|
2. A patentee requesting the Custom authorities through
which an imported article that is likely to infringe its
patent right(s) is imported, to detain the article shall
submit to Customs a written request with the following
documents:
2.1 a certificate of the patent, and, in case of a utility
model patent, a technical report shall also be submitted;
2.2 a copy of the certificate of the identity of the
Applicant or the juristic person, or any other document that
proves the qualifications therefor;
3.3 an infringement analysis report, and descriptions to
fully identify the suspected infringing article, and a
sample or photograph, catalog, or picture and electronic
file therefor shall be provided;
3.4 sufficient information for Customs to identify the
article to be detained, for example: the importer name,
business registration number, declaration number, article
name, article type, specification of the article, possible
import date, import port or transportation vehicle; and
3.5 a power of attorney, if the request is filed by an
appointed agent.
The Applicant in the paragraph above refers to the
patentee and/or the exclusive licensee.
If there are documents that should be supplemented
according to Paragraph 1, Customs should notify the
Applicant of this, and the customs clearance procedures for
the infringing article will not be affected until the
supplement is made. |
1. Paragraph 1 stipulates the procedures to request
detainment of the articles, which agency is the
administrative agency, and the documents that should be
submitted, including the certificate of the patent right,
copy of the certificate of the identity, infringement
analysis report, and sufficient information for Customs to
identify the article to be detained to facilitate the
detainment process. In addition, because a utility model
patent is subject to a formal examination instead of a
substantive examination, a technical report therefor should
be provided, so as to objectively determine whether the
patent rights are valid or not.
2. Paragraph 4 of Article 96 in the Law stipulates that the
exclusive licensee can also claim damages, prevention of
infringement, and preclusion of infringement from the
infringer under the licensed scope. Therefore, Paragraph 2
of Article 2 stipulates that the party who can request
detainment includes the patentee and/or exclusive licensee.
3. Paragraph 3 stipulates that when the documents are not
sufficient to request detainment, the Customs should notify
the Applicant to make a supplement, and inform the Applicant
that the customs clearance procedures for the infringing
article will not be affected until the supplement is
received. |
|
3. If the detention request complies with the preceding
article, Customs shall notify the Applicant to provide a
security equivalent to the duty-paid price of the imported
article as estimated by Customs, or any of the following
equivalent assurance:
1. a bond issued by the government;
2. a certificate of deposit issued by a bank;
3. a certificate of deposit issued by a credit cooperative;
4. a common trust certificate for over one year from a trust
and investment company; and
5. a guarantee from a loan institution.
The assurance in accordance with Clauses 1-4 of Paragraph
1 should be pledged to Customs.
Before the Applicant provides the security or equivalent
assurance, Customs shall deal with the article suspected of
infringing the patent right(s) in accordance with the
customs clearance regulations for importing the article. |
1. To guarantee the Applicantˇ¦ benefits, Paragraph 1
stipulates that Customs, if considering that the request
from the Applicant to request Customs to detain the article
suspected of infringing the patent rights complies with the
relevant stipulations, should notify the Applicant to
provide the security equivalent to the duty-paid price of
the imported article as estimated by the Customs or the
equivalent assurance which includes a bond and certificate
of deposit for enforcement.
2. Clauses 1-4 of Paragraph 1 stipulate that the assurances
are creditor rights and should be pledged to the Customs.
3. Paragraph 3 stipulates that before the Applicant provides
the security or equivalent assurance, the Customs shall act
in accordance with the customs clearance regulations for
importing the article. |