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Implementing
Regulations of the Patent Law of the People's Republic of China
(Promulgated by
Decree No. 368 of the State Council of the People's Republic of
China on December 28, 2002, and effective as of February 1, 2003)
TABLE OF CONTENTS
Chapter I
General Provisions
Chapter
II Application for Patent
Chapter
III Examination and Approval of Application for Patent
Chapter
IV Reexamination of Patent Application and Invalidation of Patent
Right
Chapter V
Compulsory License for Exploitation of Patent
Chapter
VI Reward and Remuneration of Inventors or Creators of Service
Inventions-Creations
Chapter
VII Protection of Patent Right Chapter
VIII
Patent Registration and Patent Gazette
Chapter
IX Fees
Chapter
X Special Provisions Concerning International Application
Chapter
XI Supplementary Provisions
Chapter
I General Provisions
Rule 1. These Implementing Regulations are formulated in
accordance with the Patent Law of the People's Republic of China
(hereinafter referred to as the Patent Law).
Rule 2 "Invention" in the Patent Law means any new
technical solution relating to a product, a process or improvement
thereof. "Utility model" in the Patent Law means any new
technical solution relating to the shape, the structure, or their
combination, of a product, which is fit for practical use.
"Design" in the Patent Law means any new design of the
shape, the pattern or their combination, or the combination of the
color with shape or pattern, of a product, which creates an
aesthetic feeling and is fit for industrial application.
Rule 3 Any formalities prescribed by the Patent Law and these
Implementing Regulations shall be complied with in a written form
or in any other form prescribed by the Patent Administration
Department under the State Council .
Rule 4 Any document submitted in accordance with the provisions
of the Patent Law and these Implementing Regulations shall be in
Chinese; the standard scientific and technical terms shall be used
if there is a prescribed one set forth by the State; where no
generally accepted translation in Chinese can be found for a
foreign name or scientific or technical term, the one in the
original language shall be also indicated.
Where any certificate or certifying document submitted in
accordance with the provisions of the Patent Law and these
Implementing Regulations is in a foreign language, the Patent
Administration Department under the State Council may, when it
deems necessary, request a Chinese translation of the certificate
or the certifying document be submitted within a specified time
limit; where the translation is not submitted within the specified
time limit, the certificate or certifying document shall be deemed
not to have been submitted.
Rule 5 Where any document is sent by mail to the Patent
Administration Department under the State Council , the date of
mailing indicated by the postmark on the envelope shall be deemed
to be the date of filing; where the date of mailing indicated by
the postmark on the envelope is illegible, the date on which the
Patent Administration Department under the State Council receives
the document shall be the date of filing, except where the date of
mailing is proved by the party concerned.
Any document of the Patent Administration Department under the
State Council may be served by mail, by personal delivery or by
other forms. Where any party concerned appoints a patent agency,
the document shall be sent to the patent agency; where no patent
agency is appointed, the document shall be sent to the liaison
person named in the request.
Where any document is sent by mail by the Patent Administration
Department under the State Council , the 16th day from the date of
mailing shall be presumed to be the date on which the party
concerned receives the document.
Where any document is delivered personally in accordance with
the provisions of the Patent Administration Department under the
State Council , the date of delivery is the date on which the
party concerned receives the document.
Where the address of any document is not clear and it cannot be
sent by mail, the document may be served by making an
announcement. At the expiration of one month from the date of the
announcement, the document shall be deemed to be served.
Rule 6 The first day of any time limit prescribed in the Patent
Law and these Implementing Regulations shall not be counted in the
time limit. Where the time limit is counted by year or by month,
it shall expire on the corresponding day of the last month; if
there is no corresponding day in that month, the time limit shall
expire on the last day of that month; if a time limit expires on
an official holiday, it shall expire on the first working day
following that official holiday.
Rule 7 Where a time limit prescribed in the Patent Law or these
Implementing Regulations or specified by the Patent Administration
Department under the State Council is not observed by a party
concerned because of force majeure, resulting in loss of his or
its rights, he or it may, within two months from the date on which
the impediment is removed, at the latest within two years
immediately following the expiration of that time limit, state the
reasons, together with relevant supporting documents, and request
the Patent Administration Department under the State Council to
restore his or its rights.
Where a time limit prescribed in the Patent Law or these
Implementing Regulations or specified by the Patent Administration
Department under the State Council is not observed by a party
concerned because of any justified reason, resulting in loss of
his or its rights, he or it may, within two months from the date
of receipt of a notification from the Patent Administration
Department under the State Council , state the reasons and request
the Patent Administration Department under the State Council to
restore his or its rights.
