Patent Laws and Regulations |
PRC, Patent Law (2nd
Revision)
(Adopted at the 4th Session
of the Standing Committee of the 6th National People's Congress on 12 March 1984;
first amendment made at the 27th Session of the Standing Committee of the 7th
NPC on 4 September 1992; second amendment made at the 17th Session of the
Standing Committee of the 9th NPC on 25 August 2000)
PART ONE:
GENERAL PROVISIONS
Article
1: This Law is enacted to protect patent rights for
inventions-creations, to encourage inventions-creations, to foster the
spreading and application of inventions-creations, to promote progress and
innovation in science and technology, and to meet the needs of the construction
of socialist modernization.
Article
2: In this Law, "inventions-creations" mean
inventions, utility models and exterior designs.
Article
3: The Patent Administration Authority of the State
Council is responsible for nation-wide administration of patent work. It
accepts and examines patent applications in a uniform manner and grants patent
rights in accordance with the law.
The patent
administration authorities of the people's governments of provinces, autonomous
regions and municipalities directly under the central government are
responsible for patent administration work within their respective
administrative jurisdictions.
Article
4: Where the invention-creation for which a patent is
applied for relates to the security or other vital interests of the State and
is required to be kept secret, the application shall be treated in accordance
with the relevant prescriptions of the State.
Article
5: No patent right shall be granted for any
invention-creation that is contrary to the laws of the State or social morality
or that is detrimental to public interest.
Article
6: An invention-creation made by a person in execution
of the tasks of the work unit to which he belongs or made by him mainly by
using the material and technical means of the work unit is a service
invention-creation. The right to apply for a patent of a service
invention-creation belongs to that work unit; after the application is
approved, that work unit shall be the patentee.
For any
non-service invention-creation, the right to apply for a patent belongs to the
inventor or designer; after the application is approved, that inventor or
designer shall be the patentee.
For any
service invention-creation made by a person mainly by using the material and
technical means of the work unit to which he belongs, where the work unit and
the inventor or designer have entered into a contract setting out provisions
for the ownership of patent right, such provisions shall prevail.
Article
7: No work unit or individual shall prevent the
inventor or designer from filing an application for a patent for a non-service
invention-creation.
Article
8: For an invention-creation made in cooperation by two
or more work units or individuals, or by one work unit or individual on
commission by other work units or individuals, the right to apply for a patent
belongs, unless otherwise agreed upon, to the work unit or individual that
made, or to the work units or individuals that jointly made, the
invention-creation. After the application is approved, the applicant work unit
or individual shall be the patentee.
Article
9: Where two or more applicants file applications for
patent for the identical invention-creation, the patent right shall be granted
to the applicant whose application was filed first.
Article
10: The right to apply for a patent and the patent right
may be assigned.
Any
assignment, by a Chinese work unit or individual, of the right to apply for a
patent, or of the patent right, to a foreigner must be approved by the
competent department concerned of the State Council.
Where the
right to apply for a patent or the patent right is assigned, the parties to the
assignment shall conclude a written contract that shall be registered with and
announced by the Patent Administration Authority of the State Council. The
assignment of the right to apply for a patent or of the patent right shall be
effective as of the date of the registration.
Article
11: After a patent right is granted for an invention or
utility model, except as otherwise provided for herein, no work unit or
individual may, without the authorization of the patentee, exploit his patent,
namely make, use, promise to sell, sell or import the patented product, or use
the patented process and use, promise to sell, sell or import the product directly
obtained by the patented process, for production or business purposes.
After a
patent right is granted for an exterior design, no work unit or individual may,
without the authorization of the patentee, exploit his patent, namely make,
sell or import the product incorporating his exterior design, for production or
business purposes.
Article
12: Any work unit or individual exploiting the patent of
another must, except as provided for in Article 14 of this Law, conclude with
the patentee a written licence contract for exploitation and pay the patentee a
fee for the exploitation of the patent. The licensee has no right to authorize
any work unit or individual, other than that referred to in the contract for
exploitation, to exploit the patent.
Article
13: After the publication of the application for a
patent for invention, the applicant may require the work unit or individual
exploiting the invention to pay an appropriate fee.
Article
14: Where the patent for an invention of a State-owned
enterprise or institution is of great significance to national interest or
public interest, the relevant authority of the State Council and the people's
governments of provinces, autonomous regions or municipalities directly under
the central government may, with the approval of the State Council, decide the
spreading and application of that invention within an approved scope, and allow
designated work units to exploit that invention, and the exploiting work unit
shall pay an exploitation fee to the patentee pursuant to the stipulations of
the State.
Any patent
for an invention of a Chinese collectively-owned work unit or an individual is
of great significance to national interest or public interest and is in need of
spreading and application may be treated alike by making reference to the
provisions of the preceding paragraph.
Article
15: The patentee has the right to affix a patent marking
and to indicate the number of the patent on the patented product or on the
packing of that product.
Article
16: The work unit granted the patent right for a service
invention-creation shall award to the inventor or designer of the service
invention-creation a reward and, upon the exploitation of the patented
invention-creation, shall award to the inventor or designer a reasonable reward
on the basis of the extent of spreading and application and the economic
benefits yielded.
Article
17: The inventor or designer has the right to be named
as such in the patent document.
Article
18: Where any foreigner, foreign enterprise or other
foreign organization having no habitual residence or business office in China
files an application for a patent in China, the application shall be treated
under this Law in accordance with any agreement concluded between the country
to which the applicant belongs and China, or in accordance with any
international treaty to which both countries are party, or on the basis of the
principle of reciprocity.
Article
19: Where any foreigner, foreign enterprise or other
foreign organization having no ordinary residence or business office in China
applies for a patent, or has other patent matters to attend to, in China, he or
it shall appoint a patent agency designated by the Patent Administration
Authority of the State Council to act as his or its agent.
Where any
Chinese work unit or individual applies for a patent or has other patent
matters to attend to in the country, it or he may appoint a patent agency to
act as its or his agent.
The patent
agency shall handle patent application or other patent matters as instructed by
the principal, in accordance with laws and administrative regulations. It shall
have the duty of confidentiality in respect of the contents of the
invention-creation of the principal, except in cases where they have already
been published or announced. Provisions in relation to the administration of
patent agencies shall be formulated by the State Council.
Article
20: Where any Chinese work unit or individual intends to
apply in a foreign country for a patent for an invention-creation made in
China, the work unit or individual shall, complying with the provisions of
Article 4 hereof, apply to the Patent Administration Authority of the State
Council for a patent first, and appoint a patent agency designated by such
authority to act as its or his agent.
The
Chinese work unit or individual may file an international application for a
patent in accordance with the relevant international treaties to which the
People's Republic of China is a party. Any applicant who files an international
application for a patent shall comply with the provisions of the preceding
paragraph.
The Patent
Administration Authority of the State Council shall handle international
applications for patent in accordance with the relevant international treaties
to which the People's Republic of China is a party, this Law and the relevant
provisions of the State Council.
Article
21: The Patent Administration Authority of the State
Council and its Patent Re-examination Board shall handle applications and
requests in regards to patent according to law on the principles of
objectivity, impartiality, accuracy and timeliness.
Before the
publication or announcement of the application for a patent, the staff members
of the Patent Administration Authority of the State Council and other persons
involved have the duty of confidentiality in respect of the contents of the
application.
PART TWO:
REQUIREMENTS FOR GRANT OF PATENT RIGHT
Article
22: Any invention or utility model for which patent
right may be granted must possess novelty, inventiveness and practical
applicability.
Novelty
means that, before the date of filing, no identical invention or utility model
has been publicly disclosed in publications in the country or abroad or has
been publicly used or made known to the public by any other means in the
country, nor has any other person filed previously with the Patent
Administration Authority of the State Council an application which described
the identical invention or utiltiy model and was published after the said date
of filing.
Inventiveness
means that, as compared with the technology existing before the date of filing
the invention has prominent substantive features and represents a notable
progress and that the utility model has substantive features and represents
progress.
Practical
applicability means that the invention or utility model can be made or used and
can produce effective results.
Article
23: An exterior design for which patent right may be
granted shall not be identical with or similar to any exterior design which,
before the date of application, has been publicly disclosed in publications in
China or abroad or has been publicly used in China, and shall not be in
conflict with the lawful rights already acquired by others.
Article
24: An invention-creation for which a patent is applied
for does not lose its novelty where, within six months before the date of
filing, one of the following events occured :
Article
25: For any of the following, no patent right shall be
granted :
For
processes used in producing products referred to in item (iv) of the preceding
paragraph, patent right may be granted in accordance with the provisions of
this Law.
PART
THREE: APPLICATION FOR PATENT
Article
26: Where an application for a patent for invention or
utility model is filed, a request, a description and its abstract, and claims
shall be submitted.
The
request shall state the title of the invention or utility model, the name of
the inventor or designer, the name and the address of the applicant and other
related matters.
The
description shall set forth the invention or utility model in a manner
sufficiently clear and complete so as to enable a person skilled in the
relevant field of technology to carry it out; where necessary, drawings are
required. The abstract shall state briefly the main technical points of the invention
or utility model.
The claims
shall be supported by the description and shall state the extent of the patent
protection asked for.
Article
27: Where an application for a patent for design is
filed, a request, drawings or photographs of the design shall be submitted, and
the product incorporating the design and the class to which that product
belongs shall be indicated.
Article
28: The date on which the Patent Administration
Authority of the State Council receives the application shall be the date of
filing. If the application is sent by mail, the date of mailing indicated by
the postmark shall be the date of filing.
Article
29: Where, within twelve months from the date on which
any applicant first filed in a foreign country an application for a patent for
invention or utility model, or within six months from the date on which any
applicant first filed in a foreign country an application for a patent for
design, he or it files in China an application for a patent for the same
subject matter, he or it may, in accordance with any agreement concluded
between the said foreign country and China, or in accordance with any
international treaty to which both countries are parties, or on the basis of
the principle of mutual recognition of the right of priority, enjoy a right of
priority.
Where,
within 12 months from the date on which any applicant first filed in China an
application for a patent for invention or utility model, he or it files with
the Patent Administration Authority of the State Council an application for a
patent for the same subject matter, he or it may enjoy a right of priority.
Article
30: Any applicant who claims the right of priority shall
make a written declaration when the application is filed, and submit, within
three months, a copy of the patent application document which was first filed;
if the applicant fails to make the written declaration or to meet the time
limit for submitting the patent application document, the claim to the right of
priority shall be deemed not to have been made.
Article
31: An application for a patent for invention or utility
model shall be limited to one invention or utility model. Two or more
inventions or utility models belonging to a single general inventive concept
may be filed as one application.
An application
for a patent for design shall be limited to one design incorporated in one
product. Two or more designs which are incorporated in products belonging to
the same class and are sold or used in sets may be filed as one application.
Article
32: An applicant may withdraw his or its application for
a patent at any time before the patent right is granted.
Article
33: An applicant may amend his or its application for a
patent, but the amendment to the application for a patent for invention or
utility model may not go beyond the scope of the disclosure contained in the
initial description and claims, and the amendment to the application for a
patent for design may not go beyond the scope of the disclosure as shown in the
initial drawings or photographs.
PART FOUR:
EXAMINATION AND APPROVAL OF APPLICATION FOR PATENT
Article
34: Where, after receiving an application for a patent
for invention, the Patent Administration Authority of the State Council, upon
preliminary examination, finds the application to be in conformity with the
requirements of this Law, it shall publish the application promptly after the
expiration of eighteen months from the date of filing. Upon the request of the
applicant, the Patent Administration Authority of the State Council may publish
the application earlier.
Article
35: Upon the request of the applicant for a patent for
invention, made at any time within three years from the date of filing, the
Patent Administration Authority of the State Council will proceed to examine
the application as to its substance. If, without any justified reason, the
applicant fails to meet the time limit for requesting examination as to
substance, the application shall be deemed to have been withdrawn.
The Patent
Administration Authority of the State Council may, on its own initiative,
proceed to examine any application for a patent for invention as to its
substance when it deems it necessary.
Article
36: When the applicant for a patent for invention
requests examination as to substance, he or it shall furnish pre-filing date
reference materials concerning the invention.
In
relation to an invention for which an application for patent has been filed in
a foreign country, the Patent Administration Authority of the State Council may
require the applicant to furnish within a specified time limit the documents
concerning any search made for the purpose of examining that application, or
concerning the results of any examination made, in that country. If, without
any justifiable reason, the applicant fails to furnish such documents within
the time limit, the application shall be deemed to have been withdrawn.
