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