Interim Provisions on Intellectual Property Management for National Major Science and Technology Projects

　　National Science and Technology Development Special Document [2010] No. 264

　　Chapter 1 General Provisions

　　Article 1: In order to implement an intellectual property strategy within the National Key Science and Technology Projects (hereinafter referred to as “Key Projects”), fully leverage the intellectual property system to elevate the level of scientific and technological innovation, protect the fruits of scientific and technological innovation, promote the transfer and utilization of intellectual property rights, and provide intellectual property safeguards for fostering and developing strategic emerging industries and addressing major issues in economic and social development, these Provisions are formulated in accordance with relevant provisions of the “Law on Progress in Science and Technology,” the “Law on Promoting the Transformation of Scientific and Technological Achievements,” the “Patent Law,” and the “Interim Provisions for the Administration of National Key Science and Technology Projects.”

　　Article 2: These Regulations apply to the management of intellectual property rights for the major special projects identified in the "National Medium- and Long-Term Science and Technology Development Plan Outline (2006-2020)."

　　The intellectual property referred to in these regulations includes patent rights, copyright in computer software, proprietary rights in integrated circuit layout designs, rights to new plant varieties, and trade secrets.

　　Article 3: Departments and organizations involved in the implementation of major special projects shall integrate intellectual property management into the entire process of such projects, keep abreast of developments in intellectual property rights, protect the fruits of scientific and technological innovation, clearly define intellectual property rights and obligations, promote the application and dissemination of intellectual property, and comprehensively enhance their capacity for creating, utilizing, protecting, and managing intellectual property.

　　Chapter 2: Responsibilities for Intellectual Property Management

　　Article 4: The Ministry of Science and Technology, the National Development and Reform Commission, and the Ministry of Finance (hereinafter referred to as the “Three Departments”), as the comprehensive management authorities for the implementation of major special projects, are responsible for formulating intellectual property management systems and policies for these major projects, coordinating and providing macro-level guidance on significant intellectual property issues arising during their implementation, and supervising and inspecting the implementation of intellectual property-related work in each major special project.

　　The National Intellectual Property Administration and relevant intellectual property administrative authorities will effectively leverage their advantages in professional talent and information resources to strengthen business guidance and services for major special intellectual property projects.

　　Article 5: Under the leadership of the Special Project Leading Group, the leading organization responsible for the major special project shall assume full responsibility for the intellectual property work related to this major special project.

　　(1) Develop an intellectual property strategy that aligns with the characteristics of scientific and technological innovation and industrialization of this major special project;

　　(2) Formulate and implement intellectual property management measures for this major special project;

　　(3) Establish an intellectual property work system and implement the relevant supporting measures;

　　(4) Provide guidance and supervision on the protection, management, and utilization of intellectual property rights related to significant achievements;

　　(5) Establish a specialized database for intellectual property rights related to major projects, promote the development of an intellectual property information-sharing platform, and set up an early-warning mechanism for intellectual property rights associated with major projects.

　　(6) Promote and organize the implementation of the standards strategy, and study and propose intellectual property policies related to relevant standards.

　　The implementation and management offices for each major special project shall establish dedicated positions and assign specialized personnel to be responsible for intellectual property work related to their respective major special projects.

　　The leading group for the major special project and the leading organizing unit may, as needed, entrust intellectual property service agencies to provide consulting and services for the formulation and decision-making of the intellectual property strategy for this major special project.

　　Article 6: The full-time technical lead for the major special project, together with the overall team, shall be responsible for conducting intellectual property strategy analyses, proposing intellectual property strategy recommendations in the formulation of technology directions and integration plans, forecasting and assessing potential intellectual property issues arising from the commercialization of research outcomes and offering corresponding countermeasures, and providing technical guidance on the intellectual property work related to the project (subject).

　　Each major special project’s overall team should have an intellectual property expert or a designated expert specifically responsible for intellectual property matters.

