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Implementing
Regulations of the Patent Law of
the People's Republic of China
Implementing Regulations of the Patent Law of the
People's Republic of China
(Promulgated by Decree No. 306 of the State Council of
the People's Republic of China on June 15, 2001, and
effective as of July 1, 2001)
(Translated by the Patent Administration Department
under the State Council of the People's Republic of
China. In case of discrepancy, the original version
shall prevail.)
Chapter I General Provisions
Rule 1. These Implementing Regulations are formulated in
accordance with the Patent Law of the People's Republic
of China (hereinafter referred to as the Patent Law).
Rule 2 "Invention" in the Patent Law means any
new technical solution relating to a product, a process
or improvement thereof.
"Utility model" in the Patent Law means any
new technical solution relating to the shape, the
structure, or their combination, of a product, which is
fit for practical use.
"Design" in the Patent Law means any new
design of the shape, the pattern or their combination,
or the combination of the color with shape or pattern,
of a product, which creates an aesthetic feeling and is
fit for industrial application.
Rule 3 Any formalities prescribed by the Patent Law and
these Implementing Regulations shall be complied with in
a written form or in any other form prescribed by the
Patent Administration Department under the State Council
.
Rule 4 Any document submitted in accordance with the
provisions of the Patent Law and these Implementing
Regulations shall be in Chinese; the standard scientific
and technical terms shall be used if there is a
prescribed one set forth by the State; where no
generally accepted translation in Chinese can be found
for a foreign name or scientific or technical term, the
one in the original language shall be also indicated.
Where any certificate or certifying document submitted
in accordance with the provisions of the Patent Law and
these Implementing Regulations is in a foreign language,
the Patent Administration Department under the State
Council may, when it deems necessary, request a Chinese
translation of the certificate or the certifying
document be submitted within a specified time limit;
where the translation is not submitted within the
specified time limit, the certificate or certifying
document shall be deemed not to have been submitted.
Rule 5 Where any document is sent by mail to the Patent
Administration Department under the State Council , the
date of mailing indicated by the postmark on the
envelope shall be deemed to be the date of filing; where
the date of mailing indicated by the postmark on the
envelope is illegible, the date on which the Patent
Administration Department under the State Council
receives the document shall be the date of filing,
except where the date of mailing is proved by the party
concerned.
Any document of the Patent Administration Department
under the State Council may be served by mail, by
personal delivery or by other forms. Where any party
concerned appoints a patent agency, the document shall
be sent to the patent agency; where no patent agency is
appointed, the document shall be sent to the liaison
person named in the request.
Where any document is sent by mail by the Patent
Administration Department under the State Council , the
16th day from the date of mailing shall be presumed to
be the date on which the party concerned receives the
document.
Where any document is delivered personally in accordance
with the provisions of the Patent Administration
Department under the State Council , the date of
delivery is the date on which the party concerned
receives the document.
Where the address of any document is not clear and it
cannot be sent by mail, the document may be served by
making an announcement. At the expiration of one month
from the date of the announcement, the document shall be
deemed to be served.
Rule 6 The first day of any time limit prescribed in the
Patent Law and these Implementing Regulations shall not
be counted in the time limit. Where the time limit is
counted by year or by month, it shall expire on the
corresponding day of the last month; if there is no
corresponding day in that month, the time limit shall
expire on the last day of that month; if a time limit
expires on an official holiday, it shall expire on the
first working day following that official holiday.
Rule 7 Where a time limit prescribed in the Patent Law
or these Implementing Regulations or specified by the
Patent Administration Department under the State Council
is not observed by a party concerned because of force
majeure, resulting in loss of his or its rights, he or
it may, within two months from the date on which the
impediment is removed, at the latest within two years
immediately following the expiration of that time limit,
state the reasons, together with relevant supporting
documents, and request the Patent Administration
Department under the State Council to restore his or its
rights.
Where a time limit prescribed in the Patent Law or these
Implementing Regulations or specified by the Patent
Administration Department under the State Council is not
observed by a party concerned because of any justified
reason, resulting in loss of his or its rights, he or it
may, within two months from the date of receipt of a
notification from the Patent Administration Department
under the State Council , state the reasons and request
the Patent Administration Department under the State
Council to restore his or its rights.
Where the party concerned makes a request for an
extension of a time limit specified by the Patent
Administration Department under the State Council , he
or it shall, before the time limit expires, state the
reasons to the Patent Administration Department under
the State Council and go through the relevant
formalities.
The provisions of paragraphs one and two of this Rule
shall not be applicable to the time limit referred to in
Articles 24, 29, 42 and 62 of the Patent Law.
Rule 8 Where an application for a patent for invention
relates to the secrets of the State concerning national
defense and requires to be kept secret, the application
for patent shall be filed with the patent department of
national defense. Where any application for patent for
invention relating to the secrets of the State
concerning national defense and requiring to be kept
secret is received by the Patent Administration
Department under the State Council , the application
shall be forwarded to the patent department of national
defense for examination, and the Patent Administration
Department under the State Council shall make a decision
on the basis of the observations of the examination made
by the patent department of national defense.
Subject to the preceding paragraph, the Patent
Administration Department under the State Council shall,
after receipt of an application for patent for invention
which is required to be examined for the purpose of
security, send it to the relevant competent department
under the State Council for examination. The relevant
competent department shall, within four months from the
date of receipt of the application, notify the Patent
Administration Department under the State Council of the
results of the examination. Where the invention for
which a patent is applied for is required to be kept
secret, the Patent Administration Department under the
State Council shall handle it as an application for
secret patent and notify the applicant accordingly.
Rule 9 Any invention-creation that is contrary to the
laws of the State referred to in Article 5 of the Patent
Law shall not include the invention-creation merely
because the exploitation of which is prohibited by the
laws of the State.
Rule 10 The date of filing referred to in the Patent
Law, except for those referred to in Articles 28 and 42,
means the priority date where priority is claimed.
The date of filing referred to in these Implementing
Regulations, except as otherwise prescribed, means the
date of filing prescribed in Article 28 of the Patent
Law.
Rule l1 "A service invention-creation made by a
person in execution of the tasks of the entity to which
he belongs" referred to in Article 6 of the Patent
Law means any invention-creation made:
(1) in the course of performing his own duty;
(2) in execution of any task, other than his own duty,
which was entrusted to him by the entity to which he
belongs;
(3) within one year from his resignation, retirement or
change of work, where the invention-creation relates to
his own duty or the other task entrusted to him by the
entity to which he previously belonged.
"The entity to which he belongs" referred to
in Article 6 of the Patent Law includes the entity in
which the person concerned is a temporary staff member.
"Material and technical means of the entity"
referred to in Article 6 of the Patent Law mean the
entity's money, equipment, spare parts, raw materials or
technical materials which are not disclosed to the
public.
Rule 12 "Inventor" or "creator"
referred to in the Patent Law means any person who makes
creative contributions to the substantive features of an
invention-creation. Any person who, during the course of
accomplishing the invention-creation, is responsible
only for organizational work, or who offers facilities
for making use of material and technical means, or who
takes part in other auxiliary functions, shall not be
considered as inventor or creator.
Rule l3 For any identical invention-creation, only one
patent right shall be granted.
Two or more applicants who respectively file, on the
same day, applications for patent for the identical
invention-creation, as provided for in Article 9 of the
Patent Law, shall, after receipt of a notification from
the Patent Administration Department under the State
Council , hold consultations among themselves to decide
the person or persons who shall be entitled to file the
application.
