Implementing
Regulations of the Patent Law
of the People's Republic of China
Revision
Approved by the State Council on 26 June 2001 and Promulgated by the State
Intellectual Property Office of the People's Republic of China on 1 July
2001
Chapter I
General Provisions
Chapter II
Application for Patent
Chapter III
Examination and Approval of Application for Patent
Chapter IV Reexamination of Patent Application and
Invalidation of Patent Right
Chapter V
Compulsory License for Exploitation of Patent
Chapter VI
Rewards to Inventor or Creator of Service Invention-Creation
Chapter VII
Protection of Patent Right
Chapter VIII
Patent Register and Patent Gazette
Chapter IX
Fees
Chapter X
Special Provisions for International Applications
Chapter XI
Supplementary Provisions
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General Provisions
Rule
1
These
Implementing Regulations are drawn up in accordance with the Patent Law of
the People's Republic of China (hereinafter referred to as the Patent
Law).
Rule
2
"Invention"
in the Patent Law means any new technical solution relating to a product,
a process or improvement thereof.
"Utility
model" in the Patent Law means any new technical solution relating to
the shape, the structure, or their combination, of a product, which is fit
for practical use.
"Design"
in the Patent Law means any new design of the shape, pattern, or their
combination and the combination of color and shape or pattern, of a
product, which creates an aesthetic feeling and is fit for industrial
application.
Rule
3
Any
proceedings provided for by the Patent Law and these Implementing
Regulations shall be conducted in a written form or in any other form
prescribed by the Patent Administrative Department under the State
Council.
Rule
4
Any
document submitted under the Patent Law and these Implementing Regulations
shall be in Chinese. The standard scientific and technical terms shall be
used if there is a prescribed one set forth by the State. Where no
generally accepted translation in Chinese can be found for a foreign name
or scientific or technical term, the one in the original language shall be
also indicated.
Where
any certificate and certified document submitted in accordance with the
Patent Law and these Implementing Regulations are in foreign language, and
where the Patent Administrative Department under the State Council finds
it necessary, it may request for a Chinese translation of the certificate
and the certified document to be submitted within a specified time limit;
where the translation is not submitted within the specified time limit,
the certificate and certified document shall be deemed not to have been
submitted.
Rule
5
For
any document sent by mail to the Patent Administrative Department under
the State Council, the date of mailing indicated by the postmark on the
envelope shall be presumed to be the date of filing. If the date of
mailing indicated by the postmark on the envelope is illegible, the date
on which the Patent Administrative Department under the State Council
receives the document shall be the date of filing, except where the date
of mailing is proved by the addresser.
Any
document of the Patent Administrative Department under the State Council
may be served by mail, by personal delivery or by any other means. 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 person indicated in the request.
For
any document sent by mail by the Patent Administrative Department under
the State Council, the 16th day from the date of mailing shall be presumed
to be the date on which the addressee receives the document.
For
any document, which shall be delivered personally in accordance with the
prescription of the Patent Administrative Department under the State
Council, the date of delivery is the date on which the addressee receives
the document.
Where
the address of a document is not clear and cannot be sent by mail, the
document may be served by making an announcement in the Patent Gazette. At
the expiration of one month from the date of the announcement, the
document shall be presumed as having been served.
Rule
6
The
first day of any time limit prescribed in the Patent Law and these
Implementing Regulations shall not be counted. Where a 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, the time limit shall expire on the first working
day following that official holiday.
Rule
7
Where
a time limit prescribed in the Patent Law or these Implementing
Regulations or specified by the Patent Administrative Department under the
State Council is not observed because of force majeure, resulting in the
loss of any right on the part of the party concerned, he or it shall,
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 Administrative Department under the State Council to
restore his or its rights.
Where
a time limit prescribed in the Patent Law or these Implementing
Regulations or specified by the Patent Administrative Department under the
State Council is not observed because of any justified reason, resulting
in the loss of any right on the part of the party concerned, he or it
shall, within two months from the date of receipt of a notification from
the Patent Administrative Department under the State Council, state the
reasons and request the Patent Administrative 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 Administrative Department under the State Council,
he or it shall, before the time limit expires, state the reasons to the
Patent Administrative Department under the State Council and complete the
relevant procedures.
The
provisions of paragraphs one and two of this Rule shall not be applicable
to the time limits referred to in Articles 24, 29, 42, and 62 of the
Patent Law.
Rule
8
Where
an application for patent for invention relates to the security of the
State concerning national defense and is required to be kept secret, the
application shall be filed with the patent organization of the national
defense system. Where any application for patent for invention relating to
the secrets of the State concerning national defense and requiring to be
kept classified is received by the Patent Administrative Department under
the State Council, the Patent Administrative Department under the State
Council shall transfer the application to the said patent organization of
the national defense system. The Patent Administrative Department under
the State Council shall make a decision on the basis of the observations
of the examination of the application presented by the said patent
organization of the national defense system.
Subject
to the preceding paragraph, the Patent Administrative Department under the
State Council, after receipt of an application for patent for invention,
which is required to be examined for the purpose of security, shall send
it to the competent department concerned of the State Council for
examination. The said department shall, within four months from receipt of
the application, send a report on the results of the examination to the
Patent Administrative Department under the State Council. Where the
invention for which a patent is applied for is required to be kept secret,
the Patent Administrative Department under the State Council shall handle
it as an application for secret patent and notify the applicant
accordingly.
Rule
9
The
invention-creations contrary to the laws of the State referred to in
Article 5 of the Patent Law do not include invention-creations the
exploitation of which is prohibited under the laws of the State.
Rule
10
The
date of filing referred to in the Patent Law, except that mentioned in
Articles 28 and 42, means the priority date where a right of priority is
claimed.
The
date of filing referred to in these Implementing Regulations means the
date of filing provided for in Article 28 of the Patent Law, unless
otherwise provided for.
Rule
11
"Service
invention-creation made by a person in execution of the tasks of the
entity to which he belongs", mentioned in Article 6 of the Patent Law
refers to 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 one belongs mentioned in Article 6 of the Patent Law
includes the entity one temporarily works for; "material and/or
technical means of the entity" mentioned in Article 6 of the Patent
Law refers to entity's money, equipment, spare parts, raw materials, or
technical data which are not to be disclosed to the public.
Rule
12
"Inventor"
or "creator" mentioned in the Patent Law refers to any person
who has made creative contributions to the substantive features of the
invention-creation. Any person who, during the course of accomplishing the
invention-creation, is responsible only for organization work, or who
offers facilities for making use of material and/or technical means, or
who takes part in other auxiliary functions, shall not be considered as
inventor or creator.
Rule
13
For
any identical invention-creation, only one patent right shall be granted.
Two
or more applicants who file, on the same day, applications for patent for
the identical invention-creation, according to Article 9 of the Patent
Law, shall, after receipt of a notification from the Patent Administrative
Department under the State Council, hold consultation among themselves to
decide on the person or persons who shall be entitled to file the
application.
Rule
14
Where
a Chinese entity or individual assigns the right to apply for patent or
the patent right to a foreigner, the assignment shall be approved by the
competent Organ for Foreign Trade and Economic Cooperation under the State
Council in conjunction with the Administrative Organ for Science and
Technology under the State Council.
Rule
15
Where
a patent right is transferred for reasons other than the assignment of a
patent right as provided for in Article 10 of the Patent Law, the
interested party shall perform the formalities for change of the name of
the patentee with the Patent Administrative Department under the State
Council on the basis of relevant certified document or legal instrument.
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 Administrative Department under the State Council for recordal.
Application for Patent
Rule
16
Anyone
who applies for a patent in written form shall submit application
documents in two copies to the Patent Administrative Department under the
State Council.
Any
application filed in any other form prescribed by the Patent
Administrative Department under the State Council shall conform to the
requirement.
Any
applicant, who appoints a patent agency for filing an application for a
patent with, or for dealing with other patent matters before, the Patent
Administrative Department under the State Council, shall submit a power of
attorney indicating the scope of the power entrusted.
Where
there are two or more applicants of one application and where they have
not appointed any patent agency, the first applicant indicated in the
request shall be the representative unless otherwise stated in the
request.
Rule
17
Other
related matters mentioned in Article 26, paragraph two, of the Patent Law
refer to:
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 shall be indicated; where the applicant has
not appointed a patent agency, the name, address, postal code and
telephone number of his or its person to be contacted;
4.
Where the priority of an earlier application
is claimed, the relevant matters which should be indicated;
5.
The signature or seal of the applicant or
the patent agency;
6.