　　Article 7: The responsible entity for a project (or research topic) shall fulfill the following intellectual property management obligations with regard to the tasks of the project (or research topic):

　　(1) Define the intellectual property objectives for the project (or research topic) and incorporate them into the project (or research topic) contract management.

　　(2) Develop an intellectual property management plan and procedures for projects (topics), integrating intellectual property work into the entire process—from research and development to industrialization.

　　(3) Designate a specific person to be fully responsible for the intellectual property work related to the project (research topic); and, as needed, entrust intellectual property service agencies to provide consultation and services for the project’s (research topic’s) intellectual property matters.

　　(4) Organize participation of project (subject) personnel in intellectual property training to ensure that relevant personnel are proficient in and able to effectively apply the relevant intellectual property knowledge.

　　(5) Fulfill all intellectual property management obligations stipulated in these regulations, comply with information registration and reporting requirements, and actively promote the utilization of intellectual property rights.

　　The intellectual property work for each project (subject) shall be governed by a system of responsibility assigned to the legal representative of the responsible entity for the project (subject) and to the project (subject) leader. Should any loss of intellectual property rights or other damages occur due to failure to fulfill the obligations stipulated in these regulations, the Leading Group for Major Special Projects and the leading organizing unit shall, in accordance with these regulations, hold the legal representative and the project (subject) leader accountable accordingly.

　　Article 8: Research and management personnel involved in the implementation of projects (topics) shall enhance their awareness of intellectual property rights, comply with the intellectual property management system, and assist in carrying out related intellectual property work.

　　If losses are caused by violation of relevant regulations, the responsible party shall bear corresponding liability.

　　Article 9: During the implementation of major special projects, full advantage should be taken of the roles played by intermediary service agencies such as intellectual property agents, information service providers, strategic consultants, and asset appraisers. We should strengthen intellectual property protection for these major special projects, refine intellectual property strategies, and promote the application and dissemination of scientific and technological achievements and their associated intellectual property rights.

　　Intellectual property intermediary service agencies shall uphold professional ethics, conscientiously fulfill their duties, and do their utmost to protect both national interests and the interests of their clients.

　　Chapter 3: Intellectual Property Management During the Implementation of Major Special Projects

　　Article 10: When preparing the five-year implementation plan, the leading organizing entity shall conduct research on intellectual property strategies and analyze the domestic and international intellectual property landscape in the key areas of this major special project. The results of this analysis shall serve as an important reference for formulating the five-year implementation plan, annual plans, and guidelines for project (subject) applications.

　　The intellectual property analysis content stipulated in the first paragraph of this article includes the distribution and protection status of intellectual property rights in the technical field of this major special project, the key technologies and their intellectual property protection scopes in related industries in major countries and regions, the impact on research, development, and industrialization of relevant Chinese industries, as well as intellectual property strategies for the research, development, and industrialization of this major special project.

　　Article 11: When submitting application materials, the applicant organization for a project (or research topic) shall provide an analysis of the intellectual property status of core technologies in this field. The analysis shall include the objectives of the analysis, the search methods and pathways used, the current status of intellectual property rights and the distribution of major right holders, the applicant’s own intellectual property situation, the primary intellectual property goals and risk mitigation strategies for the project (or research topic), as well as the potential impact on the industry.

　　If the applicant organization for a project (or research topic) intends to use or purchase the intellectual property rights of others during the research and development process, it shall make a corresponding statement in the application materials.

　　The leading organizing unit shall conduct spot checks and verification on the analysis of intellectual property status conducted by the applicant units for projects (topics). If any applicant unit is found to have falsified its analysis of intellectual property status, its eligibility to apply for projects (topics) will be revoked.

　　Article 12: The leading organizing entity shall treat intellectual property rights as an independent evaluation indicator in the project proposal review process and reasonably determine their weight within the overall evaluation indicator system.

