Implementing Regulations of the Patent Law of the People's Republic
of China
(Revision Approved by the State Council on 26 June 2001 and Promulgated
by the State Intellectual Property Office of the People's Republic of
China on 1 July 2001)
Chapter I General Provisions
Rule 1
These Implementing Regulations are drawn up in accordance with the Patent
Law of the People's Republic of China (hereinafter referred to as the
Patent Law).
Rule 2
"Invention" in the Patent Law means any new technical solution
relating to a product, a process or improvement thereof.
"Utility model" in the Patent Law means any new technical solution
relating to the shape, the structure, or their combination, of a product,
which is fit for practical use.
"Design" in the Patent Law means any new design of the shape,
pattern, or their combination and the combination of color and shape or
pattern, of a product, which creates an aesthetic feeling and is fit for
industrial application.
Rule 3
Any proceedings provided for by the Patent Law and these Implementing
Regulations shall be conducted in a written form or in any other form
prescribed by the Patent Administrative Department under the State Council.
Rule 4
Any document submitted under the Patent Law and these Implementing Regulations
shall be in Chinese. The standard scientific and technical terms shall
be used if there is a prescribed one set forth by the State. Where no
generally accepted translation in Chinese can be found for a foreign name
or scientific or technical term, the one in the original language shall
be also indicated.
Where any certificate and certified document submitted in accordance
with the Patent Law and these Implementing Regulations are in foreign
language, and where the Patent Administrative Department under the State
Council finds it necessary, it may request for a Chinese translation of
the certificate and the certified document to be submitted within a specified
time limit; where the translation is not submitted within the specified
time limit, the certificate and certified document shall be deemed not
to have been submitted.
Rule 5
For any document sent by mail to the Patent Administrative Department
under the State Council, the date of mailing indicated by the postmark
on the envelope shall be presumed to be the date of filing. If the date
of mailing indicated by the postmark on the envelope is illegible, the
date on which the Patent Administrative Department under the State Council
receives the document shall be the date of filing, except where the date
of mailing is proved by the addresser.
Any document of the Patent Administrative Department under the State
Council may be served by mail, by personal delivery or by any other means.
Where any party concerned appoints a patent agency, the document shall
be sent to the patent agency; where no patent agency is appointed, the
document shall be sent to the person indicated in the request.
For any document sent by mail by the Patent Administrative Department
under the State Council, the 16th day from the date of mailing shall be
presumed to be the date on which the addressee receives the document.
For any document, which shall be delivered personally in accordance with
the prescription of the Patent Administrative Department under the State
Council, the date of delivery is the date on which the addressee receives
the document.
Where the address of a document is not clear and cannot be sent by mail,
the document may be served by making an announcement in the Patent Gazette.
At the expiration of one month from the date of the announcement, the
document shall be presumed as having been served.
Rule 6
The first day of any time limit prescribed in the Patent Law and these
Implementing Regulations shall not be counted. Where a time limit is counted
by year or by month, it shall expire on the corresponding day of the last
month; if there is no corresponding day in that month, the time limit
shall expire on the last day of that month. If a time limit expires on
an official holiday, the time limit shall expire on the first working
day following that official holiday.
Rule 7
Where a time limit prescribed in the Patent Law or these Implementing
Regulations or specified by the Patent Administrative Department under
the State Council is not observed because of force majeure, resulting
in the loss of any right on the part of the party concerned, he or it
shall, within two months from the date on which the impediment is removed,
at the latest within two years immediately following the expiration of
that time limit, state the reasons, together with relevant supporting
documents and request the Patent Administrative Department under the State
Council to restore his or its rights.
Where a time limit prescribed in the Patent Law or these Implementing
Regulations or specified by the Patent Administrative Department under
the State Council is not observed because of any justified reason, resulting
in the loss of any right on the part of the party concerned, he or it
shall, within two months from the date of receipt of a notification from
the Patent Administrative Department under the State Council, state the
reasons and request the Patent Administrative Department under the State
Council to restore his or its rights.
Where the party concerned makes a request for an extension of a time
limit specified by the Patent Administrative Department under the State
Council, he or it shall, before the time limit expires, state the reasons
to the Patent Administrative Department under the State Council and complete
the relevant procedures.
The provisions of paragraphs one and two of this Rule shall not be applicable
to the time limits referred to in Articles 24, 29, 42, and 62 of the Patent
Law.
Rule 8
Where an application for patent for invention relates to the security
of the State concerning national defense and is required to be kept secret,
the application shall be filed with the patent organization of the national
defense system. Where any application for patent for invention relating
to the secrets of the State concerning national defense and requiring
to be kept classified is received by the Patent Administrative Department
under the State Council, the Patent Administrative Department under the
State Council shall transfer the application to the said patent organization
of the national defense system. The Patent Administrative Department under
the State Council shall make a decision on the basis of the observations
of the examination of the application presented by the said patent organization
of the national defense system.
Subject to the preceding paragraph, the Patent Administrative Department
under the State Council, after receipt of an application for patent for
invention, which is required to be examined for the purpose of security,
shall send it to the competent department concerned of the State Council
for examination. The said department shall, within four months from receipt
of the application, send a report on the results of the examination to
the Patent Administrative Department under the State Council. Where the
invention for which a patent is applied for is required to be kept secret,
the Patent Administrative Department under the State Council shall handle
it as an application for secret patent and notify the applicant accordingly.
Rule 9
The invention-creations contrary to the laws of the State referred to
in Article 5 of the Patent Law do not include invention-creations the
exploitation of which is prohibited under the laws of the State.
Rule 10
The date of filing referred to in the Patent Law, except that mentioned
in Articles 28 and 42, means the priority date where a right of priority
is claimed.
The date of filing referred to in these Implementing Regulations means
the date of filing provided for in Article 28 of the Patent Law, unless
otherwise provided for.
Rule 11
"Service invention-creation made by a person in execution of the
tasks of the entity to which he belongs " mentioned in Article 6
of the Patent Law refers to any invention-creation made:
(1) in the course of performing his own duty;
(2) in execution of any task, other than his own duty, which was entrusted
to him by the entity to which he belongs;
(3) within one year from his resignation, retirement or change of work,
where the invention-creation relates to his own duty or the other task
entrusted to him by the entity to which he previously belonged.
The entity to which one belongs mentioned in Article 6 of the Patent
Law includes the entity one temporarily works for; "material and/or
technical means of the entity" mentioned in Article 6 of the Patent
Law refers to entity's money, equipment, spare parts, raw materials, or
technical data which are not to be disclosed to the public.
Rule 12
"Inventor" or "creator" mentioned in the Patent Law
refers to any person who has made creative contributions to the substantive
features of the invention-creation. Any person who, during the course
of accomplishing the invention-creation, is responsible only for organization
work, or who offers facilities for making use of material and/or technical
means, or who takes part in other auxiliary functions, shall not be considered
as inventor or creator.
Rule 13
For any identical invention-creation, only one patent right shall be
granted.
Two or more applicants who file, on the same day, applications for patent
for the identical invention-creation, according to Article 9 of the Patent
Law, shall, after receipt of a notification from the Patent Administrative
Department under the State Council, hold consultation among themselves
to decide on the person or persons who shall be entitled to file the application.
Rule 14
Where a Chinese entity or individual assigns the right to apply for patent
or the patent right to a foreigner, the assignment shall be approved by
the competent Organ for Foreign Trade and Economic Cooperation under the
State Council in conjunction with the Administrative Organ for Science
and Technology under the State Council.
Rule 15
Where a patent right is transferred for reasons other than the assignment
of a patent right as provided for in Article 10 of the Patent Law, the
interested party shall perform the formalities for change of the name
of the patentee with the Patent Administrative Department under the State
Council on the basis of relevant certified document or legal instrument.
Any license contract for exploitation of the patent, which has been concluded
by the patentee with an entity or individual shall, within three months
from the date of entry into force of the contract, be submitted to the
Patent Administrative Department under the State Council for recordal.
Chapter II Application for Patent
Rule 16
Anyone who applies for a patent in written form shall submit application
documents in two copies to the Patent Administrative Department under
the State Council.
Any application filed in any other form prescribed by the Patent Administrative
Department under the State Council shall conform to the requirement.
Any applicant, who appoints a patent agency for filing an application
for a patent with, or for dealing with other patent matters before, the
Patent Administrative Department under the State Council, shall submit
a power of attorney indicating the scope of the power entrusted.
Where there are two or more applicants of one application and where they
have not appointed any patent agency, the first applicant indicated in
the request shall be the representative unless otherwise stated in the
request.
Rule 17
Other related matters mentioned in Article 26, paragraph two, of the
Patent Law refer to:
(1) the nationality of the applicant;
(2) where the applicant is an enterprise or other organization, the name
of the country in which the applicant has the principal business office;
(3) where the applicant has appointed a patent agency, the relevant matters
shall be indicated; where the applicant has not appointed a patent agency,
the name, address, postal code and telephone number of his or its person
to be contacted;
(4) where the priority of an earlier application is claimed, the relevant
matters which should be indicated;
(5) the signature or seal of the applicant or the patent agency;
(6) a list of the documents constituting the application;
(7) a list of the documents appending the application;
(8) any other related matter which needs to be indicated.