Article
37: Where the Patent Administration Authority of the
State Council, after it has made the examination as to substance of the
application for a patent for invention, finds that the application is not in
conformity with the provisions of this Law, it shall notify the applicant and
request him or it to submit, within a specified time limit, his or its
observations or to amend the application. If, without any justified reason, the
time limit for making response is not met, the application shall be deemed to
have been withdrawn.
Article
38: Where, after the applicant has made the observations
or amendments, the Patent Administration Authority of the State Council finds
that the application for a patent for invention is still not in conformity with
the provisions of this Law, the application shall be rejected.
Article
39: Where it is found after examination as to substance
that there is no cause for rejection of the application for a patent for
invention, the Patent Administration Authority of the State Council shall make
a decision to grant the patent right for invention, issue an appropriate patent
certificate for invention, and register and announce it. A patent right for
invention shall come into effect as of the date of its announcement.
Article
40: Where it is found after examination as to substance
that there is no cause for rejection of the application for a patent for
utility model or exterior design, the Patent Administration Authority of the
State Council shall make a decision to grant the patent right for utility model
or exterior design, issue an appropriate patent certificate for utility model
or exterior design, and register and announce it. A patent right for utility
model or exterior design shall come into effect as of the date of its
announcement.
Article
41: The Patent Administration Authority of the State
Council shall set up a Patent Re-examination Board. If the applicant for a
patent is not satisfied with the decision of the Patent Administration
Authority of the State Council rejecting the application, such party may,
within three months from the date of receipt of the notification, request the
Patent Re-examination Board for a re-examination. The Patent Re-examination
Board shall notify the applicant after it has re-examined the application and
made a decision.
If the
applicant for a patent is not satisfied with the decision of the Patent
Re-examination Board, he may, within three months from the date of receipt of
the notification, institute legal proceedings in the people's court.
PART FIVE:
DURATION, CESSATION AND INVALIDATION OF PATENT RIGHT
Article
42: The duration of patent right for inventions shall be
twenty years, the duration of patent right for utility models and patent right
for designs shall be ten years, counted from the date of filing.
Article
43: The patentee shall pay an annual fee beginning with
the year in which the patent right was granted.
Article
44: In any of the following cases, the patent right
shall cease before the expiration of its duration :
i.where an annual fee is not paid as prescribed;
ii.where the patentee abandons his or its patent right by a written declaration.
Any
cessation of the patent right shall be registered and announced by the Patent
Administration Authority of the State Council.
Article
45: From the date of the announcement of the grant of
the patent right by the Patent Administration Authority of the State Council,
where any work unit or individual considers that the grant of the said patent
right is not in conformity with the relevant provisions of this Law, it or he
may request the Patent Re-examination Board to declare the patent right
invalid.
Article
46: The Patent Re-examination Board shall, in a timely
manner, examine and make a decision in respect of the request for invalidation
of the patent right, and notify the party who made the request and the
patentee. The decision declaring the patent right invalid shall be registered
with and announced by the Patent Administration Authority of the State Council.
If a party
is not satisfied with the decision of the Patent Re-examination Board declaring
the patent right for invention invalid or upholding the patent right for
invention, such party may, within three months from the date of receipt of the
notification, institute legal proceedings in the people's court. The people's
court shall notify the other party the request for declaration of invalidation
to participate in the legal proceedings as a third party.
Article
47: Any patent right that has been declared invalid
shall be deemed to be non-existent ab initio.
The
decision declaring a patent right invalid shall have no retroactive effect on
any judgment or ruling of the people's court on patent infringement which has
been pronounced and enforced, on any decision concerning the handling of patent
infringement which has been executed or enforced, and on any contract on the
exploitation or assignment of the patent which have been performed prior to the
decision of invalidation. However, any losses caused to other persons in bad
faith on the part of the patentee shall be compensated.
If,
pursuant to the provisions of the preceding paragraph, no payment, by the
patentee or the assignor of the patent right to the licensee or assignee of the
patent right, of the fee for the exploitation of the patent or the price for
the assignment of the patent right is obviously contrary to the principle of
fairness, the patentee or the assignor of the patent right shall repay the
whole or part of the fee for the exploitation of the patent or the price for
the assignment of the patent right to the licensee or the assignee of the
patent right.
PART SIX:
COMPULSORY LICENCE FOR EXPLOITATION OF THE PATENT
Article
48: Where any work unit which is qualified to exploit
the invention or utility model has made requests for authorization from the
patentee of an invention or utiltity model to exploit its or his patent on
reasonable terms and such efforts have not been successful within a reasonable
period of time, the Patent Administration Authority of the State Council may,
upon the application of that work unit, grant a compulsory licence to exploit
the patent for invention or utility model.
Article
49: Where a national emergency or any extraordinary
state of affairs occurs, or where the public interest so requires, the Patent
Administration Authority of the State Council may grant a compulsory license to
exploit the patent for invention or utility model.
Article
50: Where the invention or utility model for which the
patent right was granted shows a more important progress in technology with
economical significance than another invention or utility model for which the
patent right has been granted earlier, and the exploitation of the later
invention or utility model depends on the exploitation of the earlier invention
or utility model, the Patent Administration Authority of the State Council may,
upon the request of the later patentee, grant a compulsory licence to exploit
the earlier invention or utility model.
Where,
according to the preceding paragraph, a compulsory licence is granted, the
Patent Administration Authority of the State Council may, upon the request of
the earlier patentee, also grant a compulsory licence to exploit the later
invention or utility model.
Article
51: The work unit or individual requesting, in
accordance with the provisions of this Law, a compulsory licence for
exploitation shall furnish proof that it or he has not been able to conclude
with the patentee a licence contract for exploitation on reasonable terms.
Article
52: The Patent Administration Authority of the State
Council shall, in a timely manner, notify the patentee of its decision to grant
a compulsory licence for exploitation, and register and announce the grant of
the licence.
The
decision to grant a compulsory licence for exploitation shall stipulate the
scope and time of the exploitation based on the reasons for granting the
compulsory licence. When the reasons for granting the compulsory licence
disappear and cease to appear, the Patent Administration Authority of the State
Council shall, upon the request of the patentee, make a decision to terminate
the compulsory licence after due examination.
Article
53: Any work unit or individual that is granted a
compulsory licence for exploitation shall not have an exclusive right to
exploit and shall not have the right to authorize exploitation by any others.
Article
54: The work unit or individual that is granted a
compulsory licence for exploitation shall pay to the patentee a reasonable
exploitation fee, the amount of which shall be fixed by both parties in
consultations. Where the parties fail to reach an agreement, the Patent
Administration Authority of the State Council shall adjudicate.
Article
55: Where the patentee is not satisfied with the
decision of the Patent Administration Authority of the State Council granting a
compulsory licence for exploitation, or if the patentee and the work unit or
individual granted the compulsory licence are not satisfied with the
adjudication of the Patent Administration Authority of the State Council
regarding the exploitation fee of the compulsory licence, the patentee, work
unit or individual may, within three months from the receipt of the
notification, institute legal proceedings in the people's court.
PART
SEVEN: PROTECTION OF PATENT RIGHT
Article
56: The extent of protection of the patent right for
invention or utility model shall be determined by the terms of the claims. The
description and the appended drawings may be used to interpret the claims.
The extent
of protection of the patent right for design shall be determined by the product
incorporating the patented design as shown in drawings or photographs.
Article
57: Any exploitation of a patent without the
authorization of the patentee constitutes an infringement of the patent right.
Any dispute arising therefrom shall be resolved by the parties through mutual
consultation. In cases where the parties are not willing to consult each other
or consultation fails, the patentee or any interested party may institute legal
proceedings in the people's court, or may request a patent administration
authority to handle the matter. When the patent administration authority
requested to handle the matter determines that there is an infringement, it may
order the infringer to forthwith stop the infringing act. Any party
dissatisfied may, within 15 days from the receipt of the notification,
institute legal proceedings in the people's court in accordance with the PRC,
Administrative Litigation Law. Where the infringer neither institutes legal
proceedings nor terminates the infringing act within the time limit, the patent
administration authority may petition to the people's court for compulsory
execution. The patent administration authority may, upon request of the
parties, mediate the amount of damages for the infringement of the patent.
Where mediation fails, the parties may institute legal proceedings in the people's
court in accordance with the PRC, Civil Procedure Law.
Where any
patent infringement dispute involves a patent for an invention that is a new
process for the manufacture of a product, any work unit or individual
manufacturing the same product shall furnish proof of the process used in the
manufacture of its or his product is different from the patented process. Where
the dispute involves a utility model, the people's court or the patent
administration authority may require the patentee to provide the search report
completed by the Patent Administration Authority of the State Council.
Article
58: Where any person passes off the patent of another
person, in addition to the civil liabilities that he shall bear in accordance
with the law, the patent administration authority shall order him to rectify
the situation, announce his act, confiscate the illegal income, and may impose
a fine of not more than three times of the illegal income. Where there is no
illegal income, a fine of not more than Rmb 50,000 may be imposed. Where
the matter constitutes a criminal offence, criminal liability shall be pursued.
Article
59: Where any person passes any unpatented product off
as patented product or passes any unpatented process off as patented process,
the patent administration authority shall order him to rectify the situation,
announce his act, and may impose a fine of not more than Rmb 50,000.
Article
60: The amount of damages for patent infringement shall
be determined on the basis of the losses suffered by the patentee, or the
benefits gained by the infringer, resulting from the infringement. Where the
losses to the infringed party or the benefits to the infringers are difficult
to ascertain, an amount shall be reasonably determined by referring to the
multiples of the exploitation fee of the patent.
Article
61: Where a patentee or any interested party has
evidence that proves that another person is infringing or will infringe his
patent right and that such infringement will, if not suspended in time, cause
such damages to his lawful rights and interests that are difficult to remedy,
he may, before instituting legal proceedings, petition to the people's court
for an injunction against the relevant act and for property preservation
measures.
The
people's court shall apply the provisions of Articles 93 to 96 and Article 99
of the PRC, Civil Procedure Law when handling the petition referred to in the
preceding paragraph.
Article
62: Prescription for instituting legal proceedings
concerning the infringement of patent right is two years counted from the date
on which the patentee or any interested party obtains or should have obtained
knowledge of the infringing act.
Where an
appropriate exploitation fee has not been paid for the exploitation of an
invention during the period from the announcement of the application for a
patent for an invention to the grant of the patent right, prescription for
instituting legal proceedings concerning the payment of the exploitation fee by
the patentee is two years counted from the date on which the patentee obtains,
or should have obtained knowledge of the exploitation of his invention by other
persons. However, if the patentee obtains, or should have obtained knowledge of
such exploitation before the date on which the patent right is granted,
prescription for instituting legal proceedings shall be counted from the date
on which the patent right is granted.
Article
63: None of the following shall be deemed an
infringement of the patent right:
If a
person who uses or sells a patented product for production or business purposes
without the knowledge that it is a patented product made and sold without a
licence from the patentee or a product directly obtained by a patented process
without a licence from the patentee, can prove that the product is from a
lawful source, he will not be liable for damages.
Article
64: Where any person, in violation of the provisions of
Article 20 of this Law, unauthorizedly files in a foreign country an application
for a patent that divulges an important secret of the State, he shall be
subject to disciplinary sanction by the work unit to which he belongs or by the
competent authority concerned at the higher level. If the circumstances are
serious, he shall be prosecuted for his criminal liability according to the
law.
Article
65: Where any person usurps the right of an inventor or
designer to apply for a patent for a non-service invention-creation, or usurps
any other right or interest of an inventor or designer, prescribed by this Law,
he shall be subject to disciplinary sanction by the work unit to which he
belongs or by the competent authority at the higher level.
Article
66: Any patent administration authority shall not take
part in recommending patented products to the public or other business
activities.
Where any
patent administration authority violates the provisions of the preceding
paragraph, its superior authority or supervisory organ shall order it to
rectify such act and eliminate the effects, and confiscate any illegal income
therefrom. Where the circumstances are serious, administrative punishment shall
be imposed on the person in charge who is directly responsible and other
directly responsible persons according to the law.