A list of the documents constituting the
application;
7.
A list of the documents appending the
application;
8.
Any other related matter which needs to be
indicated.
Rule
18
The
description of an application for a patent for invention or utility model
shall indicate the title of the invention or utility model, and the title
shall be consistent with the one appearing in the request. The description
shall contain:
1.
Technical field: indicating the technical field the technical
solution falls into for which protection is claimed;
2.
Background art: indicating the background
art which facilitates the understanding, searching and examination of the
invention or utility model, and citing, if available, the documents
reflecting such art;
3.
Contents of invention: stating the technical
problem to be solved by the invention or utility model and the technical
solution adopted for solving the technical problem, and indicating the
advantageous effects of the invention or utility model with reference to
the prior art;
4.
Drawings: briefly explaining each of the
drawings where the description is accompanied therewith;
5.
Specific mode for carrying out the invention
or utility model: indicating in detail the optimum mode contemplated by
the applicant for carrying out the invention or utility model; this shall
be done in terms of examples, where appropriate, and with reference to the
drawings, if any.
The
manner and order mentioned in the preceding paragraph shall be observed by
the applicant of a patent for invention or a patent for utility model and
a subtitle is given at the beginning of each portion of the description,
unless, because of the nature of the invention or utility model, a
different manner or order would afford an accurate understanding and a
more economical presentation.
The
description of the invention or utility model shall be written in standard
terms and straightforward sentences, and shall not contain such references
to the claims as: "as described in part - of the claim", nor
shall it contain commercial advertising.
Where
an application for patent for invention covers one or more sequences of
nucleotides or of amino acids, the description thereof shall contain a
table of sequence complying with the prescription of the Patent
Administrative Department under the State Council. The applicant shall
submit the table of sequence as a separate portion of the description,
together with a computer-readable copy in the form prescribed by the
Patent Administrative Department under the State Council.
Rule
19
The
same sheet of drawings may contain several figures of the invention or
utility model, and the drawings shall be numbered and arranged in
numerical order consecutively as "Figure 1, Figure 2, ¡K ¡K ".
The
scale and the distinctness of the drawings shall be such that a
reproduction with a linear reduction in size to two-thirds would still
enable all details to be clearly distinguishable.
Drawing
reference signs not appearing in the text of the description of the
invention or utility model shall not appear in the drawings. Drawing
reference signs not appearing in the drawings shall not appear in the text
of the description. Drawing reference signs for the same composite part
used in an application document shall be consistent throughout.
The
drawings shall not contain any other explanatory notes, except words,
which are indispensable.
Rule
20
The
claims shall define clearly and concisely the matter for which protection
is sought in terms of the technical features of the invention or utility
model.
If
there are several claims, they shall be numbered consecutively in Arabic
numerals.
The
technical terminology used in the claims shall be consistent with that
used in the description. The claims may contain chemical or mathematical
formulae but no drawings. They shall not, except where absolutely
necessary, contain such references to the description or drawings as:
"as described in part - of the description", or "as
illustrated in figure - of the drawings".
The
technical features mentioned in the claims may, in order to facilitate
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 between
parentheses. They shall not be construed as limiting the claims.
Rule
21
The
claims shall have an independent claim, and may also contain dependent
claims.
An
independent claim shall outline the technical solution of an invention or
utility model and describe the indispensable technical features necessary
for solving the technical problems.
A
dependent claim shall further define the claim, which it refers to by
additional features, which it is desired to protect.
Rule
22
An
independent claim of an invention or utility model shall contain a
preamble portion and a characterizing portion, and be presented in the
following form:
1.
A preamble portion, indicating the title of the subject matter of
the technical solution of the invention or utility model for which
protection is sought, and the necessary technical features common to the
invention or utility model and the closest prior art;
2.
A characterizing portion, stating, in such words as
"characterized in that ¡K ¡K " or in similar expressions, the
technical features of the invention or utility model, which distinguish it
from the closest prior art. These features, in combination with the
features stated in the preamble portion, served to define the scope of
protection of the invention or utility model.
Independent
claims may be presented in any other form, where it is not appropriate,
according to the nature of the invention or utility model, to present them
in the form prescribed in the preceding paragraph.
Each
invention or utility model shall have only one independent claim, which
shall precede all the dependent claims relating to the same invention or
utility model.
Rule
23
A
dependent claim of an invention or utility model shall contain a reference
portion and a characterizing portion, and be presented in the following
form:
1.
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.
A
dependent claim shall refer only to the preceding claim or claims. A
multiple dependent claim referring to two or more preceding claims shall
only refer to any one of the preceding claims, and shall not be taken as
the basis of any multiple dependent claim.
Rule
24
The
abstract of the description shall outline the contents disclosed in the
application for patent for invention or utility model, namely indicating
the title and the technical field of the invention or utility model, and
clearly states the technical problems to be solved, the essential
technical features and the major use or uses of the technical solution
solving the problems.
The
abstract may contain the chemical formula which best characterizes the
invention. In an application for a patent, which contains drawings, the
applicant shall indicate and provide a drawing which best characterizes
the invention or utility model. The scale and the distinctness of the
drawings shall be such that a reproduction with a linear reduction in size
to 4cm¡Ñ 6cm would still enable all details to be clearly distinguished.
The whole text of the abstract shall contain not more than 300 Chinese
characters. There shall be no commercial advertising in the abstract.
Rule
25
Where
an application for a patent for invention concerns a new biological
material which is not accessible to the public, and the description of
which is not sufficient enough to enable skilled artisans of the art to
carry out the invention, the applicant shall, in addition to fulfilling
the requirements set out in the Patent Law and these Implementing
Regulations, complete the following formalities.
1.
Deposit a sample of the biological material with a depository
institution designated by the Patent Administrative Department under the
State Council before the date of filing, 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 shall be deemed not to have been deposited;
2.
Give in the application document relevant
information of the characteristics of the biological material;
3.
Indicate, where the application relates to
the deposit of a sample of the biological material in the request and the
description, the scientific name of classification (with its Latin name)
of the biological material and the name and address of the depository
institution of the biological material, the date and 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 prescribed time limit they are not supplied, the
sample of the biological material shall be deemed not to have been
deposited.
Rule
26
Where
an applicant for patent for invention deposits a sample of biological
material in accordance with Rule 25 of these Implementing Regulations,
after the publication of the application for a patent for invention
relating to a biological material, any entity which, or individual who,
needs to make use of the biological material covered in the application
for the purpose of experiment shall make a request to the Patent
Administrative Department under the State Council containing the
following:
1.
The name and address of the entity or individual making the
request;
2.
An undertaking not to make the biological
material available to any other person;
3.
An undertaking to use the biological
material for experimental purpose only before the grant of the patent
right.
Rule
27
The
size of drawings or photographs of a design submitted in accordance with
the provisions of Article 27 of the Patent Law shall not be smaller than
3cm¡Ñ 8cm, nor larger than 15cm¡Ñ 22cm.
Where
an application for a patent for design seeking concurrent protection of
colors is filed, a drawing or photograph in color, and a drawing or
photograph in white and black, shall be submitted in two copies.
The
applicant shall submit, in respect of the subject matter of the product
incorporating the design, which is in need of protection, the relevant
views and stereoscopic drawings or photographs, so as to clearly show the
subject matter for which protection is sought.
Rule
28
Where
an application for a patent for design is filed, a brief explanation of
the design shall, when necessary, be indicated.
The
brief explanation of the design shall include the main design elements of
the product incorporating the design, the colors for which protection is
sought and the omission of the view thereof. The brief explanation shall
not contain any commercial advertising and shall not be used to indicate
the function and the uses of the product.
Rule
29
Where
the Patent Administrative Department under the State Council finds 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¡Ñ 30cm ¡Ñ 30cm, and
its weight shall not surpass 15 kilos. Articles easy to get rotten or
broken or articles that are dangerous may not be submitted as sample or
model.
Rule
30
The
existing technology mentioned in Article 22, paragraph three, of the
Patent Law means any technology which has been publicly disclosed in
publications in the country or abroad, or has been publicly used or made
known to the public by any other means in the country, before the date of
filing (or the priority date where priority is claimed), that is, prior
art.
Rule
31
The
academic or technological meeting mentioned in item (2) of Article 24 of
the Patent Law means any academic or technological meeting organized by a
competent department concerned of the State Council or by a national
academic or technological association.
Where
any invention-creation for which an application for a patent is filed
falls under the provisions of item (1) or item (2) of Article 24 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 a certificate issued by the entity which organizes the
international exhibition or academic or technological meeting, stating
that the invention-creation was in fact exhibited or made public there and
also the date of its exhibition or making public.