Rule 18
The description of an application for a patent for invention or utility
model shall indicate the title of the invention or utility model, and
the title shall be consistent with the one appearing in the request. The
description shall contain:
(1) technical field: indicating the technical field the technical solution
falls into for which protection is claimed;
(2) background art: indicating the background art which facilitates the
understanding, searching and examination of the invention or utility model,
and citing, if available, the documents reflecting such art;
(3) contents of invention: stating the technical problem to be solved
by the invention or utility model and the technical solution adopted for
solving the technical problem, and indicating the advantageous effects
of the invention or utility model with reference to the prior art;
(4) Drawings: briefly explaining each of the drawings where the description
is accompanied therewith;
(5) Specific mode for carrying out the invention or utility model: indicating
in detail the optimum mode contemplated by the applicant for carrying
out the invention or utility model; this shall be done in terms of examples,
where appropriate, and with reference to the drawings, if any.
The manner and order mentioned in the preceding paragraph shall be observed
by the applicant of a patent for invention or a patent for utility model
and a subtitle is given at the beginning of each portion of the description,
unless, because of the nature of the invention or utility model, a different
manner or order would afford an accurate understanding and a more economical
presentation.
The description of the invention or utility model shall be written in
standard terms and straightforward sentences, and shall not contain such
references to the claims as: "as described in part - of the claim",
nor shall it contain commercial advertising.
Where an application for patent for invention covers one or more sequences
of nucleotides or of amino acids, the description thereof shall contain
a table of sequence complying with the prescription of the Patent Administrative
Department under the State Council. The applicant shall submit the table
of sequence as a separate portion of the description, together with a
computer-readable copy in the form prescribed by the Patent Administrative
Department under the State Council.
Rule 19
The same sheet of drawings may contain several figures of the invention
or utility model, and the drawings shall be numbered and arranged in numerical
order consecutively as "Figure 1, Figure 2, ¡ ¡ ".
The scale and the distinctness of the drawings shall be such that a reproduction
with a linear reduction in size to two-thirds would still enable all details
to be clearly distinguishable.
Drawing reference signs not appearing in the text of the description
of the invention or utility model shall not appear in the drawings. Drawing
reference signs not appearing in the drawings shall not appear in the
text of the description. Drawing reference signs for the same composite
part used in an application document shall be consistent throughout.
The drawings shall not contain any other explanatory notes, except words,
which are indispensable.
Rule 20
The claims shall define clearly and concisely the matter for which protection
is sought in terms of the technical features of the invention or utility
model.
If there are several claims, they shall be numbered consecutively in
Arabic numerals.
The technical terminology used in the claims shall be consistent with
that used in the description. The claims may contain chemical or mathematical
formulae but no drawings. They shall not, except where absolutely necessary,
contain such references to the description or drawings as: "as described
in part - of the description", or "as illustrated in figure
- of the drawings".
The technical features mentioned in the claims may, in order to facilitate
understanding of the claim, make reference to the corresponding reference
signs in the drawings of the description. Such reference signs shall follow
the corresponding technical features and be placed between parentheses.
They shall not be construed as limiting the claims.
Rule 21
The claims shall have an independent claim, and may also contain dependent
claims.
An independent claim shall outline the technical solution of an invention
or utility model and describe the indispensable technical features necessary
for solving the technical problems.
A dependent claim shall further define the claim, which it refers to
by additional features, which it is desired to protect.
Rule 22
An independent claim of an invention or utility model shall contain a
preamble portion and a characterizing portion, and be presented in the
following form:
(1) a preamble portion, indicating the title of the subject matter of
the technical solution of the invention or utility model for which protection
is sought, and the necessary technical features common to the invention
or utility model and the closest prior art;
(2) a characterizing portion, stating, in such words as "characterized
in that ¡ ¡ " or in similar expressions, the technical features of
the invention or utility model, which distinguish it from the closest
prior art. These features, in combination with the features stated in
the preamble portion, served to define the scope of protection of the
invention or utility model.
Independent claims may be presented in any other form, where it is not
appropriate, according to the nature of the invention or utility model,
to present them in the form prescribed in the preceding paragraph.
Each invention or utility model shall have only one independent claim,
which shall precede all the dependent claims relating to the same invention
or utility model.
Rule 23
A dependent claim of an invention or utility model shall contain a reference
portion and a characterizing portion, and be presented in the following
form:
(1) a reference portion, indicating the serial number(s) of the claim(s)
referred to, and the title of the subject matter;
(2) a characterizing portion, stating the additional technical features
of the invention or utility model.
A dependent claim shall refer only to the preceding claim or claims.
A multiple dependent claim referring to two or more preceding claims shall
only refer to any one of the preceding claims, and shall not be taken
as the basis of any multiple dependent claim.
Rule 24
The abstract of the description shall outline the contents disclosed
in the application for patent for invention or utility model, namely indicating
the title and the technical field of the invention or utility model, and
clearly states the technical problems to be solved, the essential technical
features and the major use or uses of the technical solution solving the
problems.
The abstract may contain the chemical formula which best characterizes
the invention. In an application for a patent, which contains drawings,
the applicant shall indicate and provide a drawing which best characterizes
the invention or utility model. The scale and the distinctness of the
drawings shall be such that a reproduction with a linear reduction in
size to 4cm¡Á 6cm would still enable all details to be clearly distinguished.
The whole text of the abstract shall contain not more than 300 Chinese
characters. There shall be no commercial advertising in the abstract.
Rule 25
Where an application for a patent for invention concerns a new biological
material which is not accessible to the public, and the description of
which is not sufficient enough to enable skilled artisans of the art to
carry out the invention, the applicant shall, in addition to fulfilling
the requirements set out in the Patent Law and these Implementing Regulations,
complete the following formalities.
(1) deposit a sample of the biological material with a depository institution
designated by the Patent Administrative Department under the State Council
before the date of filing, or, at the latest, on the date of filing (or
the priority date, where priority is claimed), and submit, at the time
of filing, or, at the latest, within four months from the filing date,
a receipt of deposit and the viability proof from the depository institution;
where they are not submitted within the specified time limit, the sample
shall be deemed not to have been deposited;
(2) give in the application document relevant information of the characteristics
of the biological material;
(3) indicate, where the application relates to the deposit of a sample
of the biological material in the request and the description, the scientific
name of classification (with its Latin name) of the biological material
and the name and address of the depository institution of the biological
material, the date and accession number of the deposit; where, at the
time of filing, they are not indicated, they shall be supplied within
four months from the date of filing; where, after the expiration of the
prescribed time limit they are not supplied, the sample of the biological
material shall be deemed not to have been deposited.
Rule 26
Where an applicant for patent for invention deposits a sample of biological
material in accordance with Rule 25 of these Implementing Regulations,
after the publication of the application for a patent for invention relating
to a biological material, any entity which, or individual who, needs to
make use of the biological material covered in the application for the
purpose of experiment shall make a request to the Patent Administrative
Department under the State Council containing the following:
(1) the name and address of the entity or individual making the request;
(2) an undertaking not to make the biological material available to any
other person;
(3) an undertaking to use the biological material for experimental purpose
only before the grant of the patent right.
Rule 27
The size of drawings or photographs of a design submitted in accordance
with the provisions of Article 27 of the Patent Law shall not be smaller
than 3cm¡Á 8cm, nor larger than 15cm¡Á 22cm.
Where an application for a patent for design seeking concurrent protection
of colors is filed, a drawing or photograph in color, and a drawing or
photograph in white and black, shall be submitted in two copies.
The applicant shall submit, in respect of the subject matter of the product
incorporating the design, which is in need of protection, the relevant
views and stereoscopic drawings or photographs, so as to clearly show
the subject matter for which protection is sought.
Rule 28
Where an application for a patent for design is filed, a brief explanation
of the design shall, when necessary, be indicated.
The brief explanation of the design shall include the main design elements
of the product incorporating the design, the colors for which protection
is sought and the omission of the view thereof. The brief explanation
shall not contain any commercial advertising and shall not be used to
indicate the function and the uses of the product.
Rule 29
Where the Patent Administrative Department under the State Council finds
it necessary, it may require the applicant for a patent for design to
submit a sample or model of the product incorporating the design. The
volume of the sample or model submitted shall not exceed 30cm¡Á 30cm ¡Á
30cm, and its weight shall not surpass 15 kilos. Articles easy to get
rotten or broken or articles that are dangerous may not be submitted as
sample or model.
Rule 30
The existing technology mentioned in Article 22, paragraph three, of
the Patent Law means any technology which has been publicly disclosed
in publications in the country or abroad, or has been publicly used or
made known to the public by any other means in the country, before the
date of filing (or the priority date where priority is claimed), that
is, prior art.
Rule 31
The academic or technological meeting mentioned in item (2) of Article
24 of the Patent Law means any academic or technological meeting organized
by a competent department concerned of the State Council or by a national
academic or technological association.