　　The leading organizing entity shall invite intellectual property experts to participate in the review process and, as needed, commission intellectual property service agencies to compile and evaluate the intellectual property objectives and their feasibility proposed by applicants for the same project (research topic). The evaluation results shall serve as an important basis for the project review.

　　Article 13: For projects (topics) that have been approved for initiation, the leading organizing unit and the responsible unit of the project (topic) shall clearly stipulate the intellectual property tasks and objectives in the task contract.

　　For projects (research topics) jointly undertaken by multiple entities, each participating entity shall sign an agreement specifying the division of research and development tasks, the ownership of intellectual property rights, and the distribution of benefits.

　　Article 14: When the responsible entity of a project (or sub-project) signs a sub-project agreement or a commissioned collaborative development agreement, it shall clearly specify in the agreement each party’s respective intellectual property rights and obligations.

　　Article 15: During the implementation of a project (or research topic), the responsible entity shall closely monitor developments in intellectual property rights and technical standards in relevant technological fields, and accordingly make timely adjustments to the project’s (or research topic’s) research strategy and intellectual property measures in accordance with applicable procedures.

　　During the implementation of a project, if it is discovered that the project (or research topic) objectives cannot be achieved due to constraints imposed by others related to intellectual property rights, and significant adjustments to the research plan or technical approach are required, the responsible unit of the project (or research topic) shall promptly submit the matter to the leading organizing unit for approval. If the responsible unit fails to conduct ongoing intellectual property analysis or deliberately conceals the results of such analysis, thereby preventing the achievement of the intended objectives, the Leading Group for Major Special Projects and the leading organizing unit, in accordance with their respective responsibilities, shall issue public criticism, impose deadlines for corrective action, temporarily suspend disbursement of project funds, terminate the project contract, recover previously disbursed funds, and revoke the unit’s eligibility to undertake major special projects (or research topics).

　　If the leading organizing entity discovers that a major intellectual property event has occurred in any of the areas covered by this key special project, posing a significant risk to the implementation of the project, it shall promptly conduct an analysis and assessment, formulate countermeasures, adjust its strategic layout, and submit the necessary reports for approval as required.

　　Article 16: Each major special project shall establish a specialized database on intellectual property rights in its respective field, which shall serve as an important component of the major special project management information system and be made available for use by the responsible units of projects (research topics). Project (research topic) responsible units and other institutions are encouraged to incorporate intellectual property information closely related to their fields into the major special project management information system and make such information available for use by the responsible units of projects (research topics) in accordance with market mechanisms.

　　Article 17: The responsible entity of a project (or subject) shall, when submitting the phase report and the acceptance application report, provide intellectual property information as required. Such information shall include the type of intellectual property right, the application number and authorization (registration) number, the date of application and the date of authorization (registration), the rights holder, and the status of the right.

　　Article 18: The leading organizing entity shall regularly assess and analyze the overall status of intellectual property rights applied for and obtained under this major special project, track and compare domestic and international development trends, and formulate and propose an intellectual property strategy for the next phase.

　　Article 19: In the monitoring and evaluation conducted by the three departments and the leading groups for major special projects, an investigation and analysis shall be carried out on the following aspects: the formulation of intellectual property strategies for each major special project; the implementation of intellectual property-related work in the review of projects (topics); the establishment of intellectual property systems and mechanisms; the status of intellectual property management at the responsible units of projects (topics); the achievement of intellectual property goals for projects (topics); and the maintenance, commercialization, and utilization of the intellectual property rights obtained. Based on these findings, an assessment and judgment shall be made, and countermeasures and recommendations shall be proposed.

　　Article 20: The status of intellectual property rights is one of the key components of the acceptance assessment for major special projects.

　　The project (subject) acceptance report shall include a summary of the completion status of intellectual property tasks and objectives, as well as a forecast of the prospects for further development and industrialization of the resulting achievements. If the project (subject) responsible entity has failed to achieve the intellectual property objectives stipulated in the task contract, it shall provide an explanation accordingly.