Where
any invention-creation for which an application for a patent is filed
falls under the provisions of item (3) of Article 24 of the Patent Law,
the Patent Administrative Department under the State Council may, when
necessary, require the applicant to submit the relevant proof within the
prescribed time limit.
Where
the applicant fails to make the declaration or submit the certified
document pursuant to paragraph two of this Rule, or fails to submit the
proof within the prescribed time limit according to paragraph three of
this Rule, the provision of Article 24 of the Patent Law shall not be
applicable to his or its application.
Rule
32
Where
the applicant is to comply with the requirements for claiming the right of
priority in accordance with Article 30 of the Patent Law, he or it shall,
in his or its written declaration, indicate the date of filing and the
filing number of the application which was first filed (hereinafter
referred to as the earlier application) and the country in which that
application was filed. If the written declaration does not contain the
date of filing of the earlier application and the name of that country,
the declaration shall be deemed not have been made.
Where
the foreign priority is claimed, the copy of the earlier application
document submitted by the applicant shall be certified by the competent
authority of the foreign country; where the name or the title of the
applicant of the earlier application is not consistent with that of the
applicant of the subsequent application in the certified material, a proof
of the assignment of the right of priority shall be submitted; where the
domestic priority is claimed, the copy of the earlier application document
shall be prepared by the Patent Administrative Department under the State
Council.
Rule
33
Any
applicant may claim one or more priorities for an application for a
patent; where the priorities of several earlier applications are claimed,
the priority period for the application shall be counted from the earliest
priority date.
Where
any 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; where 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. But when the later
application is filed, if the subject matter of the earlier application
falls under any of the following, it may not be the basis of 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.
Rule
34
Where
an application for a patent is filed or the right of foreign priority is
claimed by any applicant having no habitual residence or business
establishment in China, the Patent Administrative Department under the
State Council may, when finding it necessary, require the applicant to
submit the following documents:
1.
A certificate concerning the nationality of the applicant;
2.
A certificate concerning the seat of the
business establishment or the headquarters, if the applicant is an
enterprise or any other organization;
3.
A testimonial showing that the country, to
which the applicant belongs, recognizes that Chinese entities and
individuals are, under the same conditions applied to its nationals,
entitled to patent right, right of priority and other related rights in
that country.
Rule
35
Two
or more inventions or utility models belonging to a single general
inventive concept which may be filed as one application in accordance with
the provision of Article 31, paragraph one, of the Patent Law shall be
technically inter-related and contain one or more identical or
corresponding special technical features. The expression "special
technical features" shall mean those technical features that define a
contribution which each of those inventions, considered as a whole, makes
over the prior art.
Rule
36
The
expression "the same class" mentioned in Article 31, 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 or used at the same time.
Where
two or more designs are filed as one application in accordance with the
provisions of Article 31, paragraph two, of the Patent Law, the designs
shall be numbered consecutively and the numbers shall be placed before the
titles of the view of the product incorporating the design.
Rule
37
When
withdrawing an application for a patent, the applicant shall submit to the
Patent Administrative Department under the State Council a declaration,
indicating 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 printing preparation has been made by the Patent Administrative
Department under the State Council for publication of the application
documents, the application shall be announced as scheduled; however, the
declaration to withdraw an application for a patent shall be published on
the Patent Gazette published later on.
Examination and Approval
of Application for Patent
Rule
38
In
any of the following situations, any person who makes examination or hears
a case in the procedures of preliminary examination, examination as to
substance, reexamination, and invalidation shall, on his own initiative or
upon the request of the parties concerned or any other interested person,
be excluded from exercising his function:
1.
Where he is a close relative of the party concerned or his agent;
2.
Where he has an interest in the application
for patent or the patent right;
3.
Where he has such other kinds of relations
with the party concerned or his agent that might influence impartial
examination and hearing.
4.
Where a member of the Patent Reexamination
Board has taken part in the examination of the application.
Rule
39
Upon
the receipt of an application for a patent for invention or utility model
consisting of a request, a description (a drawing being indispensable 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 Administrative Department under the State
Council shall accord the date of filing and a filing number and notify the
applicant accordingly.
Rule
40
In
any of the following situations, the Patent Administrative Department
under the State Council shall declare the application unacceptable and
notify the applicant accordingly:
1.
Where the application for a patent for invention or utility model
does not contain a request, a description (the description of utility
model does not contain drawings) or claims, or the application for a
patent for design does not contain a request, drawings or photographs;
2.
Where the application is not written in
Chinese;
3.
Where the application is not in conformity
with the provisions of Rule 120, paragraph one, of these Implementing
Regulations;
4.
Where the request does not contain the name
and address of the applicant;
5.
Where the application is obviously not in
conformity with the provisions of Article 18, or Article 19, paragraph
one, of the Patent Law;
6.
Where the kind of protection (patent for
invention, utility model or design )of the application for a patent is not
clear and definite or difficult to be discerned.
Rule
41
Where
the description mentions that it contains "explanatory notes to the
drawings" but the drawings or some of them are missing, the applicant
shall, within the time limit specified by the Patent Administrative
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
delivering at, or mailing to, the Patent Administrative Department under
the State Council shall be the date of filing of the application; if the
mention of "explanatory notes to the drawings" is to be deleted,
the initial date of filing shall be the date of filing of the application.
Rule
42
Where
an application for a patent contains two or more inventions, utility
models or designs, the applicant may, before the expiration of the time
limit specified in Rule 54, paragraph 1, of these Implementing
Regulations, submit to the Patent Administrative Department under the
State Council a divisional application; however, where the application for
a patent has been rejected, withdrawn or deemed withdrawn, the divisional
application shall not be filed.
If
the Patent Administrative Department under the State Council finds that an
application for a patent is not in conformity with the provisions of
Article 31 of the Patent Law and Rule 35 or Rule 36 of these Implementing
Regulations, it shall invite the applicant to amend the application within
the specified time limit; if the applicant does not make any response
within the time limit, the application shall be deemed to have been
withdrawn.
The
divisional application may not change the kind of protection of the
initial application.
Rule
43
A
divisional application filed in accordance with Rule 42 of these
Implementing Regulations may enjoy the initial date of filing and, if
priority is validly claimed, the priority date of the initial application,
provided that the divisional application does not go beyond the scope of
disclosure contained in the initial applications
The
divisional application shall be subject to the relevant procedures in
accordance with the provisions of the Patent Law and these Implementing
Regulations.
The
filing number and the date of filing of the initial application shall be
indicated in the request of a divisional application. When submitting the
divisional application, the applicant shall submit a copy of the initial
application document; if priority is claimed for the initial application,
the applicant shall submit a copy of the priority document of the initial
application as well.
Rule
44
"Preliminary
examination" mentioned in Articles 34 and 40 of the Patent Law means
examining an application for a patent to see whether or not it contains
the documents as provided for in Articles 26 or 27 of the Patent Law and
other necessary documents, and whether or not those documents are in the
prescribed form; such examination shall also include the following:
1.
Whether or not an application for a patent for invention obviously
falls under Articles 5 or 25 of the Patent Law, or is obviously not in
conformity with the provisions of Article 18 or Article 19, paragraph one,
of the Patent Law or is obviously not in conformity with the provisions of
Article 31, paragraph one, or Article 33 of the Patent Law, or Rule 2,
paragraph one, Rule 18 and Rule 20 of these Implementing Regulations;
2.
Whether or not an application for a patent
for utility model obviously falls under Articles 5 or 25 of the Patent
Law, or is obviously not in conformity with the provisions of Article 18
or Article 19, paragraph one, of the Patent Law or is obviously not in
conformity with the provisions of Article 26, paragraphs 3 and 4, Article
31, paragraph one, or Article 33 of the Patent Law, or Rule 2, paragraph
two, or Rule 13, paragraph 1, or Rules 18 to 23, or Rule 43, paragraph one
of these Implementing Regulations, or cannot obtain a patent right
according to the provisions of Article 9 of the Patent Law;
3.
Whether or not an application for a patent
for design obviously falls under Article 5 of the Patent Law, or is
obviously not in conformity with the provisions of Article 18 or Article
19, paragraph one, of the Patent Law, or is obviously not in conformity
with the provisions of Article 31, paragraph two, or Article 33 of the
Patent Law, or Rule 2, paragraph three, or Rule 13, paragraph one, or Rule
43, paragraph one, of these Implementing Regulations, or cannot obtain a
patent right according to the provisions of Article 9 of the Patent Law.