Where the party concerned makes a request for an extension of a
time limit specified by the Patent Administration Department under
the State Council , he or it shall, before the time limit expires,
state the reasons to the Patent Administration Department under
the State Council and go through the relevant formalities.
The provisions of paragraphs one and two of this Rule shall not
be applicable to the time limit referred to in Articles 24, 29, 42
and 62 of the Patent Law.
Rule 8 Where an application for a patent for invention relates
to the secrets of the State concerning national defense and
requires to be kept secret, the application for patent shall be
filed with the patent department of national defense. Where any
application for patent for invention relating to the secrets of
the State concerning national defense and requiring to be kept
secret is received by the Patent Administration Department under
the State Council , the application shall be forwarded to the
patent department of national defense for examination, and the
Patent Administration Department under the State Council shall
make a decision on the basis of the observations of the
examination made by the patent department of national defense.
Subject to the preceding paragraph, the Patent Administration
Department under the State Council shall, after receipt of an
application for patent for invention which is required to be
examined for the purpose of security, send it to the relevant
competent department under the State Council for examination. The
relevant competent department shall, within four months from the
date of receipt of the application, notify the Patent
Administration Department under the State Council of the results
of the examination. Where the invention for which a patent is
applied for is required to be kept secret, the Patent
Administration Department under the State Council shall handle it
as an application for secret patent and notify the applicant
accordingly.
Rule 9 Any invention-creation that is contrary to the laws of
the State referred to in Article 5 of the Patent Law shall not
include the invention-creation merely because the exploitation of
which is prohibited by the laws of the State.
Rule 10 The date of filing referred to in the Patent Law,
except for those referred to in Articles 28 and 42, means the
priority date where priority is claimed.
The date of filing referred to in these Implementing
Regulations, except as otherwise prescribed, means the date of
filing prescribed in Article 28 of the Patent Law.
Rule l1 "A service invention-creation made by a person in
execution of the tasks of the entity to which he belongs"
referred to in Article 6 of the Patent Law means any
invention-creation made:
(1) in the course of performing his own duty;
(2) in execution of any task, other than his own duty, which
was entrusted to him by the entity to which he belongs;
(3) within one year from his resignation, retirement or change
of work, where the invention-creation relates to his own duty or
the other task entrusted to him by the entity to which he
previously belonged.
"The entity to which he belongs" referred to in
Article 6 of the Patent Law includes the entity in which the
person concerned is a temporary staff member. "Material and
technical means of the entity" referred to in Article 6 of
the Patent Law mean the entity's money, equipment, spare parts,
raw materials or technical materials which are not disclosed to
the public.
Rule 12 "Inventor" or "creator" referred to
in the Patent Law means any person who makes creative
contributions to the substantive features of an
invention-creation. Any person who, during the course of
accomplishing the invention-creation, is responsible only for
organizational work, or who offers facilities for making use of
material and technical means, or who takes part in other auxiliary
functions, shall not be considered as inventor or creator.
Rule l3 For any identical invention-creation, only one patent
right shall be granted.
Two or more applicants who respectively file, on the same day,
applications for patent for the identical invention-creation, as
provided for in Article 9 of the Patent Law, shall, after receipt
of a notification from the Patent Administration Department under
the State Council , hold consultations among themselves to decide
the person or persons who shall be entitled to file the
application.
Rule 14 Any assignment of the right to apply for a patent or of
the patent right, by a Chinese entity or individual, to a
foreigner shall be approved by the competent department for
foreign trade and economic affairs of the State Council in
conjunction with the science and technology administration
department of the State Council.
Rule 15 Except for the assignment of the patent right in
accordance with Article 10 of the Patent Law, where the patent
right is transferred because of any other reason, the person or
persons concerned shall, accompanied by relevant certified
documents or legal papers, request the Patent Administration
Department under the State Council to make a registration of
change in the owner of the patent right.
Any license contract for exploitation of the patent which has
been concluded by the patentee with an entity or individual shall,
within three months from the date of entry into force of the
contract, be submitted to the Patent Administration Department
under the State Council for the record.
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Chapter
II Application for Patent
Rule l6 Anyone who applies for a patent in written form shall
file with the Patent Administration Department under the State
Council application documents in two copies.
Anyone who applies for a patent in other forms as provided by
the Patent Administration Department under the State Council shall
comply with the relevant provisions.