Where any invention-creation for which an application for a patent is
filed falls under the provisions of item (1) or item (2) of Article 24
of the Patent Law, the applicant shall, when filing the application, make
a declaration and, within a time limit of two months from the date of
filing, submit a certificate issued by the entity which organizes the
international exhibition or academic or technological meeting, stating
that the invention-creation was in fact exhibited or made public there
and also the date of its exhibition or making public.
Where any invention-creation for which an application for a patent is
filed falls under the provisions of item (3) of Article 24 of the Patent
Law, the Patent Administrative Department under the State Council may,
when necessary, require the applicant to submit the relevant proof within
the prescribed time limit.
Where the applicant fails to make the declaration or submit the certified
document pursuant to paragraph two of this Rule, or fails to submit the
proof within the prescribed time limit according to paragraph three of
this Rule, the provision of Article 24 of the Patent Law shall not be
applicable to his or its application.
Rule 32
Where the applicant is to comply with the requirements for claiming the
right of priority in accordance with Article 30 of the Patent Law, he
or it shall, in his or its written declaration, indicate the date of filing
and the filing number of the application which was first filed (hereinafter
referred to as the earlier application) and the country in which that
application was filed. If the written declaration does not contain the
date of filing of the earlier application and the name of that country,
the declaration shall be deemed not have been made.
Where the foreign priority is claimed, the copy of the earlier application
document submitted by the applicant shall be certified by the competent
authority of the foreign country; where the name or the title of the applicant
of the earlier application is not consistent with that of the applicant
of the subsequent application in the certified material, a proof of the
assignment of the right of priority shall be submitted; where the domestic
priority is claimed, the copy of the earlier application document shall
be prepared by the Patent Administrative Department under the State Council.
Rule 33
Any applicant may claim one or more priorities for an application for
a patent; where the priorities of several earlier applications are claimed,
the priority period for the application shall be counted from the earliest
priority date.
Where any applicant claims the right of domestic priority, if the earlier
application is one for a patent for invention, he or it may file an application
for a patent for invention or utility model for the same subject matter;
where the earlier application is one for a patent for utility model, he
or it may file an application for a patent for utility model or invention
for the same subject matter. But when the later application is filed,
if the subject matter of the earlier application falls under any of the
following, it may not be the basis of domestic priority.
(1) where it has claimed foreign or domestic priority;
(2) where it has been granted a patent right;
(3) where it is a divisional application filed as prescribed.
Where the domestic priority is claimed, the earlier application shall
be deemed to be withdrawn from the date on which the later application
is filed.
Rule 34
Where an application for a patent is filed or the right of foreign priority
is claimed by any applicant having no habitual residence or business establishment
in China, the Patent Administrative Department under the State Council
may, when finding it necessary, require the applicant to submit the following
documents:
(1) a certificate concerning the nationality of the applicant;
(2) a certificate concerning the seat of the business establishment or
the headquarters, if the applicant is an enterprise or any other organization;
(3) a testimonial showing that the country, to which the applicant belongs,
recognizes that Chinese entities and individuals are, under the same conditions
applied to its nationals, entitled to patent right, right of priority
and other related rights in that country.
Rule 35
Two or more inventions or utility models belonging to a single general
inventive concept which may be filed as one application in accordance
with the provision of Article 31, paragraph one, of the Patent Law shall
be technically inter-related and contain one or more identical or corresponding
special technical features. The expression "special technical features"
shall mean those technical features that define a contribution which each
of those inventions, considered as a whole, makes over the prior art.
Rule 36
The expression "the same class" mentioned in Article 31, paragraph
two of the Patent Law means that the products incorporating the designs
belong to the same subclass in the classification of products for designs.
The expression "be sold or used in sets" means that the products
incorporating the designs have the same designing concept and are customarily
sold or used at the same time.
Where two or more designs are filed as one application in accordance
with the provisions of Article 31, paragraph two, of the Patent Law, the
designs shall be numbered consecutively and the numbers shall be placed
before the titles of the view of the product incorporating the design.
Rule 37
When withdrawing an application for a patent, the applicant shall submit
to the Patent Administrative Department under the State Council a declaration,
indicating the title of the invention-creation, the filing number and
the date of filing.
Where a declaration to withdraw an application for a patent is submitted
after the printing preparation has been made by the Patent Administrative
Department under the State Council for publication of the application
documents, the application shall be announced as scheduled; however, the
declaration to withdraw an application for a patent shall be published
on the Patent Gazette published later on.
Chapter III Examination and Approval of Application
for Patent
Rule 38
In any of the following situations, any person who makes examination
or hears a case in the procedures of preliminary examination, examination
as to substance, reexamination, and invalidation shall, on his own initiative
or upon the request of the parties concerned or any other interested person,
be excluded from exercising his function:
(1) where he is a close relative of the party concerned or his agent;
(2) where he has an interest in the application for patent or the patent
right;
(3) where he has such other kinds of relations with the party concerned
or his agent that might influence impartial examination and hearing.
(4) where a member of the Patent Reexamination Board has taken part in
the examination of the application.
Rule 39
Upon the receipt of an application for a patent for invention or utility
model consisting of a request, a description (a drawing being indispensable
for utility model) and one or more claims, or an application for a patent
for design consisting of a request and one or more drawings or photographs
showing the design, the Patent Administrative Department under the State
Council shall accord the date of filing and a filing number and notify
the applicant accordingly.
Rule 40
In any of the following situations, the Patent Administrative Department
under the State Council shall declare the application unacceptable and
notify the applicant accordingly:
(1) where the application for a patent for invention or utility model
does not contain a request, a description (the description of utility
model does not contain drawings) or claims, or the application for a patent
for design does not contain a request, drawings or photographs;
(2) where the application is not written in Chinese;
(3) where the application is not in conformity with the provisions of
Rule 120, paragraph one, of these Implementing Regulations;
(4) where the request does not contain the name and address of the applicant;
(5) where the application is obviously not in conformity with the provisions
of Article 18, or Article 19, paragraph one, of the Patent Law;
(6) where the kind of protection (patent for invention, utility model
or design )of the application for a patent is not clear and definite or
difficult to be discerned.
Rule 41
Where the description mentions that it contains "explanatory notes
to the drawings" but the drawings or some of them are missing, the
applicant shall, within the time limit specified by the Patent Administrative
Department under the State Council, either furnish the drawings or make
a declaration for the deletion of the "explanatory notes to the drawings".
If the drawings are submitted later, the date of their delivering at,
or mailing to, the Patent Administrative Department under the State Council
shall be the date of filing of the application; if the mention of "explanatory
notes to the drawings" is to be deleted, the initial date of filing
shall be the date of filing of the application.
Rule 42
Where an application for a patent contains two or more inventions, utility
models or designs, the applicant may, before the expiration of the time
limit specified in Rule 54, paragraph 1, of these Implementing Regulations,
submit to the Patent Administrative Department under the State Council
a divisional application; however, where the application for a patent
has been rejected, withdrawn or deemed withdrawn, the divisional application
shall not be filed.
If the Patent Administrative Department under the State Council finds
that an application for a patent is not in conformity with the provisions
of Article 31 of the Patent Law and Rule 35 or Rule 36 of these Implementing
Regulations, it shall invite the applicant to amend the application within
the specified time limit; if the applicant does not make any response
within the time limit, the application shall be deemed to have been withdrawn.
The divisional application may not change the kind of protection of the
initial application.
Rule 43
A divisional application filed in accordance with Rule 42 of these Implementing
Regulations may enjoy the initial date of filing and, if priority is validly
claimed, the priority date of the initial application, provided that the
divisional application does not go beyond the scope of disclosure contained
in the initial applications
The divisional application shall be subject to the relevant procedures
in accordance with the provisions of the Patent Law and these Implementing
Regulations.
The filing number and the date of filing of the initial application shall
be indicated in the request of a divisional application. When submitting
the divisional application, the applicant shall submit a copy of the initial
application document; if priority is claimed for the initial application,
the applicant shall submit a copy of the priority document of the initial
application as well.
Rule 44
"Preliminary examination" mentioned in Articles 34 and 40 of
the Patent Law means examining an application for a patent to see whether
or not it contains the documents as provided for in Articles 26 or 27
of the Patent Law and other necessary documents, and whether or not those
documents are in the prescribed form; such examination shall also include
the following:
(1) whether or not an application for a patent for invention obviously
falls under Articles 5 or 25 of the Patent Law, or is obviously not in
conformity with the provisions of Article 18 or Article 19, paragraph
one, of the Patent Law or is obviously not in conformity with the provisions
of Article 31, paragraph one, or Article 33 of the Patent Law, or Rule
2, paragraph one, Rule 18 and Rule 20 of these Implementing Regulations;
(2) whether or not an application for a patent for utility model obviously
falls under Articles 5 or 25 of the Patent Law, or is obviously not in
conformity with the provisions of Article 18 or Article 19, paragraph
one, of the Patent Law or is obviously not in conformity with the provisions
of Article 26, paragraphs 3 and 4, Article 31, paragraph one, or Article
33 of the Patent Law, or Rule 2, paragraph two, or Rule 13, paragraph
1, or Rules 18 to 23, or Rule 43, paragraph one of these Implementing
Regulations, or cannot obtain a patent right according to the provisions
of Article 9 of the Patent Law;
(3) whether or not an application for a patent for design obviously falls
under Article 5 of the Patent Law, or is obviously not in conformity with
the provisions of Article 18 or Article 19, paragraph one, of the Patent
Law, or is obviously not in conformity with the provisions of Article
31, paragraph two, or Article 33 of the Patent Law, or Rule 2, paragraph
three, or Rule 13, paragraph one, or Rule 43, paragraph one, of these
Implementing Regulations, or cannot obtain a patent right according to
the provisions of Article 9 of the Patent Law.