The
Patent Administrative Department under the State Council shall communicate
its observations after examination of the application to the applicant and
invite him or it to submit his or its observations or to correct his or
its application within the specified time limit. If the applicant makes no
response within the time limit, the application shall be deemed to have
been withdrawn. Where, after the applicant has made the observations or
the corrections, the Patent Administrative Department under the State
Council still finds that the application is not in conformity with the
provisions of the Articles and the Rules referred in the relevant
preceding sub-paragraphs, the application shall be rejected.
Rule
45
In
any of the following situations, any other document relating to a patent
application, not including the patent application document which is
submitted to the Patent Administrative Department under the State Council,
shall be deemed not to have been submitted:
1.
Where the document is not presented in the prescribed form or the
indications therein are not in conformity with the prescriptions; or
2.
Where no supporting document is submitted as
prescribed.
The
Patent Administrative Department under the State Council shall notify the
applicant of its observation that the document is deemed not have been
submitted.
Rule
46
Where
the applicant requests an earlier publication of its or his application
for a patent for invention, a declaration shall be made to the Patent
Administrative Department under the State Council. The Patent
Administrative Department under the State Council shall, after preliminary
examination of the application and, unless it is to be rejected, publish
it immediately.
Rule
47
The
applicant shall, when indicating in accordance with Article 27 of the
Patent Law the product incorporating the design and the class to which
that product belongs, refer to the classification of products for designs
published by the Patent Administrative 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
Administrative Department under the State Council shall supply the
indication or make the correction.
Rule
48
Any
person may, from the date of publication of an application for a patent
for invention till the date of announcing the grant of the patent right,
submit to the Patent Administrative Department under the State Council
observations, with the reasons therefor, on the application which is not
in conformity with the provisions of the Patent Law.
Rule
49
Where
the applicant for a patent for invention cannot furnish, for justified
reasons, the documents concerning any search or the results of any
examination under Article 36 of the Patent Law, it or he shall make a
statement to that effect to the Patent Administrative Department under the
State Council and submit them when the said documents are available.
Rule
50
The
Patent Administrative Department under the State Council shall, when
proceeding on its own initiative to examine an application for a patent
for invention in accordance with the provisions of Article 35, paragraph
two, of the Patent Law, notify the applicant accordingly.
Rule
51
When
requesting for examination as to substance or within three months from the
date of receipt of the notification from the Patent Administrative
Department under the State Council that the application for a patent for
invention has entered the stage of examination as to substance, the
applicant 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
an applicant amends the document of its or his patent application for a
patent after receipt of the notification of the observations from the
Patent Administrative Department under the State Council of the
examination, the amendment shall be made according to the requirements in
the notified observations.
The
Patent Administrative Department under the State Council may, on its own
initiative, correct obvious lexical or graphic errors in the patent
application document, where the Patent Administrative Department under the
State Council makes the corrections on its own initiative, it shall notify
the applicant of the corrections.
Rule
52
When
an amendment to the description or the claims in an application for a
patent for invention or utility model is made, a replacement sheet in the
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 in the prescribed form shall be submitted.
Rule
53
According
to the provisions of Article 38 of the Patent Law, the situations where
after examination as to substance of an application for patent for
invention shall be rejected by the Patent Administrative Department under
the State Council shall comprise the following:
1.
Where the application does not comply with the provisions of Rule
2, paragraph one, of these Implementing Regulations;
2.
Where the application falls under the
provisions of Articles 5 or 25 of the Patent Law; or it does not comply
with the provisions of Article 22 of the Patent Law and Rule 13, paragraph
one, Rule 20, paragraph one, or Rule 21, paragraph two, of these
Implementing Regulations, or the applicant cannot obtain a patent right
according to the provisions of Article 9 of the Patent Law;
3.
Where the application does not comply with
the provisions of Article 26, paragraphs three or four, or Article 31,
paragraph one, of the Patent Law;
4.
Where the amendment to the application is
not in conformity with the provision of Article 33 of the Patent Law or
the divisional application is not in conformity with the provision of Rule
43, paragraph one, of these Implementing Regulations.
Rule
54
After
the Patent Administrative 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 goes through the formalities of
registration within the said time limit, the Patent Administrative
Department under the State Council shall grant the patent right, issue the
patent certificate, and announce it.
If
the time limit for going through the formalities of registration is not
met, the applicant shall be deemed to have abandoned its or his right to
obtain the patent right.
Rule
55
After
the decision to grant the patent right for utility model is announced, the
patentee of the utility model may file a request with the Patent
Administrative Department under the State Council to make a search report
for the patent for utility model.
Where
the search report for a patent for utility model is requested for, a
request shall be filed and the patent number of the patent for utility
model be indicated. Each request shall be limited to one patent for
utility model only.
After
receipt of the request for the search report for a patent for utility
model, the Patent Administrative Department under the State Council shall
examine the request. If the request is not in conformity with the
specified requirements, the applicant filing the request shall be notified
to make corrections within the specified time limit.
Rule
56
If
the request for the search report for a patent for utility model complies
with the prescription upon examination, the Patent Administrative
Department under the State Council shall promptly make the report on the
search of the patent for utility model.
Where,
the Patent Administrative Department under the State Council, upon the
search, finds that the related patent for utility model does not comply
with the provision of Article 22 of the Patent Law concerning novelty or
inventiveness, reference documents shall be cited, reasons be stated,
together with a copy of the cited reference documents.
Rule
57
The
Patent Administrative Department under the State Council shall promptly
correct any errors in the Patent Gazette or patent documents once they are
found, and announce the correction.
Reexamination of Patent
Application and Invalidation of Patent Right
Rule
58
The
Patent Reexamination Board shall consist of experienced technical and
legal experts designated by the Patent Administrative Department under the
State Council. The Head of the Patent Administrative Department under the
State Council shall be the Director of the Board.
Rule
59
Where
the applicant requests the Patent Reexamination Board to make a
reexamination in accordance with the provisions of Article 41 of the
Patent Law, it or he shall file a request for reexamination and state the
reasons therefor. The relevant supporting documents shall be provided when
necessary.
Where
the request for reexamination does not comply with the prescribed form,
the person making the request shall rectify it within the time limit fixed
by the Patent Reexamination Board. If the time limit for making
rectification is not met, the request for reexamination shall be deemed
not have been filed.
Rule
60
When
filing the request for reexamination or responding to the notification of
reexamination by the Patent Reexamination Board, the person making the
request may amend the patent application document; however, the amendment
shall be limited to the elimination of the defects pointed out in the
decision of rejection or the notification of reexamination.
The
amended patent application document shall be submitted in two copies.
Rule
61
The
Patent Reexamination Board shall send the request for reexamination, which
the Board has received to the examination department of the Patent
Administrative Department under the State Council which has made the
examination to make an examination. Where the examination department
agrees to revoke its former decision upon the request of the person
requesting reexamination, the Patent Reexamination Board shall make a
decision accordingly and notify that person.
Rule
62
Where
the Patent Reexamination Board finds after reexamination that the request
does not comply with the relevant provisions of the Patent Law and these
Implementing Regulations, it shall invite the person requesting
reexamination to submit his observations within the specified time limit.
If the time limit for making response is not met, the request for
reexamination shall be deemed to have been withdrawn; after the
observations or amendment, the Patent Reexamination Board still finds that
the patent application document does not comply with the relevant
provisions of the Patent Law and these Implementing Regulations, it shall
make its reexamination decision to uphold the initial decision of
rejection.
Where
the Patent Reexamination Board finds after reexamination that the decision
of rejection does not comply with the relevant provisions of the Patent
Law and these Implementing Regulations, or finds that the amended patent
application document has eliminated the defects pointed out in the
decision of rejection, it shall revoke the initial decision of rejection,
and the examination department which has made the examination shall
proceed with the examination proceeding.
Rule
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 for reexamination withdraws his request for
reexamination before the Patent Reexamination Board makes its decisions,
the reexamination proceeding terminates.
Rule
64
Anyone
requesting invalidation or partial invalidation of a patent right
according to the provisions of Article 45 of the Patent Law shall submit
the request and the necessary evidence in two copies. The request for
invalidation, together with all the evidence submitted, specifically
states the reasons on which the request is based and the proofs each of
the reasons is based on.
