Decision of the State Council on Amending the Rules for
the Implementation of the Patent Law of the People's Republic of
China
(Promulgated by Decree No. 368 of the State Council of the
People's Republic of China on December 28, 2002, and effective as
of February 1, 2003)
The State Council has decided to amend as follows the Rules for
the Implementation of the Patent Law of the People's Republic of
China promulgated on June 15, 2001:
1. Article 101 is amended as: "Any applicant
for an international application entering the Chinese national
phase shall, within 30 months from the priority date as referred to
in Article 2 of the Patent Cooperation Treaty (referred to in this
chapter as "the priority date"), go through the following
formalities with the patent administration department under the
State Council:
(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 patent
application and the printing fee for publicizing the application as
provided in Article 90, paragraph one of these Rules;
(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 time limit of 32 months from the priority
date."
2. Article 108 is amended as: "Where, before
the expiration of 30 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."
This Decision shall be effective as of February 1, 2003.
The Rules for the Implementation of the Patent Law of the
People's Republic of China shall be revised correspondingly
according to this Decision and promulgated anew.
Rules for the Implementation of the Patent Law of the
People's Republic of China
(Promulgated by Decree No. 306 of the State Council of the
People's Republic of China on June 15, 2001, and revised according
to the Decision of the State Council on Amending the Rules for the
Implementation of the Patent Law of the People's Republic of China
promulgated on December 28, 2002)
Chapter I General Provisions
Article 1 These Rules are formulated in
accordance with the Patent Law of the People's Republic of China
(hereinafter referred to as the Patent Law).
Article 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,
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.
Article 3 Any formalities prescribed by the
Patent Law and these Rules shall be gone through in a written form
or in any other form prescribed by the patent administration
department under the State Council.
Article 4 Any document submitted in accordance
with the provisions of the Patent Law and these Rules 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(s) or certifying document(s) submitted in
accordance with the provisions of the Patent Law and these Rules 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(s) or the certifying document(s) be
submitted within a specified time limit; where the translation is
not submitted within the specified time limit, the certificate(s)
or certifying document(s) shall be deemed not to have been
submitted.
Article 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(s).
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(s).
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.
Article 6 The first day of any time limit
prescribed in the Patent Law and these Rules 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.
Article 7 Where a time limit prescribed in the
Patent Law or these Rules 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 Rules
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 Article shall
not be applicable to the time limit referred to in Articles 24, 29,
42 and 62 of the Patent Law.
Article 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 provisions of 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.
Article 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 the
exploitation of which is prohibited by the laws of the State.
Article 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 a priority is claimed.
The date of filing referred to in these Rules, except as
otherwise prescribed, means the date of filing prescribed in
Article 28 of the Patent Law.
Article 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 mean the entity's money,
equipment, spare parts, raw materials or technical materials which
are not disclosed to the public.
Article 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.
Article 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.
Article 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.
Article 15 Except for the assignment of the
patent right in accordance with the provisions of Article 10 of the
Patent Law, where the patent right is transferred because of any
other reason, the person or persons concerned shall, on the
strength of relevant certifying 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
Article 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.
Article l7 "Other related matters" in the
request referred to in Article 26, paragraph two of the Patent Law
mean:
(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 appended to the application; and
(8) any other related matter which needs to be indicated.
Article 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 to be protected 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.
Article 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 appearing 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.
Article 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.
Article 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 that it refers to.
Article 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.
Article 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 refer 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.
Article 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.
Article 25 Where an invention for which a
patent is applied 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 Rules, 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 on
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 name 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.
Article 26 Where the applicant for a patent for
invention has deposited a sample of the biological material in
accordance with the provisions of Article 25 of these Rules, 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 or title and address of the claimant;
(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.
Article 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.
Article 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.
Article 29 Where the patent administration
department under the State Council deems it 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.
Article 30 The existing technology referred to
in Article 22, paragraph three of the Patent Law means any
technology which has been publicly disclosed in domestic or foreign
publications, or has been publicly and domestically used or made
known to the public by any other means, before the date of filing
(or the priority date where priority is claimed), that is, prior
art.