Rule 14 Any assignment of the right to apply for a
patent or of the patent right, by a Chinese entity or
individual, to a foreigner shall be approved by the
competent department for foreign trade and economic
affairs of the State Council in conjunction with the
science and technology administration department of the
State Council.
Rule 15 Except for the assignment of the patent right in
accordance with Article 10 of the Patent Law, where the
patent right is transferred because of any other reason,
the person or persons concerned shall, accompanied by
relevant certified documents or legal papers, request
the Patent Administration Department under the State
Council to make a registration of change in the owner of
the patent right.
Any license contract for exploitation of the patent
which has been concluded by the patentee with an entity
or individual shall, within three months from the date
of entry into force of the contract, be submitted to the
Patent Administration Department under the State Council
for the record.
Chapter II Application for Patent
Rule l6 Anyone who applies for a patent in written form
shall file with the Patent Administration Department
under the State Council application documents in two
copies.
Anyone who applies for a patent in other forms as
provided by the Patent Administration Department under
the State Council shall comply with the relevant
provisions.
Any applicant who appoints a patent agency for applying
for a patent, or for having other patent matters to
attend to before the Patent Administration Department
under the State Council , shall submit at the same time
a power of attorney indicating the scope of the power
entrusted.
Where there are two or more applicants and no patent
agency is appointed, unless otherwise stated in the
request, the applicant named first in the request shall
be the representative.
Rule l7 "Other related matters" in the request
referred to in Article 26, paragraph two of the Patent
Law means:
(1) the nationality of the applicant;
(2) where the applicant is an enterprise or other
organization, the name of the country in which the
applicant has the principal business office;
(3) where the applicant has appointed a patent agency,
the relevant matters which shall be indicated; where no
patent agency is appointed, the name, address, postcode
and telephone number of the liaison person;
(4) where the priority of an earlier application is
claimed, the relevant matters which shall be indicated;
(5) the signature or seal of the applicant or the patent
agency;
(6) a list of the documents constituting the
application;
(7) a list of the documents appending the application;
and
(8) any other related matter which needs to be
indicated.
Rule l8 The description of an application for a patent
for invention or utility model shall state the title of
the invention or utility model, which shall be the same
as it appears in the request. The description shall
include the following:
(1) technical field: specifying the technical field to
which the technical solution for which protection is
sought pertains;
(2) background art: indicating the background art which
can be regarded as useful for the understanding,
searching and examination of the invention or utility
model, and when possible, citing the documents
reflecting such art;
(3) contents of the invention: disclosing the technical
problem the invention or utility model aims to settle
and the technical solution adopted to resolve the
problem; and stating, with reference to the prior art,
the advantageous effects of the invention or utility
model;
(4) description of figures: briefly describing each
figure in the drawings, if any;
(5) mode of carrying out the invention or utility model:
describing in detail the optimally selected mode
contemplated by the applicant for carrying out the
invention or utility model; where appropriate, this
shall be done in terms of examples, and with reference
to the drawings, if any;
The manner and order referred to in the preceding
paragraph shall be followed by the applicant for a
patent for invention or for utility model, and each of
the parts shall be preceded by a heading, unless,
because of the nature of the invention or utility model,
a different manner or order would result in a better
understanding and a more economical presentation.
The description of the invention or utility model shall
use standard terms and be in clear wording, and shall
not contain such references to the claims as: "as
described in claim ?-", nor shall it contain
commercial advertising.
Where an application for a patent for invention contains
disclosure of one or more nucleotide and/or amino acid
sequences, the description shall contain a sequence
listing in compliance with the standard prescribed by
the Patent Administration Department under the State
Council . The sequence listing shall be submitted as a
separate part of the description, and a copy of the said
sequence listing in machine-readable form shall also be
submitted in accordance with the provisions of the
Patent Administration Department under the State Council
.
Rule l9 The same sheet of drawings may contain several
figures of the invention or utility model, and the
figures shall be numbered and arranged in numerical
order consecutively as "Figure l, Figure 2,
?-".
The scale and the distinctness of the drawings shall be
as such that a reproduction with a linear reduction in
size to two-thirds would still enable all details to be
clearly distinguished.
Reference signs not mentioned in the text of the
description of the invention or utility model shall not
appear in the drawings. Reference signs not mentioned in
the drawings shall not appear in the text of the
description. Reference signs for the same composite part
shall be used consistently throughout the application
document.
The drawings shall not contain any other explanatory
notes, except words which are indispensable.
Rule 20 The claims shall define clearly and concisely
the matter for which protection is sought in terms of
the technical features of the invention or utility
model.
If there are several claims, they shall be numbered
consecutively in Arabic numerals.
The technical terminology used in the claims shall be
consistent with that used in the description. The claims
may contain chemical or mathematical formulae but no
drawings. They shall not, except where absolutely
necessary, contain such references to the description or
drawings as: "as described in part ?-of the
description", or "as illustrated in Figure
?-of the drawings".
The technical features mentioned in the claims may, in
order to facilitate quicker understanding of the claim,
make reference to the corresponding reference signs in
the drawings of the description. Such reference signs
shall follow the corresponding technical features and be
placed in parentheses. They shall not be construed as
limiting the claims.
Rule 2l The claims shall have an independent claim, and
may also contain dependent claims.
The independent claim shall outline the technical
solution of an invention or utility model and state the
essential technical features necessary for the solution
of its technical problem.
The dependent claim shall, by additional technical
features, further define the claim which it refers to.
Rule 22 An independent claim of an invention or utility
model shall contain a preamble portion and a
characterizing portion, and be presented in the
following form:
(1) a preamble portion: indicating the title of the
claimed subject matter of the technical solution of the
invention or utility model, and those technical features
which are necessary for the definition of the claimed
subject matter but which, in combination, are part of
the most related prior art;
(2) a characterizing portion: stating, in such words as
"characterized in that..." or in similar
expressions, the technical features of the invention or
utility model, which distinguish it from the most
related prior art. Those features, in combination with
the features stated in the preamble portion, serve to
define the scope of protection of the invention or
utility model.
Where the manner specified in the preceding paragraphs
is not appropriate to be followed because of the nature
of the invention or utility model, an independent claim
may be presented in a different manner.
An invention or utility model shall have only one
independent claim, which shall precede all the dependent
claims relating to the same invention or utility model.
Rule 23 Any dependent claim of an invention or utility
model shall contain a reference portion and a
characterizing portion, and be presented in the
following manner:
(l) a reference portion: indicating the serial number(s)
of the claim(s) referred to, and the title of the
subject matter;
(2) a characterizing portion: stating the additional
technical features of the invention or utility model.
Any dependent claim shall only refer to the preceding
claim or claims. Any multiple dependent claims, which
refers to two or more claims, shall refer to the
preceding one in the alternative only, and shall not
serve as a basis for any other multiple dependent
claims.
Rule 24 The abstract shall consist of a summary of the
disclosure as contained in the application for patent
for invention or utility model. The summary shall
indicate the title of the invention or utility model,
and the technical field to which the invention or
utility model pertains, and shall be drafted in a way
which allows the clear understanding of the technical
problem, the gist of the technical solution of that
problem, and the principal use or uses of the invention
or utility model.