Article
67: Where any staff member of the patent administration
authority of the State or any staff member concerned of the State is derelict
in his duties, abuses his powers or commits graft, and a criminal offence is
constituted thereby, criminal liability shall be pursued in accordance with the
law. Where the act does not constitute a criminal offence, administrative
punishment shall be imposed according to the law.
PART
EIGHT: SUPPLEMENTARY PROVISIONS
Article
68: Any application for a patent filed with, any other
proceedings before, the Patent Administration Authority of the State Council
shall be subject to the payment of a fee as prescribed.
Article
69: This Law shall enter into force on 1 April 1985.
Implementing Rules of the Patent Law
Implementing
Regulations of the Patent Law
(Promulgated
by Decree No. 306 of the State Council of the People's Republic of China on
June 15, 2001, and effective as of July 1, 2001)
(Translated
by the Patent Administration Department under the State Council of
the People's Republic of China. In case of discrepancy, the original version
shall prevail.)
Chapter
I General Provisions
Rule 1.
These Implementing Regulations are formulated in accordance with the Patent Law
of the People's Republic of China (hereinafter referred to as the Patent Law).
Rule 2
"Invention" in the Patent Law means any new technical solution
relating to a product, a process or improvement thereof.
"Utility
model" in the Patent Law means any new technical solution relating to the
shape, the structure, or their combination, of a product, which is fit for
practical use.
"Design"
in the Patent Law means any new design of the shape, the pattern or their
combination, or the combination of the color with shape or pattern, of a
product, which creates an aesthetic feeling and is fit for industrial
application.
Rule 3 Any
formalities prescribed by the Patent Law and these Implementing Regulations
shall be complied with in a written form or in any other form prescribed by the
Patent Administration Department under the State Council .
Rule
4 Any document submitted in accordance with the provisions of the Patent
Law and these Implementing Regulations shall be in Chinese; the standard
scientific and technical terms shall be used if there is a prescribed one set
forth by the State; where no generally accepted translation in Chinese can be
found for a foreign name or scientific or technical term, the one in the
original language shall be also indicated.
Where any
certificate or certifying document submitted in accordance with the provisions
of the Patent Law and these Implementing Regulations is in a foreign language,
the Patent Administration Department under the State Council may,
when it deems necessary, request a Chinese translation of the certificate or
the certifying document be submitted within a specified time limit; where the
translation is not submitted within the specified time limit, the certificate
or certifying document shall be deemed not to have been submitted.
Rule
5 Where any document is sent by mail to the Patent Administration
Department under the State Council , the date of mailing indicated by the
postmark on the envelope shall be deemed to be the date of filing; where the
date of mailing indicated by the postmark on the envelope is illegible, the
date on which the Patent Administration Department under the State
Council receives the document shall be the date of filing, except
where the date of mailing is proved by the party concerned.
Any document
of the Patent Administration Department under the State Council may
be served by mail, by personal delivery or by other forms. Where any party
concerned appoints a patent agency, the document shall be sent to the patent
agency; where no patent agency is appointed, the document shall be sent to the
liaison person named in the request.
Where any
document is sent by mail by the Patent Administration Department under the
State Council , the 16th day from the date of mailing shall be presumed
to be the date on which the party concerned receives the document.
Where any
document is delivered personally in accordance with the provisions of the
Patent Administration Department under the State Council , the date of
delivery is the date on which the party concerned receives the document.
Where the
address of any document is not clear and it cannot be sent by mail, the
document may be served by making an announcement. At the expiration of one
month from the date of the announcement, the document shall be deemed to be
served.
Rule 6 The
first day of any time limit prescribed in the Patent Law and these Implementing
Regulations shall not be counted in the time limit. Where the time limit is
counted by year or by month, it shall expire on the corresponding day of the
last month; if there is no corresponding day in that month, the time limit
shall expire on the last day of that month; if a time limit expires on an
official holiday, it shall expire on the first working day following that
official holiday.
Rule 7
Where a time limit prescribed in the Patent Law or these Implementing
Regulations or specified by the Patent Administration Department under the
State Council is not observed by a party concerned because of force
majeure, resulting in loss of his or its rights, he or it may, within two
months from the date on which the impediment is removed, at the latest within
two years immediately following the expiration of that time limit, state the
reasons, together with relevant supporting documents, and request the Patent
Administration Department under the State Council to restore his or
its rights.
Where a
time limit prescribed in the Patent Law or these Implementing Regulations or
specified by the Patent Administration Department under the State
Council is not observed by a party concerned because of any
justified reason, resulting in loss of his or its rights, he or it may, within
two months from the date of receipt of a notification from the Patent
Administration Department under the State Council , state the reasons and
request the Patent Administration Department under the State
Council to restore his or its rights.
Where the
party concerned makes a request for an extension of a time limit specified by
the Patent Administration Department under the State Council , he or it
shall, before the time limit expires, state the reasons to the Patent
Administration Department under the State Council and go through
the relevant formalities.
The
provisions of paragraphs one and two of this Rule shall not be applicable to
the time limit referred to in Articles 24, 29, 42 and 62 of the Patent Law.
Rule 8
Where an application for a patent for invention relates to the secrets of the
State concerning national defense and requires to be kept secret, the
application for patent shall be filed with the patent department of national
defense. Where any application for patent for invention relating to the secrets
of the State concerning national defense and requiring to be kept secret is
received by the Patent Administration Department under the State Council
, the application shall be forwarded to the patent department of national
defense for examination, and the Patent Administration Department under the
State Council shall make a decision on the basis of the
observations of the examination made by the patent department of national
defense.
Subject
to the preceding paragraph, the Patent Administration Department under the
State Council shall, after receipt of an application for patent for
invention which is required to be examined for the purpose of security, send it
to the relevant competent department under the State Council for examination.
The relevant competent department shall, within four months from the date of
receipt of the application, notify the Patent Administration Department under
the State Council of the results of the examination. Where the
invention for which a patent is applied for is required to be kept secret, the
Patent Administration Department under the State Council shall handle
it as an application for secret patent and notify the applicant accordingly.
Rule 9 Any
invention-creation that is contrary to the laws of the State referred to in
Article 5 of the Patent Law shall not include the invention-creation merely
because the exploitation of which is prohibited by the laws of the State.
Rule
10 The date of filing referred to in the Patent Law, except for those
referred to in Articles 28 and 42, means the priority date where priority
is claimed.
The date
of filing referred to in these Implementing Regulations, except as otherwise
prescribed, means the date of filing prescribed in Article 28 of the Patent
Law.
Rule
l1 "A service invention-creation made by a person in execution of
the tasks of the entity to which he belongs" referred to in Article 6 of
the Patent Law means any invention-creation made:
(1) in the course of performing his own duty;
(2) in execution of any task, other than his own
duty, which was entrusted to him by the entity to which he belongs;
(3) within one year from his resignation,
retirement or change of work, where the invention-creation relates to his own
duty or the other task entrusted to him by the entity to which he previously
belonged.
"The
entity to which he belongs" referred to in Article 6 of the Patent Law
includes the entity in which the person concerned is a temporary staff member.
"Material and technical means of the entity" referred to in Article 6
of the Patent Law mean the entity's money, equipment, spare parts, raw
materials or technical materials which are not disclosed to the public.
Rule
12 "Inventor" or "creator" referred to in the Patent
Law means any person who makes creative contributions to the substantive
features of an invention-creation. Any person who, during the course of
accomplishing the invention-creation, is responsible only for organizational
work, or who offers facilities for making use of material and technical means,
or who takes part in other auxiliary functions, shall not be considered as
inventor or creator.
Rule l3
For any identical invention-creation, only one patent right shall be granted.
Two or
more applicants who respectively file, on the same day, applications for patent
for the identical invention-creation, as provided for in Article 9 of the
Patent Law, shall, after receipt of a notification from the Patent
Administration Department under the State Council , hold consultations
among themselves to decide the person or persons who shall be entitled to file
the application.
Rule 14
Any assignment of the right to apply for a patent or of the patent right, by a
Chinese entity or individual, to a foreigner shall be approved by the competent
department for foreign trade and economic affairs of the State Council in
conjunction with the science and technology administration department of the
State Council.
Rule 15
Except for the assignment of the patent right in accordance with Article 10 of
the Patent Law, where the patent right is transferred because of any other
reason, the person or persons concerned shall, accompanied by relevant
certified documents or legal papers, request the Patent Administration
Department under the State Council to make a registration of change
in the owner of the patent right.
Any
license contract for exploitation of the patent which has been concluded by the
patentee with an entity or individual shall, within three months from the date
of entry into force of the contract, be submitted to the Patent Administration
Department under the State Council for the record.
Chapter II
Application for Patent
Rule l6
Anyone who applies for a patent in written form shall file with the Patent
Administration Department under the State Council application
documents in two copies.
Anyone who
applies for a patent in other forms as provided by the Patent Administration
Department under the State Council shall comply with the relevant
provisions.
Any
applicant who appoints a patent agency for applying for a patent, or for having
other patent matters to attend to before the Patent Administration Department
under the State Council , shall submit at the same time a power of
attorney indicating the scope of the power entrusted.
Where
there are two or more applicants and no patent agency is appointed, unless
otherwise stated in the request, the applicant named first in the request shall
be the representative.
Rule l7
"Other related matters" in the request referred to in Article 26,
paragraph two of the Patent Law means:
(1) the nationality of the applicant;
(2) where the applicant is an enterprise or
other organization, the name of the country in which the applicant has the
principal business office;
(3) where the applicant has appointed a patent
agency, the relevant matters which shall be indicated; where no patent agency
is appointed, the name, address, postcode and telephone number of the liaison
person;
(4) where the priority of an earlier application
is claimed, the relevant matters which shall be indicated;
(5) the signature or seal of the applicant or
the patent agency;
(6) a list of the documents constituting the
application;
(7) a list of the documents appending the
application; and
(8) any other related matter which needs to be
indicated.
Rule l8
The description of an application for a patent for invention or utility model
shall state the title of the invention or utility model, which shall be the
same as it appears in the request. The description shall include the following:
(1) technical field: specifying the technical
field to which the technical solution for which protection is sought pertains;
(2) background art: indicating the background
art which can be regarded as useful for the understanding, searching and
examination of the invention or utility model, and when possible, citing the
documents reflecting such art;
(3) contents of the invention: disclosing the
technical problem the invention or utility model aims to settle and the
technical solution adopted to resolve the problem; and stating, with reference
to the prior art, the advantageous effects of the invention or utility model;
(4) description of figures: briefly describing
each figure in the drawings, if any;
(5) mode of carrying out the invention or
utility model: describing in detail the optimally selected mode contemplated by
the applicant for carrying out the invention or utility model; where
appropriate, this shall be done in terms of examples, and with reference to the
drawings, if any;
The manner
and order referred to in the preceding paragraph shall be followed by the applicant
for a patent for invention or for utility model, and each of the parts shall be
preceded by a heading, unless, because of the nature of the invention or
utility model, a different manner or order would result in a better
understanding and a more economical presentation.
The
description of the invention or utility model shall use standard terms and be
in clear wording, and shall not contain such references to the claims as:
"as described in claim ?-", nor shall it contain commercial
advertising.
Where an
application for a patent for invention contains disclosure of one or more
nucleotide and/or amino acid sequences, the description shall contain a
sequence listing in compliance with the standard prescribed by the Patent
Administration Department under the State Council . The sequence listing
shall be submitted as a separate part of the description, and a copy of the
said sequence listing in machine-readable form shall also be submitted in
accordance with the provisions of the Patent Administration Department under
the State Council.
Rule l9
The same sheet of drawings may contain several figures of the invention or
utility model, and the figures shall be numbered and arranged in numerical
order consecutively as "Figure l, Figure 2, ".
The scale
and the distinctness of the drawings shall be as such that a reproduction with
a linear reduction in size to two-thirds would still enable all details to be
clearly distinguished.
Reference
signs not mentioned in the text of the description of the invention or utility
model shall not appear in the drawings. Reference signs not mentioned in the
drawings shall not appear in the text of the description. Reference signs for
the same composite part shall be used consistently throughout the application
document.
The drawings
shall not contain any other explanatory notes, except words which are
indispensable.
Rule 20
The claims shall define clearly and concisely the matter for which protection
is sought in terms of the technical features of the invention or utility model.
If there
are several claims, they shall be numbered consecutively in Arabic numerals.