Article 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
relevant competent department of the State Council or by a national
academic or technological association.
Where any invention-creation for which a patent is applied for
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 on the date of its
exhibition or publication.
Where any invention-creation for which a patent is applied for
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 Article,
or fails to submit certifying documents within the specified time
limit as required in paragraph three of this Article, the
provisions of Article 24 of the Patent Law shall not apply to the
application.
Article 32 Where any applicant 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 is first filed
(hereinafter referred to as the earlier application) and the
country in which the application is 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 is
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 is filed. Where in the certifying material submitted,
the name or title of the later applicant is not the same as that of
the earlier 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.
Article 33?An applicant may claim one or
more priorities for an application for one 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
circumstances, it may not be taken as the basis for claiming
domestic priority:
(1) where it has claimed foreign or domestic priority;
(2) where it has been granted a patent right;
(3) where it is 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.
Article 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 of nationality :
(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 priority and other related rights
in that country.
Article 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 provisions in
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.
Article 36 The expression "the same class"
referred to in Article 3l, paragraph two of the Patent Law means
that the products incorporating the designs belong 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 provisions in 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.
Article 37 When withdrawing an application for
a patent, the applicant shall submit to the patent administration
department under the State Council a declaration 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 patent administration department under the
State Council has completed the preparations for the publication of
the application document, the application document shall be
published as scheduled. However, the declaration withdrawing the
application for patent shall be publicized in the Patent Gazette
published later.
Chapter III Examination and Approval of Application for
Patent
Article 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 exercising his functions:
(1) where he is a near relative of the party concerned or of the
latter's agent;
(2) where he has an interest in the application for patent or
the patent right;
(3) where he has any other kind of relations with the party
concerned or with the latter's agent that may influence impartial
examination and hearing.
(4) where he is a member of the Patent Reexamination Board who
has ever taken part in the examination of the same initial
application.
Article 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.
Article 40 In any of
the following circumstances, the patent administration department
under the State Council shall refuse to accept the application
document 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 document is not written in
Chinese;
(3) where the application document is not in conformity with the
provisions of Article 120, paragraph one of these Rules;
(4) where the request does not contain the name or title and
address of the applicant;
(5) where the application document is obviously not in
conformity with the provisions of Article 18, or of Article l9,
paragraph one of the Patent Law;
(6) where the category of the application for a patent (patent
for invention, utility model or design)is not clear and definite or
cannot be ascertained.
Article 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.
Article 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 Article 54, paragraph one of these Rules, submit to the patent
administration department under the State Council a divisional
application. However, where an application for patent has been
rejected or 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 Article 35 or
36 of these Rules, 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 category of the
initial application.
Article 43 For a divisional application which
is filed in accordance with the provisions of Article 42 of these
Rules, the initial date of filing may be retained; if the priority
is claimed, the priority date of the initial application may be
retained, 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
Rules.
The filing number and the date of filing of the initial
application shall be indicated in the request of the divisional
application. When a divisional application is filed, it shall be
accompanied by a copy of the initial application document; if
priority is claimed for the initial application, a copy of the
priority document of the initial application shall also be
submitted.
Article 44 "Preliminary examination" referred
to in Articles 34 and 40 of the Patent Law means the examination of
an application for a patent to see whether or not it contains the
documents provided for in Article 26 or 27 of the Patent Law and
other necessary documents, and whether or not those documents are
in the prescribed form; such examination shall also include the
following:
(1) whether or not any application for a patent for invention
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, or is obviously not in conformity with the
provisions of Article 3l, paragraph one, or Article 33 of the
Patent Law or of Article 2, paragraph one, or Article 18, or
Article 20 of these Rules;
(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 Article 33 of the Patent
Law or of Article 2, paragraph two, or of Article l3, paragraph
one, or of Articles l8 to 23, or of Article 43, paragraph one of
these Rules, 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 Article 2, paragraph three, or of Article
l3, paragraph one, or of Article 43, paragraph one of these Rules,
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 examining 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 in the preceding
paragraph, the application shall be rejected.