The
reasons on which the request for invalidation is based mentioned in the
proceeding paragraph shall comprise that the invention-creation for which
the patent right is granted does not comply with the provisions of
Articles 22 or 23, Article 26, paragraph three or four, or Article 33 of
the Patent Law, or Rule 2, or Rule 13, paragraph one, or Rule 20,
paragraph one, or Rule 21, paragraph two, of these Implementing
Regulations; or it falls under the provisions of Articles 5 or 25 of the
Patent Law; or the person to whom the patent was granted cannot obtain a
patent right according to the provisions of Article 9 of the Patent Law.
Rule
65
Where
the request for invalidation of patent right does not comply with the
provisions of Rule 64 of these Implementing Regulations, the Patent
Reexamination Board shall not accept it.
Where
the request for invalidation of a patent is submitted on the same reason
and evidence after the Patent Reexamination Board makes its decision on
the request for invalidation of the patent, the Patent Reexamination Board
shall not accept it.
Where
a request is filed for invalidation of a patent for design on the ground
that the patented design collides with the legitimate right another person
has acquired earlier, but no effective decision or judgment is submitted
which proves the handling of the collision of rights in question, the
Patent Administrative Department under the State Council 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 fixed by the Patent Reexamination Board. If the rectification
fails to be made within the time limit, the request for invalidation shall
be deemed not have been filed.
Rule
66
After
the Patent Reexamination Board receives the request for invalidation, the
person making the request may give additional reasons or evidence within
one month from the date of submission of the request for invalidation.
Where additional reasons or evidence are given after the expiration of the
time limit, the Patent Reexamination Board may disregard the reasons or
evidence.
Rule
67
The
Patent Reexamination Board shall send a copy of the request for
invalidation of the patent right and copies of the relevant documents to
the patentee and invite it or him to present its or his observations
within a specified time limit.
The
patentee and the person making the request for invalidation shall respond
to the notification of the transmittal of documents or the notification of
examination of the request for invalidation from the Patent Reexamination
Board within the prescribed time limit. Where no response is made within
the time limit, the hearing procedure of the Patent Reexamination Board
will not be affected.
Rule
68
In
the process of examination of the request for invalidation, the patentee
of a patent for invention or utility model may amend its or his patent
claims, but may not broaden the scope of protection of the initial patent.
The
patentee of a patent for invention or utility model may not amend the
patent description and the drawings, and the patentee of a patent for
design may not amend the drawings, photographs and brief explanations
thereof.
Rule
69
The
Patent Reexamination Board may, at the request of an interested party or
as the facts of a case so require, decide to conduct oral hearing of the
request for invalidation.
Where
the Patent Reexamination Board decides to orally hear the request for
invalidation, it shall send a notification of oral hearing to the
interested parties, informing the date and place of the oral hearing. The
interested parties shall respond within the time limit fixed in the
notification.
Where
the person making the request for invalidation fails to respond to the
notification of the oral hearing from the Patent Reexamination Board, nor
attends the oral hearing, its or his request for invalidation shall be
deemed to have been withdrawn; where the patentee does not attend the oral
hearing, the hearing may be held in its or his absence.
Rule
70
In
the proceeding for examination of the request for invalidation, the time
limit fixed by the Patent Reexamination Board shall not be extended.
Rule
71
The
person requesting invalidation may withdraw his request before the Patent
Reexamination Board makes a decision on it.
Where
the person requesting invalidation withdraws his request before the Patent
Reexamination Board makes its decision, the procedure for the examination
of the request for invalidation terminates.
Compulsory License for
Exploitation of Patent
Rule
72
After
the expiration of three years from the grant of the patent right, any
entity may, in accordance with the provisions of Article 48 of the Patent
Law, request the Patent Administrative Department under the State Council
to grant a compulsory license.
Any
entity or individual requesting a compulsory license shall submit to the
Patent Administrative Department under the State Council a request for
compulsory license and state the reasons therefor, together with relevant
supporting documents. The request and supporting documents shall be in two
copies respectively.
The
Patent Administrative Department under the State Council shall send a copy
of the request for compulsory license to the patentee. He or it shall make
his or its observations within the time limit specified by the Patent
Administrative Department under the State Council. Where no response is
made within the time limit, the Patent Administrative Department under the
State Council will not be affected in making a decision to grant a
compulsory license.
The
decision of the Patent Administrative Department under the State Council
granting a compulsory license for exploitation shall provide that the
exploitation shall be predominately for the supply of the domestic market;
where the invention-creation covered by the compulsory license relates to
a semi-conductor technology, the exploitation under the compulsory license
is limited to public and non-commercial use or to the use in remedy of an
action against unfair competition as determined by the judicial or
administrative procedure.
Rule
73
Any
party requesting, in accordance with the provisions of Article 54 of the
Patent Law, the Patent Administrative Department under the State Council
to adjudicate the fees for exploitation, shall submit a request for
adjudication and furnish documents showing that the parties have not been
able to conclude an agreement in respect of the amount of the fees. The
Patent Administrative Department under the State Council shall make an
adjudication within three months from the date of receipt of the request
and notify the parties accordingly.
Rewards to Inventor or
Creator of Service Invention-Creation
Rule
74
Any
state-owned enterprise or institution granted a patent right shall award
to the inventors or creators of the invention-creation a sum of money as
prize within three months from the date of the announcement of the patent
grant. The sum of money prize for a patent for invention shall not be less
than 2000 Yuan; the sum of money prize for a patent for utility model or
design shall not be less than 500 Yuan.
Where
an invention-creation was 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 granted the right shall award to him a money
prize liberally.
Any
enterprise holding the patent right may include the said money prize paid
to such inventors or creators into its production cost; any institution
holding the patent right may disburse the said money prize out of its
operating expenses.
Rule
75
Any
stated-owned enterprise or institution granted a patent right shall, after
exploiting the patent for invention-creation within the duration of the
patent right, draw each year from any increase in profits after taxation a
percentage of not less than 2¢H
due to the exploitation of the said patent for invention or the utility
model, or a percentage of not less than 0.2¢H due to the exploitation of the said
patent for design, and award it to the inventor or creator as
remuneration. The enterprise or institution shall, otherwise, by making
reference to the said percentage, award a lump sum of money to the
inventor or creator as remuneration.
Rule
76
Where
any state-owned enterprise or institution granted patent right authorizes
other entities or individuals to exploit its or his patent, it shall,
after taxation, draw a percentage of not less than 10¢H from the fees for the authorization
of exploitation of the said patent it received and award it to the
inventor or creator as remuneration.
Rule
77
The
other Chinese entities or institutions may award to the inventor or
creator money prize and remuneration by making reference to the provisions
in this Chapter.
Protection of Patent
Right
Rule
78
"The
administrative authority for patent affairs" mentioned in the Patent
Law and these Implementing Regulations refers to the administrative
authorities for patent affairs set up by the people's governments of the
provinces, autonomous regions and municipalities directly under the
Central Government and the people's governments of the other
municipalities which have a lot of patent- related work to administer and
are capable of handling the work.
Rule
79
Except
provided for in Article 57 of the Patent Law, the administrative
authorities for patent affairs may also, on the request of an interested
party, make mediation of patent-related disputes as follows:
1.
Disputes over the right to apply for patent and ownership of patent
right;
2.
Disputes over the qualification of inventors
or creator;
3.
Disputes over the rewards and remuneration
for inventors or creators of service inventions; and
4.
Disputes over the exploitation of an
invention without paying appropriate fees after the publication of the
applications for patents for the invention and before the grant of the
patent right.
In
respect of the disputes mentioned in the preceding subparagraph (4), any
patentee requesting the administrative authority for patent affairs for
mediation shall submit its or his request after the grant of the patent
right.
Rule
80
The
Patent Administrative Department under the State Council shall provide
operational guidance for the administrative authorities for patent affairs
to handle and mediate patent disputes.
Rule
81
Where
any interested party requests for handling or mediation of a patent
dispute, the request is under the jurisdiction of the administrative
authority of the place which the respondent has its or his domicile or of
the place where the infringing act takes place.
Where
two or more administrative authorities for patent affairs have the
jurisdiction over a patent dispute, an interested party may file request
with one of them; where the interested party files its or his request with
two or more administrative authorities for patent affairs having the
jurisdiction, the dispute is under the jurisdiction of the administrative
authority for patent affairs which first receives the request.
Where
a dispute arises over the jurisdiction of the administrative authorities
for patent affairs, the dispute is put under the jurisdiction designated
by the administrative authority for patent affairs under the people's
government at their mutually next higher level; in the absence of such an
administrative authority for patent affairs, the dispute is under the
jurisdiction designated by the Patent Administrative Department under the
State Council.