The
technical terminology used in the claims shall be consistent with that used in
the description. The claims may contain chemical or mathematical formulae but
no drawings. They shall not, except where absolutely necessary, contain such
references to the description or drawings as: "as described in part ?-of
the description", or "as illustrated in Figure ?-of the
drawings".
The
technical features mentioned in the claims may, in order to facilitate quicker
understanding of the claim, make reference to the corresponding reference signs
in the drawings of the description. Such reference signs shall follow the
corresponding technical features and be placed in parentheses. They shall not
be construed as limiting the claims.
Rule 2l
The claims shall have an independent claim, and may also contain dependent
claims.
The independent claim shall outline the
technical solution of an invention or utility model and state the essential
technical features necessary for the solution of its technical problem.
The
dependent claim shall, by additional technical features, further define the
claim which it refers to.
Rule 22 An
independent claim of an invention or utility model shall contain a preamble
portion and a characterizing portion, and be presented in the following form:
(1) a preamble portion: indicating the title of
the claimed subject matter of the technical solution of the invention or
utility model, and those technical features which are necessary for the
definition of the claimed subject matter but which, in combination, are part of
the most related prior art;
(2) a characterizing portion: stating, in such
words as "characterized in that..." or in similar expressions, the
technical features of the invention or utility model, which distinguish it from
the most related prior art. Those features, in combination with the features
stated in the preamble portion, serve to define the scope of protection of the
invention or utility model.
Where the
manner specified in the preceding paragraphs is not appropriate to be followed
because of the nature of the invention or utility model, an independent claim
may be presented in a different manner.
An
invention or utility model shall have only one independent claim, which shall
precede all the dependent claims relating to the same invention or utility
model.
Rule 23
Any dependent claim of an invention or utility model shall contain a reference
portion and a characterizing portion, and be presented in the following manner:
(l) a reference portion: indicating the serial
number(s) of the claim(s) referred to, and the title of the subject matter;
(2) a characterizing portion: stating the
additional technical features of the invention or utility model.
Any
dependent claim shall only refer to the preceding claim or claims. Any multiple
dependent claims, which refers to two or more claims, shall refer to the
preceding one in the alternative only, and shall not serve as a basis for any
other multiple dependent claims.
Rule 24
The abstract shall consist of a summary of the disclosure as contained in the
application for patent for invention or utility model. The summary shall
indicate the title of the invention or utility model, and the technical field
to which the invention or utility model pertains, and shall be drafted in a way
which allows the clear understanding of the technical problem, the gist of the
technical solution of that problem, and the principal use or uses of the invention
or utility model.
The
abstract may contain the chemical formula which best characterizes the
invention. In an application for a patent which contains drawings, the
applicant shall provide a figure which best characterizes the technical
features of the invention or utility model. The scale and the distinctness of
the figure shall be as such that a reproduction with a linear reduction in size
to 4cm x 6cm would still enable all details to be clearly distinguished. The
whole text of the abstract shall contain not more than 300 words. There shall
be no commercial advertising in the abstract.
Rule 25
Where an invention for which a patent is applied for concerns a new biological
material which is not available to the public and which cannot be described in
the application in such a manner as to enable the invention to be carried out
by a person skilled in the art, the applicant shall, in addition to the other
requirements provided for in the Patent Law and these Implementing Regulations,
go through the following formalities:
(1) depositing a sample of the biological
material with a depositary institution designated by the Patent Administration
Department under the State Council before, or at the latest, on the
date of filing (or the priority date where priority is claimed), and submit at
the time of filing or at the latest, within four months from the filing date, a
receipt of deposit and the viability proof from the depository institution;
where they are not submitted within the specified time limit, the sample of the
biological material shall be deemed not to have been deposited;
(2) giving in the application document relevant
information of the characteristics of the biological material;
(3) indicating, where the application relates to
the deposit of the biological material, in the request and the description the
scientific name (with its Latin name) and the title and address of the
depositary institution, the date on which the sample of the biological material
was deposited and the accession number of the deposit; where, at the time of
filing, they are not indicated, they shall be supplied within four months from
the date of filing; where after the expiration of the time limit they are not
supplied, the sample of the biological material shall be deemed not to have
been deposited.
Rule 26
Where the applicant for a patent for invention has deposited a sample of the
biological material in accordance with the provisions of Rule 25 of these
Implementing Regulations, and after the application for patent for invention is
published, any entity or individual that intends to make use of the biological
material to which the application relates, for the purpose of experiment, shall
make a request to the Patent Administration Department under the State Council
, containing the following items:
(1) the name and address of the requesting
person;
(2) an undertaking not to make the biological
material available to any other person;
(3) an undertaking to use the biological
material for experimental purpose only before the grant of the patent right.
Rule 27
The size of drawings or photographs of a design submitted in accordance with
the provisions of Article 27 of the Patent Law shall not be smaller than 3cm x
8cm, nor larger than l5cm x 22cm.
Where an
application for a patent for design seeking concurrent protection of colors is
filed, a drawing or photograph in color shall be submitted in two copies.
The
applicant shall, in respect of the subject matter of the product incorporating
the design which is in need of protection, submit the relevant views and
stereoscopic drawings or photographs, so as to clearly show the subject matter
for which protection is sought.
Rule 28
Where an application for a patent for design is filed, a brief explanation of
the design shall, when necessary, be made.
The brief
explanation of the design shall include the essential portion of the design,
the colors for which protection is sought and the omission of the view of the
product incorporating the design. The brief explanation shall not contain any
commercial advertising and shall not be used to indicate the function of the
product.
Rule 29
Where the Patent Administration Department under the State Council
deems necessary, it may require the applicant for a patent for design to submit
a sample or model of the product incorporating the design. The volume of the
sample or model submitted shall not exceed 30cm x 30cm x 30cm, and its weight
shall not surpass l5 kilograms. Articles that are easy to get rotten or broken or
articles that are dangerous shall not be submitted as sample or model.
Rule 30
The existing technology referred to in Article 22, paragraph three of the
Patent Law means any technology which has been publicly disclosed in
publications in the country or abroad, or has been publicly used or made known
to the public by any other means in the country, before the date of filing (or
the priority date where priority is claimed), that is, prior art.
Rule 3l
The academic or technological meeting referred to in Article 24, subparagraph
(2) of the Patent Law means any academic or technological meeting organized by
a competent department concerned of the State Council or by a national academic
or technological association.
Where any
invention-creation for which a patent is applied falls under the provisions of
Article 24, subparagraph (l) or (2) of the Patent Law, the applicant shall,
when filing the application, make a declaration and, within a time limit of two
months from the date of filing, submit certifying documents issued by the
entity which organized the international exhibition or academic or
technological meeting, stating the fact that the invention-creation was
exhibited or published and with the date of its exhibition or publication.
Where any
invention-creation for which a patent is applied falls under the provisions of
Article 24, subparagraph (3) of the Patent Law, the Patent Administration
Department under the State Council may, when it deems necessary,
require the applicant to submit the relevant certifying documents within the
specified time limit.
Where the
applicant fails to make a declaration and submit certifying documents as
required in paragraph two of this Rule, or fails to submit certifying documents
within the specified time limit as required in paragraph three of this Rule,
the provisions of Article 24 of the Patent Law shall not apply to the
application.
Rule 32
Where any applicant goes through the formalities of claims priority in
accordance with the provisions of Article 30 of the Patent Law, he or it shall,
in his or its written declaration, indicate the date and the number of the
application which was first filed (hereinafter referred to as the earlier
application) and the country in which the application was filed. If the written
declaration does not contain the filing date of the earlier application and the
name of the country in which the application was filed, the declaration shall
be deemed not to have been made.
Where the
foreign priority is claimed, the copy of the earlier application documents
submitted by the applicant shall be certified by the competent authority of the
foreign country in which the application was filed. Where in the certifying
material submitted, the name of the earlier applicant is not the same as that
of the later one, the applicant shall submit document certifying the assignment
of priority. Where the domestic priority is claimed, the copy of the earlier
application document shall be prepared by the Patent Administration Department
under the State Council .
Rule 33 An
applicant may claim one or more priorities for an application for a patent;
where multiple priorities are claimed, the priority period for the application
shall be calculated from the earliest priority date.
Where an
applicant claims the right of domestic priority, if the earlier application is
one for a patent for invention, he or it may file an application for a patent
for invention or utility model for the same subject matter; if the earlier
application is one for a patent for utility model, he or it may file an
application for a patent for utility model or invention for the same subject
matter. However, when the later application is filed, if the subject matter of
the earlier application falls under any of the following, it may not be taken
as the basis for claiming domestic priority:
(1) where the applicant has claimed foreign or
domestic priority;
(2) where it has been granted a patent right;
(3) where it is the subject matter of a
divisional application filed as prescribed.
Where the
domestic priority is claimed, the earlier application shall be deemed to be
withdrawn from the date on which the later application is filed.
Rule 34
Where an application for a patent is filed or the right of foreign priority is
claimed by an applicant having no habitual residence or business office in
China, the Patent Administration Department under the State Council
may, when it deems necessary, require the applicant to submit the following
documents:
(1) a certificate concerning the nationality of
the applicant;
(2) a document certifying the seat of the
business office or the headquarters, if the applicant is an enterprise or other
organization;
(3) a document certifying that the country, to
which the foreigner, foreign enterprise or other foreign organization belongs,
recognizes that Chinese entities and individuals are, under the same conditions
as those applied to its nationals, entitled to the patent right, the right of
priority and other related rights in that country.
Rule 35
Two or more inventions or utility models belonging to a single general
inventive concept which may be filed as one application in accordance with the
provision of Article 3l, paragraph one of the Patent Law shall be technically
inter-related and contain one or more of the same or corresponding special
technical features. The expression "special technical features" shall
mean those technical features that define a contribution which each of those
inventions or utility models, considered as a whole, makes over the prior art.
Rule 36
The expression "the same class" referred to in Article 3l, paragraph
two of the Patent Law means that the product incorporating the designs belongs
to the same subclass in the classification of products for designs. The
expression "be sold or used in sets" means that the products
incorporating the designs have the same designing concept and are customarily
sold and used at the same time.
Where two
or more designs are filed as one application in accordance with the provision
of Article 3l, paragraph two of the Patent Law, they shall be numbered
consecutively and the numbers shall precede the titles of the view of the
product incorporating the design.
Rule
37 When withdrawing an application for a patent, the applicant shall submit to
the Patent Administration Department under the State Council a
declaration to that effect stating the title of the invention-creation, the
filing number and the date of filing.
Where a
declaration to withdraw an application for a patent is submitted after the
preparations for the publication of the application document has been completed
by the Patent Administration Department under the State Council , the
application document shall be published as scheduled. However, the declaration
withdrawing the application for patent shall be published in the next issue of
the Patent Gazette.
Chapter
III Examination and Approval of Application for Patent
Rule 38
Where any of the following events occurs, a person who makes examination or
hears a case in the procedures of preliminary examination, examination as to
substance, reexamination or invalidation shall, on his own initiative or upon
the request of the parties concerned or any other interested person, be
excluded from excising his function:
(1) where he is a near relative of the party
concerned or the agent of the party concerned;
(2) where he has an interest in the application
for patent or the patent right;
(3) where he has any other kinds of relations
with the party concerned or with the agent of the party concerned that
may influence impartial examination and hearing.
(4) where a member of the Patent Reexamination
Board who has taken part in the examination of the same application.
Rule 39
Upon the receipt of an application for a patent for invention or utility model
consisting of a request, a description (drawings must be included in an
application for utility model) and one or more claims, or an application for a
patent for design consisting of a request and one or more drawings or photographs
showing the design, the Patent Administration Department under the State
Council shall accord the date of filing, issue a filing number, and
notify the applicant.
Rule 40 In
any of the following circumstances, the Patent Administration Department under
the State Council shall refuse to accept the application and notify
the applicant accordingly:
(1) where the application for a patent for
invention or utility model does not contain a request, a description (the
description of utility model does not contain drawings) or claims, or the
application for a patent for design does not contain a request, drawings or
photographs;
(2) where the application is not written in
Chinese;
(3) where the application is not in conformity
with the provisions of Rule120, paragraph one of these Implementing
Regulations;
(4) where the request does not contain the name
and address of the applicant;
(5) where the application is obviously not in
conformity with the provisions of Article 18, or of Article l9, paragraph one
of the Patent Law;
(6) where the kind of protection (patent for
invention, utility model or design) of the application for a patent is not
clear and definite or cannot be ascertained.