The Patent Administrative Department under the State Council shall communicate
its observations after examination of the application to the applicant
and invite him or it to submit his or its observations or to correct his
or its application within the specified time limit. If the applicant makes
no response within the time limit, the application shall be deemed to
have been withdrawn. Where, after the applicant has made the observations
or the corrections, the Patent Administrative Department under the State
Council still finds that the application is not in conformity with the
provisions of the Articles and the Rules referred in the relevant preceding
sub-paragraphs, the application shall be rejected.
Rule 45
In any of the following situations, any other document relating to a
patent application, not including the patent application document which
is submitted to the Patent Administrative Department under the State Council,
shall be deemed not to have been submitted:
(1) where the document is not presented in the prescribed form or the
indications therein are not in conformity with the prescriptions; or
(2) where no supporting document is submitted as prescribed.
The Patent Administrative Department under the State Council shall notify
the applicant of its observation that the document is deemed not have
been submitted.
Rule 46
Where the applicant requests an earlier publication of its or his application
for a patent for invention, a declaration shall be made to the Patent
Administrative Department under the State Council. The Patent Administrative
Department under the State Council shall, after preliminary examination
of the application and, unless it is to be rejected, publish it immediately.
Rule 47
The applicant shall, when indicating in accordance with Article 27 of
the Patent Law the product incorporating the design and the class to which
that product belongs, refer to the classification of products for designs
published by the Patent Administrative Department under the State Council.
Where no indication, or an incorrect indication, of the class to which
the product incorporating the design belongs is made, the Patent Administrative
Department under the State Council shall supply the indication or make
the correction.
Rule 48
Any person may, from the date of publication of an application for a
patent for invention till the date of announcing the grant of the patent
right, submit to the Patent Administrative Department under the State
Council observations, with the reasons therefor, on the application which
is not in conformity with the provisions of the Patent Law.
Rule 49
Where the applicant for a patent for invention cannot furnish, for justified
reasons, the documents concerning any search or the results of any examination
under Article 36 of the Patent Law, it or he shall make a statement to
that effect to the Patent Administrative Department under the State Council
and submit them when the said documents are available.
Rule 50
The Patent Administrative Department under the State Council shall, when
proceeding on its own initiative to examine an application for a patent
for invention in accordance with the provisions of Article 35, paragraph
two, of the Patent Law, notify the applicant accordingly.
Rule 51
When requesting for examination as to substance or within three months
from the date of receipt of the notification from the Patent Administrative
Department under the State Council that the application for a patent for
invention has entered the stage of examination as to substance, the applicant
may amend the application for a patent for invention on its or his own
initiative.
Within two months from the date of filing, the applicant for a patent
for utility model or design may amend the application for a patent for
utility model or design on its or his own initiative.
Where an applicant amends the document of its or his patent application
for a patent after receipt of the notification of the observations from
the Patent Administrative Department under the State Council of the examination,
the amendment shall be made according to the requirements in the notified
observations.
The Patent Administrative Department under the State Council may, on
its own initiative, correct obvious lexical or graphic errors in the patent
application document, where the Patent Administrative Department under
the State Council makes the corrections on its own initiative, it shall
notify the applicant of the corrections.
Rule 52
When an amendment to the description or the claims in an application
for a patent for invention or utility model is made, a replacement sheet
in the prescribed form shall be submitted, unless the amendment concerns
only the alteration, insertion or deletion of a few words. Where an amendment
to the drawings or photographs of an application for a patent for design
is made, a replacement sheet in the prescribed form shall be submitted.
Rule 53
According to the provisions of Article 38 of the Patent Law, the situations
where after examination as to substance of an application for patent for
invention shall be rejected by the Patent Administrative Department under
the State Council shall comprise the following:
(1) where the application does not comply with the provisions of Rule
2, paragraph one, of these Implementing Regulations;
(2) where the application falls under the provisions of Articles 5 or
25 of the Patent Law; or it does not comply with the provisions of Article
22 of the Patent Law and Rule 13, paragraph one, Rule 20, paragraph one,
or Rule 21, paragraph two, of these Implementing Regulations, or the applicant
cannot obtain a patent right according to the provisions of Article 9
of the Patent Law;
(3) where the application does not comply with the provisions of Article
26, paragraphs three or four, or Article 31, paragraph one, of the Patent
Law;
(4) where the amendment to the application is not in conformity with the
provision of Article 33 of the Patent Law or the divisional application
is not in conformity with the provision of Rule 43, paragraph one, of
these Implementing Regulations.
Rule 54
After the Patent Administrative Department under the State Council issues
the notification to grant the patent right, the applicant shall go through
the formalities of registration within two months from the date of receipt
of the notification. If the applicant goes through the formalities of
registration within the said time limit, the Patent Administrative Department
under the State Council shall grant the patent right, issue the patent
certificate, and announce it.
If the time limit for going through the formalities of registration is
not met, the applicant shall be deemed to have abandoned its or his right
to obtain the patent right.
Rule 55
After the decision to grant the patent right for utility model is announced,
the patentee of the utility model may file a request with the Patent Administrative
Department under the State Council to make a search report for the patent
for utility model.
Where the search report for a patent for utility model is requested for,
a request shall be filed and the patent number of the patent for utility
model be indicated. Each request shall be limited to one patent for utility
model only.
After receipt of the request for the search report for a patent for utility
model, the Patent Administrative Department under the State Council shall
examine the request. If the request is not in conformity with the specified
requirements, the applicant filing the request shall be notified to make
corrections within the specified time limit.
Rule 56
If the request for the search report for a patent for utility model complies
with the prescription upon examination, the Patent Administrative Department
under the State Council shall promptly make the report on the search of
the patent for utility model.
Where, the Patent Administrative Department under the State Council,
upon the search, finds that the related patent for utility model does
not comply with the provision of Article 22 of the Patent Law concerning
novelty or inventiveness, reference documents shall be cited, reasons
be stated, together with a copy of the cited reference documents.
Rule 57
The Patent Administrative Department under the State Council shall promptly
correct any errors in the Patent Gazette or patent documents once they
are found, and announce the correction.
Chapter IV. Reexamination of Patent Application
and Invalidation of Patent Right
Rule 58
The Patent Reexamination Board shall consist of experienced technical
and legal experts designated by the Patent Administrative Department under
the State Council. The Head of the Patent Administrative Department under
the State Council shall be the Director of the Board.
Rule 59
Where the applicant requests the Patent Reexamination Board to make a
reexamination in accordance with the provisions of Article 41 of the Patent
Law, it or he shall file a request for reexamination and state the reasons
therefor. The relevant supporting documents shall be provided when necessary.
Where the request for reexamination does not comply with the prescribed
form, the person making the request shall rectify it within the time limit
fixed by the Patent Reexamination Board. If the time limit for making
rectification is not met, the request for reexamination shall be deemed
not have been filed.
Rule 60
When filing the request for reexamination or responding to the notification
of reexamination by the Patent Reexamination Board, the person making
the request may amend the patent application document; however, the amendment
shall be limited to the elimination of the defects pointed out in the
decision of rejection or the notification of reexamination.
The amended patent application document shall be submitted in two copies.
Rule 61
The Patent Reexamination Board shall send the request for reexamination,
which the Board has received to the examination department of the Patent
Administrative Department under the State Council which has made the examination
to make an examination. Where the examination department agrees to revoke
its former decision upon the request of the person requesting reexamination,
the Patent Reexamination Board shall make a decision accordingly and notify
that person.
Rule 62
Where the Patent Reexamination Board finds after reexamination that the
request does not comply with the relevant provisions of the Patent Law
and these Implementing Regulations, it shall invite the person requesting
reexamination to submit his observations within the specified time limit.
If the time limit for making response is not met, the request for reexamination
shall be deemed to have been withdrawn; after the observations or amendment,
the Patent Reexamination Board still finds that the patent application
document does not comply with the relevant provisions of the Patent Law
and these Implementing Regulations, it shall make its reexamination decision
to uphold the initial decision of rejection.