Article 45 Apart from the application for
patent, any document relating to the patent application, which the
applicant has submitted to the patent administration department
under the State Council, shall be deemed not to have been submitted
in any of the following circumstances:
(1) where the document is not presented in the prescribed form
or the indications therein are not in conformity with the
provisions;
(2) where no certifying document is submitted as prescribed.
The patent administration department under the State Council
shall notify the applicant of its examination opinion that the
document is deemed not to have been submitted.
Article 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, publicize it immediately, unless it
is to be rejected.
Article 47 The applicant shall, when indicating
in accordance with the provisions of 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 publicized 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.
Article 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 the reasons therefor, on the application which
is not in conformity with the provisions of the Patent Law.
Article 49 Where the applicant for a patent for
invention cannot furnish, for justified reasons, the documents
concerning any search or result 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.
Article 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.
Article 5l When requesting for examination as
to substance or within three months after the receipt of the
notification of the patent administration department under the
State Council that 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.
Article 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.
Article 53 In
accordance with the provisions of Article 38 of the Patent Law, the
circumstances in which an application for 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
Article 2, paragraph one of these Rules;
(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 Article l3,
paragraph one, or of Article 20, paragraph one, or of Article 21,
paragraph two of these Rules, 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 Article 43,
paragraph one of these Rules.
Article 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 make an announcement.
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.
Article 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 person making the request to
amend the request within a specified time limit.
Article 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, after search, the patent administration department under
the State Council finds 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 have the
copies of the cited relevant documents attached.
Article 57 The patent administration department
under the State Council shall promptly correct the mistakes in
patent announcements and documents once they are discovered, and
the corrections shall be announced.
Chapter IV Reexamination of Patent Application and
Invalidation of Patent Right
Article 58 The Patent Reexamination Board shall
consist of technical and legal experts appointed by the patent
administration department under the State Council. The responsible
person of the patent administration department under the State
Council shall be the Director General of the Board.
Article 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 specified by the Patent Reexamination Board.
If the person making the request fails to meet the time limit for
making rectification, the request for reexamination shall be deemed
not to have been filed.
Article 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 reexamination notification
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 reexamination
notification.
The amendments to the application for patent shall be in two
copies.
Article 61 The Patent Reexamination Board shall
send the request for reexamination that the Board has received to
the original examination department of the patent administration
department under the State Council for examination. Where the
original examination department agrees to revoke its original
decision upon the request of the person requesting reexamination,
the Patent Reexamination Board shall make a decision accordingly
and notify the person making the request.
Article 62 Where, after reexamination, the
Patent Reexamination Board finds that the request does not comply
with the provisions of the Patent Law and these Rules, it shall
notify 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 person requesting
reexamination 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 Rules, it shall
make a decision of reexamination to maintain the earlier decision
rejecting the application for patent.
Where, after reexamination, the Patent Reexamination Board finds
that the decision rejecting the application for patent does not
comply with the provisions of the Patent Law and these Rules, 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 for patent, and
ask the original examination department to continue the examination
procedure.
Article 63 At any time before the Patent
Reexamination Board makes its decision on the request for
reexamination, the person making the request may withdraw his
request for reexamination.
Where the person making the request withdraws his request for
reexamination before the Patent Reexamination Board makes its
decision, the procedure of reexamination is terminated.
Article 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 necessary evidence in two copies. The request for invalidation
shall state in detail the grounds for filing the request for
invalidation, 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 or 23, or of Article 26,
paragraph three or four, or of Article 33 of the Patent Law, or of
Article 2, or of Article l3, paragraph one, or of Article 20,
paragraph one, or of Article 21, paragraph two of these Rules; or
it falls under the provisions of Article 5 or 25 of the Patent Law;
or the person is not entitled to be granted the patent right in
accordance with the provisions of Article 9 of the Patent Law.
Article 65 Where the request for invalidation
does not comply with the provisions of Article 64 of these Rules,
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, if, however, no decision of
settlement or no judgment of any court which has entered into force
to prove such conflict of rights has been submitted, 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 filed.