Rule
82
Where,
in the course of handling a dispute arising from patent infringement, the
respondent submits a request for invalidation of the patent in question
and it is received by the Patent Reexamination Board, it or he may request
the administrative authority for patent affair to suspend the handling.
Where
the administrative authority for patent affairs finds that the grounds
raised by the respondent for the suspension is obviously untenable, it may
not suspend the handling.
Rule
83
Where
any patentee puts a patent indication on its or his patented product or
the package thereof pursuant to the provision of Article 15 of the Patent
Law, it or he shall make the indication in the manner prescribed by the
Patent Administrative Department under the State Council.
Rule
84
The
following acts are the acts of counterfeiting patents of other persons:
1.
Indicating, without authorization, another person's patent number
on the products which one manufactures or sells or on the package thereof;
2.
Using, without authorization, another
person's patent number in advertisement or other promotional material,
causing the related technology to be mistaken for the patented technology
of another person;
3.
Using, without authorization, another
person's patent number in a contract, causing the technology mentioned in
the contract to be mistaken for the patented technology of another person;
and
4.
Forging, or mutilating patent certificates,
patent documents or patent application documents.
Rule
85
The
following acts are the acts of passing off patents of other persons:
1.
Manufacturing or marketing a non-patent product marked with a
patent indication;
2.
Continuing to put a patent indication on
products one manufactures or sells after invalidation of the patent right;
3.
Calling a non-patented technology a patented
technology in advertisement or other promotional materials;
4.
Calling a non-patented technology a patented
technology in a contract; and
5.
Forging, or mutilating patent certificates,
patent documents or patent application documents.
Rule
86
Where
any interested party has requested the administrative authority for patent
affairs to handle the matter of, or instituted legal proceedings in the
people's court for, a dispute over the ownership of the right to apply for
patent or of the patent right, it or he may request the Patent
Administrative Department under the State Council to suspend the relevant
procedure.
Where
any party requests for suspension of the relevant procedure in accordance
with the foregoing paragraph, it or he shall file the request with the
Patent Administrative Department under the State Council together with a
copy of the relevant documents received by the administrative authority
for patent affairs or the people's court.
After
the decision made by the administrative authority for patent affairs in
handling the matter or the ruling made by the people's court takes effect,
the interested party shall perform the formalities at the Patent
Administrative Department under the State Council for resuming the
relevant procedure. If the dispute over the ownership of the right to
apply for patent or of the patent right fails to be closed within one year
starting from the date of suspension and continued suspension is
necessary, the person making the request shall request for the
continuation of the suspension within the time limit. Where no request for
continuation is submitted at the expiration of the time limit, the Patent
Administrative Department under the State Council shall automatically
resume the relevant procedure.
Rule
87
Where
the people's court decides to adopt measures to preserve the patent right
in a civil case it is hearing, the Patent Administrative Department under
the State Council, when assisting in the execution of these measures,
suspends the procedure relevant to the patent right preserved. Where,
after the expiration of the term of preservation, the people's court does
not decide to continue to adopt the preservative measures, the Patent
Administrative Department under the State Council shall automatically
resume the relevant procedure.
Patent Register and
Patent Gazette
Rule
88
The
Patent Administrative Department under the State Council shall maintain a
Patent Register in which the following matters relating to patent
applications and any patent right shall be recorded:
1.
Any grant of the patent right;
2.
Any transfer of the right to apply for
patent, or the patent right;
3.
Any hypothecation and preservation of the
patent right and their termination;
4.
Any recordal of the licensing contracts for
exploitation of the patent;
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; and
9. Any changes in the name, the nationality and
the address of the patentee.
Rule
89
The
Patent Administrative Department under the State Council shall publish the
Patent Gazette at regular intervals, publishing or announcing the
following:
1.
The bibliographic data contained in patent applications;
2.
The abstract of the description of an
invention or utility model, the drawings or photographs of a design and
its brief explanation;
3.
Any request for examination as to substance
of an application for a patent for invention and any decision made by the
Patent Administrative 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 being 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 right to apply for
patent, or the patent right;
10.Any recordal of the licensing contracts for
exploitation of the patent;
11.Any hypothecation and preservation of the
patent right and their termination;
12.Any grant of compulsory license for
exploitation of the patent;
13.Any restoration of a patent application or
patent right;
14.
ny change in the name or address of the
patentee;
15.Any notification to the interested party
whose address is not known;
16.Any correction made by the Patent
Administrative Department under the State Council; and
17.
Any other related matters.
The
description, its drawings and the claims of an application for a patent
for invention or utility model shall be published in pamphlet form by the
Patent Administrative Department under the State Council.
Fees
Rule
90
When
any person files an application for a patent with, or has other
formalities to perform at, the Patent Administrative Department under the
State Council, he or it shall at the same time pay the following fees:
1.
Filing fee, additional application fee as prescribed and
application publication fee;
2.
Fee for examination as to substance and fee
for reexamination of application for patent for invention;
3.
Patent registration fee, patent publication
fee, application maintenance fee and annual fee;
4.
Fee for a change in the bibliographic data,
fee for claiming priority, fee for a request for restoration of right, fee
for a request for extension of time limit and fee for a search report for
the patent for utility model; and
5.
Fee for a request for invalidation, fee for
a request for suspension of a procedure, fee for a request for compulsory
license and fee for a request for adjudication on exploitation fee of
compulsory license.
The
rates of the fees mentioned in the preceding paragraph shall be prescribed
by the competent Pricing Department of the State Council in conjunction
with the Patent Administrative Department under the State Council.
Rule
91
The
fees provided for in the Patent Law and in these Implementing Regulations
may be paid directly to the Patent Administrative Department under the
State Council or paid by way of bank or postal remittance, or in any other
manner specified by the Patent Administrative Department under the State
Council.
Where
fees are paid by way of bank or postal remittance, the applicant or the
patentee shall indicate on the money order the filing number or the patent
number, and the titles of the fees to be paid; where it or he fails to
comply with this provision, the fee-payment formality is deemed not to
have been performed.
Where
fees are paid directly to the Patent Administrative Department under the
State Council, the very date on which the fees are paid is the date of
payment. Where fees are paid by way of postal remittance, the date of the
postmark showing the postal remittance of such fee shall be the date of
payment. Where fees are paid by way of bank remittance, the date on which
the transfer of such fee is actually ordered shall be the date of payment.
However, where the time between such a date and the date of receipt of the
order at the Patent Administrative Department under the State Council
lasts more than fifteen days, unless the date of remittance is proved by
the bank or the post office, the date of receipt at the Patent
Administrative Department under the State Council shall be the date of
payment.
Where
any patent fee is paid more than as prescribed, paid once again or wrongly
paid, the person making the payment may, within one year from the date of
payment, request the Patent Administrative Department under the State
Council for a refund.
Rule
92
The
applicant shall, after receipt of the notification of acceptance of the
application, pay the filing fee, the application publication fee and the
additional fee as prescribed at the latest within two months from the date
of filing. If the fee is not paid or not paid in full within the time
limit, the application shall be deemed to have been withdrawn.
Where
the applicant claims the right of priority, he or it shall pay the fee for
claiming priority at the time when paying the filing fee. If the fee is
not paid or not paid in full within the time limit, the claim to the right
of priority shall be deemed not have been made.
Rule
93
Where
a request for an examination as to substance, a restoration of right or a
reexamination of patent right is made, by the party concerned, the
relevant fee shall be paid within the time limit as prescribed
respectively for such requests in the Patent Law and these Implementing
Regulations. If the fee is not paid or not paid in full within the time
limit, the request is deemed not have been made.
Rule
94
Where
the applicant for a patent for invention has not been granted a patent
right within two years from the date of filing, it or he shall pay a fee
for the maintenance of the application from the third year.
Rule
95
When
the applicant goes through the formalities of patent registration, it or
he shall pay the patent registration fee, the patent publication fee and
the annual fee of the year in which the patent right was granted. The
applicant for patent for invention shall pay all the maintenance fees of
the application for each year, excluding that for the year in which the
patent right was granted. If such fees are not paid in the prescribed time
limit, the patent registration shall be deemed not have been made. The
subsequent annual fees shall be paid in advance within the month before
the expiration of the preceding year.
Rule
96
Where
the annual fee of the years after the year in which the patent was granted
is not paid in due time by the patentee, or the fees are not paid in full,
the Patent Administrative 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
was to be paid, and at the same time pay a surcharge; the amount of the
surcharge is computed by an addition of 5¢H
of the total amount of the annual fee of the same year for each month
lapsed after the time limit prescribed for the payment. Where the fees are
not paid within the time limit, the patent right shall be deemed lapsed
from the expiration of the time limit within which the annual fee should
be paid.