Where the Patent Reexamination Board finds after reexamination that the
decision of rejection does not comply with the relevant provisions of
the Patent Law and these Implementing Regulations, or finds that the amended
patent application document has eliminated the defects pointed out in
the decision of rejection, it shall revoke the initial decision of rejection,
and the examination department which has made the examination shall proceed
with the examination proceeding.
Rule 63
At any time before the Patent Reexamination Board makes its decision
on the request for reexamination, the person making the request may withdraw
his request for reexamination.
Where the person making the request for reexamination withdraws his request
for reexamination before the Patent Reexamination Board makes its decisions,
the reexamination proceeding terminates.
Rule 64
Anyone requesting invalidation or partial invalidation of a patent right
according to the provisions of Article 45 of the Patent Law shall submit
the request and the necessary evidence in two copies. The request for
invalidation, together with all the evidence submitted, specifically states
the reasons on which the request is based and the proofs each of the reasons
is based on.
The reasons on which the request for invalidation is based mentioned
in the proceeding paragraph shall comprise that the invention-creation
for which the patent right is granted does not comply with the provisions
of Articles 22 or 23, Article 26, paragraph three or four, or Article
33 of the Patent Law, or Rule 2, or Rule 13, paragraph one, or Rule 20,
paragraph one, or Rule 21, paragraph two, of these Implementing Regulations;
or it falls under the provisions of Articles 5 or 25 of the Patent Law;
or the person to whom the patent was granted cannot obtain a patent right
according to the provisions of Article 9 of the Patent Law.
Rule 65
Where the request for invalidation of patent right does not comply with
the provisions of Rule 64 of these Implementing Regulations, the Patent
Reexamination Board shall not accept it.
Where the request for invalidation of a patent is submitted on the same
reason and evidence after the Patent Reexamination Board makes its decision
on the request for invalidation of the patent, the Patent Reexamination
Board shall not accept it.
Where a request is filed for invalidation of a patent for design on the
ground that the patented design collides with the legitimate right another
person has acquired earlier, but no effective decision or judgment is
submitted which proves the handling of the collision of rights in question,
the Patent Administrative Department under the State Council shall not
accept it.
Where the request for invalidation of the patent right does not comply
with the prescribed form, the person making the request shall rectify
it within the time limit fixed by the Patent Reexamination Board. If the
rectification fails to be made within the time limit, the request for
invalidation shall be deemed not have been filed.
Rule 66
After the Patent Reexamination Board receives the request for invalidation,
the person making the request may give additional reasons or evidence
within one month from the date of submission of the request for invalidation.
Where additional reasons or evidence are given after the expiration of
the time limit, the Patent Reexamination Board may disregard the reasons
or evidence.
Rule 67
The Patent Reexamination Board shall send a copy of the request for invalidation
of the patent right and copies of the relevant documents to the patentee
and invite it or him to present its or his observations within a specified
time limit.
The patentee and the person making the request for invalidation shall
respond to the notification of the transmittal of documents or the notification
of examination of the request for invalidation from the Patent Reexamination
Board within the prescribed time limit. Where no response is made within
the time limit, the hearing procedure of the Patent Reexamination Board
will not be affected.
Rule 68
In the process of examination of the request for invalidation, the patentee
of a patent for invention or utility model may amend its or his patent
claims, but may not broaden the scope of protection of the initial patent.
The patentee of a patent for invention or utility model may not amend
the patent description and the drawings, and the patentee of a patent
for design may not amend the drawings, photographs and brief explanations
thereof.
Rule 69
The Patent Reexamination Board may, at the request of an interested party
or as the facts of a case so require, decide to conduct oral hearing of
the request for invalidation.
Where the Patent Reexamination Board decides to orally hear the request
for invalidation, it shall send a notification of oral hearing to the
interested parties, informing the date and place of the oral hearing.
The interested parties shall respond within the time limit fixed in the
notification.
Where the person making the request for invalidation fails to respond
to the notification of the oral hearing from the Patent Reexamination
Board, nor attends the oral hearing, its or his request for invalidation
shall be deemed to have been withdrawn; where the patentee does not attend
the oral hearing, the hearing may be held in its or his absence.
Rule 70
In the proceeding for examination of the request for invalidation, the
time limit fixed by the Patent Reexamination Board shall not be extended.
Rule 71
The person requesting invalidation may withdraw his request before the
Patent Reexamination Board makes a decision on it.
Where the person requesting invalidation withdraws his request before
the Patent Reexamination Board makes its decision, the procedure for the
examination of the request for invalidation terminates.
Chapter V Compulsory License for Exploitation
of Patent
Rule 72
After the expiration of three years from the grant of the patent right,
any entity may, in accordance with the provisions of Article 48 of the
Patent Law, request the Patent Administrative Department under the State
Council to grant a compulsory license.
Any entity or individual requesting a compulsory license shall submit
to the Patent Administrative Department under the State Council a request
for compulsory license and state the reasons therefor, together with relevant
supporting documents. The request and supporting documents shall be in
two copies respectively.
The Patent Administrative Department under the State Council shall send
a copy of the request for compulsory license to the patentee. He or it
shall make his or its observations within the time limit specified by
the Patent Administrative Department under the State Council. Where no
response is made within the time limit, the Patent Administrative Department
under the State Council will not be affected in making a decision to grant
a compulsory license.
The decision of the Patent Administrative Department under the State
Council granting a compulsory license for exploitation shall provide that
the exploitation shall be predominately for the supply of the domestic
market; where the invention-creation covered by the compulsory license
relates to a semi-conductor technology, the exploitation under the compulsory
license is limited to public and non-commercial use or to the use in remedy
of an action against unfair competition as determined by the judicial
or administrative procedure.
Rule 73
Any party requesting, in accordance with the provisions of Article 54
of the Patent Law, the Patent Administrative Department under the State
Council to adjudicate the fees for exploitation, shall submit a request
for adjudication and furnish documents showing that the parties have not
been able to conclude an agreement in respect of the amount of the fees.
The Patent Administrative Department under the State Council shall make
an adjudication within three months from the date of receipt of the request
and notify the parties accordingly.
Chapter VI Rewards to Inventor or Creator of
Service Invention-Creation
Rule 74
Any state-owned enterprise or institution granted a patent right shall
award to the inventors or creators of the invention-creation a sum of
money as prize within three months from the date of the announcement of
the patent grant. The sum of money prize for a patent for invention shall
not be less than 2000 Yuan; the sum of money prize for a patent for utility
model or design shall not be less than 500 Yuan.
Where an invention-creation was made on the basis of an inventor's or
creator's proposal adopted by the entity to which he belongs, the state-owned
enterprise or institution granted the right shall award to him a money
prize liberally.
Any enterprise holding the patent right may include the said money prize
paid to such inventors or creators into its production cost; any institution
holding the patent right may disburse the said money prize out of its
operating expenses.
Rule 75
Any stated-owned enterprise or institution granted a patent right shall,
after exploiting the patent for invention-creation within the duration
of the patent right, draw each year from any increase in profits after
taxation a percentage of not less than 2£¥ due to the exploitation of the
said patent for invention or the utility model, or a percentage of not
less than 0.2£¥ due to the exploitation of the said patent for design,
and award it to the inventor or creator as remuneration. The enterprise
or institution shall, otherwise, by making reference to the said percentage,
award a lump sum of money to the inventor or creator as remuneration.
Rule 76
Where any state-owned enterprise or institution granted patent right
authorizes other entities or individuals to exploit its or his patent,
it shall, after taxation, draw a percentage of not less than 10£¥ from
the fees for the authorization of exploitation of the said patent it received
and award it to the inventor or creator as remuneration.
Rule 77
The other Chinese entities or institutions may award to the inventor
or creator money prize and remuneration by making reference to the provisions
in this Chapter.
Chapter VII Protection of Patent Right
Rule 78
"The administrative authority for patent affairs" mentioned
in the Patent Law and these Implementing Regulations refers to the administrative
authorities for patent affairs set up by the people's governments of the
provinces, autonomous regions and municipalities directly under the Central
Government and the people's governments of the other municipalities which
have a lot of patent- related work to administer and are capable of handling
the work.
Rule 79
Except provided for in Article 57 of the Patent Law, the administrative
authorities for patent affairs may also, on the request of an interested
party, make mediation of patent-related disputes as follows:
(1) disputes over the right to apply for patent and ownership of patent
right;
(2) disputes over the qualification of inventors or creator;
(3) disputes over the rewards and remuneration for inventors or creators
of service inventions; and
(4) disputes over the exploitation of an invention without paying appropriate
fees after the publication of the applications for patents for the invention
and before the grant of the patent right.
In respect of the disputes mentioned in the preceding subparagraph (4),
any patentee requesting the administrative authority for patent affairs
for mediation shall submit its or his request after the grant of the patent
right.
Rule 80
The Patent Administrative Department under the State Council shall provide
operational guidance for the administrative authorities for patent affairs
to handle and mediate patent disputes.
Rule 81
Where any interested party requests for handling or mediation of a patent
dispute, the request is under the jurisdiction of the administrative authority
of the place which the respondent has its or his domicile or of the place
where the infringing act takes place.
