In recent years, the national intellectual property agency has been carrying out intensive nationwide efforts to control the “blue sky” of intellectual property agents, and has organized a campaign to combat violations by patent and trademark agents. To date, more than 7,400 patent and trademark agencies have been interviewed and ordered to change more than 4,500; warnings and fines have been imposed on more than 930 individuals; agents have been disqualified; 33 agencies have been suspended; and agents have been suspended; and more than 40 million dollars have been confiscated. This has given rise to a strong reaction within the industry, which has led to a continuing high-handedness throughout the country to deal harshly with violations of the law。
The national intellectual property authority has issued a second series of special “blue sky” control alerts, focusing on patent agents, including offences such as unqualified patent agents, non-regular patent applications, leasing of patent agents, commission of parties involved in conflicts of interest, self-admission of patent agents, failure to register, loss of rights of applicants, bribery, etc. It warns the various agents and practitioners in the industry to follow the law and to work together to create a good industry environment. It also alerts a wide range of innovation actors to the choice of patent agents with formal patent agency qualifications and good standing and patent agents to defend their legitimate interests。
"case no. 9" case, in which luo was commissioned to work as a patent agent
A patent agent who filed a patent agent without being appointed by the agency should be dealt with for breach of the relevant provisions by accepting to commission the patent agent business on his own。
Basic cases: in the sichuan market supervision authority case concerning the unauthorized patent agency operation of sichuan technology services ltd., the sichuan province market supervisory authority found that luo, a procurador in the practice of an intellectual property agency ltd. Filed in beijing, had been commissioned by sichuan science and technology services ltd. To write a patent instrument and to help file a patent application with the national intellectual property office for $4,500 for sichuan science and technology services ltd。
Legal basis and penalties: the market supervision authority of sichuan province, pursuant to article 26 (2) of the patent agents ordinance, gives the person concerned a warning and a fine of $5,000。
Case 10, a patent agency case in hangzhou
Unqualified institutions carry out patent agents, carry out online and offline patent application agency operations, conclude contracts with clients, collect fees, write and submit patent application documents, in large amounts, and are subject to high penalties for non-payment。
Basic cases: in 2016, the parties began to carry out the patent agent business without a licence to act as a proprietor of the patent institution, to carry out the patent agent business on-line and under-line, to enter into the intellectual property trust agreement and the vip project consulting contract with the patent applicant, or online, to carry out and collect an agent fee, to prepare the patent application document, and to submit the patent application to the national intellectual property agency on behalf of the patent applicant through the same electronic patent application client. Since 1 march 2019, when the new amended regulation on patent agents came into effect, the parties have applied for 566 applications to represent 137 patent applicants, at a cost of $8,45085. Upon seizure, the amount paid is deducted from the amount of $13010. 55 and the amount of $83,2074. 45。
Legal basis and penalties: under article 27 of the patent agents ordinance, the market supervision authority of zhejiang province ordered the person concerned to cease the offence, confiscate $83,2074. 45 of the proceeds of the offence and impose a fine of $16,64148. 9 twice the proceeds of the offence. The total amount of confiscations was $2496223. 35。
Sichuan intellectual property agency ltd
The fact that non-qualified institutions carry out patent agents with a relatively large amount of money is a typical reminder of a person's intention to reduce the amount of the recognized proceeds of an offence by deducting labour costs and to evade punishment by claiming that the offence exceeds the time limit。
Basic circumstances: without obtaining a licence to practice as a patent agent, the parties commenced their patent agent operations with effect from 1 march 2019. According to the contract data obtained from the customer relationship management system (crm) on the party's computer on 8 june 2021 and the contract statistical forms provided by the parties, the parties signed and performed 78 contracts for the entrustment of the patent agent with the patent applicant, contracted and charged a fee of us$ 599402, deducting official fees such as annual royalties, stamp duties and fees paid, totalling us$ 64,600, and tax fees totalling us$ 1149. 84, resulting in a real gain of us$ 523652. 16. On 1 june 2021, the market supervision authority of sichuan province filed a case for this action, finding $523652. 16 of the proceeds of the offence and imposing administrative penalties。
An administrative action is initiated by a person who, despite a decision to punish, considers that the proceeds of an offence have been mistaken and that the offence has been committed for more than two years and should not be punished. At the same time, the court found that the plaintiff's claim that the company's labour costs should be deducted together lacked any legal basis and was not supported; it also found that the applicant had been entrusted with the patent without obtaining a licence from the patent agent to practise the law and had signed and fulfilled the patent agent's entrustment contract, which was in a continuing state, as provided for in article 36, paragraph 2, of the code of administrative penalties, for a period of two years from the date of the end of the offence, within the period provided for in article 36, paragraph 1, of the code。
Legal basis and penalties: in accordance with article 27 of the patent agents ordinance, the market supervision authority of sichuan province ordered the person concerned to cease the offence, to confiscate $523652. 16 of the proceeds of the offence and to impose a fine of $523652. 16, double the amount of the proceeds of the offence, for a total of $1047304. 332。
Zhejiang technology ltd
In the absence of a licence from the patent agent to practise, the licensee entrusts the patent agent business, regardless of who actually carries out the subsequent act of agent, without changing the nature of the offence。
Basic circumstances of the case: without obtaining a licence to practice as a patent agent, the party enters into agreements with 16 companies containing the patent agent and provides the patent application agent services to the enterprise, including by writing the patent application instrument. During the period from july 2019 to april 2020, 49 patent applications were made to 16 enterprises, including the golden hua paint company limited, for illegal profits of $91,200。
There are two models in which the parties represent the enterprise for patent applications: the first is that the patent application instrument is entrusted by the parties to the cooperating agency (some of which have the patent agent qualifications), that the parties submit the application using the account of the entrusting entity and pay or notify the entrusting entity of their own contributions until the certificate is issued; and the second is that the parties entrust the entire patent application to the cooperating agency (some of which have the patent agent qualifications) and that the trustee also uses the account of the entrusting enterprise to submit the patent application, and that the trustee does not enter into a contract with the entrusting entity, but only with the parties. In either form, however, the person in question has committed an offence to carry out the patent agent business without authorization, even if the subsequent writing, submission, payment, etc. Are performed by other entities or individuals, and does not change the fact that the patent agent business is carried out without authorization。
Legal basis and penalties: in accordance with article 27 of the patent agent ordinance, the zhejiang provincial market supervisory authority ordered the person in question to correct the above-mentioned offences, to confiscate $91,200 of the proceeds of the offences and to impose a fine of $91,200 twice the proceeds of the offences, totalling $182,400。