Rule
97
The
fee for a change in the bibliographic data, fee for a search report on a
patent for utility model, fee for a request for suspension of procedure,
fee for a request for compulsory license, fee for a request for
adjudication on exploitation fee of a compulsory license and fee for a
request for invalidation shall be paid as prescribed within one month from
the date on which such request is filed. The fee for a request for
extension of time limit shall be paid before the date on which the
corresponding time limit expires. If the fee is not paid or not paid in
full within the time limit, the request shall be deemed not have been
made.
Rule
98
Where
any applicant or patentee has difficulties in paying the various fees
prescribed in these Implementing Regulations, it or he may, according to
prescriptions, submit a request to the Patent Administrative Department
under the State Council, asking for a reduction or postponement of the
payment. The conditions for the reduction and postponement of the payment
shall be prescribed by the Patent Administrative Department under the
State Council in consultation with the competent Financial Department and
the competent Pricing Department of the State Council.
Special Provisions for
International Applications
Rule
99
In
accordance with Article 20 of the Patent Law, the Patent Administrative
Department under the State Council receives international patent
applications filed under the Patent Cooperation Treaty.
The
Provisions of this Chapter are applicable to the requirements and
procedure for international applications filed and designating China
pursuant to the Patent Cooperation Treaty (hereinafter referred to as the
international applications) to enter the national phase in China; where it
is provided for in this Chapter, the relevant provisions of the Patent Law
and the other Chapters of these Implementing Regulations shall apply.
Rule
100
Any
international application designating China as of the international filing
date accorded under the Patent Cooperation Treaty is considered a patent
application filed with the Patent Administrative Department under the
State Council, and the filing date of the international application is
deemed the filing date referred to in Article 28 of the Patent Law.
Where,
in the international phase, an international application or the
designation of China in an international application is withdrawn or
deemed to have been withdrawn, the effect of the international application
shall cease in China.
Rule
101
Any
applicant of an international application shall, within twenty months from
the priority date referred to in Article 2 of the Patent Cooperation
Treaty (referred to as priority date in the Chapter), perform the
following procedures for international application to enter the national
phase in China in the Patent Administrative Department under the State
Council; where any international application elected China within 19
months from the priority date and the election remains valid, the
applicant of the international application shall, within 30 months from
the priority date, perform the following procedure for an international
application to enter the national phase in China in the Patent
Administrative Department under the State Council:
1.
Submit a declaration in writing for the international application
to enter the national phase in China, in which shall be indicated the
international application number, and, in Chinese, the kind of patent
right to be 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. All these information shall be consistent with the records of
the International Bureau;
2.
Pay the filing fee, additional application
fee and application publication fee specified in Rule 90, paragraph one,
of these Implementing Regulations;
3.
For any international application filed in a
language other than Chinese, the Chinese translation of the description,
claims, any text matter of the drawings, and the abstract of the original
international application shall be submitted; where an international
application is filed in Chinese, a copy of the abstract of the
international publication shall be submitted; and
4.
Where an international application is
accompanied with drawings, a copy of the drawings shall be submitted.
Where an international application is filed in Chinese, a copy of the
figure for the abstract of the international publication shall be
submitted.
Where
any applicant fails to perform the procedure for entering the national
phase in China within the time limit specified in the foregoing paragraph,
it or he may, after payment of the grace-period fee, do so before the
expiration of the corresponding time limit of twenty-two or thirty-two
months from the priority date.
Rule
102
Any
applicant fails to perform the procedure for entering the national phase
in China within the time limit prescribed in Rule 101, paragraph two, of
these Implementing Regulations or falls under any one of the provisions
thereof within the time limit, the effect of its or his international
application shall cease in China:
1.
The international application number is not indicated in the
declaration for entering the national phase in China;
2.
The filing fee, application publication fee
prescribed in Rule 90, paragraph one. and the grace-period fee prescribed
in Rule 101, paragraph two, of these Implementing Regulations; or
3.
Where the international application is filed
in a language other than Chinese, the Chinese translation of the
description and claims of the original international application is not
submitted.
The
provision of Rule 7, paragraph two, of these Implementing Regulations does
not apply to any international application, which has ceased to be valid
in China.
Rule
103
Where
any applicant falls under any one of the following sub provisions when
entering the national phase in China, the Patent Administrative Department
under the State Council shall notify the applicant to make corrections
within the prescribed time limit:
1.
Where the Chinese translation or a copy of the abstract is not
submitted;
2.
Where a copy of the drawings or the figure
for the abstract is not submitted;
3.
Where indications are not given in Chinese
in the declaration for entering the national phase in China of the title
of the invention-creation, the name or title of the applicant, the address
of the applicant and the name of the inventor; or
4.
Where the declaration for entering the
national phase in China does not comply with the prescription in content
or in form.
Where
the corrections are not made within the prescribed time limit, the
application is deemed to have been withdrawn.
Rule
104
Where
an international application was amended in the international phase, and
the applicant requests that the examination is made on the basis of the
amended application document, the applicant shall submit the amended
Chinese translation of the amended application document before the Patent
Administrative Department under the State Council completes the
preparation for national publication. Where the Chinese translation is not
submitted within the time limit, the Patent Administrative Department
under the State Council shall disregard the amendments made by the
applicant in the international phase.
Rule
105
Any
applicant, when performing the procedure for entering the national phase
in China, shall meet the following requirements:
1.
Where the inventor is not indicated in the international
application, the name of the inventor shall be indicated in the
declaration for entering the national phase in China;
2.
Where a procedure is performed to change the
applicant at the International Bureau in the international phase, proofs
that the changed applicant enjoys the right to apply for patent shall be
submitted;
3.
Where the applicant and the applicant of the
earlier application on which the right of priority is based are not the
same person, or the applicant changed its or his name after filing the
earlier application, the proofs shall be submitted, if necessary, that the
applicant enjoys the right of priority; and
4.
Where the invention-creation of the
international application falls under any of the provisions of Article 24
(1) or (2) of the Patent Law and a declaration thereof was made when
filing the international application, a statement thereof shall be made in
the declaration for entering the national phase in China, and the relevant
proofs prescribed in Rule 3, paragraph 2, of these Implementing
Regulations shall be submitted within two months from the date of
performance of the procedure for entering the national phase in China.
Where
the applicant fails to meet the requirements of (1), (2) and (3) of the
preceding paragraph, the Patent Administrative Department under the State
Council shall invite it or him to make correction within the prescribed
time limit. Where the correction under (1) and (2) is not made, the
application is deemed to have been withdrawn; where the correction under
(3) is not made, the claim for the priority right is deemed not to have
been made.
Where
the applicant fails to meet the requirement of (4) in paragraph one of
this Rule, the provision of Article 24 of the Patent Law does not apply to
the application.
Rule
106
Where
any applicant makes an indication of the deposit of a sample of biological
material in accordance with the provisions of the Patent Cooperation
Treaty, the applicant is deemed to have met the requirement under Rule 25
(3) of these Implementing Regulations. The applicant shall indicate the
document recording the deposit of a sample of biological material and the
specific place in the declaration for entering the national phase in
China.
Where
the applicant records the deposit of a sample of the biological material
in the description of the originally filed international application, but
did not make the indication in the declaration for entering the national
phase in China, it or he shall make rectification within four months from
the date of performance of the procedure for entering the national phase
in China. Where the correction is not made within the prescribed time
limit, the biological material is deemed not have been deposited.
Where
the applicant submits the receipt of deposit and the viability proof of a
sample of the biological material to the Patent Administrative Department
under the State Council within four months from the date of performance of
the procedure for entering the national phase in China, the deposit is
deemed to have been filed within the time limit prescribed in Rule 25 (1)
of these Implementing Regulations.
Rule
107
Where
the applicant claimed one or more priorities in the international phase
and the right of priority remains valid when entering the national phase
in China, the written declaration is deemed to have been made in
accordance with the provision of Article 30 of the Patent Law.
Where
the applicant finds that there are writing errors or the filing number of
the earlier application is not indicated in the written declaration of the
right of priority submitted in the international phase, it or he may
request for correction of the errors or for indicating the filing number
of the earlier application when performing the procedure for entering the
national phase in China. The applicant filing a request for the correction
shall pay the fee for request for correction in the claim for right of
priority.