Where two or more administrative authorities for patent affairs have
the jurisdiction over a patent dispute, an interested party may file request
with one of them; where the interested party files its or his request
with two or more administrative authorities for patent affairs having
the jurisdiction, the dispute is under the jurisdiction of the administrative
authority for patent affairs which first receives the request.
Where a dispute arises over the jurisdiction of the administrative authorities
for patent affairs, the dispute is put under the jurisdiction designated
by the administrative authority for patent affairs under the people's
government at their mutually next higher level; in the absence of such
an administrative authority for patent affairs, the dispute is under the
jurisdiction designated by the Patent Administrative Department under
the State Council.
Rule 82
Where, in the course of handling a dispute arising from patent infringement,
the respondent submits a request for invalidation of the patent in question
and it is received by the Patent Reexamination Board, it or he may request
the administrative authority for patent affair to suspend the handling.
Where the administrative authority for patent affairs finds that the
grounds raised by the respondent for the suspension is obviously untenable,
it may not suspend the handling.
Rule 83
Where any patentee puts a patent indication on its or his patented product
or the package thereof pursuant to the provision of Article 15 of the
Patent Law, it or he shall make the indication in the manner prescribed
by the Patent Administrative Department under the State Council.
Rule 84
The following acts are the acts of counterfeiting patents of other persons:
(1) indicating, without authorization, another person's patent number
on the products which one manufactures or sells or on the package thereof;
(2) using, without authorization, another person's patent number in advertisement
or other promotional material, causing the related technology to be mistaken
for the patented technology of another person;
(3) using, without authorization, another person's patent number in a
contract, causing the technology mentioned in the contract to be mistaken
for the patented technology of another person; and
(4) forging, or mutilating patent certificates, patent documents or patent
application documents.
Rule 85
The following acts are the acts of passing off patents of other persons:
(1) manufacturing or marketing a non-patent product marked with a patent
indication;
(2) continuing to put a patent indication on products one manufactures
or sells after invalidation of the patent right;
(3) calling a non-patented technology a patented technology in advertisement
or other promotional materials;
(4) calling a non-patented technology a patented technology in a contract;
and
(5) forging, or mutilating patent certificates, patent documents or patent
application documents.
Rule 86
Where any interested party has requested the administrative authority
for patent affairs to handle the matter of, or instituted legal proceedings
in the people's court for, a dispute over the ownership of the right to
apply for patent or of the patent right, it or he may request the Patent
Administrative Department under the State Council to suspend the relevant
procedure.
Where any party requests for suspension of the relevant procedure in
accordance with the foregoing paragraph, it or he shall file the request
with the Patent Administrative Department under the State Council together
with a copy of the relevant documents received by the administrative authority
for patent affairs or the people's court.
After the decision made by the administrative authority for patent affairs
in handling the matter or the ruling made by the people's court takes
effect, the interested party shall perform the formalities at the Patent
Administrative Department under the State Council for resuming the relevant
procedure. If the dispute over the ownership of the right to apply for
patent or of the patent right fails to be closed within one year starting
from the date of suspension and continued suspension is necessary, the
person making the request shall request for the continuation of the suspension
within the time limit. Where no request for continuation is submitted
at the expiration of the time limit, the Patent Administrative Department
under the State Council shall automatically resume the relevant procedure.
Rule 87
Where the people's court decides to adopt measures to preserve the patent
right in a civil case it is hearing, the Patent Administrative Department
under the State Council, when assisting in the execution of these measures,
suspends the procedure relevant to the patent right preserved. Where,
after the expiration of the term of preservation, the people's court does
not decide to continue to adopt the preservative measures, the Patent
Administrative Department under the State Council shall automatically
resume the relevant procedure.
Chapter VIII Patent Register and Patent Gazette
Rule 88
The Patent Administrative Department under the State Council shall maintain
a Patent Register in which the following matters relating to patent applications
and any patent right shall be recorded:
(1) any grant of the patent right;
(2) any transfer of the right to apply for patent, or the patent right;
(3) any hypothecation and preservation of the patent right and their termination;
(4) any recordal of the licensing contracts for exploitation of the patent;
(5) any invalidation of the patent right;
(6) any cessation of the patent right ;
(7) any restoration of the patent right;
(8) any compulsory license for exploitation of the patent; and
(9) any changes in the name, the nationality and the address of the patentee.
Rule 89
The Patent Administrative Department under the State Council shall publish
the Patent Gazette at regular intervals, publishing or announcing the
following:
(1) the bibliographic data contained in patent applications;
(2) the abstract of the description of an invention or utility model,
the drawings or photographs of a design and its brief explanation;
(3) any request for examination as to substance of an application for
a patent for invention and any decision made by the Patent Administrative
Department under the State Council to proceed on its own initiative to
examine as to substance an application for a patent for invention;
(4) any declassification of secret patents;
(5) any rejection, withdrawal and being deemed withdrawal of an application
for a patent for invention after its publication;
(6) any grant of the patent right;
(7) any invalidation of the patent right;
(8) any cessation of the patent right;
(9) any transfer of the right to apply for patent, or the patent right;
(10) any recordal of the licensing contracts for exploitation of the patent;
(11) any hypothecation and preservation of the patent right and their
termination;
(12) any grant of compulsory license for exploitation of the patent;
(13) any restoration of a patent application or patent right;
(14) any change in the name or address of the patentee;
(15) any notification to the interested party whose address is not known;
(16) any correction made by the Patent Administrative Department under
the State Council; and
(17) any other related matters.
The description, its drawings and the claims of an application for a
patent for invention or utility model shall be published in pamphlet form
by the Patent Administrative Department under the State Council.
Chapter IX Fees
Rule 90
When any person files an application for a patent with, or has other
formalities to perform at, the Patent Administrative Department under
the State Council, he or it shall at the same time pay the following fees:
(1) filing fee, additional application fee as prescribed and application
publication fee;
(2) fee for examination as to substance and fee for reexamination of application
for patent for invention;
(3) patent registration fee, patent publication fee, application maintenance
fee and annual fee;
(4) fee for a change in the bibliographic data, fee for claiming priority,
fee for a request for restoration of right, fee for a request for extension
of time limit and fee for a search report for the patent for utility model;
and
(5) fee for a request for invalidation, fee for a request for suspension
of a procedure, fee for a request for compulsory license and fee for a
request for adjudication on exploitation fee of compulsory license.
The rates of the fees mentioned in the preceding paragraph shall be prescribed
by the competent Pricing Department of the State Council in conjunction
with the Patent Administrative Department under the State Council.
Rule 91
The fees provided for in the Patent Law and in these Implementing Regulations
may be paid directly to the Patent Administrative Department under the
State Council or paid by way of bank or postal remittance, or in any other
manner specified by the Patent Administrative Department under the State
Council.
Where fees are paid by way of bank or postal remittance, the applicant
or the patentee shall indicate on the money order the filing number or
the patent number, and the titles of the fees to be paid; where it or
he fails to comply with this provision, the fee-payment formality is deemed
not to have been performed.
Where fees are paid directly to the Patent Administrative Department
under the State Council, the very date on which the fees are paid is the
date of payment. Where fees are paid by way of postal remittance, the
date of the postmark showing the postal remittance of such fee shall be
the date of payment. Where fees are paid by way of bank remittance, the
date on which the transfer of such fee is actually ordered shall be the
date of payment. However, where the time between such a date and the date
of receipt of the order at the Patent Administrative Department under
the State Council lasts more than fifteen days, unless the date of remittance
is proved by the bank or the post office, the date of receipt at the Patent
Administrative Department under the State Council shall be the date of
payment.
Where any patent fee is paid more than as prescribed, paid once again
or wrongly paid, the person making the payment may, within one year from
the date of payment, request the Patent Administrative Department under
the State Council for a refund.
Rule 92
The applicant shall, after receipt of the notification of acceptance
of the application, pay the filing fee, the application publication fee
and the additional fee as prescribed at the latest within two months from
the date of filing. If the fee is not paid or not paid in full within
the time limit, the application shall be deemed to have been withdrawn.
Where the applicant claims the right of priority, he or it shall pay
the fee for claiming priority at the time when paying the filing fee.
If the fee is not paid or not paid in full within the time limit, the
claim to the right of priority shall be deemed not have been made.
Rule 93
Where a request for an examination as to substance, a restoration of
right or a reexamination of patent right is made, by the party concerned,
the relevant fee shall be paid within the time limit as prescribed respectively
for such requests in the Patent Law and these Implementing Regulations.
If the fee is not paid or not paid in full within the time limit, the
request is deemed not have been made.
Rule 94
Where the applicant for a patent for invention has not been granted
a patent right within two years from the date of filing, it or he shall
pay a fee for the maintenance of the application from the third year.
Rule 95
When the applicant goes through the formalities of patent registration,
it or he shall pay the patent registration fee, the patent publication
fee and the annual fee of the year in which the patent right was granted.
The applicant for patent for invention shall pay all the maintenance fees
of the application for each year, excluding that for the year in which
the patent right was granted. If such fees are not paid in the prescribed
time limit, the patent registration shall be deemed not have been made.