The abstract may contain the chemical formula which best
characterizes the invention. In an application for a
patent which contains drawings, the applicant shall
provide a figure which best characterizes the technical
features of the invention or utility model. The scale
and the distinctness of the figure shall be as such that
a reproduction with a linear reduction in size to 4cm x
6cm would still enable all details to be clearly
distinguished. The whole text of the abstract shall
contain not more than 300 words. There shall be no
commercial advertising in the abstract.
Rule 25 Where an invention for which a patent is applied
for concerns a new biological material which is not
available to the public and which cannot be described in
the application in such a manner as to enable the
invention to be carried out by a person skilled in the
art, the applicant shall, in addition to the other
requirements provided for in the Patent Law and these
Implementing Regulations, go through the following
formalities:
(1) depositing a sample of the biological material with
a depositary institution designated by the Patent
Administration Department under the State Council
before, or at the latest, on the date of filing (or the
priority date where priority is claimed), and submit at
the time of filing or at the latest, within four months
from the filing date, a receipt of deposit and the
viability proof from the depository institution; where
they are not submitted within the specified time limit,
the sample of the biological material shall be deemed
not to have been deposited;
(2) giving in the application document relevant
information of the characteristics of the biological
material;
(3) indicating, where the application relates to the
deposit of the biological material, in the request and
the description the scientific name (with its Latin
name) and the title and address of the depositary
institution, the date on which the sample of the
biological material was deposited and the accession
number of the deposit; where, at the time of filing,
they are not indicated, they shall be supplied within
four months from the date of filing; where after the
expiration of the time limit they are not supplied, the
sample of the biological material shall be deemed not to
have been deposited.
Rule 26 Where the applicant for a patent for invention
has deposited a sample of the biological material in
accordance with the provisions of Rule 25 of these
Implementing Regulations, and after the application for
patent for invention is published, any entity or
individual that intends to make use of the biological
material to which the application relates, for the
purpose of experiment, shall make a request to the
Patent Administration Department under the State Council
, containing the following items:
(1) the name and address of the requesting person;
(2) an undertaking not to make the biological material
available to any other person;
(3) an undertaking to use the biological material for
experimental purpose only before the grant of the patent
right.
Rule 27 The size of drawings or photographs of a design
submitted in accordance with the provisions of Article
27 of the Patent Law shall not be smaller than 3cm x
8cm, nor larger than l5cm x 22cm.
Where an application for a patent for design seeking
concurrent protection of colors is filed, a drawing or
photograph in color shall be submitted in two copies.
The applicant shall, in respect of the subject matter of
the product incorporating the design which is in need of
protection, submit the relevant views and stereoscopic
drawings or photographs, so as to clearly show the
subject matter for which protection is sought.
Rule 28 Where an application for a patent for design is
filed, a brief explanation of the design shall, when
necessary, be made.
The brief explanation of the design shall include the
essential portion of the design, the colors for which
protection is sought and the omission of the view of the
product incorporating the design. The brief explanation
shall not contain any commercial advertising and shall
not be used to indicate the function of the product.
Rule 29 Where the Patent Administration Department under
the State Council deems necessary, it may require the
applicant for a patent for design to submit a sample or
model of the product incorporating the design. The
volume of the sample or model submitted shall not exceed
30cm x 30cm x 30cm, and its weight shall not surpass l5
kilograms. Articles that are easy to get rotten or
broken or articles that are dangerous shall not be
submitted as sample or model.
Rule 30 The existing technology referred to in Article
22, paragraph three of the Patent Law means any
technology which has been publicly disclosed in
publications in the country or abroad, or has been
publicly used or made known to the public by any other
means in the country, before the date of filing (or the
priority date where priority is claimed), that is, prior
art.
Rule 3l The academic or technological meeting referred
to in Article 24, subparagraph (2) of the Patent Law
means any academic or technological meeting organized by
a competent department concerned of the State Council or
by a national academic or technological association.
Where any invention-creation for which a patent is
applied falls under the provisions of Article 24,
subparagraph (l) or (2) of the Patent Law, the applicant
shall, when filing the application, make a declaration
and, within a time limit of two months from the date of
filing, submit certifying documents issued by the entity
which organized the international exhibition or academic
or technological meeting, stating the fact that the
invention-creation was exhibited or published and with
the date of its exhibition or publication.
Where any invention-creation for which a patent is
applied falls under the provisions of Article 24,
subparagraph (3) of the Patent Law, the Patent
Administration Department under the State Council may,
when it deems necessary, require the applicant to submit
the relevant certifying documents within the specified
time limit.
Where the applicant fails to make a declaration and
submit certifying documents as required in paragraph two
of this Rule, or fails to submit certifying documents
within the specified time limit as required in paragraph
three of this Rule, the provisions of Article 24 of the
Patent Law shall not apply to the application.
Rule 32 Where any applicant goes through the formalities
of claims priority in accordance with the provisions of
Article 30 of the Patent Law, he or it shall, in his or
its written declaration, indicate the date and the
number of the application which was first filed
(hereinafter referred to as the earlier application) and
the country in which the application was filed. If the
written declaration does not contain the filing date of
the earlier application and the name of the country in
which the application was filed, the declaration shall
be deemed not to have been made.
Where the foreign priority is claimed, the copy of the
earlier application documents submitted by the applicant
shall be certified by the competent authority of the
foreign country in which the application was filed.
Where in the certifying material submitted, the name of
the earlier applicant is not the same as that of the
later one, the applicant shall submit document
certifying the assignment of priority. Where the
domestic priority is claimed, the copy of the earlier
application document shall be prepared by the Patent
Administration Department under the State Council .
Rule 33 An applicant may claim one or more priorities
for an application for a patent; where multiple
priorities are claimed, the priority period for the
application shall be calculated from the earliest
priority date.
Where an applicant claims the right of domestic
priority, if the earlier application is one for a patent
for invention, he or it may file an application for a
patent for invention or utility model for the same
subject matter; if the earlier application is one for a
patent for utility model, he or it may file an
application for a patent for utility model or invention
for the same subject matter. However, when the later
application is filed, if the subject matter of the
earlier application falls under any of the following, it
may not be taken as the basis for claiming domestic
priority:
(1) where the applicant has claimed foreign or domestic
priority;
(2) where it has been granted a patent right;
(3) where it is the subject matter of a divisional
application filed as prescribed.
Where the domestic priority is claimed, the earlier
application shall be deemed to be withdrawn from the
date on which the later application is filed.
Rule 34 Where an application for a patent is filed or
the right of foreign priority is claimed by an applicant
having no habitual residence or business office in
China, the Patent Administration Department under the
State Council may, when it deems necessary, require the
applicant to submit the following documents:
(1) a certificate concerning the nationality of the
applicant;
(2) a document certifying the seat of the business
office or the headquarters, if the applicant is an
enterprise or other organization;
(3) a document certifying that the country, to which the
foreigner, foreign enterprise or other foreign
organization belongs, recognizes that Chinese entities
and individuals are, under the same conditions as those
applied to its nationals, entitled to the patent right,
the right of priority and other related rights in that
country.
Rule 35 Two or more inventions or utility models
belonging to a single general inventive concept which
may be filed as one application in accordance with the
provision of Article 3l, paragraph one of the Patent Law
shall be technically inter-related and contain one or
more of the same or corresponding special technical
features. The expression "special technical
features" shall mean those technical features that
define a contribution which each of those inventions or
utility models, considered as a whole, makes over the
prior art.