Article 66 After the Patent Reexamination Board
has accepted a request for invalidation, the person making the
request may add reasons or supplement proofs within one month from
the date when the request for invalidation is filed. The Patent
Reexamination Board may not take into account any additional
reasons or supplementary proofs that are submitted after the
specified time limit.
Article 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 refuse it or
him to present its or his observations within a specified time
limit.
The patentee and the person making the 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.
Article 68 In the
course of the examination of the request for invalidation, the
patentee for patent for invention or utility model may amend its or
his claims, but may not broaden the scope of patent
protection.
The patentee for patent for invention or utility model may not
amend its or his description or drawings. The patentee for patent
for design may not amend its or his drawings, photographs or the
brief explanation of the design.
Article 69 The Patent Reexamination Board may,
at the request of the parties concerned or in accordance with the
need of the case, decide to conduct oral proceedings in respect of
a request for invalidation.
Where the Patent Reexamination Board decides to conduct oral
proceedings in respect of a request for invalidation, it shall send
notification of oral proceedings to the parties concerned,
indicating the date and place of the oral proceedings 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 oral proceedings sent by the Patent
Reexamination Board within the specified time limit, and fails to
take part in the oral proceedings, the request for invalidation
shall be deemed to have been withdrawn. Where the patentee fails to
take part in the oral proceedings, the Patent Reexamination Board
may proceed to examine by default.
Article 70 In the
course of the examination in respect of a request for invalidation,
the time limit specified by the Patent Reexamination Board shall
not be extended.
Article 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
Article 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.
Article 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
Article 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, offer a reward to the inventor or creator of a service
invention-creation. The reward for a patent for invention shall not
be less than 2000 yuan; the reward for a patent for utility model
or design shall not be less than 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 offer a reward to him on favorable
terms.
For the reward 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.
Article 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.
Article 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
fees 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.
Article 77 The provisions of this Chapter may
be implemented by any other Chinese entity by making reference
thereto.
Chapter VII Protection of Patent Right
Article 78 The administrative authority for
patent affairs referred to in the Patent Law and these Rules 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 divided into
districts which has a large amount of patent administration work to
attend to and has the ability to deal with the matter.
Article 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 reward 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.
Article 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.
Article 81 Where any party concerned requests
for handling or mediation of a patent dispute, it shall fall under
the jurisdiction of the administrative authority for patent affairs
of the place where the requested party has his location or where
the act of infringement takes place.
Where two or more administrative authorities for patent affairs
all have jurisdiction over a patent dispute, the party concerned
may file his or its request with one of them. 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.
Article 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 to suspend from handling 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 from handling the
matter.
Article 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.
Article 84 Any of the following acts 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 made or sold by oneself or on the
package of the said product;
(2) without authorization, using the patent number of another
person in the advertisement or in any other promotional materials,
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, 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.
Article 85 Any of the following acts 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) addressing any non-patented technology as patented
technology in the advertisements or in any other promotional
materials;
(4) stating any non-patented technology as patented technology
in any contract;
(5) counterfeiting or transforming any patent certificate,
patent document or patent application document.
Article 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.
The 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 by 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 has
entered 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 making 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.
Article 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
Article 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 patent application right 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.
Article 89 The patent administration department
under the State Council shall publish the Patent Gazette at regular
intervals, publicizing 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 right 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 text by the patent administration
department under the State Council.
Chapter IX Fees
Article 90 When any person files an application
for a patent with, or goes through other formalities at, the patent
administration department under the State Council, he or it shall
pay the following fees:
(1) filing fee, additional fee for patent application, and
printing fee for publicizing 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.
Article 91 The fees provided for in the Patent
Law and in these Rules 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 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 concerned may,
within one year from the date of payment, request a refund from the
patent administration department under the State Council.
Article 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 publicizing 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 the priority shall be deemed not to have
been made.
Article 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.
Article 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.
Article 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, in the lump, pay the
application maintenance fee for all the years, not including 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.
Article 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.
Article 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.