　　When leading the organizing unit conducts the acceptance and evaluation of a project (or research topic), it shall, based on the intellectual property objectives and performance indicators stipulated in the task contract, provide a clear assessment of the completion, protection, and utilization of the project’s (or research topic’s) intellectual property tasks and objectives.

　　During the acceptance inspection organized by the three departments, each major special project shall provide explanations on the completion status of its intellectual property tasks and the impact of these tasks on industrial development.

　　Article 21: All entities involved in the implementation of major special projects shall fully leverage the business guidance role of the intellectual property administrative authorities when conducting intellectual property analysis, intellectual property assessment, and acceptance of intellectual property rights for projects (topics).

　　Chapter Four: Ownership and Protection of Intellectual Property

　　Article 22: The ownership of intellectual property rights arising from major special projects shall be allocated according to the following principles:

　　(1) For matters involving national security, national interests, and major social public interests, the rights to free use shall belong to the state; the entity responsible for the project (or research topic) shall have the right to free use.

　　(2) Except as provided in paragraph (1), the entity responsible for the authorized project (or research topic), having obtained the rights in accordance with the law, may, for the sake of national security, national interests, and major public interests, have the right to implement the project itself without compensation, or to license others to implement it either for a fee or free of charge.

　　The project (subject) task contract shall clearly stipulate the ownership of any intellectual property rights generated, in accordance with the principles outlined above.

　　The management measures for intellectual property rights owned by the state shall be stipulated separately. The leading organizing entity or its designated agency shall have the obligation to protect, manage, and utilize intellectual property rights owned by the state.

　　Article 23: The ownership of intellectual property rights arising from sub-projects or collaborative development shall be governed by the provisions of Paragraph 1 of Article 22 of these Regulations. When signing contracts for sub-projects or collaborative development tasks, the entity responsible for the project (or sub-project) shall inform the entities undertaking the sub-projects and collaborative development tasks of the rights that the State holds with respect to the intellectual property rights of the project (or sub-project). If the content of the aforementioned contract conflicts with the rights reserved by the State, such conflict shall not affect the State’s exercise of its relevant rights.

　　Article 24: Before publishing or releasing papers, academic reports, and the like, the responsible unit of the project (subject) shall conduct a review and registration. Any technical content that is eligible for patent application must not be published, disclosed, or leaked to others prior to filing a patent application. If such publication, disclosure, or leakage occurs without prior approval, resulting in the loss of patent protection for the research findings, the Leading Group for Major Special Projects and the leading organizing unit shall, according to their respective responsibilities, hold accountable the directly responsible person, the project (subject) leader, and the legal representative.

　　Article 25: With regard to scientific and technological achievements generated by a project (subject), the responsible entity of the project (subject) shall, based on the characteristics of these achievements and in accordance with relevant laws and regulations, promptly choose an appropriate method of protection—such as applying for patent rights, applying for plant variety rights, registering copyright or integrated circuit layout-design rights, or treating them as trade secrets—to safeguard such achievements.

　　For scientific and technological achievements that should be protected by intellectual property rights and have potential for the international market, the responsible unit of the project (subject) shall apply for foreign patents or other intellectual property rights within the priority period.

　　If the responsible entity of a project (or research topic) does not apply for intellectual property protection or take other protective measures, and the leading organizing entity deems it necessary to take protective measures, it shall formally urge the responsible entity of the project (or research topic) in writing to adopt the appropriate measures. If the responsible entity still fails to take any protective measures, the leading organizing entity may independently apply for intellectual property protection or take other appropriate protective measures.

　　Article 26: For scientific and technological achievements protected as trade secrets, the entity responsible for the project (or research topic) shall clearly define and mark the technical information and its carriers that are to be protected, adopt confidentiality measures, and sign confidentiality agreements with scientific and technological personnel and other individuals who may have access to such trade secrets. Even after personnel involved in handling confidential information leave their posts due to transfer, retirement, or other reasons, they shall remain bound by the confidentiality obligations stipulated in the agreement. Before leaving their posts, they must hand over all technical materials—including experimental records, documents, samples, products, equipment, drawings, and computer software—to their current employer.