Rule 36 The expression "the same class"
referred to in Article 3l, paragraph two of the Patent
Law means that the product incorporating the designs
belongs to the same subclass in the classification of
products for designs. The expression "be sold or
used in sets" means that the products incorporating
the designs have the same designing concept and are
customarily sold and used at the same time.
Where two or more designs are filed as one application
in accordance with the provision of Article 3l,
paragraph two of the Patent Law, they shall be numbered
consecutively and the numbers shall precede the titles
of the view of the product incorporating the design.
Rule 37 When withdrawing an application for a patent,
the applicant shall submit to the Patent Administration
Department under the State Council a declaration to that
effect stating the title of the invention-creation, the
filing number and the date of filing.
Where a declaration to withdraw an application for a
patent is submitted after the preparations for the
publication of the application document has been
completed by the Patent Administration Department under
the State Council , the application document shall be
published as scheduled. However, the declaration
withdrawing the application for patent shall be
published in the next issue of the Patent Gazette.
Chapter III Examination and Approval of Application for
Patent
Rule 38 Where any of the following events occurs, a
person who makes examination or hears a case in the
procedures of preliminary examination, examination as to
substance, reexamination or invalidation shall, on his
own initiative or upon the request of the parties
concerned or any other interested person, be excluded
from excising his function:
(1) where he is a near relative of the party concerned
or the agent of the party concerned;
(2) where he has an interest in the application for
patent or the patent right;
(3) where he has any other kinds of relations with the
party concerned or with the agent of the party concerned
that may influence impartial examination and hearing.
(4) where a member of the Patent Reexamination Board who
has taken part in the examination of the same
application.
Rule 39 Upon the receipt of an application for a patent
for invention or utility model consisting of a request,
a description (drawings must be included in an
application for utility model) and one or more claims,
or an application for a patent for design consisting of
a request and one or more drawings or photographs
showing the design, the Patent Administration Department
under the State Council shall accord the date of filing,
issue a filing number, and notify the applicant.
Rule 40 In any of the following circumstances, the
Patent Administration Department under the State Council
shall refuse to accept the application and notify the
applicant accordingly:
(1) where the application for a patent for invention or
utility model does not contain a request, a description
(the description of utility model does not contain
drawings) or claims, or the application for a patent for
design does not contain a request, drawings or
photographs;
(2) where the application is not written in Chinese;
(3) where the application is not in conformity with the
provisions of Rule120, paragraph one of these
Implementing Regulations;
(4) where the request does not contain the name and
address of the applicant;
(5) where the application is obviously not in conformity
with the provisions of Article 18, or of Article l9,
paragraph one of the Patent Law;
(6) where the kind of protection (patent for invention,
utility model or design) of the application for a patent
is not clear and definite or cannot be ascertained.
Rule 41 Where the description states that it contains
explanatory notes to the drawings but the drawings or
part of them are missing, the applicant shall, within
the time limit specified by the Patent Administration
Department under the State Council , either furnish the
drawings or make a declaration for the deletion of the
explanatory notes to the drawings. If the drawings are
submitted later, the date of their delivery at, or
mailing to, the Patent Administration Department under
the State Council shall be the date of filing of the
application; if the explanatory notes to the drawings
are to be deleted, the initial date of filing shall be
retained.
Rule 42 Where an application for a patent contains two
or more inventions, utility models or designs, the
applicant may, before the expiration of the time limit
provided for in Rule 54, paragraph one of these
Implementing Regulations, submit to the Patent
Administration Department under the State Council a
divisional application. However, where an application
for patent has been rejected, withdrawn or is deemed to
have been withdrawn, no divisional application may be
filed.
If the Patent Administration Department under the State
Council finds that an application for a patent is not in
conformity with the provisions of Article 3l of the
Patent Law or of Rule 35 or 36 of these Implementing
Regulations, it shall invite the applicant to amend the
application within a specified time limit; if the
applicant fails to make any response after the
expiration of the specified time limit, the application
shall be deemed to have been withdrawn.
The divisional application may not change the kind of
protection of the initial application.
Rule 43 A divisional application filed in accordance
with the provisions of Rule 42 of these Implementing
Regulations shall be entitled to the filing date and, if
priority is claimed, the priority date of the initial
application, provided that the divisional application
does not go beyond the scope of disclosure contained in
the initial application.
The divisional application shall go through all the
formalities in accordance with the provisions of the
Patent Law and these Implementing Regulations.
The filing number and the date of filing of the initial
application shall be indicated in the request of the
divisional application. When the divisional application
is filed, it shall be accompanied by a copy of the
initial application; if priority is claimed for the
initial application, a copy of the priority document of
the initial application shall also be submitted.
Rule 44 "Preliminary examination" referred to
in Articles 34 and 40 of the Patent Law means the check
of an application for a patent to see whether or not it
contains the documents as provided for in Articles 26 or
27 of the Patent Law and other necessary documents, and
whether or not those documents are in the prescribed
form; such check shall also include the following:
(1) whether or not any application for a patent for
invention obviously falls under Articles 5 or 25 of the
Patent Law, or is not in conformity with the provisions
of Article l8 or of Article l9, paragraph one of the
Patent Law, or is obviously not in conformity with the
provisions of Article 3l, paragraph one, or Article 33
of the Patent Law, or of Rule 2, paragraph one, or Rule
18, or Rule 20 of these Implementing Regulations;
(2) whether or not any application for a patent for
utility model obviously falls under Article 5 or 25 of
the Patent Law, or is not in conformity with the
provisions of Article l8 or of Article l9, paragraph one
of the Patent Law, or is obviously not in conformity
with the provisions of Article 26, paragraph three or
four, or of Article 3l, paragraph one, or of Article 33
of the Patent Law, or of Rule 2, paragraph two, or of
Rule l3, paragraph one, or of Rule l8 to 23, or of Rule
43, paragraph one of these Implementing Regulations, or
is not entitled to a patent right in accordance with the
provisions of Article 9 of the Patent Law;
(3) whether or not any application for a patent for
design obviously falls under Article 5 of the Patent
Law, or is not in conformity with the provisions of
Article l8 or of Article l9, paragraph one of the Patent
Law, or is obviously not in conformity with the
provisions of Article 3l, paragraph two, or of Article
33 of the Patent Law, or of Rule 2, paragraph three, or
of Rule l3, paragraph one, or of Rule 43, paragraph one
of these Implementing Regulations, or is not entitled to
a patent right in accordance with the provisions of
Article 9 of the Patent Law.
The Patent Administration Department under the State
Council shall notify the applicant of its opinions after
checking his or its application and invite him or it to
state his or its observations or to correct his or its
application within the specified time limit. If the
applicant fails to make any response within the
specified time limit, the application shall be deemed to
have been withdrawn. Where, after the applicant has made
his or its observations or the corrections, the Patent
Administration Department under the State Council still
finds that the application is not in conformity with the
provisions of the Articles and the Rules cited in the
preceding subparagraphs, the application shall be
rejected.
Rule 45 Apart from the application for patent, any
document relating to the patent application which is
submitted to the Patent Administration Department under
the State Council , shall, in any of the following
circumstances, be deemed not to have been submitted:
(1) where the document is not presented in the
prescribed form or the indications therein are not in
conformity with the prescriptions;
(2) where no certifying document is submitted as
prescribed.