Article 98 Where any applicant or patentee has
difficulties in paying the various fees prescribed in these Rules,
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
Article 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 enters the Chinese national
phase (hereinafter referred to as the international application),
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
Rules shall apply.
Article 100 Any international application which
has been accorded an international filing date and which has
designated China shall, in accordance with the Patent Cooperation
Treaty, 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.
Article 101 Any applicant for an international
application entering the Chinese national phase shall, within 30
months from the priority date as referred to in Article 2 of the
Patent Cooperation Treaty (referred to in this chapter as "the
priority date"), go through the following formalities with the
patent administration department under the State Council:
(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 patent
application and the printing fee for publicizing the application as
provided in Article 90, paragraph one of these Rules;
(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 time limit of 32 months from the priority
date.
Article 102 Where the applicant fails to go
through the formalities for entering the Chinese national phase,
within the time limit prescribed in Article 101, paragraph two of
these Rules 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 publicizing the
application prescribed in Article 90, paragraph one of these Rules,
or the surcharge for the late entry as prescribed in Article 101,
paragraph two of these Rules 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 Article 7, paragraph two of these Rules
shall not apply.
Article 103 Where any of the following
circumstance occurs 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 a figure of the
drawings in the abstract is not furnished;
(3) where the title of the invention-creation, the name or title
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 up the corrections, his or its application shall be deemed to
be withdrawn.
Article 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 furnished 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 time limit, the
amendments made in the international phase shall not be taken into
consideration by the patent administration department under the
State Council.
Article 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 any change in the applicant is made 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
having filed 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 Article 31, paragraph two of
these Rules 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 Article, the
provisions of Article 24 of the Patent Law shall not apply to his
or its international application.
Article 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 Article 25, subparagraph (3) of these
Rules 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 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 Article 25, subparagraph (1) of these Rules.
Article 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 it
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
the priority shall be deemed not to have been made.
Where the claim for the 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 the priority at the
time of going through the formalities for entering the Chinese
national phase.
Article 108 Where, before the expiration of 30
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.
Article 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 Article 51, paragraph one of these
Rules shall apply.
Article 110 Where the applicant finds that
there are mistakes in the Chinese translation of the description,
the claims or the words of the drawings submitted, he or it may
correct the translation in accordance with the initial
international application as filed within the following time
limits:
(1) before the completion of technical preparations of the
patent administration department under the State Council for
national publication;
(2) within three months from the date of receipt of the
notification sent by the patent administration department under the
State Council notifying 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 shall file a written request, furnish a replace
sheet of the translation and pay the prescribed fee for 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 Article. If the prescribed formalities are
not gone through at the expiration of the time limit, the
international application shall be deemed to be withdrawn.
Article 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 is in compliance with the
provisions of the Patent Law and these Rules, 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.
Article 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 Article 42, paragraph one of
these Rules.
Where, in the international phase, some parts of the
international application are not 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, or because the
applicant fails to pay the additional fee, and 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.
Article 113 Where the applicant furnishes the
documents and pays the fees in accordance with the provisions of
Article 101 of these Rules, 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 Article 101 of these
Rules, the documents shall be deemed to have been received on the
date on which the time limit expires. However, the time period for
the applicant to furnish evidence may not be later than six months
after the expiration of the time limit prescribed in Article 101 of
these Rules.
Where documents are to be submitted to the patent administration
department under the State Council in accordance with the
provisions of Article 101 of these Rules, 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.
Article 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.
Article 115 Where an international application
in the international phase has been refused to be accorded an
international filing 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 Article 101 of these Rules
within the said time limit with 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.
Article 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
Article 117 Any person may, after approval by
the patent administration department under the State Council,
consult or copy the files of the publicized or announced patent
applications and the Patent Register, and 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.
Article 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 be in the
prescribed form of 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 or address of the patent agency or 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.
Article 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 with 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.
Article 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.
Article 121 The patent administration
department under the State Council shall formulate Guidelines for
Examination in accordance with the Patent Law and these Rules.
Article 122 These Rules shall be effective as
of July 1, 2001. The Rules for the Implementation 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
simultaneously.
(State Council)
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