Any applicant who appoints a patent agency for applying for a
patent, or for having other patent matters to attend to before the
Patent Administration Department under the State Council , shall
submit at the same time a power of attorney indicating the scope
of the power entrusted.
Where there are two or more applicants and no patent agency is
appointed, unless otherwise stated in the request, the applicant
named first in the request shall be the representative.
Rule l7 "Other related matters" in the request
referred to in Article 26, paragraph two of the Patent Law means:
(1) the nationality of the applicant;
(2) where the applicant is an enterprise or other organization,
the name of the country in which the applicant has the principal
business office;
(3) where the applicant has appointed a patent agency, the
relevant matters which shall be indicated; where no patent agency
is appointed, the name, address, postcode and telephone number of
the liaison person;
(4) where the priority of an earlier application is claimed,
the relevant matters which shall be indicated;
(5) the signature or seal of the applicant or the patent
agency;
(6) a list of the documents constituting the application;
(7) a list of the documents appending the application; and
(8) any other related matter which needs to be indicated.
Rule l8 The description of an application for a patent for
invention or utility model shall state the title of the invention
or utility model, which shall be the same as it appears in the
request. The description shall include the following:
(1) technical field: specifying the technical field to which
the technical solution for which protection is sought pertains;
(2) background art: indicating the background art which can be
regarded as useful for the understanding, searching and
examination of the invention or utility model, and when possible,
citing the documents reflecting such art;
(3) contents of the invention: disclosing the technical problem
the invention or utility model aims to settle and the technical
solution adopted to resolve the problem; and stating, with
reference to the prior art, the advantageous effects of the
invention or utility model;
(4) description of figures: briefly describing each figure in
the drawings, if any;
(5) mode of carrying out the invention or utility model:
describing in detail the optimally selected mode contemplated by
the applicant for carrying out the invention or utility model;
where appropriate, this shall be done in terms of examples, and
with reference to the drawings, if any;
The manner and order referred to in the preceding paragraph
shall be followed by the applicant for a patent for invention or
for utility model, and each of the parts shall be preceded by a
heading, unless, because of the nature of the invention or utility
model, a different manner or order would result in a better
understanding and a more economical presentation.
The description of the invention or utility model shall use
standard terms and be in clear wording, and shall not contain such
references to the claims as: "as described in claim ?",
nor shall it contain commercial advertising.
Where an application for a patent for invention contains
disclosure of one or more nucleotide and/or amino acid sequences,
the description shall contain a sequence listing in compliance
with the standard prescribed by the Patent Administration
Department under the State Council . The sequence listing shall be
submitted as a separate part of the description, and a copy of the
said sequence listing in machine-readable form shall also be
submitted in accordance with the provisions of the Patent
Administration Department under the State Council .
Rule l9 The same sheet of drawings may contain several figures
of the invention or utility model, and the figures shall be
numbered and arranged in numerical order consecutively as
"Figure l, Figure 2, ?".
The scale and the distinctness of the drawings shall be as such
that a reproduction with a linear reduction in size to two-thirds
would still enable all details to be clearly distinguished.
Reference signs not mentioned in the text of the description of
the invention or utility model shall not appear in the drawings.
Reference signs not mentioned in the drawings shall not appear in
the text of the description. Reference signs for the same
composite part shall be used consistently throughout the
application document.
The drawings shall not contain any other explanatory notes,
except words which are indispensable.
Rule 20 The claims shall define clearly and concisely the
matter for which protection is sought in terms of the technical
features of the invention or utility model.
If there are several claims, they shall be numbered
consecutively in Arabic numerals.
The technical terminology used in the claims shall be
consistent with that used in the description. The claims may
contain chemical or mathematical formulae but no drawings. They
shall not, except where absolutely necessary, contain such
references to the description or drawings as: "as described
in part ?of the description", or "as illustrated in
Figure ?of the drawings".
The technical features mentioned in the claims may, in order to
facilitate quicker understanding of the claim, make reference to
the corresponding reference signs in the drawings of the
description. Such reference signs shall follow the corresponding
technical features and be placed in parentheses. They shall not be
construed as limiting the claims.
Rule 2l The claims shall have an independent claim, and may
also contain dependent claims. The independent claim shall outline
the technical solution of an invention or utility model and state
the essential technical features necessary for the solution of its
technical problem. The dependent claim shall, by additional
technical features, further define the claim which it refers to.