The Patent Administration Department under the State
Council shall notify the applicant of its opinion after
checking that the document is deemed not to have been
submitted.
Rule 46 Where the applicant requests an earlier
publication of its or his application for a patent for
invention, a statement shall be made to the Patent
Administration Department under the State Council . The
Patent Administration Department under the State Council
shall, after preliminary examination of the application,
publish it immediately, unless it is to be rejected.
Rule 47 The applicant shall, when indicating in
accordance with Article 27 of the Patent Law the product
incorporating the design and the class to which that
product belongs, refer to the classification of products
for designs published by the Patent Administration
Department under the State Council . Where no
indication, or an incorrect indication, of the class to
which the product incorporating the design belongs is
made, the Patent Administration Department under the
State Council shall supply the indication or correct it.
Rule 48 Any person may, from the date of publication of
an application for a patent for invention till the date
of announcing the grant of the patent right, submit to
the Patent Administration Department under the State
Council his observations, with reasons therefor, on the
application which is not in conformity with the
provisions of the Patent Law.
Rule 49 Where the applicant for a patent for invention
cannot furnish, for justified reasons, the documents
concerning any search or results of any examination
specified in Article 36 of the Patent Law, it or he
shall make a statement to the Patent Administration
Department under the State Council and submit them when
the said documents are available.
Rule 50 The Patent Administration Department under the
State Council shall, when proceeding on its own
initiative to examine an application for a patent in
accordance with the provisions of Article 35, paragraph
two of the Patent Law, notify the applicant accordingly.
Rule 5l When a request for examination as to substance
is made, and that, within the time limit of three months
after the receipt of the notification of the Patent
Administration Department under the State Council, the
application has entered into examination as to
substance, the applicant for a patent for invention may
amend the application for a patent for invention on its
or his own initiative.
Within two months from the date of filing, the applicant
for a patent for utility model or design may amend the
application for a patent for utility model or design on
its or his own initiative.
Where the applicant amends the application after
receiving the notification of opinions of the
examination as to substance of the Patent Administration
Department under the State Council , he or it shall make
the amendment as required by the notification.
The Patent Administration Department under the State
Council may, on its own initiative, correct the obvious
clerical mistakes and symbol mistakes in the documents
of application for a patent. Where the Patent
Administration Department under the State Council
corrects mistakes on its own initiative, it shall notify
the applicant.
Rule 52 When an amendment to the description or the
claims in an application for a patent for invention or
utility model is made, a replacement sheet in prescribed
form shall be submitted, unless the amendment concerns
only the alteration, insertion or deletion of a few
words. Where an amendment to the drawings or photographs
of an application for a patent for design is made, a
replacement sheet shall be submitted as prescribed.
Rule 53 In accordance with the provisions of Article 38
of the Patent Law, the circumstances where an
application for a patent for invention shall be rejected
by the Patent Administration Department under the State
Council after examination as to substance are as
follows:
(1) where the application does not comply with the
provisions of Rule 2, paragraph one of these
Implementing Regulations;
(2) where the application falls under the provisions of
Article 5 or 25 of the Patent Law, or it does not comply
with the provisions of Article 22 of the Patent Law or
of Rule l3, paragraph one, or of Rule 20, paragraph one,
or of Rule 21, paragraph two of these Implementing
Regulations, or the applicant is not entitled to a
patent right in accordance with the provisions of
Article 9 of the Patent Law;
(3) where the application does not comply with the
provisions of Article 26, paragraph three or four, or of
Article 3l, paragraph one of the Patent Law;
(4) where the amendment to the application does not
comply with the provisions of Article 33 of the Patent
Law, or the divisional application does not comply with
the provisions of Rule 43, paragraph one of these
Implementing Regulations.
Rule 54 After the Patent Administration Department under
the State Council issues the notification to grant the
patent right, the applicant shall go through the
formalities of registration within two months from the
date of receipt of the notification. If the applicant
completes the formalities of registration within the
said time limit, the Patent Administration Department
under the State Council shall grant the patent right,
issue the patent certificate and announce it.
If the applicant does not go through the formalities of
registration within the time limit, he or it shall be
deemed to have abandoned its or his right to obtain the
patent right.
Rule 55 After the announcement of the decision to grant
a patent for utility model, the patentee of the said
patent for utility model may request the Patent
Administration Department under the State Council to
make a search report on the utility model patent.
Where such person requests for a search report on a
utility model patent, he shall submit a request,
indicating the patent number of the said patent for
utility model. Each request shall be limited for one
patent for utility model.
After receiving a request for a search report on a
utility model patent, the Patent Administration
Department under the State Council shall proceed to make
an examination of the request. Where the request does
not comply with the requirements as prescribed, the said
department shall notify the requesting person to amend
the request within a specified time limit.
Rule 56 Where, after examination, the request for a
search report on a utility model patent complies with
the provisions, the Patent Administration Department
under the State Council shall promptly make a search
report on the utility model patent.
Where the Patent Administration Department under the
State Council finds, after search, that the patent for
utility model concerned does not comply with the
provisions of Article 22 of the Patent Law concerning
novelty or inventiveness, it shall cite the documents
considered to be relevant, state the reasons therefor
and send the copies of the cited relevant documents
together with the report.
Rule 57 The Patent Administration Department under the
State Council shall correct promptly the mistakes in the
patent announcements and documents issued by it once
they are discovered, and the corrections shall be
announced.
Chapter IV Reexamination of Patent Application and
Invalidation of Patent Right
Rule 58 The Patent Reexamination Board shall consist of
technical and legal experts appointed by the Patent
Administration Department under the State Council . The
person responsible for the Patent Administration
Department under the State Council shall be the Director
of the Board.
Rule 59 Where the applicant requests the Patent
Reexamination Board to make a reexamination in
accordance with the provisions of Article 41 of the
Patent Law, it or he shall file a request for
reexamination, state the reasons and, when necessary,
attach the relevant supporting documents.
Where the request for reexamination does not comply with
the prescribed form, the person making the request shall
rectify it within the time limit fixed by the Patent
Reexamination Board. If the requesting person fails to
meet the time limit for making rectification, the
request for reexamination shall be deemed not to have
been filed.
Rule 60 The person making the request may amend its or
his application at the time when it or he requests
reexamination or makes responses to the notification of
reexamination of the Patent Reexamination Board.
However, the amendments shall be limited only to remove
the defects pointed out in the decision of rejection of
the application, or in the notification of
reexamination.
The amendments to the application for patent shall be in
two copies.
Rule 61 The Patent Reexamination Board shall remit the
request for reexamination which the Board has received
to the examination department of the Patent
Administration Department under the State Council which
has made the examination of the application concerned to
make an examination. Where that examination department
agrees to revoke its former decision upon the request of
the person requesting reexamination, the Patent
Reexamination Board shall make a decision accordingly
and notify the requesting person.
Rule 62 Where, after reexamination, the Patent
Reexamination Board finds that the request does not
comply with the provisions of the Patent Law and these
Implementing Regulations, it shall invite the person
requesting reexamination to submit his observations
within a specified time limit. If the time limit for
making response is not met, the request for
reexamination shall be deemed to have been withdrawn.
Where, after the requesting person has made its
observations and amendments, the Patent Reexamination
Board still finds that the request does not comply with
the provisions of the Patent Law and these Implementing
Regulations, it shall make a decision of reexamination
to maintain the earlier decision rejecting the
application.