　　Article 27: The responsible entity of a project (or research topic) shall reward the inventors, designers, or creators of intellectual property rights related to major special projects. For projects (or research topics) that have been granted patent rights, the responsible entity shall, in accordance with relevant provisions of the Patent Law and its Implementing Rules as well as other applicable laws and regulations, reward the inventors, designers, or creators of official inventions and creations.

　　Article 28: If the rights holder intends to waive intellectual property rights generated or acquired under a major special project, it shall undergo an assessment and submit the assessment report for record with the leading organizing unit. Any waiver of intellectual property rights without prior assessment, or any failure of rights due to other reasons, shall result in the leading group of the major special project and the leading organizing unit, within their respective responsibilities, issuing public criticism to the responsible entity and individual(s) of the project (or research topic), and ordering them to improve their intellectual property management practices.

　　Article 29: The responsible entity for a project (or research topic) may allocate funds from the project’s (or research topic’s) intellectual property affairs budget to cover expenses related to intellectual property protection, maintenance, rights enforcement, and evaluation.

　　After the acceptance and completion of a project (or research topic), the responsible entity of the project (or research topic) shall, as needed, provide the necessary financial support for the application and maintenance of intellectual property rights generated by the major special project.

　　Chapter 5: Transfer and Utilization of Intellectual Property Rights

　　Article 30: The leading organizing units of major special projects and the holders of intellectual property rights shall actively promote the transfer and application of intellectual property generated by these major special projects, and accelerate the commercialization and industrialization of such intellectual property.

　　Article 31: With due regard to the protection of intellectual property rights, state secrets, and technical secrets, the entities responsible for the projects (topics) shall widely disseminate information on intellectual property generated by major special programs.

　　If the responsible entity of a project (subject), the licensee, or the assignee applies for intellectual property rights, publishes, or transfers scientific and technological achievements generated by the project (subject), they shall indicate “Funded by the National Key Science and Technology Special Project.”

　　Article 32: Project (subject) implementing units are encouraged to incorporate their independently acquired intellectual property rights into national standards and actively participate in the development of international standards.

　　Article 33: Intellectual property rights arising from major special projects shall, in the first instance, be implemented within China. When licensing others to implement such rights, the licensing arrangement should generally be a non-exclusive license.

　　If any of the following circumstances occur in the transfer or licensing of intellectual property rights, approval from the leading organizing unit shall be required. If the leading organizing unit is an enterprise, approval from the head unit of the special leading group shall be required.

　　(1) Transfer or license its exclusive implementation to domestic institutions or individuals;

　　(2) Transferring or licensing to overseas organizations or individuals;

　　(3) Where the rights holder has changed due to reasons such as mergers and acquisitions.

　　For transfers or licenses to overseas organizations or individuals, after obtaining approval, the provisions of the "Regulations of the People's Republic of China on the Administration of Technology Import and Export" shall also be followed.

　　For intellectual property transfers and licensing involving public institutions that implement the financial and accounting systems for public institutions, or social organizations and privately-run non-enterprise entities that implement the “Accounting Standards for Non-Profit Organizations,” the provisions of the “Interim Measures for the Management of State-Owned Assets in Public Institutions” (Ministry of Finance Order No. 36) shall apply.

　　Article 34: With regard to intellectual property rights generated by major special projects, the responsible entities of each project (subject) shall first ensure that the responsible entities of other projects (subjects) may use such rights for the purpose of implementing the major special project.

　　If the responsible entity of a project (or sub-project) needs to integrate and utilize intellectual property rights generated or acquired by other project (or sub-project) responsible entities for the purpose of research and development under a major special program, the relevant intellectual property right holders shall grant them permission to use such rights free of charge. When such intellectual property rights are used for the commercialization of scientific and technological achievements under the major special program, the relevant intellectual property right holders shall grant licenses for their implementation in accordance with the principles of equality, reasonableness, and non-discrimination.