Rule 41
Where the description states that it contains explanatory notes to the drawings
but the drawings or part of them are missing, the applicant shall, within the
time limit specified by the Patent Administration Department under the State
Council , either furnish the drawings or make a declaration for the
deletion of the explanatory notes to the drawings. If the drawings are
submitted later, the date of their delivery at, or mailing to, the Patent
Administration Department under the State Council shall be the date
of filing of the application; if the explanatory notes to the drawings are to
be deleted, the initial date of filing shall be retained.
Rule 42
Where an application for a patent contains two or more inventions, utility
models or designs, the applicant may, before the expiration of the time limit
provided for in Rule 54, paragraph one of these Implementing Regulations,
submit to the Patent Administration Department under the State
Council a divisional application. However, where an application for
patent has been rejected, withdrawn or is deemed to have been withdrawn, no
divisional application may be filed.
If the
Patent Administration Department under the State Council finds that
an application for a patent is not in conformity with the provisions of Article
3l of the Patent Law or of Rule 35 or 36 of these Implementing Regulations, it
shall invite the applicant to amend the application within a specified time
limit; if the applicant fails to make any response after the expiration of the
specified time limit, the application shall be deemed to have been withdrawn.
The
divisional application may not change the kind of protection of the initial
application.
Rule 43 A
divisional application filed in accordance with the provisions of Rule 42 of
these Implementing Regulations shall be entitled to the filing date and,
if priority is claimed, the priority date of the initial application,
provided that the divisional application does not go beyond the scope of
disclosure contained in the initial application.
The
divisional application shall go through all the formalities in accordance with
the provisions of the Patent Law and these Implementing Regulations.
The filing
number and the date of filing of the initial application shall be indicated in
the request of the divisional application. When the divisional application is
filed, it shall be accompanied by a copy of the initial application; if
priority is claimed for the initial application, a copy of the priority
document of the initial application shall also be submitted.
Rule
44 "Preliminary examination" referred to in Articles 34 and 40
of the Patent Law means the check of an application for a patent to see whether
or not it contains the documents as provided for in Articles 26 or 27 of the
Patent Law and other necessary documents, and whether or not those documents
are in the prescribed form; such check shall also include the following:
(1) whether or not any application for a patent
for invention obviously falls under Articles 5 or 25 of the Patent Law, or is
not in conformity with the provisions of Article l8 or of Article l9, paragraph
one of the Patent Law, or is obviously not in conformity with the provisions of
Article 3l, paragraph one, or Article 33 of the Patent Law, or of Rule 2,
paragraph one, or Rule 18, or Rule 20 of these Implementing Regulations;
(2) whether or not any application for a patent
for utility model obviously falls under Article 5 or 25 of the Patent Law, or
is not in conformity with the provisions of Article l8 or of Article l9,
paragraph one of the Patent Law, or is obviously not in conformity with the
provisions of Article 26, paragraph three or four, or of Article 3l, paragraph
one, or of Article 33 of the Patent Law, or of Rule 2, paragraph two, or of
Rule l3, paragraph one, or of Rule l8 to 23, or of Rule 43, paragraph one of
these Implementing Regulations, or is not entitled to a patent right in
accordance with the provisions of Article 9 of the Patent Law;
(3) whether or not any application for a patent
for design obviously falls under Article 5 of the Patent Law, or is not in
conformity with the provisions of Article l8 or of Article l9, paragraph one of
the Patent Law, or is obviously not in conformity with the provisions of
Article 3l, paragraph two, or of Article 33 of the Patent Law, or of Rule 2,
paragraph three, or of Rule l3, paragraph one, or of Rule 43, paragraph one of
these Implementing Regulations, or is not entitled to a patent right in
accordance with the provisions of Article 9 of the Patent Law.
The Patent
Administration Department under the State Council shall notify the
applicant of its opinions after checking his or its application and invite him
or it to state his or its observations or to correct his or its application
within the specified time limit. If the applicant fails to make any response
within the specified time limit, the application shall be deemed to have been
withdrawn. Where, after the applicant has made his or its observations or the
corrections, the Patent Administration Department under the State
Council still finds that the application is not in conformity with
the provisions of the Articles and the Rules cited in the preceding
subparagraphs, the application shall be rejected.
Rule 45
Apart from the application for patent, any document relating to the patent
application which is submitted to the Patent Administration Department under
the State Council , shall, in any of the following circumstances, be
deemed not to have been submitted:
(1) where the document is not presented in the
prescribed form or the indications therein are not in conformity with the
prescriptions;
(2) where no certifying document is submitted as
prescribed.
The Patent Administration Department under the
State Council shall notify the applicant of its opinion after
checking that the document is deemed not to have been submitted.
Rule 46
Where the applicant requests an earlier publication of its or his application
for a patent for invention, a statement shall be made to the Patent
Administration Department under the State Council . The Patent
Administration Department under the State Council shall, after
preliminary examination of the application, publish it immediately, unless it
is to be rejected.
Rule 47
The applicant shall, when indicating in accordance with Article 27 of the
Patent Law the product incorporating the design and the class to which that
product belongs, refer to the classification of products for designs published
by the Patent Administration Department under the State Council . Where
no indication, or an incorrect indication, of the class to which the product
incorporating the design belongs is made, the Patent Administration Department
under the State Council shall supply the indication or correct it.
Rule 48
Any person may, from the date of publication of an application for a patent for
invention till the date of announcing the grant of the patent right, submit to
the Patent Administration Department under the State Council his
observations, with reasons therefor, on the application which is not in
conformity with the provisions of the Patent Law.
Rule 49
Where the applicant for a patent for invention cannot furnish, for justified
reasons, the documents concerning any search or results of any examination
specified in Article 36 of the Patent Law, it or he shall make a statement to
the Patent Administration Department under the State Council and
submit them when the said documents are available.
Rule 50
The Patent Administration Department under the State Council shall,
when proceeding on its own initiative to examine an application for a patent in
accordance with the provisions of Article 35, paragraph two of the Patent Law,
notify the applicant accordingly.
Rule 5l
When a request for examination as to substance is made, and that, within the
time limit of three months after the receipt of the notification of the Patent
Administration Department under the State Council, the application has entered
into examination as to substance, the applicant for a patent for invention may
amend the application for a patent for invention on its or his own initiative.
Within two
months from the date of filing, the applicant for a patent for utility model or
design may amend the application for a patent for utility model or design on
its or his own initiative.
Where the
applicant amends the application after receiving the notification of opinions
of the examination as to substance of the Patent Administration Department
under the State Council , he or it shall make the amendment as required
by the notification.
The Patent
Administration Department under the State Council may, on its own
initiative, correct the obvious clerical mistakes and symbol mistakes in the
documents of application for a patent. Where the Patent Administration
Department under the State Council corrects mistakes on its own
initiative, it shall notify the applicant.
Rule 52
When an amendment to the description or the claims in an application for a
patent for invention or utility model is made, a replacement sheet in
prescribed form shall be submitted, unless the amendment concerns only the
alteration, insertion or deletion of a few words. Where an amendment to the
drawings or photographs of an application for a patent for design is made, a
replacement sheet shall be submitted as prescribed.
Rule 53 In
accordance with the provisions of Article 38 of the Patent Law, the
circumstances where an application for a patent for invention shall be rejected
by the Patent Administration Department under the State Council
after examination as to substance are as follows:
(1) where the application does not comply with
the provisions of Rule 2, paragraph one of these Implementing Regulations;
(2) where the application falls under the
provisions of Article 5 or 25 of the Patent Law, or it does not comply with the
provisions of Article 22 of the Patent Law or of Rule l3, paragraph one, or of
Rule 20, paragraph one, or of Rule 21, paragraph two of these Implementing
Regulations, or the applicant is not entitled to a patent right in accordance
with the provisions of Article 9 of the Patent Law;
(3) where the application does not comply with
the provisions of Article 26, paragraph three or four, or of Article 3l,
paragraph one of the Patent Law;
(4) where the amendment to the application does
not comply with the provisions of Article 33 of the Patent Law, or the
divisional application does not comply with the provisions of Rule 43,
paragraph one of these Implementing Regulations.
Rule 54
After the Patent Administration Department under the State Council
issues the notification to grant the patent right, the applicant shall go
through the formalities of registration within two months from the date of
receipt of the notification. If the applicant completes the formalities of registration
within the said time limit, the Patent Administration Department under the
State Council shall grant the patent right, issue the patent
certificate and announce it.
If the
applicant does not go through the formalities of registration within the time
limit, he or it shall be deemed to have abandoned its or his right to obtain
the patent right.
Rule 55
After the announcement of the decision to grant a patent for utility model, the
patentee of the said patent for utility model may request the Patent
Administration Department under the State Council to make a search
report on the utility model patent.
Where such
person requests for a search report on a utility model patent, he shall submit
a request, indicating the patent number of the said patent for utility model.
Each request shall be limited for one patent for utility model.
After
receiving a request for a search report on a utility model patent, the Patent
Administration Department under the State Council shall proceed to
make an examination of the request. Where the request does not comply with the
requirements as prescribed, the said department shall notify the requesting
person to amend the request within a specified time limit.
Rule 56
Where, after examination, the request for a search report on a utility model
patent complies with the provisions, the Patent Administration Department under
the State Council shall promptly make a search report on the
utility model patent.
Where the
Patent Administration Department under the State Council finds,
after search, that the patent for utility model concerned does not comply with
the provisions of Article 22 of the Patent Law concerning novelty or
inventiveness, it shall cite the documents considered to be relevant, state the
reasons therefor and send the copies of the cited relevant documents together
with the report.
Rule 57
The Patent Administration Department under the State Council shall
correct promptly the mistakes in the patent announcements and documents issued
by it once they are discovered, and the corrections shall be announced.
Chapter IV
Reexamination of Patent Application and Invalidation of Patent Right
Rule 58
The Patent Reexamination Board shall consist of technical and legal experts
appointed by the Patent Administration Department under the State Council
. The person responsible for the Patent Administration Department under the
State Council shall be the Director of the Board.
Rule 59
Where the applicant requests the Patent Reexamination Board to make a
reexamination in accordance with the provisions of Article 41 of the Patent
Law, it or he shall file a request for reexamination, state the reasons
and, when necessary, attach the relevant supporting documents.
Where the
request for reexamination does not comply with the prescribed form, the person
making the request shall rectify it within the time limit fixed by the Patent
Reexamination Board. If the requesting person fails to meet the time limit for
making rectification, the request for reexamination shall be deemed not to have
been filed.
Rule 60
The person making the request may amend its or his application at the time when
it or he requests reexamination or makes responses to the notification of
reexamination of the Patent Reexamination Board. However, the amendments shall
be limited only to remove the defects pointed out in the decision of rejection
of the application, or in the notification of reexamination.
The
amendments to the application for patent shall be in two copies.
Rule 61
The Patent Reexamination Board shall remit the request for reexamination which
the Board has received to the examination department of the Patent
Administration Department under the State Council which has made
the examination of the application concerned to make an examination. Where that
examination department agrees to revoke its former decision upon the request of
the person requesting reexamination, the Patent Reexamination Board shall make
a decision accordingly and notify the requesting person.
Rule 62
Where, after reexamination, the Patent Reexamination Board finds that the
request does not comply with the provisions of the Patent Law and these
Implementing Regulations, it shall invite the person requesting reexamination
to submit his observations within a specified time limit. If the time limit for
making response is not met, the request for reexamination shall be deemed to
have been withdrawn. Where, after the requesting person has made its
observations and amendments, the Patent Reexamination Board still finds that
the request does not comply with the provisions of the Patent Law and these
Implementing Regulations, it shall make a decision of reexamination to maintain
the earlier decision rejecting the application.
Where,
after reexamination, the Patent Reexamination Board finds that the decision
rejecting the application does not comply with the provisions of the Patent Law
and these Implementing Regulations, or that the amended application has removed
the defects as pointed out by the decision rejecting the application, it shall
make a decision to revoke the decision rejecting the application, and ask the
examination department which has made the examination to continue the
examination procedure.
Rule 63 At
any time before the Patent Reexamination Board makes its decision on the request
for reexamination, the requesting person may withdraw his request for
reexamination.
Where the
requesting person withdraws his request for reexamination before the Patent
Reexamination Board makes its decision, the procedure of reexamination is terminated.
