Patent open licensing lets a patentee say “try first, pay later”, but once the implementer and the patentee disagree on royalties or scope, a dispute arises — and until recently it was unclear who to turn to and what procedure to follow. In July 2024, China’s National Intellectual Property Administration (CNIPA) issued, by Order No. 590, the “Trial Measures for the Mediation of Disputes over the Implementation of Patent Open Licenses” (hereinafter the Measures), formally institutionalising the low-cost dispute-resolution path of mediation.
1. Why the Measures were needed
Article 52 of China’s Patent Law provides that where a dispute arises over the implementation of an open license, the parties may settle it through negotiation; if they are unwilling or fail to do so, they may request mediation by the patent administration authority under the State Council, or institute legal proceedings in a people’s court. The “Action Plan for Patent Transformation and Application (2023–2025)” further called for improving supporting measures such as dispute mediation for open licensing. To resolve such disputes promptly and provide an institutional safeguard, CNIPA drafted these Measures.
2. Drafting process and effective date
The Measures were open for public comment from 26 December 2023 to 25 January 2024, with expert seminars held to refine their positioning and wording. They were promulgated by CNIPA Order No. 590 on 2 July 2024 and came into force on the date of promulgation, with the relevant application forms (templates) issued as annexes.
3. Substance: five chapters, 30 articles
Acceptance (Articles 4–9)
Clarifies the conditions for accepting a mediation application, the documents the parties must submit, the conditions for a decision to accept, the circumstances in which acceptance is declined, and registration of acceptance. Whether a case is accepted depends on completeness of materials and whether it falls within the scope of open-license dispute mediation.
Mediation procedure (Articles 10–20)
Sets out the procedure for appointing mediators, the number of mediators, grounds for recusal, conduct requirements for mediators, the rights and obligations of the parties, sanctions for misconduct, the steps and time limits of mediation, and grounds for and resumption from suspension.
Closing and mediation agreement (Articles 21–28)
Clarifies when a mediation agreement is concluded, its main content and effective conditions, circumstances for terminating mediation, and the number of mediation sessions and file management. A concluded agreement becomes binding upon signature or seal.
4. Practical implications for patentees and implementers
- A “non-confrontational” channel: compared with litigation, administrative mediation is cheaper and faster, preserving the possibility of continued cooperation.
- More predictable procedure: acceptance, recusal, time limits and suspension are all spelled out, letting parties prepare and anticipate the process.
- Binding agreement: a concluded mediation agreement takes legal effect and may serve as a basis for performance and enforcement.
Open licensing also requires keeping the underlying patents alive and annuities paid. Our patent annuity monitor and trademark class search tools help reduce the risk of lapsing rights.
Frequently asked questions
Must open-license disputes be mediated by CNIPA?
No. Parties may negotiate, request mediation by the patent administration authority (CNIPA), or directly file a lawsuit with a people’s court. Mediation is one optional, lower-cost path.
Is there a fee for mediation?
The Measures focus on procedural rules; whether a fee applies is governed by CNIPA’s separate fee provisions. Administrative mediation is generally not profit-oriented.
Is a mediation agreement legally effective?
A mediation agreement that takes effect upon the parties’ signature or seal is legally binding and must be performed; if one party fails to perform, the other may seek subsequent relief pursuant to law.
Source
China’s National Intellectual Property Administration (CNIPA), “Interpretation of the Trial Measures for the Mediation of Disputes over the Implementation of Patent Open Licenses” (2024-07-15). Original: CNIPA · Policy Interpretation. Related: Order No. 590. This is a policy interpretation for reference only and does not constitute an official interpretation or legal opinion.
This article introduces the intellectual property system of the People’s Republic of China (China); please refer to the latest official regulations for specifics. For further assessment or consultation, contact Hefei Zhihai Yida Patent Agency (agency code 34408).