Where, after reexamination, the Patent Reexamination
Board finds that the decision rejecting the application
does not comply with the provisions of the Patent Law
and these Implementing Regulations, or that the amended
application has removed the defects as pointed out by
the decision rejecting the application, it shall make a
decision to revoke the decision rejecting the
application, and ask the examination department which
has made the examination to continue the examination
procedure.
Rule 63 At any time before the Patent Reexamination
Board makes its decision on the request for
reexamination, the requesting person may withdraw his
request for reexamination.
Where the requesting person withdraws his request for
reexamination before the Patent Reexamination Board
makes its decision, the procedure of reexamination is
terminated.
Rule 64 Anyone requesting invalidation or part
invalidation of a patent right in accordance with the
provisions of Article 45 of the Patent Law shall submit
a request and the necessary evidence in two copies. The
request for invalidation shall state in detail the
grounds for filing the request, making reference to all
the evidence as submitted, and indicate the piece of
evidence on which each ground is based.
The grounds on which the request for invalidation is
based, referred to in the preceding paragraph, mean that
the invention-creation for which the patent right is
granted does not comply with the provisions of Article
22, Article 23, or of Article 26, paragraph three or
four, or of Article 33 of the Patent Law, or of Rule 2,
or of Rule l3, paragraph one, or of Rule 20, paragraph
one, or of Rule 21, paragraph two of these Implementing
Regulations; or the invention-creation falls under the
provisions of Articles 5 or 25 of the Patent Law; or the
applicant is not entitled to be granted the patent right
in accordance with the provisions of Article 9 of the
Patent Law.
Rule 65 Where the request for invalidation does not
comply with the provisions of Rule 64 of these
Implementing Regulations, the Patent Reexamination Board
shall not accept it.
Where, after a decision on any request for invalidation
of the patent right is made, invalidation based on the
same facts and evidence is requested once again, the
Patent Reexamination Board shall not accept it.
Where a request for invalidation of a patent for design
is based on the ground that the patent for design is in
conflict with a prior right of another person, but no
effective ruling or judgement is submitted to prove such
conflict of rights , the Patent Reexamination Board
shall not accept it.
Where the request for invalidation of the patent right
does not comply with the prescribed form, the person
making the request shall rectify it within the time
limit specified by the Patent Reexamination Board. If
the rectification fails to be made within the time
limit, the request for invalidation shall be deemed not
to have been made.
Rule 66 After a request for invalidation is accepted by
the Patent Reexamination Board, the person making the
request may add reasons or supplement evidence within
one month from the date when the request for
invalidation is filed. Additional reasons or evidence
which are submitted after the specified time limit may
be disregarded by the Patent Reexamination Board.
Rule 67 The Patent Reexamination Board shall send a copy
of the request for invalidation of the patent right and
copies of the relevant documents to the patentee and
invite it or him to present its or his observations
within a specified time limit.
The patentee and the person making request for
invalidation shall, within the specified time limit,
make responses to the notification concerning
transmitted documents or the notification concerning the
examination of the request for invalidation sent by the
Patent Reexamination Board. Where no response is made
within the specified time limit, the examination of the
Patent Reexamination Board will not be affected.
Rule 68 In the course of the examination of the request
for invalidation, the patentee for the patent for
invention or utility model concerned may amend its or
his claims, but may not broaden the scope of patent
protection.
The patentee for the patent for invention or utility
model concerned may not amend its or his description or
drawings. The patentee for the patent for design
concerned may not amend its or his drawings, photographs
or the brief explanation of the design.
Rule 69 The Patent Reexamination Board may, at the
request of the parties concerned or in accordance with
the needs of the case, decide to hold an oral procedure
in respect of a request for invalidation.
Where the Patent Reexamination Board decides to hold an
oral procedure in respect of a request for invalidation,
it shall send notifications to the parties concerned,
indicating the date and place of the oral procedure to
be held. The parties concerned shall make response to
the notification within the specified time limit.
Where the person requesting invalidation fails to make
response to the notification of the oral procedure sent
by the Patent Reexamination Board within the specified
time limit, and fails to take part in the oral
procedure, the request for invalidation shall be deemed
to have been withdrawn. Where the patentee fails to take
part in the oral procedure, the Patent Reexamination
Board may proceed to examine by default.
Rule 70 In the course of the examination of a request
for invalidation, the time limit specified by the Patent
Reexamination Board shall not be extended.
Rule 71 The person requesting invalidation may withdraw
his request before the Patent Reexamination Board makes
a decision on it.
Where the person requesting invalidation withdraws his
request before the Patent Reexamination Board makes a
decision on it, the examination of the request for
invalidation is terminated.
Chapter V Compulsory License for Exploitation of Patent
Rule 72 After the expiration of three years from the
date of the grant of the patent right, any entity may,
in accordance with the provisions of Article 48 of the
Patent Law, request the Patent Administration Department
under the State Council to grant a compulsory license.
Any entity requesting a compulsory license shall submit
to the Patent Administration Department under the State
Council a request for compulsory license, state the
reasons therefor, and attach relevant certifying
documents each in two copies.
The Patent Administration Department under the State
Council shall send a copy of the request for compulsory
license to the patentee, who shall make his or its
observations within the time limit specified by the
Patent Administration Department under the State Council
. Where no response is made within the time limit, the
Patent Administration Department under the State Council
will not be affected in making a decision concerning a
compulsory license.
The decision of the Patent Administration Department
under the State Council granting a compulsory license
for exploitation shall limit the exploitation of the
compulsory license to be predominately for the supply of
the domestic market. Where the invention-creation
involved in the compulsory license relates to the
semi-conductor technology, the exploitation of the
compulsory license shall be limited only for public
non-commercial use or to remedy a practice determined
after judicial or administrative process to be
anti-competitive.
Rule 73 Where any entity or individual requests, in
accordance with the provisions of Article 54 of the
Patent Law, the Patent Administration Department under
the State Council to adjudicate the fees for
exploitation, it or he shall submit a request for
adjudication and furnish documents showing that the
parties concerned have not been able to conclude an
agreement in respect of the amount of the exploitation
fee. The Patent Administration Department under the
State Council shall make an adjudication within three
months from the date of receipt of the request and
notify the parties concerned accordingly.
Chapter VI Reward and Remuneration of Inventors or
Creators of Service Inventions-Creations
Rule 74 The State-owned enterprise or institution to
which a patent right is granted shall, within three
months from the date of the announcement of the grant of
the patent right, award to the inventor or creator of a
service invention-creation a sum of money as prize. The
sum of money prize for a patent for invention shall not
be less than RMB 2000 yuan; the sum of money prize for a
patent for utility model or design shall not be less
than RMB 500 yuan.
Where an invention-creation is made on the basis of an
inventor's or creator's proposal adopted by the entity
to which he belongs, the State-owned enterprise or
institution to which a patent right is granted shall
award to him a money prize on favorable terms.
For the money prize awarded to the inventor or creator,
the enterprise may have it included into its production
cost, and the institution may have it disbursed out of
its operating expenses.
Rule 75 The State-owned enterprise or institution to
which a patent right is granted shall, after exploiting
the patent for invention-creation within the duration of
the patent right, draw each year from the profits after
taxation earned from exploitation of the invention or
utility model a percentage of not less than 2%, or from
the profits after taxation earned from exploitation of
the design a percentage of not less than 0.2%, and award
it to the inventor or creator as remuneration. The
entity may, as an alternative, by making reference to
the said percentage, award a lump sum of money to the
inventor or creator as remuneration once and for all.