Rule 64
Anyone requesting invalidation or part invalidation of a patent right in
accordance with the provisions of Article 45 of the Patent Law shall submit a
request and the necessary evidence in two copies. The request for invalidation
shall state in detail the grounds for filing the request, making reference to
all the evidence as submitted, and indicate the piece of evidence on which each
ground is based.
The
grounds on which the request for invalidation is based, referred to in the
preceding paragraph, mean that the invention-creation for which the patent
right is granted does not comply with the provisions of Article 22, Article 23,
or of Article 26, paragraph three or four, or of Article 33 of the Patent Law,
or of Rule 2, or of Rule l3, paragraph one, or of Rule 20, paragraph one, or of
Rule 21, paragraph two of these Implementing Regulations; or the
invention-creation falls under the provisions of Articles 5 or 25 of the Patent
Law; or the applicant is not entitled to be granted the patent right in
accordance with the provisions of Article 9 of the Patent Law.
Rule 65
Where the request for invalidation does not comply with the provisions of Rule
64 of these Implementing Regulations, the Patent Reexamination Board shall not
accept it.
Where, after
a decision on any request for invalidation of the patent right is made,
invalidation based on the same facts and evidence is requested once again, the
Patent Reexamination Board shall not accept it.
Where a
request for invalidation of a patent for design is based on the ground that the
patent for design is in conflict with a prior right of another person, but no
effective ruling or judgement is submitted to prove such conflict of rights ,
the Patent Reexamination Board shall not accept it.
Where the
request for invalidation of the patent right does not comply with the
prescribed form, the person making the request shall rectify it within the time
limit specified by the Patent Reexamination Board. If the rectification fails
to be made within the time limit, the request for invalidation shall be deemed
not to have been made.
Rule 66
After a request for invalidation is accepted by the Patent Reexamination Board,
the person making the request may add reasons or supplement evidence within one
month from the date when the request for invalidation is filed.
Additional reasons or evidence which are submitted after the specified time
limit may be disregarded by the Patent Reexamination Board.
Rule 67
The Patent Reexamination Board shall send a copy of the request for
invalidation of the patent right and copies of the relevant documents to the
patentee and invite it or him to present its or his observations within a
specified time limit.
The
patentee and the person making request for invalidation shall, within the specified
time limit, make responses to the notification concerning transmitted documents
or the notification concerning the examination of the request for invalidation
sent by the Patent Reexamination Board. Where no response is made within the
specified time limit, the examination of the Patent Reexamination Board will
not be affected.
Rule 68 In
the course of the examination of the request for invalidation, the patentee for
the patent for invention or utility model concerned may amend its or his
claims, but may not broaden the scope of patent protection.
The
patentee for the patent for invention or utility model concerned may not amend
its or his description or drawings. The patentee for the patent for design
concerned may not amend its or his drawings, photographs or the brief
explanation of the design.
Rule 69
The Patent Reexamination Board may, at the request of the parties concerned or
in accordance with the needs of the case, decide to hold an oral procedure in
respect of a request for invalidation.
Where the
Patent Reexamination Board decides to hold an oral procedure in respect of a
request for invalidation, it shall send notifications to the parties concerned,
indicating the date and place of the oral procedure to be held. The parties
concerned shall make response to the notification within the specified time
limit.
Where the
person requesting invalidation fails to make response to the notification of
the oral procedure sent by the Patent Reexamination Board within the specified
time limit, and fails to take part in the oral procedure, the request for
invalidation shall be deemed to have been withdrawn. Where the patentee fails
to take part in the oral procedure, the Patent Reexamination Board may proceed
to examine by default.
Rule 70 In
the course of the examination of a request for invalidation, the time limit
specified by the Patent Reexamination Board shall not be extended.
Rule 71
The person requesting invalidation may withdraw his request before the Patent
Reexamination Board makes a decision on it.
Where the
person requesting invalidation withdraws his request before the Patent
Reexamination Board makes a decision on it, the examination of the request for
invalidation is terminated.
Chapter V
Compulsory License for Exploitation of Patent
Rule 72 After
the expiration of three years from the date of the grant of the patent right,
any entity may, in accordance with the provisions of Article 48 of the Patent
Law, request the Patent Administration Department under the State
Council to grant a compulsory license.
Any entity
requesting a compulsory license shall submit to the Patent Administration
Department under the State Council a request for compulsory
license, state the reasons therefor, and attach relevant certifying documents
each in two copies.
The Patent
Administration Department under the State Council shall send a copy
of the request for compulsory license to the patentee, who shall make his or
its observations within the time limit specified by the Patent Administration
Department under the State Council . Where no response is made within the
time limit, the Patent Administration Department under the State
Council will not be affected in making a decision concerning a
compulsory license.
The
decision of the Patent Administration Department under the State
Council granting a compulsory license for exploitation shall limit
the exploitation of the compulsory license to be predominately for the supply
of the domestic market. Where the invention-creation involved in the compulsory
license relates to the semi-conductor technology, the exploitation of the
compulsory license shall be limited only for public non-commercial use or to
remedy a practice determined after judicial or administrative process to be
anti-competitive.
Rule 73
Where any entity or individual requests, in accordance with the provisions of
Article 54 of the Patent Law, the Patent Administration Department under the
State Council to adjudicate the fees for exploitation, it or he
shall submit a request for adjudication and furnish documents showing that the
parties concerned have not been able to conclude an agreement in respect of the
amount of the exploitation fee. The Patent Administration Department under the
State Council shall make an adjudication within three months from
the date of receipt of the request and notify the parties concerned
accordingly.
Chapter VI
Reward and Remuneration of Inventors or Creators of Service
Inventions-Creations
Rule 74
The State-owned enterprise or institution to which a patent right is granted
shall, within three months from the date of the announcement of the grant of
the patent right, award to the inventor or creator of a service
invention-creation a sum of money as prize. The sum of money prize for a patent
for invention shall not be less than RMB 2000 yuan; the sum of money prize for
a patent for utility model or design shall not be less than RMB 500 yuan.
Where an
invention-creation is made on the basis of an inventor's or creator's proposal
adopted by the entity to which he belongs, the State-owned enterprise or
institution to which a patent right is granted shall award to him a money prize
on favorable terms.
For the
money prize awarded to the inventor or creator, the enterprise may have it
included into its production cost, and the institution may have it disbursed
out of its operating expenses.
Rule 75
The State-owned enterprise or institution to which a patent right is granted
shall, after exploiting the patent for invention-creation within the duration
of the patent right, draw each year from the profits after taxation earned from
exploitation of the invention or utility model a percentage of not less than
2%, or from the profits after taxation earned from exploitation of the design a
percentage of not less than 0.2%, and award it to the inventor or creator as
remuneration. The entity may, as an alternative, by making reference to the
said percentage, award a lump sum of money to the inventor or creator as
remuneration once and for all.
Rule 76
Where any State-owned enterprise or institution to which a patent right is
granted authorizes any other entity or individual to exploit its patent, it
shall draw from the profits it receives for exploitation of the said patent
after taxation a percentage of not less than 10% and award it to the inventor
or creator as remuneration.
Rule 77
The provisions of this Chapter may be implemented by any other Chinese entity
by making reference thereto.
Chapter
VII Protection of Patent Right
Rule 78
The administrative authority for patent affairs referred to in the Patent Law
and these Implementing Regulations means the department responsible for the
administrative work concerning patent affairs set up by the people's government
of any province, autonomous region, or municipality directly under the Central Government,
or by the people's government of any city which consists of districts, has a
large amount of patent administration work to attend to and has the ability to
deal with the matter.
Rule 79 In
addition to the provisions of Article 57 of the Patent Law, the administrative
authority for patent affairs may also mediate in the following patent disputes
at the request of the parties concerned:
(1) any dispute over the ownership of the right
to apply for patent and the patent right;
(2) any dispute over the qualification of the
inventor or creator;
(3) any dispute over the award and remuneration
of the inventor or creator of a service invention-creation;
(4) any dispute over the appropriate fee to be
paid for the exploitation of an invention after the publication of the
application for patent but before the grant of patent right.
In respect
of the dispute referred to in subparagraph (4), where the patentee requests the
administrative authority for patent affairs to mediate, the request shall be
made after the grant of the patent right.
Rule 80
The Patent Administration Department under the State Council shall
provide professional guidance to the administrative authorities for patent
affairs in handling and mediating patent disputes.
Rule 81
Where any party concerned requests handling or mediation of a patent dispute,
it shall fall under the jurisdiction of the administrative authority for patent
affairs where the requested party has his location or where the act of
infringement has taken place.
Where two
or more administrative authorities for patent affairs all have jurisdiction
over a patent dispute, any party concerned may file his or its request with one
of them to handle or mediate the matter. Where requests are filed with two or more
administrative authorities for patent affairs, the administrative authority for
patent affairs that first accepts the request shall have jurisdiction.
Where
administrative authorities for patent affairs have a dispute over their
jurisdiction, the administrative authority for patent affairs of their common
higher level people's government shall designate the administrative authority
for patent affairs to exercise the jurisdiction; if there is no such
administrative authority for patent affairs of their common higher level
people's government, the Patent Administration Department under the State
Council shall designate the administrative authority for patent
affairs to exercise the jurisdiction.
Rule 82
Where, in the course of handling a patent infringement dispute, the defendant
requests invalidation of the patent right and his request is accepted by the
Patent Reexamination Board, he may request the administrative authority for
patent affairs concerned to suspend the handling of the matter.
If the
administrative authority for patent affairs considers that the reasons set
forth by the defendant for the suspension are obviously untenable, it may not
suspend the handling of the matter..
Rule 83
Where any patentee affixes a patent marking on the patented product or on the
package of that product in accordance with the provisions of Article 15 of the
Patent Law, he or it shall make the affixation in the manner as prescribed by
the Patent Administration Department under the State Council .
Rule 84
Any of the following is an act of passing off the patent of another person as
one's own:
(1) without authorization, indicating the patent
number of another person on the product or on the package of that product made
or sold by him or it;
(2) without authorization, using the patent
number of another person in the advertisement or in any other promotional
materials of his or its product, so as to mislead other persons to regard the
technology concerned as the patented technology of another person;
(3) without authorization, using the patent
number of another person in the contract entered into by him or it , so as to
mislead other persons to regard the technology referred to in the contract as
the patented technology of another person;
(4) counterfeiting or transforming any patent
certificate, patent document or patent application document of another person.
Rule 85
Any of the following is an act of passing a non-patented product off as
patented product or passing a non-patented process off as patented process:
(1) making or selling non-patented products
which are affixed with patent marking;
(2) continuing to affix patent marking on the
products that are made or sold after the patent right concerned has been
declared invalid;
(3) passing any non-patented technology off as
patented technology in the advertisements or in any other promotional
materials;
(4) stating any non-patented technology as
patented technology in any contract entered into by him or it;
(5) counterfeiting or transforming any patent
certificate, patent document or patent application document.
Rule 86
Any party concerned to a dispute over the ownership of the right to apply for a
patent or the patent right, which is pending before the administrative authority
for patent affairs or the people's court, may request the Patent Administration
Department under the State Council to suspend the relevant
procedures.
Any party
requesting the suspension of the relevant procedures in accordance with the
preceding paragraph, shall submit a written request to the Patent
Administration Department under the State Council , and attach a copy of
the document acknowledging the receipt of the relevant request from the
administrative authority for patent affairs or the people's court.
After the
decision made by the administrative authority for patent affairs or the
judgment rendered by the people's court enters into force, the parties
concerned shall request the Patent Administration Department under the State
Council to resume the suspended procedure. If, within one year from
the date when the request for suspension is filed, no decision is made on the
dispute relating to the ownership of the right to apply for a patent or the
patent right, and it is necessary to continue the suspension, the party who or
that the request shall, within the said time limit, request to extend the
suspension. If, at the expiration of the said time limit, no such request for
extension is filed, the Patent Administration Department under the State
Council shall resume the procedure on its own initiative.
Rule 87
Where, in hearing civil cases, the people's court has ordered the adoption of
measures for a patent right preservation, the Patent Administration Department
under the State Council , for the purpose of assisting the execution of
the order, shall suspend the relevant procedure concerning the preserved patent
right. At the expiration of the time limit for preservation, if there is no
order of the people's court to continue the preservation, the Patent
Administration Department under the State Council shall resume the
relevant procedure on its own initiative.