　　When the entity responsible for a project (or research topic) obtains permission to use another party’s intellectual property for research and development purposes, the licensing agreement shall stipulate that the licensor is obligated to grant the entity responsible for the project (or research topic) the right to use such intellectual property for commercialization purposes in accordance with the principles of equality, reasonableness, and non-discrimination.

　　Article 35: With respect to intellectual property rights generated or acquired under major special projects and belonging to the project (subject) implementing entity, if any of the following circumstances applies, the leading organizing entity may, in accordance with paragraph (2) of Article 22, first sentence, of these Regulations, require the project (subject) implementing entity to grant others a license to practice such rights under reasonable conditions. If the project (subject) implementing entity refuses to grant such a license without justifiable reasons, the leading organizing entity may decide to promote and utilize the intellectual property rights within the approved scope, allowing designated entities to practice them—either for a fee or free of charge—for a specified period.

　　(1) For the needs of major national infrastructure projects;

　　(2) These have common and critical roles in industrial development and need to be promoted and applied.

　　(3) To promote and apply [it] in order to safeguard public health;

　　(4) It has a significant impact on national interests, major social public interests, and national security and therefore requires widespread promotion and application.

　　The entity granted a designated implementation license does not enjoy exclusive implementation rights. If a paid implementation license is obtained, the licensee shall negotiate a reasonable royalty fee with the intellectual property rights holder.

　　Article 36: The National Intellectual Property Administration may, in accordance with the Patent Law, its Implementing Rules, and the relevant provisions of the Regulations on the Protection of Integrated Circuit Layout Designs, grant compulsory licenses or non-voluntary licenses for invention patents, utility model patents, and integrated circuit layout designs arising from the implementation of major special projects.

　　Article 37: When the entity responsible for a project (or research topic) licenses or transfers intellectual property rights arising from a major special project, it shall inform the licensee or transferee of the rights owned by the state. The licensing and transfer agreements shall not impair the state’s exercise of its relevant rights.

　　Article 38: Project (subject) implementing units are encouraged to establish industrial technology innovation strategic alliances along the industrial chain, with the goal of commercializing scientific and technological achievements. Through mechanisms such as cross-licensing and establishing intellectual property rights-sharing arrangements, these units should accelerate the application, transfer, and dissemination of scientific and technological achievements in industrial sectors, thereby providing comprehensive technological support and intellectual property protection for industrial and social development.

　　For major special projects that deploy initiatives (research topics) across different segments of the industrial chain, the leading organizing entity shall promote the establishment of industry-specific strategic alliances for technological innovation.

　　Article 39: Within five years after the completion of a project, the entity responsible for the project (or subject), or the licensee or transferee of intellectual property rights under a major special project, shall, in accordance with the requirements of the leading organization of the major special project, report on the status of intellectual property application, re-development, and industrialization.

　　Article 40: The responsible entity of a project (or research topic) shall, in accordance with the law, reward those who have made significant contributions to the completion and commercialization of the scientific and technological achievement.

　　Chapter VI Supplementary Provisions

　　Article 41: Each major special project may, in accordance with these Regulations and taking into account the specific characteristics of its own project, formulate detailed implementation rules for intellectual property management tailored to its own major special project.

　　Article 42: Income derived from the transfer of intangible assets by public institutions and expenditures incurred in acquiring such intangible assets shall be handled in accordance with the relevant provisions of the “Financial Rules for Public Institutions” and the “Interim Measures for the Management of State-owned Assets in Public Institutions” (Ministry of Finance Order No. 36).

　　Article 43: Management of intellectual property rights in national defense science and technology shall be carried out in accordance with relevant regulations.

　　Article 44: These Measures shall take effect as of August 1, 2010.