Rule 76 Where any State-owned enterprise or institution
to which a patent right is granted authorizes any other
entity or individual to exploit its patent, it shall
draw from the profits it receives for exploitation of
the said patent after taxation a percentage of not less
than 10% and award it to the inventor or creator as
remuneration.
Rule 77 The provisions of this Chapter may be
implemented by any other Chinese entity by making
reference thereto.
Chapter VII Protection of Patent Right
Rule 78 The administrative authority for patent affairs
referred to in the Patent Law and these Implementing
Regulations means the department responsible for the
administrative work concerning patent affairs set up by
the people's government of any province, autonomous
region, or municipality directly under the Central
Government, or by the people's government of any city
which consists of districts, has a large amount of
patent administration work to attend to and has the
ability to deal with the matter.
Rule 79 In addition to the provisions of Article 57 of
the Patent Law, the administrative authority for patent
affairs may also mediate in the following patent
disputes at the request of the parties concerned:
(1) any dispute over the ownership of the right to apply
for patent and the patent right;
(2) any dispute over the qualification of the inventor
or creator;
(3) any dispute over the award and remuneration of the
inventor or creator of a service invention-creation;
(4) any dispute over the appropriate fee to be paid for
the exploitation of an invention after the publication
of the application for patent but before the grant of
patent right.
In respect of the dispute referred to in subparagraph
(4), where the patentee requests the administrative
authority for patent affairs to mediate, the request
shall be made after the grant of the patent right.
Rule 80 The Patent Administration Department under the
State Council shall provide professional guidance to the
administrative authorities for patent affairs in
handling and mediating patent disputes.
Rule 81 Where any party concerned requests handling or
mediation of a patent dispute, it shall fall under the
jurisdiction of the administrative authority for patent
affairs where the requested party has his location or
where the act of infringement has taken place.
Where two or more administrative authorities for patent
affairs all have jurisdiction over a patent dispute, any
party concerned may file his or its request with one of
them to handle or mediate the matter. Where requests are
filed with two or more administrative authorities for
patent affairs, the administrative authority for patent
affairs that first accepts the request shall have
jurisdiction.
Where administrative authorities for patent affairs have
a dispute over their jurisdiction, the administrative
authority for patent affairs of their common higher
level people's government shall designate the
administrative authority for patent affairs to exercise
the jurisdiction; if there is no such administrative
authority for patent affairs of their common higher
level people's government, the Patent Administration
Department under the State Council shall designate the
administrative authority for patent affairs to exercise
the jurisdiction.
Rule 82 Where, in the course of handling a patent
infringement dispute, the defendant requests
invalidation of the patent right and his request is
accepted by the Patent Reexamination Board, he may
request the administrative authority for patent affairs
concerned to suspend the handling of the matter.
If the administrative authority for patent affairs
considers that the reasons set forth by the defendant
for the suspension are obviously untenable, it may not
suspend the handling of the matter..
Rule 83 Where any patentee affixes a patent marking on
the patented product or on the package of that product
in accordance with the provisions of Article 15 of the
Patent Law, he or it shall make the affixation in the
manner as prescribed by the Patent Administration
Department under the State Council .
Rule 84 Any of the following is an act of passing off
the patent of another person as one's own:
(1) without authorization, indicating the patent number
of another person on the product or on the package of
that product made or sold by him or it;
(2) without authorization, using the patent number of
another person in the advertisement or in any other
promotional materials of his or its product, so as to
mislead other persons to regard the technology concerned
as the patented technology of another person;
(3) without authorization, using the patent number of
another person in the contract entered into by him or it
, so as to mislead other persons to regard the
technology referred to in the contract as the patented
technology of another person;
(4) counterfeiting or transforming any patent
certificate, patent document or patent application
document of another person.
Rule 85 Any of the following is an act of passing a
non-patented product off as patented product or passing
a non-patented process off as patented process:
(1) making or selling non-patented products which are
affixed with patent marking;
(2) continuing to affix patent marking on the products
that are made or sold after the patent right concerned
has been declared invalid;
(3) passing any non-patented technology off as patented
technology in the advertisements or in any other
promotional materials;
(4) stating any non-patented technology as patented
technology in any contract entered into by him or it;
(5) counterfeiting or transforming any patent
certificate, patent document or patent application
document.
Rule 86 Any party concerned to a dispute over the
ownership of the right to apply for a patent or the
patent right, which is pending before the administrative
authority for patent affairs or the people's court, may
request the Patent Administration Department under the
State Council to suspend the relevant procedures.
Any party requesting the suspension of the relevant
procedures in accordance with the preceding paragraph,
shall submit a written request to the Patent
Administration Department under the State Council , and
attach a copy of the document acknowledging the receipt
of the relevant request from the administrative
authority for patent affairs or the people's court.
After the decision made by the administrative authority
for patent affairs or the judgment rendered by the
people's court enters into force, the parties concerned
shall request the Patent Administration Department under
the State Council to resume the suspended procedure. If,
within one year from the date when the request for
suspension is filed, no decision is made on the dispute
relating to the ownership of the right to apply for a
patent or the patent right, and it is necessary to
continue the suspension, the party who or that the
request shall, within the said time limit, request to
extend the suspension. If, at the expiration of the said
time limit, no such request for extension is filed, the
Patent Administration Department under the State Council
shall resume the procedure on its own initiative.
Rule 87 Where, in hearing civil cases, the people's
court has ordered the adoption of measures for a patent
right preservation, the Patent Administration Department
under the State Council , for the purpose of assisting
the execution of the order, shall suspend the relevant
procedure concerning the preserved patent right. At the
expiration of the time limit for preservation, if there
is no order of the people's court to continue the
preservation, the Patent Administration Department under
the State Council shall resume the relevant procedure on
its own initiative.
Chapter VIII Patent Registration and Patent Gazette
Rule 88 The Patent Administration Department under the
State Council shall keep a Patent Register in which the
registration of the following matters relating to patent
application or patent right shall be made:
(1) any grant of the patent right;
(2) any transfer of the right of patent application or
the patent right;
(3) any pledge and preservation of the patent right and
their discharge;
(4) any patent license contract for exploitation
submitted for the record;
(5) any invalidation of the patent right;
(6) any cessation of the patent right;
(7) any restoration of the patent right;
(8) any compulsory license for exploitation of the
patent;
(9) any change in the name, nationality and address of
the patentee.
Rule 89 The Patent Administration Department under the
State Council shall publish the Patent Gazette at
regular intervals, publishing or announcing the
following:
(1) the bibliographic data contained in patent
applications;
(2) the abstract of the description of an invention or
utility model, the drawings or photographs of a design
and its brief explanation;
(3) any request for examination as to substance of an
application for a patent for invention and any decision
made by the Patent Administration Department under the
State Council to proceed on its own initiative to
examine as to substance an application for a patent for
invention;
(4) any declassification of secret patents;
(5) any rejection, withdrawal and deemed withdrawal of
an application for a patent for invention after its
publication;
(6) any grant of the patent right;
(7) any invalidation of the patent right;
(8) any cessation of the patent right;
(9) any transfer of the patent application or the patent
right;
(10) any patent license contract for exploitation
submitted for the record;
(11) any pledge and preservation of the patent right and
their discharge;
(12) any grant of compulsory license for exploitation of
the patent;
(13) any restoration of a patent application or patent
right;
(14) any change in the name or address of the patentee;
(15) any notification to a party whose address is not
known;
(16) any correction made by the Patent Administration
Department under the State Council ; and
(17) any other related matters.
