4.5.3 Dispute cases over patent contracts
For cases over patent contract disputes, the main provisions that apply include the relevant provisions in Book I(VI) (“Civil Juristic Acts”) and Book III (“Contracts”) of the Civil Code, in addition to relevant provisions in the Patent Law and the Rules for the Implementation of the Patent Law. Book III(XX) (“Technology Contracts”) of the Civil Code also specifically provides for technology development, transfer, licensing, consultation and service contracts.
With respect to technology contracts, the Interpretation of Technology Contracts includes 47 articles divided into six parts:
- General Provisions;
- Technology Development Contracts;
- Technology Transfer Contracts and Technology Licensing Contracts;
- Technology Consultation Contracts and Technology Service Contracts;
- Procedural Issues Related to the Trial of Technology Contract Disputes; and
Technological cooperation involving foreign elements is regulated by relevant provisions of the Regulations on Technology Import and Export Administration and the Regulations on the Implementation of the Law on Chinese-Foreign Equity Joint Ventures.115 On March 18, 2019, the State Council announced Decree No. 709, which deleted Article 43(3)–(4) of the Regulations on the Implementation of the Law on Chinese-Foreign Equity Joint Ventures and Article 24 paragraph 3, Article 27 and Article 29 of the Regulations on Technology Import and Export Administration and amended the original Article 41 thereof to Article 39, as follows: “The competent foreign trade department under the State Council shall, within three working days from the date of receipt of the documents provided for in Article 38 hereof, register the technology export contract and issue the registration certificate of technology export.” Article 22 of the Foreign Investment Law stipulates the following:116
The State protects the intellectual property rights of foreign investors and foreign-invested enterprises, protects the legitimate rights and interests of intellectual property rights holders and related rights holders, and strictly pursues legal liability for infringements of intellectual property rights in accordance with law.
The State encourages technical cooperation based on the voluntary principle and commercial rules in the process of foreign investment. The terms and conditions for technical cooperation are determined by the investing parties through negotiation on an equal basis in accordance with the principle of fairness. Administrative departments and their staff members shall not force the transfer of technology through administrative means.