Chapter
VIII Patent Registration and Patent Gazette
Rule 88
The Patent Administration Department under the State Council shall keep
a Patent Register in which the registration of the following matters relating
to patent application or patent right shall be made:
(1) any grant of the patent right;
(2) any transfer of the right of patent
application or the patent right;
(3) any pledge and preservation of the patent
right and their discharge;
(4) any patent license contract for exploitation
submitted for the record;
(5) any invalidation of the patent right;
(6) any cessation of the patent right;
(7) any restoration of the patent right;
(8) any compulsory license for exploitation of
the patent;
(9) any change in the name, nationality and
address of the patentee.
Rule 89
The Patent Administration Department under the State Council shall
publish the Patent Gazette at regular intervals, publishing or announcing the
following:
(1) the bibliographic data contained in patent
applications;
(2) the abstract of the description of an
invention or utility model, the drawings or photographs of a design and its
brief explanation;
(3) any request for examination as to substance
of an application for a patent for invention and any decision made by the
Patent Administration Department under the State Council to proceed
on its own initiative to examine as to substance an application for a patent
for invention;
(4) any declassification of secret patents;
(5) any rejection, withdrawal and deemed
withdrawal of an application for a patent for invention after its publication;
(6) any grant of the patent right;
(7) any invalidation of the patent right;
(8) any cessation of the patent right;
(9) any transfer of the patent application or
the patent right;
(10) any patent license contract for exploitation
submitted for the record;
(11) any pledge and preservation of the patent
right and their discharge;
(12) any grant of compulsory license for
exploitation of the patent;
(13) any restoration of a patent application or
patent right;
(14) any change in the name or address of the
patentee;
(15) any notification to a party whose address
is not known;
(16) any correction made by the Patent
Administration Department under the State Council ; and
(17) any other related matters.
The
description and its drawings, and the claims of an application for a patent for
invention or utility model shall be separately published in full in pamphlet
form by the Patent Administration Department under the State Council .
Chapter IX
Fees
Rule 90
When any person files an application for a patent with, or has other
formalities to go through at, the Patent Administration Department under the
State Council , he or it shall pay the following fees:
(1) filing fee, additional fee for filing
application, and printing fee for publishing the application;
(2) substantive examination fee for an
application for patent for invention, and reexamination fee;
(3) registration fee for the grant of patent
right, printing fee for the announcement of grant of patent right, maintenance
fee for application, and annual fee;
(4) fee for a change in the bibliographic data,
fee for claiming priority, fee for requesting restoration of rights, fee for
requesting extension of a time limit, and fee for establishing a search report
on a utility model patent;
(5) fee for requesting invalidation, fee for
requesting suspension of the patent procedure, fee for requesting a compulsory
license, fee for requesting adjudication on exploitation fee of a compulsory
license.
The amount
of the fees referred to in the preceding paragraph shall be prescribed by the
price administration department under the State Council in conjunction with the
Patent Administration Department under the State Council .
Rule 91
The fees provided for in the Patent Law and in these Implementing Regulations
may be paid directly to the Patent Administration Department under the State
Council or paid by way of bank or postal remittance, or by way of
any other means as prescribed by the Patent Administration Department under the
State Council.
Where any
fee is paid by way of bank or postal remittance, the applicant or the patentee
shall indicate on the money order at least the correct filing number or the
patent number and the name of the fee paid. If the requirements as prescribed
in this paragraph are not complied with, the payment of the fee shall be deemed
not to have been made.
Where any
fee is paid directly to the Patent Administration Department under the State
Council , the date on which the fee is paid shall be the date of payment;
where any fee is paid by way of postal remittance, the date of remittance
indicated by the postmark shall be the date of payment; where any fee is paid
by way of bank transfer, the date on which the transfer of the fee is done
shall be the date of payment. Where, however, the time between such a date and
the date of receipt of the order by the Patent Administration Department under
the State Council lasts more than fifteen days, unless the date of
remittance or transfer is proved by the bank or the post office, the date of
receipt by the Patent Administration Department under the State
Council shall be the date of payment.
Where any
patent fee is paid in excess of the amount as prescribed, paid repeatedly or
wrongly, the party making the payment may, within one year from the date of
payment, request a refund from the Patent Administration Department under the
State Council .
Rule 92
The applicant shall, after receipt of the notification of acceptance of the
application from the Patent Administration Department under the State
Council , pay the filing fee, the printing fee for the publication of the
application and the necessary additional fees at the latest within two months
from the filing date. If the fees are not paid or not paid in full within the
time limit, the application shall be deemed to be withdrawn.
Where the
applicant claims priority, he or it shall pay the fee for claiming priority at
the same time with the payment of the filing fee. If the fee is not paid or not
paid in full within the time limit, the claim for priority shall be deemed not
to have been made.
Rule 93
Where the party concerned makes a request for an examination as to substance, a
restoration of right or a reexamination, the relevant fee shall be paid within
the time limit as prescribed respectively for such requests by the Patent Law.
If the fee is not paid or not paid in full within the time limit, the request
is deemed not to have been made.
Rule 94
Where the applicant for a patent for invention has not been granted a patent
right within two years from the date of filing, it or he shall pay a fee for
the maintenance of the application from the third year.
Rule 95
When the applicant goes through the formalities of registration of the grant of
patent right, it or he shall pay a registration fee for the grant of patent
right, printing fee for the announcement of grant of patent right and the
annual fee of the year in which the patent right is granted. The applicant for
a patent for invention shall pay the application maintenance fee for all the
years, with the exception of the year in which the patent right is granted. If
such fees are not paid within the prescribed time limit, the registration of
the grant of patent right shall be deemed not to have been made. The subsequent
annual fees shall be paid in advance within the month before the expiration of
the preceding year.
Rule 96
Where the annual fee of the patent right after the year in which the patent is
granted is not paid in due time by the patentee, or the fee is not paid in
full, the Patent Administration Department under the State Council
shall notify the patentee to pay the fee or to make up the insufficiency within
six months from the expiration of the time limit within which the annual fee is
due to be paid, and at the same time pay a surcharge. The amount of the
surcharge shall be, for each month of late payment, 5% of the whole amount of
the annual fee of the year within which the annual fee is due to be paid. Where
the fee and the surcharge are not paid within the time limit, the patent right
shall lapse from the expiration of the time limit within which the annual fee
should be paid.
Rule 97
The fee for a change in the bibliographic data, fee for establishing a search
report on a utility model patent, fee for requesting suspension of the patent
procedure, fee for requesting a compulsory license, fee for requesting
adjudication on exploitation fee of a compulsory license and fee for requesting
invalidation shall be paid as prescribed within one month from the date on
which such request is filed. The fee for requesting extension of a time limit
shall be paid before the expiration of the said time limit. If the fee is not
paid or not paid in full within the time limit, the request shall be deemed not
to have been made.
Rule 98
Where any applicant or patentee has difficulties in paying the various fees
prescribed in these Implementing Regulations, he may, in accordance with the
prescriptions, submit a request to the Patent Administration Department under
the State Council for a reduction or postponement of the payment.
Measures for the reduction and postponement of the payment shall be prescribed
by the Patent Administration Department under the State Council in
consultation with the finance administration department and the price
administration department under the State Council.
Chapter X
Special Provisions Concerning International Application
Rule 99
The Patent Administration Department under the State Council
receives international patent applications filed under the Patent Cooperation
Treaty in accordance with the provisions of Article 20 of the Patent Law.
Where any
international application filed under the Patent Cooperation Treaty designating
China (hereinafter referred to as the international application) enters the
Chinese national phase, the requirements and procedures prescribed in this
Chapter shall apply. Where no provisions are made in this Chapter, the relevant
provisions in the Patent Law and in any other chapters of these Implementing
Regulations shall apply.
Rule 100
Any international application which has been accorded an international filling
date in accordance with the Patent Cooperation Treaty and which has designated
China shall be deemed as an application for patent filed with the Patent
Administration Department under the State Council , and the said filing
date shall be deemed as the filing date referred to in Article 28 of the Patent
Law.
Where, in
the international phase, an international application or its designation of
China is withdrawn or deemed to be withdrawn, the effect of the said
international application in China shall cease.
Rule 101
Any applicant for an international application entering the Chinese national
phase shall, within 20 months from the priority date as referred to in Article
2 of the Patent Cooperation Treaty (referred to as "the priority
date" in this chapter), go through the following formalities at the Patent
Administration Department under the State Council ; where an
international application elects China within 19 months from "the priority
date", and where the election remains valid, the applicant of the said
application entering the Chinese national phase shall go through the following
formalities at the Patent Administration Department under the State
Council within 30 months from "the priority date":
(1) submitting a written statement concerning
the entry of his or its international application into the Chinese national
phase. The statement shall indicate the international application number, and
also indicate in Chinese the kind of patent protection sought, the title of the
invention-creation, the name or title of the applicant, the address of the
applicant and the name of the inventor. Such indications shall be the same as
those recorded by the International Bureau;
(2) paying the filing fee, the additional fee
for filing application and the printing fee for publishing the application as
provided in Rule 90, paragraph one of these Implementing Regulations;
(3) where an international application is filed
in a language other than Chinese, the Chinese translation of the description,
the claims, the text matter of the drawings, and the abstract of the initial
international application shall be furnished; where an international
application is filed in Chinese, a copy of the abstract published in the
international publication shall be furnished.
(4) where an international application contains
drawings, a copy of the drawings shall be furnished. Where an international
application is filed in Chinese, a copy of the figure of the drawings in the
abstract as published in the international publication shall be furnished.
If the
applicant fails to go through the relevant formalities for entering the Chinese
national phase within the time limit prescribed in the preceding paragraph, he
or it may, after paying a surcharge for the late entry, go through these
formalities before the expiration of the respective time limit of 22 months or
32 months respectively from "the priority date".
Rule 102
Where the applicant fails to go through the formalities for entering the
Chinese national phase, within the time limit prescribed in Rule 101, paragraph
two of these Implementing Regulations or any of the following circumstance
occurs at the expiration of the said time limit, the effect of his or its
international application shall cease in China:
(1) where the international application number
is not indicated in the statement concerning entry into the Chinese national
phase;
(2) where the filing fee, the printing fee for
publishing the application prescribed in Rule 90, paragraph one of these
Implementing Regulations, or the surcharge for the late entry as prescribed in
Rule 101, paragraph two of these Implementing Regulations is not paid;
(3) where the international application is filed
in a language other than Chinese, the Chinese translation of the description
and the claims of the initial international application are not furnished.
Where the
effect of an international application has ceased in China, the provisions of
Rule 7, paragraph two of these Implementing Regulations shall not apply.
Rule 103
Where any of the following circumstances occur at the time when the applicant
goes through the formalities for entering the Chinese national phase, the
Patent Administration Department under the State Council shall
notify the applicant to make corrections within the specified time limit:
(1) where the Chinese translation of the abstract
or a copy of the abstract is not furnished;
(2) where a copy of the drawings or a copy of
the figure of the drawings in the abstract is not furnished;
(3) where the title of the invention-creation,
the name of the applicant, the address of the applicant and the name of the
inventor are not indicated in Chinese in the statement concerning entry into
the Chinese national phase;
(4) where the content or the form of the
statement concerning entry into the Chinese national phase is not in conformity
with the provisions.
If, at the expiration of the time limit, the
applicant fails to make the corrections, his or its application shall be deemed
to be withdrawn.
Rule 104
Where an international application is amended in the international phase and
the applicant requests that the examination be based on the amended
application, the Chinese translation of the amendments shall be prescribed by
the applicant before completion of the technical preparations for national
publication of the application by the Patent Administration Department under
the State Council . Where the Chinese translation is not furnished within
the said time limit, the amendments made in the international phase shall not
be taken into consideration by the Patent Administration Department under the
State Council .
