Notice of The General Office of the State Council on printing and distributing the Working Measures on the Foreign Transfer of Intellectual Property Rights (for Trial Implementation)
Release Time：
2018-03-29
Scope of review II. Content of Review III. Review Mechanism IV. Other matters
Notice of The General Office of the State Council on printing and distributing the Working Measures on the Foreign Transfer of Intellectual Property Rights (for Trial Implementation)
Guo Changfa (2018) No. 19
People's governments of provinces, autonomous regions and municipalities directly under the Central Government, ministries and commissions under The State Council:
The Working Measures on the Foreign Transfer of Intellectual Property Rights (for Trial Implementation) have been approved by The State Council and are hereby issued to you. Please implement them carefully.
General Office of the State Council
March 18, 2018
(This article is released to the public)
Working Measures on the Transfer of Intellectual Property Rights to Other Countries (Trial implementation)
In order to implement the overall national security concept, improve the national security system, safeguard national security and major public interests, and standardize the order of foreign transfer of intellectual property rights, these Measures are formulated in accordance with relevant laws and regulations on national security, foreign trade and intellectual property rights.
Ⅰ.Scope of review
(1) Where the transfer of intellectual property rights, such as patent right, exclusive right of layout design of integrated circuit, copyright of computer software, right of new plant variety, etc. as provided for in these Measures is involved in the activities of technology export, acquisition of domestic enterprises by foreign investors, it shall be examined in accordance with these Measures. The intellectual property rights include their right to apply.
(2) The transfer of intellectual property rights referred to in these Measures refers to the transfer of its domestic intellectual property rights by a Chinese unit or individual to a foreign enterprise, individual or other organization, including the change of the right holder, the change of the actual controller of the intellectual property rights and the exclusive exploitation license of the intellectual property rights.
Ⅱ. Review the content
(1) The impact of the transfer of intellectual property rights on China's national security.
(2) The impact of intellectual property transfer on China's innovation and development capacity of core and key technologies in important fields.
Ⅲ. Review mechanism
(a) Examination of the transfer of intellectual property rights involved in technology export to foreign countries.
(1) In the activities of technology export, where the technology to be exported is restricted in the list of technologies for export prohibited and restricted by the Chinese government, intellectual property rights such as patent right, exclusive right of layout design of integrated circuits, copyright of computer software, etc. shall be examined.
(2) After receiving the application submitted by the technology export operator to restrict the export of technology in China, the local trade authority shall transfer the relevant materials to the local intellectual property administration department if the intellectual property rights such as patent rights and the exclusive right of layout design of integrated circuits are transferred to other countries. After receiving the relevant materials, the local intellectual property administration department shall review the intellectual property to be transferred and issue a written opinion, which shall be fed back to the local trade authority and reported to the intellectual property authority under The State Council for the record.
3. Local trade authorities shall make examination decisions based on written opinions issued by local intellectual property administration departments and in accordance with the Regulations of the People's Republic of China on the Administration of Technology Import and Export and other relevant provisions.
(4) Where the transfer of computer software copyright to other countries is involved, it shall be examined by local trade authorities and science and technology authorities in accordance with the Regulations of the People's Republic of China on the Administration of Technology Import and Export, Regulations on the Protection of Computer Software and other relevant provisions. Where the copyright of computer software transferred to other countries has been registered with the computer software registration institution, the local trade authorities shall notify the computer software registration institution of the examination results in a timely manner. If the transfer is not allowed after examination, the computer software registration agency shall not go through the formalities for registration of the change of ownership after receiving the notice.
(5) Involving the transfer of new plant variety rights to foreign countries, the competent agricultural and forestry departments shall, in accordance with the relevant provisions of the Regulations of the People's Republic of China on the Protection of New Plant Varieties and other relevant provisions, review in accordance with their duties, focusing on the impact of the proposed transfer of new plant variety rights on China's agricultural security, especially food security and seed industry security.
(b) the foreign transfer of intellectual property involved in the security review of the acquisition of domestic enterprises by foreign investors.
1. When conducting security review on the acquisition of domestic enterprises by foreign investors, the foreign investment security review agency shall transfer the relevant materials to the relevant competent authorities for comments on the categories of intellectual property rights to be transferred, which fall within the scope of the acquisition security review and involve the transfer of intellectual property rights to foreign countries. Where the patent right or the exclusive right to an integrated circuit layout-design is involved, the competent intellectual property department under The State Council shall be responsible; Where the copyright of computer software is involved, the competent copyright department of the State shall be responsible; Where the right to new varieties of plants is involved, the competent department of agriculture and the competent department of forestry under The State Council shall be responsible respectively according to their duties.
2. The relevant competent authorities shall conduct the review in a timely manner and issue a written opinion, which shall be fed back to the foreign investment security review agency. The foreign investment security review institution shall refer to the written opinion issued by the relevant competent department and make a review decision in accordance with the relevant provisions.
Ⅳ. Other matters
(1) The relevant competent departments shall formulate detailed rules for the review, clarifying the review materials, review procedures, review time limits, work responsibilities, etc.
(2) After the final decision on the examination of the transfer of intellectual property rights to foreign countries is made, where the ownership of intellectual property rights is changed, the transfer parties shall go through the change procedures in accordance with relevant laws and regulations.
(3) The staff of the relevant competent departments shall keep confidential the trade secrets of the parties to the transfer of intellectual property rights.
(4) Where the transfer of intellectual property rights to foreign countries involves national defense and security, it shall be handled in accordance with the relevant provisions of the State, and these Measures shall not apply.
(5) These Measures shall be implemented as of the date of issuance.
Source: General Office of the State Council
Relevant Content
Stamp Law of the People's Republic of China
2022-06-02
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