The description and its drawings, and the claims of an
application for a patent for invention or utility model
shall be separately published in full in pamphlet form
by the Patent Administration Department under the State
Council .
Chapter IX Fees
Rule 90 When any person files an application for a
patent with, or has other formalities to go through at,
the Patent Administration Department under the State
Council , he or it shall pay the following fees:
(1) filing fee, additional fee for filing application,
and printing fee for publishing the application;
(2) substantive examination fee for an application for
patent for invention, and reexamination fee;
(3) registration fee for the grant of patent right,
printing fee for the announcement of grant of patent
right, maintenance fee for application, and annual fee;
(4) fee for a change in the bibliographic data, fee for
claiming priority, fee for requesting restoration of
rights, fee for requesting extension of a time limit,
and fee for establishing a search report on a utility
model patent;
(5) fee for requesting invalidation, fee for requesting
suspension of the patent procedure, fee for requesting a
compulsory license, fee for requesting adjudication on
exploitation fee of a compulsory license.
The amount of the fees referred to in the preceding
paragraph shall be prescribed by the price
administration department under the State Council in
conjunction with the Patent Administration Department
under the State Council .
Rule 91 The fees provided for in the Patent Law and in
these Implementing Regulations may be paid directly to
the Patent Administration Department under the State
Council or paid by way of bank or postal remittance, or
by way of any other means as prescribed by the Patent
Administration Department under the State Council .
Where any fee is paid by way of bank or postal
remittance, the applicant or the patentee shall indicate
on the money order at least the correct filing number or
the patent number and the name of the fee paid. If the
requirements as prescribed in this paragraph are not
complied with, the payment of the fee shall be deemed
not to have been made.
Where any fee is paid directly to the Patent
Administration Department under the State Council , the
date on which the fee is paid shall be the date of
payment; where any fee is paid by way of postal
remittance, the date of remittance indicated by the
postmark shall be the date of payment; where any fee is
paid by way of bank transfer, the date on which the
transfer of the fee is done shall be the date of
payment. Where, however, the time between such a date
and the date of receipt of the order by the Patent
Administration Department under the State Council lasts
more than fifteen days, unless the date of remittance or
transfer is proved by the bank or the post office, the
date of receipt by the Patent Administration Department
under the State Council shall be the date of payment.
Where any patent fee is paid in excess of the amount as
prescribed, paid repeatedly or wrongly, the party making
the payment may, within one year from the date of
payment, request a refund from the Patent Administration
Department under the State Council .
Rule 92 The applicant shall, after receipt of the
notification of acceptance of the application from the
Patent Administration Department under the State Council
, pay the filing fee, the printing fee for the
publication of the application and the necessary
additional fees at the latest within two months from the
filing date. If the fees are not paid or not paid in
full within the time limit, the application shall be
deemed to be withdrawn.
Where the applicant claims priority, he or it shall pay
the fee for claiming priority at the same time with the
payment of the filing fee. If the fee is not paid or not
paid in full within the time limit, the claim for
priority shall be deemed not to have been made.
Rule 93 Where the party concerned makes a request for an
examination as to substance, a restoration of right or a
reexamination, the relevant fee shall be paid within the
time limit as prescribed respectively for such requests
by the Patent Law. If the fee is not paid or not paid in
full within the time limit, the request is deemed not to
have been made.
Rule 94 Where the applicant for a patent for invention
has not been granted a patent right within two years
from the date of filing, it or he shall pay a fee for
the maintenance of the application from the third year.
Rule 95 When the applicant goes through the formalities
of registration of the grant of patent right, it or he
shall pay a registration fee for the grant of patent
right, printing fee for the announcement of grant of
patent right and the annual fee of the year in which the
patent right is granted. The applicant for a patent for
invention shall pay the application maintenance fee for
all the years, with the exception of the year in which
the patent right is granted. If such fees are not paid
within the prescribed time limit, the registration of
the grant of patent right shall be deemed not to have
been made. The subsequent annual fees shall be paid in
advance within the month before the expiration of the
preceding year.
Rule 96 Where the annual fee of the patent right after
the year in which the patent is granted is not paid in
due time by the patentee, or the fee is not paid in
full, the Patent Administration Department under the
State Council shall notify the patentee to pay the fee
or to make up the insufficiency within six months from
the expiration of the time limit within which the annual
fee is due to be paid, and at the same time pay a
surcharge. The amount of the surcharge shall be, for
each month of late payment, 5% of the whole amount of
the annual fee of the year within which the annual fee
is due to be paid. Where the fee and the surcharge are
not paid within the time limit, the patent right shall
lapse from the expiration of the time limit within which
the annual fee should be paid.
Rule 97 The fee for a change in the bibliographic data,
fee for establishing a search report on a utility model
patent, fee for requesting suspension of the patent
procedure, fee for requesting a compulsory license, fee
for requesting adjudication on exploitation fee of a
compulsory license and fee for requesting invalidation
shall be paid as prescribed within one month from the
date on which such request is filed. The fee for
requesting extension of a time limit shall be paid
before the expiration of the said time limit. If the fee
is not paid or not paid in full within the time limit,
the request shall be deemed not to have been made.
Rule 98 Where any applicant or patentee has difficulties
in paying the various fees prescribed in these
Implementing Regulations, he may, in accordance with the
prescriptions, submit a request to the Patent
Administration Department under the State Council for a
reduction or postponement of the payment. Measures for
the reduction and postponement of the payment shall be
prescribed by the Patent Administration Department under
the State Council in consultation with the finance
administration department and the price administration
department under the State Council.
Chapter X Special Provisions Concerning International
Application
Rule 99 The Patent Administration Department under the
State Council receives international patent applications
filed under the Patent Cooperation Treaty in accordance
with the provisions of Article 20 of the Patent Law.
Where any international application filed under the
Patent Cooperation Treaty designating China (hereinafter
referred to as the international application) enters the
Chinese national phase, the requirements and procedures
prescribed in this Chapter shall apply. Where no
provisions are made in this Chapter, the relevant
provisions in the Patent Law and in any other chapters
of these Implementing Regulations shall apply.
Rule 100 Any international application which has been
accorded an international filling date in accordance
with the Patent Cooperation Treaty and which has
designated China shall be deemed as an application for
patent filed with the Patent Administration Department
under the State Council , and the said filing date shall
be deemed as the filing date referred to in Article 28
of the Patent Law.
Where, in the international phase, an international
application or its designation of China is withdrawn or
deemed to be withdrawn, the effect of the said
international application in China shall cease.
Rule 101. Any applicant for an international application
entering the Chinese national phase shall, within 30
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:
(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 time limit of 32 months 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 30 months from
¡°the priority date¡±, the applicant files a request
with the Patent Administration Department under the
State Council for early processing and examination of
his or its international application, he or it shall, in
addition to going through the formalities for entering
the Chinese national phase, submit a request in
accordance with the provisions in Article 23, paragraph
two of the Patent Cooperation Treaty. Where the
international application has not been transmitted by
the International Bureau to the Patent Administration
Department under the State Council, the applicant shall
submit a confirmed copy of the international
application.
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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