement his patent, and specifies the payment method and standard of the license fee, which will be announced by the National Intellectual Property Administration and implemented as an open license. Patents subject to open licensing should be invention patents, utility model patents or design patents that have been authorized and announced by the National Intellectual Property Administration and are in a valid state.

Patent holders can submit a patent open license declaration or withdraw a patent open license declaration to the National Intellectual Property Administration. If the patent open license declaration or withdrawal request is qualified after review, the National Intellectual Property Administration will announce the patent open license through the “Patent Gazette” and record it in the “Patent Registration Book”. The open license system builds an effective platform for patent licensors and licensees, which is conducive to the simple and quick realization of “one-to-many” implementation licenses, helps to achieve supply and demand matching, reduce institutional transaction costs, and promote patent transformation.

Answer: When handling patent open licensing business, in principle, you should fill in the relevant information of the patent open licensing declaration online through the patent business handling system, and submit electronic scanned copies of relevant materials. The required materials usually include: patent open licensing declaration, written declaration of all patent owners agreeing to implement open licensing and their identity documents, a brief description of the basis and method for calculating the license fee, etc. If the patent to be open licensed is a utility model or design patent, a patent right evaluation report must be submitted; if a patent agency is entrusted to handle the open licensing declaration procedures, a power of attorney for handling the open licensing declaration business must be submitted.

Answer: When filling out the patent open license declaration form, you need to pay attention to the following matters.

(1) The content filled in column ① of the form shall be consistent with the content in the patent registration. Among them, only one patent number can be filled in, and the patent holders shall fill in all patent holders. If there are multiple patent holders, a new column can be added to the form to write them in.

(2) Column 2 of the form should be filled in with the name of the patent agency established in accordance with the law, the agency code, and the designated patent agent. If no patent agency is appointed, column 2 does not need to be filled in.

(3) Column ③ of the form contains the commitment of the licensor and should be filled in truthfully. If the patentee is a mainland China entity or individual, or if one or more (including one) of the co-patentees is a mainland China entity or individual, you must check Item 4.

(4) In columns ④, ⑤, and ⑦ of the form, you should select one option from the available options. You are not allowed to select more than one option.

(5) Regarding the contents of column ⑤ of the form, the time for licensing others to implement the patent should be filled in as a time period. For license contracts that have been filed before the date of the open license declaration, regardless of whether the cancellation procedures have been completed, relevant information should be filled in. If there are multiple licenses, the longest time period formed by the earliest license effective date and the latest license expiration date shall prevail.

(6) The expiration date of the license term in column ⑥ of the form cannot exceed the expiration date of the patent term. For example, if the application date of a certain invention patent is June 2, 2010, and the expiration date of the patent term is June 1, 2030, then the expiration date of the open license term cannot exceed June 1, 2030. Note: If the protection period is extended according to the term compensation system, the expiration date of the open license term cannot exceed the expiration date of the extended patent term.

(7) The royalty rate in column 7 of the table shall be accurate and concise. It shall not indicate the royalty amount or commission rate by using inaccurate expressions such as range, “approximately” or “around”. The royalty payment method and rate shall not be subject to additional conditions. If it is paid by fixed fee, it shall generally not exceed RMB 20 million. If it is higher than RMB 20 million, the patentee may license the patent through other means other than open licensing as provided for in Article 50 of the Patent Law. If it is paid by commission, the net sales commission shall generally not exceed 20%, and the profit commission shall generally not exceed 40%.

(8) Contents related to announcements cannot be filled in column ⑧ of the form. The content filled in this column does not belong to the matters to be announced by the CNIPA.

(9) The recipient in column 9 of the form should be a natural person. The address should meet the requirements for accurate delivery of mail and should generally be specific to the province, city, street and house number. If the telephone information filled in is a landline, the corresponding area code should be filled in.

(10) The open license declaration form should be filled out neatly and no alteration is allowed. Except for the seal or signature of the parties, the text in the form should be typed or printed. The content filled in online in the patent business processing system should be consistent with the filled in and printed “Patent Open License Declaration” form.

A: The patent owner should state the basis and method for calculating the license fee in the brief description, which should generally not exceed 2,000 words. Common problems in the brief description include unclear calculation basis, unclear calculation method, and simply copying the text content of the open license fee payment standard and method. The open license fee standard can be set by referring to the “Notice of the General Office of the State Intellectual Property Office on Issuing the “Guidelines for Estimating Patent Open License Fees (Trial)” (国知办发运字〔2022〕56号).

Answer: If a foreigner, foreign enterprise or other foreign organization that does not have a permanent residence or place of business in mainland China files a patent open license declaration in China as the sole patent owner, or files a patent open license declaration jointly with other patent owners as a representative, they shall entrust a patent agency to handle it.

Any entity or individual in mainland China that submits a patent open license declaration, or that submits a patent open license declaration jointly with other patent owners as a representative, may entrust a patent agency to handle it.

If a natural person, enterprise or other organization from Hong Kong, Macao or Taiwan that does not have a permanent residence or place of business in mainland China submits a patent open license declaration to the National Intellectual Property Administration as the sole patent owner, or submits a patent open license declaration jointly with other patent owners as a representative, it shall entrust a patent agency to handle it.

If a patent owner entrusts a patent agency, he shall submit a letter of authorization. The letter of authorization shall include the patent number, the matters of entrustment (for example, handling the patent open license declaration procedures), and the signatures or seals of both parties. The two parties of the entrustment refer to the patent owner and the entrusted patent agency. If there are more than two patent owners, the two parties of the entrustment are all patent owners and the entrusted patent agency.

A: To ensure the authenticity and completeness of the procedures for handling open license declarations, the parties need to submit additional materials in addition to the required materials according to different circumstances. For example:

(1) If the patent owner does not use the identity of a registered user of the patent business processing system to submit an open license declaration, the patent owner’s identity certification materials shall be submitted.

(2) If the Patent Open License Declaration Form is not signed or stamped by all patent owners, a written declaration of consent to the open license signed or stamped by all patent owners shall be submitted.

(3) When making an open license declaration for a utility model patent or design patent, a copy of the patent right evaluation report should be submitted at the same time.

Answer: (1) When a patent owner or a patent agency entrusted by him submits a request through the patent business processing system, the requester is the patent owner who makes the request or entrusts the agency. The system defaults to “requester information” as the account information for submitting the open license declaration.

(2) The “Licensor Contact Information” column in the system is the contact information of the patent owner announced in the open license declaration. It is the contact information used to help potential licensees contact the patent owner. It must be filled out accurately to ensure that the information filled in is the personnel information that can represent the patent owner and the unobstructed contact information.

(3) If you select “Free” in the payment method column in the system, fill in “0 Yuan” in the payment method description column.

(4) The “Time” column should be filled in with the start and end dates of the specific implementation period. The “Scope” column should be filled in with the permitted geographical scope, for example, “China”.

(5) The “Personnel Information” column should contain the basic information of all patent owners.

(6) In the “Scanned Documents” column, click the “Upload File” button to upload a “Brief Description” of the basis and method for calculating the license fee and an electronic scan of the patent open license statement signed or stamped by the parties. If the patent owner entrusts an agency to handle the matter, the letter of attorney should also be uploaded.

(7) After the applicant has completed filling in the information and is ready to submit, he/she should click “Preview the Patent Open License Declaration” file and confirm whether the relevant commitment information in column 4 of the form is a true commitment of all patent holders before submitting. In the actual operation of the system, if no content is displayed, it may be that the PDF file is loading. Please wait patiently for the loading process until the content preview is displayed before submitting.