The subsequent annual fees shall be paid in advance within the month before
the expiration of the preceding year.
Rule 96
Where the annual fee of the years after the year in which the patent
was granted is not paid in due time by the patentee, or the fees are not
paid in full, the Patent Administrative Department under the State Council
shall notify the patentee to pay the fee or to make up the insufficiency
within six months from the expiration of the time limit within which the
annual fee was to be paid, and at the same time pay a surcharge; the amount
of the surcharge is computed by an addition of 5£¥ of the total amount
of the annual fee of the same year for each month lapsed after the time
limit prescribed for the payment. Where the fees are not paid within the
time limit, the patent right shall be deemed lapsed from the expiration
of the time limit within which the annual fee should be paid.
Rule 97
The fee for a change in the bibliographic data, fee for a search report
on a patent for utility model, fee for a request for suspension of procedure,
fee for a request for compulsory license, fee for a request for adjudication
on exploitation fee of a compulsory license and fee for a request for
invalidation shall be paid as prescribed within one month from the date
on which such request is filed. The fee for a request for extension of
time limit shall be paid before the date on which the corresponding time
limit expires. If the fee is not paid or not paid in full within the time
limit, the request shall be deemed not have been made.
Rule 98
Where any applicant or patentee has difficulties in paying the various
fees prescribed in these Implementing Regulations, it or he may, according
to prescriptions, submit a request to the Patent Administrative Department
under the State Council, asking for a reduction or postponement of the
payment. The conditions for the reduction and postponement of the payment
shall be prescribed by the Patent Administrative Department under the
State Council in consultation with the competent Financial Department
and the competent Pricing Department of the State Council.
Chapter X Special Provisions for International
Applications
Rule 99
In accordance with Article 20 of the Patent Law, the Patent Administrative
Department under the State Council receives international patent applications
filed under the Patent Cooperation Treaty.
The Provisions of this Chapter are applicable to the requirements and
procedure for international applications filed and designating China pursuant
to the Patent Cooperation Treaty (hereinafter referred to as the international
applications) to enter the national phase in China; where it is provided
for in this Chapter, the relevant provisions of the Patent Law and the
other Chapters of these Implementing Regulations shall apply.
Rule 100
Any international application designating China as of the international
filing date accorded under the Patent Cooperation Treaty is considered
a patent application filed with the Patent Administrative Department under
the State Council, and the filing date of the international application
is deemed the filing date referred to in Article 28 of the Patent Law.
Where, in the international phase, an international application or the
designation of China in an international application is withdrawn or deemed
to have been withdrawn, the effect of the international application shall
cease in China.
Rule 101
Any applicant of an international application shall, within twenty months
from the priority date referred to in Article 2 of the Patent Cooperation
Treaty (referred to as priority date in the Chapter), perform the following
procedures for international application to enter the national phase in
China in the Patent Administrative Department under the State Council;
where any international application elected China within 19 months from
the priority date and the election remains valid, the applicant of the
international application shall, within 30 months from the priority date,
perform the following procedure for an international application to enter
the national phase in China in the Patent Administrative Department under
the State Council:
(1) submit a declaration in writing for the international application
to enter the national phase in China, in which shall be indicated the
international application number, and, in Chinese, the kind of patent
right to be sought, the title of the invention-creation, the name or title
of the applicant, the address of the applicant and the name of the inventor.
All these information shall be consistent with the records of the International
Bureau;
(2) pay the filing fee, additional application fee and application publication
fee specified in Rule 90, paragraph one, of these Implementing Regulations;
(3) for any international application filed in a language other than Chinese,
the Chinese translation of the description, claims, any text matter of
the drawings, and the abstract of the original international application
shall be submitted; where an international application is filed in Chinese,
a copy of the abstract of the international publication shall be submitted;
and
(4) where an international application is accompanied with drawings, a
copy of the drawings shall be submitted. Where an international application
is filed in Chinese, a copy of the figure for the abstract of the international
publication shall be submitted.
Where any applicant fails to perform the procedure for entering the national
phase in China within the time limit specified in the foregoing paragraph,
it or he may, after payment of the grace-period fee, do so before the
expiration of the corresponding time limit of twenty-two or thirty-two
months from the priority date.
Rule 102 Any applicant fails to perform the procedure for entering the
national phase in China within the time limit prescribed in Rule 101,
paragraph two, of these Implementing Regulations or falls under any one
of the provisions thereof within the time limit, the effect of its or
his international application shall cease in China:
(1) the international application number is not indicated in the declaration
for entering the national phase in China;
(2) the filing fee, application publication fee prescribed in Rule 90,
paragraph one. and the grace-period fee prescribed in Rule 101, paragraph
two, of these Implementing Regulations; or
(3) where the international application is filed in a language other than
Chinese, the Chinese translation of the description and claims of the
original international application is not submitted.
The provision of Rule 7, paragraph two, of these Implementing Regulations
does not apply to any international application, which has ceased to be
valid in China.
Rule 103
Where any applicant falls under any one of the following sub provisions
when entering the national phase in China, the Patent Administrative Department
under the State Council shall notify the applicant to make corrections
within the prescribed time limit:
(1) where the Chinese translation or a copy of the abstract is not submitted;
(2) where a copy of the drawings or the figure for the abstract is not
submitted;
(3) where indications are not given in Chinese in the declaration for
entering the national phase in China of the title of the invention-creation,
the name or title of the applicant, the address of the applicant and the
name of the inventor; or
(4) where the declaration for entering the national phase in China does
not comply with the prescription in content or in form.
Where the corrections are not made within the prescribed time limit,
the application is deemed to have been withdrawn.
Rule 104
Where an international application was amended in the international phase,
and the applicant requests that the examination is made on the basis of
the amended application document, the applicant shall submit the amended
Chinese translation of the amended application document before the Patent
Administrative Department under the State Council completes the preparation
for national publication. Where the Chinese translation is not submitted
within the time limit, the Patent Administrative Department under the
State Council shall disregard the amendments made by the applicant in
the international phase.
Rule 105
Any applicant, when performing the procedure for entering the national
phase in China, shall meet the following requirements:
(1) where the inventor is not indicated in the international application,
the name of the inventor shall be indicated in the declaration for entering
the national phase in China;
(2) where a procedure is performed to change the applicant at the International
Bureau in the international phase, proofs that the changed applicant enjoys
the right to apply for patent shall be submitted;
(3) where the applicant and the applicant of the earlier application on
which the right of priority is based are not the same person, or the applicant
changed its or his name after filing the earlier application, the proofs
shall be submitted, if necessary, that the applicant enjoys the right
of priority; and
(4) where the invention-creation of the international application falls
under any of the provisions of Article 24 (1) or (2) of the Patent Law
and a declaration thereof was made when filing the international application,
a statement thereof shall be made in the declaration for entering the
national phase in China, and the relevant proofs prescribed in Rule 3,
paragraph 2, of these Implementing Regulations shall be submitted within
two months from the date of performance of the procedure for entering
the national phase in China.
Where the applicant fails to meet the requirements of (1), (2) and (3)
of the preceding paragraph, the Patent Administrative Department under
the State Council shall invite it or him to make correction within the
prescribed time limit. Where the correction under (1) and (2) is not made,
the application is deemed to have been withdrawn; where the correction
under (3) is not made, the claim for the priority right is deemed not
to have been made.
Where the applicant fails to meet the requirement of (4) in paragraph
one of this Rule, the provision of Article 24 of the Patent Law does not
apply to the application.
Rule 106
Where any applicant makes an indication of the deposit of a sample of
biological material in accordance with the provisions of the Patent Cooperation
Treaty, the applicant is deemed to have met the requirement under Rule
25 (3) of these Implementing Regulations. The applicant shall indicate
the document recording the deposit of a sample of biological material
and the specific place in the declaration for entering the national phase
in China.
Where the applicant records the deposit of a sample of the biological
material in the description of the originally filed international application,
but did not make the indication in the declaration for entering the national
phase in China, it or he shall make rectification within four months from
the date of performance of the procedure for entering the national phase
in China. Where the correction is not made within the prescribed time
limit, the biological material is deemed not have been deposited.
Where the applicant submits the receipt of deposit and the viability
proof of a sample of the biological material to the Patent Administrative
Department under the State Council within four months from the date of
performance of the procedure for entering the national phase in China,
the deposit is deemed to have been filed within the time limit prescribed
in Rule 25 (1) of these Implementing Regulations.
Rule 107
Where the applicant claimed one or more priorities in the international
phase and the right of priority remains valid when entering the national
phase in China, the written declaration is deemed to have been made in
accordance with the provision of Article 30 of the Patent Law.
Where the applicant finds that there are writing errors or the filing
number of the earlier application is not indicated in the written declaration
of the right of priority submitted in the international phase, it or he
may request for correction of the errors or for indicating the filing
number of the earlier application when performing the procedure for entering
the national phase in China. The applicant filing a request for the correction
shall pay the fee for request for correction in the claim for right of
priority.