Where
the applicant submitted a copy of the earlier application document in the
international phase according to the provisions of the Patent Cooperation
Treaty, it is not necessary to submit it to the Patent Administrative
Department under the State Council when performing the procedure for
entering the national phase in China. Where the applicant did not submit
it in the international phase, the Patent Administrative Department under
the State Council, when finding it necessary, may invite it or him to
submit it within the specified time limit. Where the applicant fails to do
so after the expiration of the time limit, its or his claim for priority
right is deemed not ever being made.
Where
the claim for right of priority is deemed not to have been made in the
international phase, which has been announced by the International Bureau,
the applicant may, with justified reasons, file a request with the Patent
Administrative Department under the State Council to restore its or his
claim to the right of the priority.
Rule
108
Where
any applicant requests the Patent Administrative Department under the
State Council for early processing and examining its or his international
application prior to the expiration of twenty months starting from the
priority date, it or he shall, in addition to performing the procedure for
entering the national phase in China, file a request pursuant to Article
23 (2) of the Patent Cooperation Treaty. Where the International Bureau
does not transmit the international application to the Patent
Administrative Department under the State Council, the applicant shall
submit a certified copy of the international application.
Rule
109
In
respect of any international application for patent right for utility
model, the applicant may file a request with the Patent Administrative
Department under the State Council for amending the description, the
drawings and the claims within one month from the date of performing the
procedure for entering the national phase in China.
To
any international application for patent for invention, the provision of
Rule 51, paragraph one, of these Implementing Regulations applies.
Rule
110
Where
any applicant finds any error in the Chinese translation of the
description, the claims or any text matter of the drawings, it or he may
submit the correction based on the original text of the international
application within the prescribed time limit as follows:
1.
Before the preparation for national publication is completed by the
Patent Administrative Department under the State Council; and
2.
Within three months from the date of receipt
of the notification of an application for a patent for invention to enter
into the substantive examination proceeding issued by the Patent
Administrative Department under the State Council.
The
applicant correcting the translation errors shall file a request in
writing, submit the correction sheet of the translation and pay the
prescribed translation correction fee.
Where
the applicant is required to correct the translation in the notification
of the Patent Administrative Department under the State Council, it or he
shall perform the formality within the time limit prescribed in (2) of
this Rule; where the prescribed formality is not performed within the time
limit, the application is deemed to have been withdrawn.
Rule
111
For
an international application for patent for invention, the Patent
Administrative Department under the State Council, upon preliminary
examination, finds it to be in conformity with the relevant provisions of
the Patent Law and these Implementing Regulations and shall publish the
application in the Patent Gazette; where the international application is
filed in a language other than Chinese, the Chinese translation of the
application document shall be published.
For
the international application for patent for invention published in
Chinese internationally by the International Bureau, the provision of
Article 13 of the Patent Law applies from the date of international
publication; for the international application published internationally
in a language other than Chinese by the International Bureau, the same
provision applies from the date of publication by the Patent
Administrative Department under the State Council.
For
the purpose of international application, the publication or announcement
mentioned in Articles 21 and 22 of the Patent Law means the publication
specified in paragraph one of this Rule.
Rule
112
When
any international application contains two or more inventions or utility
models the applicant may, after performing the procedure for entering the
national phase in China, file a divisional application pursuant to the
provision of Rule 42, paragraph one, of these Implementing Regulations.
Where,
in the international phase, the International Searching Authority or the
International Preliminary Examination Authority finds that an
international application does not comply with the requirement of unity
under the Patent Cooperation Treaty and the applicant fails to pay the
additional fee as prescribed, resulting in some part of the international
application not being subjected to the international search or the
international preliminary examination, or where the applicant, entering
the national phase in China, requests that the said parts be taken as the
basis for the examination, and the Patent Administrative Department under
the State Council finds the International Searching Authority or the
International Preliminary Examination Authority is right in the judgment
of the unity of the invention in question, it shall notify the applicant
to pay the unity restoration fee within the prescribed time limit. If the
fee is not paid or not paid in full within the time limit, the part of the
international application, which has not been searched or subjected to the
international preliminary examination is deemed to have been withdrawn.
Rule
113
Where
the applicant submits the documents and pays the fees according to the
provision of Rule 101 of these Implementing Regulations, the date on which
the Patent Administrative Department under the State Council receives the
documents is the submitting date and the date of receipt of the fees is
the date of payment.
Where
there is a delay in the postal delivery of the submitted documents and the
applicant proves that the documents are sent by mail five days before the
expiration of the time limit specified in Rule 101 of these Implementing
Regulations within one month from the date on which the delay is found,
the documents are deemed to have been received on the date of the
expiration of the time limit. However, the applicant shall not furnish the
proof later than six months after the expiration of the time limit
specified in Rule 101 of these Implementing Regulations.
The
applicant may submit, by fax, the documents required in Rule 101 of these
Implementing Regulations. Where the applicant submits them by fax, the
date on which the Patent Administrative Department under the State Council
receives the fax is the submitting date. The applicant shall submit the
original of the faxed documents to the Patent Administrative Department
under the State Council within fourteen days from the date of submission
by fax. If the original is not submitted after the expiration of the time
limit, the documents are deemed not have been submitted.
Rule
114
Where
the right of priority is claimed in the international application, the
applicant shall pay the fee for claiming the right of priority when
performing the procedure for entering the national phase in China; if the
fee is not paid or not paid in full, the Patent Administrative Department
under the State Council shall notify the applicant to make the payment
within the specified time limit; if the fee is still not paid or not paid
in full after the expiration of the time limit, the claim for right of
priority is deemed to have not been made.
Rule
115
Where
any international application is refused by the relevant international
authority to be accorded the international filing date or is declared to
have been withdrawn, the applicant may, within two months from the date of
receipt of the notification, request the International Bureau to transmit
copies of any documents in the file of the international application to
the Patent Administrative Department under the State Council and perform
the procedure as specified in Rule 101 of these Implementing Regulations
in the Patent Administrative Department under the State Council within the
time limit. The Patent Administrative Department under the State Council
shall, after receipt of the documents transmitted by the International
Bureau, make review as to whether the decision made by the international
authority is right or not.
Rule
116
Where,
owing to any translation errors, any patent right granted on the basis of
an international application makes its scope of protection determined in
accordance with the provision of Article 56 of the Patent Law go beyond
the scope expressed in the original text of the international application,
the scope of protection limited according to the original text prevails.
Where the scope of protection is made less than the scope stated in the
original text of the international application, the scope of protection
established when granting the right prevails.
Supplementary Provisions
Rule
117
Any
person may, after approval by the Patent Administrative Department under
the State Council, inspect or copy the files of the published or announced
patent applications and the Patent Register. Any person may request the
Patent Administrative Department under the State Council to issue a copy
of extracts from the Patent Register.
The
files of patent applications, which have been withdrawn or deemed to have
been withdrawn or which have been rejected, shall not be preserved after
expiration of two years from the date on which they cease to be valid.
Where
the patent right ceases or has been abandoned or invalidated in whole, the
files shall not be preserved after expiration of three years from the date
on which the patent right ceases to be valid.
Rule
118
Any
patent application which is filed with, and any formalities which are
performed at the Patent Administrative Department under the State Council,
shall be made in the form prescribed by the Patent Administrative
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 of the name of the inventor, the name, nationality and address of
the applicant or the patentee, or the name and address of the patent
agency and the name of the patent agent is requested, a request for a
change in the bibliographic data shall be made to the Patent
Administrative Department under the State Council, together with the
relevant supporting documents.
Rule
119
The
documents relating to a patent application or patent right which are
mailed to the Patent Administrative Department under the State Council
shall be mailed by registered letter, not by parcel.
When
any document (not including any patent application filed for the first
time) is submitted to and any formalities are performed in the Patent
Administrative Department under the State Council, the filing number or
the patent number, the title of the invention-creation and the name of the
applicant or the patentee shall be indicated.
Only
documents relating to the same application shall be included in one
letter.
Rule
120
Any
sheets constituting an application for patent shall be typed or printed.
All the characters shall be in black ink, neat and clear and free from any
alterations. 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, claim, drawings and abstract shall be numbered
separately in Arabic numerals and arranged in numerical order.
The
written language shall run from left to right. Only one side of each sheet
shall be used.
Rule
121
The
Patent Administrative Department under the State Council shall formulate
the Guidelines for Patent Examination in accordance with the Patent Law
and these Implementing Regulations.
Rule
122
These Implementing Regulations shall enter into force on 1 July 2001. The Implementing Regulations of the Patent Law of the People's Republic of China revised with approval by the State Council on 12 December 1992 and promulgated by the Patent Administrative Department under the State Council on 21 December the same day shall be simultaneously abolished.