Rule 105
When the applicant goes through the formalities for entering the Chinese
national phase, he or it shall also fulfill the following requirements:
(1) where the inventor is not indicated in the
international application, the name of the inventor shall be indicated in the
statement concerning entry into the Chinese national phase;
(2) where the applicant has gone through the
formalities for the change in the applicant before the International Bureau in
the international phase, the document certifying the right of the new applicant
to the international application shall be furnished;
(3) where the applicant is not the same person
as the applicant of the earlier application which is the basis of the priority
claimed, or where the applicant has changed his or its name after filing the
earlier application, the document certifying the right of the applicant to
claim priority shall be furnished when necessary;
(4) Where any invention-creation to which the
international application relates has one of the events referred to in Article
24, subparagraph (1) or (2) of the Patent Law and where statements have been
made in this respect when the international application was filed, the
applicant shall indicate it in the statement concerning entry into the Chinese
national phase, and furnish the relevant certificates prescribed in Rule 31,
paragraph two of these Implementing Regulations within two months from the date
of going through the formalities for entering the Chinese national phase.
Where the
applicant fails to satisfy the requirements provided for in subparagraph (1),
(2) or (3) of the preceding paragraph, the Patent Administration Department
under the State Council shall notify the applicant to make
corrections within the specified time limit. Where, within the time limit, no
correction is made in respect of the requirement provided for in subparagraph
(1) or (2), the application shall be deemed to be withdrawn; Where, within the
time limit, no correction is made in respect of the requirement provided for in
subparagraph (3), the claim for priority shall be deemed not to have been made.
Where the
applicant fails to fulfill the requirement provided for in subparagraph (4) of
paragraph one of this Rule, the provisions of Article 24 of the Patent
Law shall not apply to his or its international application.
Rule 106
Where the applicant has made indications concerning deposited biological
materials in accordance with the provisions of the Patent Cooperation Treaty,
the requirements provided for in Rule 25, subparagraph (3) of these
Implementing Regulations shall be deemed to have been fulfilled. In the
statement concerning entry into the Chinese national phase, the applicant shall
indicate the documents recording the particulars of the deposit of the
biological materials, and the exact location of the record in the documents.
Where
particulars concerning the deposit of the biological materials are contained in
the description of the international application as initially filed, but there
is no such indication in the statement concerning the entry into the Chinese
national phase, the applicant shall make correction within four months from the
date of going through the formalities for entering the Chinese national phase.
If the correction is not made at the expiration of the time limit, the
biological materials shall be deemed not to have been deposited.
Where the
applicant submits the certificates of the deposit and the viability of the
biological materials to the Patent Administration Department under the State
Council within four months from the date of going through the
formalities for entering the Chinese national phase, the deposit of biological
materials shall be deemed to have been made within the time limit as provided
for in Rule 25, subparagraph (1) of these Implementing Regulations.
Rule 107
Where the applicant claims one or multiple priorities in the international
phase and such claims remain valid at the time when the application enters the
Chinese national phase, the applicant shall be deemed to have submitted the
written declaration in accordance with the provisions of Article 30 of the
Patent Law.
Where
there are clerical mistakes or the application number of the earlier
application is missing in the written declaration claiming the priority made in
the international phase, the applicant may request to make corrections or to
fill in the missing application number of the earlier application at the time
of going through the formalities for entering the Chinese national phase. Where
a request for making corrections is made, the applicant shall pay the fee for
correcting the claim for priority.
Where the
applicant has submitted a copy of the earlier application in the international
phase in accordance with the provisions of the Patent Cooperation Treaty, he or
it shall be exempted form submitting a copy of the earlier application to the
Patent Administration Department under the State Council at the
time of going through the formalities for entering the Chinese national phase.
Where the applicant has not submitted a copy of the earlier application in the
international phase, and if the Patent Administration Department under the
State Council deems necessary, it may notify the applicant to
submit a copy of the earlier application within the specified time limit. If no
copy is submitted at the expiration of the time limit, his or its claim for
priority shall be deemed not to have been made.
Where the
claim for priority is deemed not to have been made in the international phase
and the information is already published by the International Bureau, the
applicant may, if he has justified reasons, request the Patent Administration
Department under the State Council to restore his or its claim for
priority at the time of going through the formalities for entering the Chinese
national phase.
Rule 108
Where, before the expiration of 20 months from "the priority date",
the applicant files a request with the Patent Administration Department under
the State Council for early processing and examination of his or
its international application, he or it shall, in addition to going through the
formalities for entering the Chinese national phase, submit a request in
accordance with the provisions in Article 23, paragraph two of the Patent
Cooperation Treaty. Where the international application has not been
transmitted by the International Bureau to the Patent Administration Department
under the State Council , the applicant shall submit a confirmed copy of the
international application.
Rule 109
With regard to an international application for a patent for utility model, the
applicant may file a request with the Patent Administration Department under
the State Council to amend the description, the drawings and the
claims within one month from the date of going through the formalities for
entering the Chinese national phase.
With
regard to an international application for a patent for invention, the
provisions of Rule 51, paragraph one of these Implementing Regulations shall
apply.
Rule 110
Where the applicant finds that there are mistakes in the Chinese translation of
the description, the claims or the text matter of the drawings as filed, he or
it may correct the translation in accordance with the international application
as filed within the following time limits:
(1) before the completion of technical
preparations for national publication by the Patent Administration Department
under the State Council ;
(2) within three months from the date of receipt
of the notification sent by the Patent Administration Department under the
State Council , stating that the application for a patent for invention
has entered into the substantive examination phase.
Where the applicant intends to correct the
mistakes in the translation, he or it shall file a written request, furnish a
replace sheet of the translation and pay the prescribed fee for the correction
of the translation.
Where the
applicant makes correction of the translation in accordance with the notification
of the Patent Administration Department under the State Council , he or
it shall, within the specified time limit, go through the formalities
prescribed in paragraph two of this Rule. If the prescribed formalities are not
gone through at the expiration of the time limit, the international application
shall be deemed to be withdrawn.
Rule 111
With regard to any international application for a patent for invention, if the
Patent Administration Department under the State Council , after
preliminary examination, considers it in compliance with the provisions of the
Patent Law and these Implementing Regulations, it shall publish it in the
Patent Gazette; where the international application is filed in a language
other than Chinese, the Chinese translation of the international application
shall be published.
Where the
international publication of an international application for a patent for
invention by the International Bureau is in Chinese, the provisions of Article
13 of the Patent Law shall apply from the date of the international
publication. If the international publication by the International Bureau is in
a language other than Chinese, the provisions of Article 13 of the Patent Law
shall apply from the date of the publication of the Chinese translation by the
Patent Administration Department under the State Council.
With
regard to an international application, the publication referred to in Articles
21 and 22 of the Patent Law means the publication referred to in paragraph one
of this Article.
Rule 112
Where two or more inventions or utility models are contained in an
international application, the applicant may, after going through the
formalities for entering the Chinese national phase, submit a divisional
application in accordance with the provisions in Rule 42, paragraph one of
these Implementing Regulations.
Where, in
the international phase, some parts of the international application have not
been the subject of international search or international preliminary
examination because the International Searching Authority or the International
Preliminary Examination Authority considers that the international application
does not comply with the requirement of unity of invention prescribed in the
Patent Cooperation Treaty, and the applicant fails to pay the additional fee,
whereas at the time of going through the formalities for entering the Chinese
national phase, the applicant requests that the said parts be the basis of
examination, the Patent Administration Department under the State Council
, finding that the decision concerning unity of invention made by the
International Searching Authority or the International Preliminary Examination
Authority is justified, shall notify the applicant to pay the restoration fee
for unity of invention within the specified time limit. Where the fee is not
paid or not paid in full at the expiration of the prescribed time limit, those
parts of the international application which have not been searched or have not
been the subject of international preliminary examination shall be deemed to be
withdrawn.
Rule 113
Where the applicant furnishes the documents and pays the fees in accordance
with the provisions of Rule 101 of these Implementing Regulations, the date on
which the Patent Administration Department under the State Council
receives the documents shall be the date of submitting, and the date on which
it receives the fees shall be the date of payment.
Where
there is delay in the mailing of the documents and the applicant proves, within
one month from the date on which he finds the delay, that the documents have
been mailed five days prior to the expiration of the time limit prescribed in
Rule 101 of these Implementing Regulations, the documents shall be deemed to
have been received on the date on which the time limit expires. However, the
time for the applicant to furnish evidence may not be later than six months
after the expiration of the time limit prescribed in Rule 101 of these
Implementing Regulations.
Where
documents are to be submitted to the Patent Administration Department under the
State Council in accordance with the provisions of Rule 101 of
these Implementing Regulations, the applicant may send them by fax. Where the
applicant submits the documents by fax, the date on which the Patent Administration
Department under the State Council receives the fax shall be the
date of submitting. The applicant shall submit to the Patent Administration
Department under the State Council the original copy within 14 days
from the date of the transmission by fax. Where the original copy is not
submitted within the time limit, the documents shall be deemed not to have been
submitted.
Rule 114
Where an international application claims the priority, the applicant shall, at
the time of going through the formalities for entering the Chinese national
phase, pay the fee for claiming the priority; if the fee is not paid or not
paid in full, the Patent Administration Department under the State
Council shall notify the applicant to pay it within the specified
time limit; if the fee is still not paid or not paid in full at the expiration
of the time limit, the claim for priority shall be deemed not to have been
made.
Rule 115
Where an international application in the international phase has been refused
to be accorded an international filling date or has been declared to be deemed
withdrawn by an international authority concerned, the applicant may, within
two months from the date on which he or it receives the notification, request
the International Bureau to send the copy of any document in the file of the
international application to the Patent Administration Department under the
State Council , and shall go through the formalities prescribed in Rule
101 of these Implementing Regulations within the said time limit at the Patent
Administration Department under the State Council . After receiving the
documents sent by the International Bureau, the Patent Administration
Department under the State Council shall review the decision made
by the international authority concerned to find whether it is correct.
Rule 116
With regard to a patent right granted on the basis of an international
application, if the scope of protection determined in accordance with the
provisions of Article 56 of the Patent Law exceeds the scope of the international
application in its original language because of incorrect translation, the
scope of protection granted on the international application shall be limited
according to the original language of the application; if the scope of
protection granted on the international application is narrower than the scope
of the application in its original language, the scope of protection
shall be determined according to the patent in the language when it is granted.
Chapter X
Supplementary Provisions
Rule 117
Any person may, after approval by the Patent Administration Department under
the State Council , consult or copy the files of the published or
announced patent applications and the Patent Register. Any person may request
the Patent Administration Department under the State Council to
issue a copy of extracts from the Patent Register.
The files
of the patent applications which have been withdrawn or deemed to be withdrawn
or which have been rejected, shall not be preserved after expiration of two
years from the date on which the applications cease to be valid.
Where the
patent right has been abandoned, wholly invalidated or ceased, the files shall
not be preserved after expiration of three years from the date on which the
patent right ceases to be valid.
Rule
118 Any patent application which is filed with, or any formality which is
gone through at, the Patent Administration Department under the State
Council shall comply with the unified form prescribed by the
Patent Administration Department under the State Council, and signed or sealed
by the applicant, the patentee, any other interested person or his or its
representative. Where any patent agency is appointed, it shall be sealed by
such agency.
Where a
change in the name of the inventor, or in the name, nationality and address of
the applicant or the patentee, or in the name and address of the patent agency
and the name of patent agent is requested, a request for a change in the
bibliographic data shall be made to the Patent Administration Department under
the State Council , together with the relevant certifying documents.
Rule
119 The document relating to a patent application or patent right which
is mailed to the Patent Administration Department under the State
Council shall be mailed by registered letter, not by parcel.
Except for
any patent application filed for the first time, any document which is
submitted to and any formality which is gone through at the Patent
Administration Department under the State Council , the filing number or
the patent number, the title of the invention-creation and the name of the
applicant or the patentee shall be indicated.
Only
documents relating to the same application shall be included in one letter.
Rule 120
Various kinds of application documents shall be typed or printed. All the
characters shall be in black ink, neat and clear. They shall be free from any
alterations. The drawings shall be made in black ink with the aid of drafting
instruments. The lines shall be uniformly thick and well defined, and free from
alterations.
The
request, description, claims, drawings and abstract shall be numbered
separately in Arabic numerals and arranged in numerical order.
The
written language of the application shall run from left to right. Only one side
of each sheet shall be used.
Rule 121
The Patent Administration Department under the State Council shall
formulate Guidelines for Examination in accordance with the Patent Law and
these Implementing Regulations.
Rule
122 These Implementing Regulations shall enter into force on July 1,
2001. The Implementing Regulations of the Patent Law of the People's Republic
of China approved by the State Council on December 12, 1992 and promulgated by
the Patent Office of the People's Republic of China on December 21, 1992 shall
be repealed at the same time.