Where the applicant submitted a copy of the earlier application document
in the international phase according to the provisions of the Patent Cooperation
Treaty, it is not necessary to submit it to the Patent Administrative
Department under the State Council when performing the procedure for entering
the national phase in China. Where the applicant did not submit it in
the international phase, the Patent Administrative Department under the
State Council, when finding it necessary, may invite it or him to submit
it within the specified time limit. Where the applicant fails to do so
after the expiration of the time limit, its or his claim for priority
right is deemed not ever being made.
Where the claim for right of priority is deemed not to have been made
in the international phase, which has been announced by the International
Bureau, the applicant may, with justified reasons, file a request with
the Patent Administrative Department under the State Council to restore
its or his claim to the right of the priority.
Rule 108
Where any applicant requests the Patent Administrative Department under
the State Council for early processing and examining its or his international
application prior to the expiration of twenty months starting from the
priority date, it or he shall, in addition to performing the procedure
for entering the national phase in China, file a request pursuant to Article
23 (2) of the Patent Cooperation Treaty. Where the International Bureau
does not transmit the international application to the Patent Administrative
Department under the State Council, the applicant shall submit a certified
copy of the international application.
Rule 109
In respect of any international application for patent right for utility
model, the applicant may file a request with the Patent Administrative
Department under the State Council for amending the description, the drawings
and the claims within one month from the date of performing the procedure
for entering the national phase in China.
To any international application for patent for invention, the provision
of Rule 51, paragraph one, of these Implementing Regulations applies.
Rule 110
Where any applicant finds any error in the Chinese translation of the
description, the claims or any text matter of the drawings, it or he may
submit the correction based on the original text of the international
application within the prescribed time limit as follows:
(1) before the preparation for national publication is completed by the
Patent Administrative Department under the State Council; and
(2) within three months from the date of receipt of the notification of
an application for a patent for invention to enter into the substantive
examination proceeding issued by the Patent Administrative Department
under the State Council.
The applicant correcting the translation errors shall file a request
in writing, submit the correction sheet of the translation and pay the
prescribed translation correction fee.
Where the applicant is required to correct the translation in the notification
of the Patent Administrative Department under the State Council, it or
he shall perform the formality within the time limit prescribed in (2)
of this Rule; where the prescribed formality is not performed within the
time limit, the application is deemed to have been withdrawn.
Rule 111
For an international application for patent for invention, the Patent
Administrative Department under the State Council, upon preliminary examination,
finds it to be in conformity with the relevant provisions of the Patent
Law and these Implementing Regulations and shall publish the application
in the Patent Gazette; where the international application is filed in
a language other than Chinese, the Chinese translation of the application
document shall be published.
For the international application for patent for invention published
in Chinese internationally by the International Bureau, the provision
of Article 13 of the Patent Law applies from the date of international
publication; for the international application published internationally
in a language other than Chinese by the International Bureau, the same
provision applies from the date of publication by the Patent Administrative
Department under the State Council.
For the purpose of international application, the publication or announcement
mentioned in Articles 21 and 22 of the Patent Law means the publication
specified in paragraph one of this Rule.
Rule 112
When any international application contains two or more inventions or
utility models the applicant may, after performing the procedure for entering
the national phase in China, file a divisional application pursuant to
the provision of Rule 42, paragraph one, of these Implementing Regulations.
Where, in the international phase, the International Searching Authority
or the International Preliminary Examination Authority finds that an international
application does not comply with the requirement of unity under the Patent
Cooperation Treaty and the applicant fails to pay the additional fee as
prescribed, resulting in some part of the international application not
being subjected to the international search or the international preliminary
examination, or where the applicant, entering the national phase in China,
requests that the said parts be taken as the basis for the examination,
and the Patent Administrative Department under the State Council finds
the International Searching Authority or the International Preliminary
Examination Authority is right in the judgment of the unity of the invention
in question, it shall notify the applicant to pay the unity restoration
fee within the prescribed time limit. If the fee is not paid or not paid
in full within the time limit, the part of the international application,
which has not been searched or subjected to the international preliminary
examination is deemed to have been withdrawn.
Rule 113
Where the applicant submits the documents and pays the fees according
to the provision of Rule 101 of these Implementing Regulations, the date
on which the Patent Administrative Department under the State Council
receives the documents is the submitting date and the date of receipt
of the fees is the date of payment.
Where there is a delay in the postal delivery of the submitted documents
and the applicant proves that the documents are sent by mail five days
before the expiration of the time limit specified in Rule 101 of these
Implementing Regulations within one month from the date on which the delay
is found, the documents are deemed to have been received on the date of
the expiration of the time limit. However, the applicant shall not furnish
the proof later than six months after the expiration of the time limit
specified in Rule 101 of these Implementing Regulations.
The applicant may submit, by fax, the documents required in Rule 101
of these Implementing Regulations. Where the applicant submits them by
fax, the date on which the Patent Administrative Department under the
State Council receives the fax is the submitting date. The applicant shall
submit the original of the faxed documents to the Patent Administrative
Department under the State Council within fourteen days from the date
of submission by fax. If the original is not submitted after the expiration
of the time limit, the documents are deemed not have been submitted.
Rule 114
Where the right of priority is claimed in the international application,
the applicant shall pay the fee for claiming the right of priority when
performing the procedure for entering the national phase in China; if
the fee is not paid or not paid in full, the Patent Administrative Department
under the State Council shall notify the applicant to make the payment
within the specified time limit; if the fee is still not paid or not paid
in full after the expiration of the time limit, the claim for right of
priority is deemed to have not been made.
Rule 115
Where any international application is refused by the relevant international
authority to be accorded the international filing date or is declared
to have been withdrawn, the applicant may, within two months from the
date of receipt of the notification, request the International Bureau
to transmit copies of any documents in the file of the international application
to the Patent Administrative Department under the State Council and perform
the procedure as specified in Rule 101 of these Implementing Regulations
in the Patent Administrative Department under the State Council within
the time limit. The Patent Administrative Department under the State Council
shall, after receipt of the documents transmitted by the International
Bureau, make review as to whether the decision made by the international
authority is right or not.
Rule 116
Where, owing to any translation errors, any patent right granted on the
basis of an international application makes its scope of protection determined
in accordance with the provision of Article 56 of the Patent Law go beyond
the scope expressed in the original text of the international application,
the scope of protection limited according to the original text prevails.
Where the scope of protection is made less than the scope stated in the
original text of the international application, the scope of protection
established when granting the right prevails.
Chapter XI Supplementary Provisions
Rule 117
Any person may, after approval by the Patent Administrative Department
under the State Council, inspect or copy the files of the published or
announced patent applications and the Patent Register. Any person may
request the Patent Administrative Department under the State Council to
issue a copy of extracts from the Patent Register.
The files of patent applications, which have been withdrawn or deemed
to have been withdrawn or which have been rejected, shall not be preserved
after expiration of two years from the date on which they cease to be
valid.
Where the patent right ceases or has been abandoned or invalidated in
whole, the files shall not be preserved after expiration of three years
from the date on which the patent right ceases to be valid.
Rule 118
Any patent application which is filed with, and any formalities which
are performed at the Patent Administrative Department under the State
Council, shall be made in the form prescribed by the Patent Administrative
Department under the State Council and signed or sealed by the applicant,
the patentee, any other interested person or his or its representative.
Where any patent agency is appointed, it shall be sealed by such agency.
Where a change of the name of the inventor, the name, nationality and
address of the applicant or the patentee, or the name and address of the
patent agency and the name of the patent agent is requested, a request
for a change in the bibliographic data shall be made to the Patent Administrative
Department under the State Council, together with the relevant supporting
documents.
Rule 119
The documents relating to a patent application or patent right which
are mailed to the Patent Administrative Department under the State Council
shall be mailed by registered letter, not by parcel.
When any document (not including any patent application filed for the
first time) is submitted to and any formalities are performed in the Patent
Administrative Department under the State Council, the filing number or
the patent number, the title of the invention-creation and the name of
the applicant or the patentee shall be indicated.
Only documents relating to the same application shall be included in
one letter.
Rule 120
Any sheets constituting an application for patent shall be typed or printed.
All the characters shall be in black ink, neat and clear and free from
any alterations. Drawings shall be made in black ink with the aid of drafting
instruments. The lines shall be uniformly thick and well defined, and
free from alterations.
The request, description, claim, drawings and abstract shall be numbered
separately in Arabic numerals and arranged in numerical order.
The written language shall run from left to right. Only one side of each
sheet shall be used.
Rule 121
The Patent Administrative Department under the State Council shall formulate
the Guidelines for Patent Examination in accordance with the Patent Law
and these Implementing Regulations.
Rule 122
These Implementing Regulations shall enter into force on 1 July 2001.
The Implementing Regulations of the Patent Law of the People's Republic
of China revised with approval by the State Council on 12 December 1992
and promulgated by the Patent Administrative Department under the State
Council on 21 December the same day shall be simultaneously abolished.
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