Rule 22 An independent claim of an invention or utility model
shall contain a preamble portion and a characterizing portion, and
be presented in the following form:
(1) a preamble portion: indicating the title of the claimed
subject matter of the technical solution of the invention or
utility model, and those technical features which are necessary
for the definition of the claimed subject matter but which, in
combination, are part of the most related prior art;
(2) a characterizing portion: stating, in such words as
"characterized in that..." or in similar expressions,
the technical features of the invention or utility model, which
distinguish it from the most related prior art. Those features, in
combination with the features stated in the preamble portion,
serve to define the scope of protection of the invention or
utility model.
Where the manner specified in the preceding paragraphs is not
appropriate to be followed because of the nature of the invention
or utility model, an independent claim may be presented in a
different manner.
An invention or utility model shall have only one independent
claim, which shall precede all the dependent claims relating to
the same invention or utility model.
Rule 23 Any dependent claim of an invention or utility model
shall contain a reference portion and a characterizing portion,
and be presented in the following manner:
(l) a reference portion: indicating the serial number(s) of the
claim(s) referred to, and the title of the subject matter;
(2) a characterizing portion: stating the additional technical
features of the invention or utility model.
Any dependent claim shall only refer to the preceding claim or
claims. Any multiple dependent claims, which refers to two or more
claims, shall refer to the preceding one in the alternative only,
and shall not serve as a basis for any other multiple dependent
claims.
Rule 24 The abstract shall consist of a summary of the
disclosure as contained in the application for patent for
invention or utility model. The summary shall indicate the title
of the invention or utility model, and the technical field to
which the invention or utility model pertains, and shall be
drafted in a way which allows the clear understanding of the
technical problem, the gist of the technical solution of that
problem, and the principal use or uses of the invention or utility
model.
The abstract may contain the chemical formula which best
characterizes the invention. In an application for a patent which
contains drawings, the applicant shall provide a figure which best
characterizes the technical features of the invention or utility
model. The scale and the distinctness of the figure shall be as
such that a reproduction with a linear reduction in size to 4cm x
6cm would still enable all details to be clearly distinguished.
The whole text of the abstract shall contain not more than 300
words. There shall be no commercial advertising in the abstract.
Rule 25 Where an invention for which a patent is applied for
concerns a new biological material which is not available to the
public and which cannot be described in the application in such a
manner as to enable the invention to be carried out by a person
skilled in the art, the applicant shall, in addition to the other
requirements provided for in the Patent Law and these Implementing
Regulations, go through the following formalities:
(1) depositing a sample of the biological material with a
depositary institution designated by the Patent Administration
Department under the State Council before, or at the latest, on
the date of filing (or the priority date where priority is
claimed), and submit at the time of filing or at the latest,
within four months from the filing date, a receipt of deposit and
the viability proof from the depository institution; where they
are not submitted within the specified time limit, the sample of
the biological material shall be deemed not to have been
deposited;
(2) giving in the application document relevant information of
the characteristics of the biological material;
(3) indicating, where the application relates to the deposit of
the biological material, in the request and the description the
scientific name (with its Latin name) and the title and address of
the depositary institution, the date on which the sample of the
biological material was deposited and the accession number of the
deposit; where, at the time of filing, they are not indicated,
they shall be supplied within four months from the date of filing;
where after the expiration of the time limit they are not
supplied, the sample of the biological material shall be deemed
not to have been deposited.
Rule 26 Where the applicant for a patent for invention has
deposited a sample of the biological material in accordance with
the provisions of Rule 25 of these Implementing Regulations, and
after the application for patent for invention is published, any
entity or individual that intends to make use of the biological
material to which the application relates, for the purpose of
experiment, shall make a request to the Patent Administration
Department under the State Council , containing the following
items:
(1) the name and address of the requesting person;
(2) an undertaking not to make the biological material
available to any other person;
(3) an undertaking to use the biological material for
experimental purpose only before the grant of the patent right.
Rule 27 The size of drawings or photographs of a design
submitted in accordance with the provisions of Article 27 of the
Patent Law shall not be smaller than 3cm x 8cm, nor larger than
l5cm x 22cm.
Where an application for a patent for design seeking concurrent
protection of colors is filed, a drawing or photograph in color
shall be submitted in two copies.
The applicant shall, in respect of the subject matter of the
product incorporating the design which is in need of protection,
submit the relevant views and stereoscopic drawings or
photographs, so as to clearly show the subject matter for which
protection is sought.
Rule 28 Where an application for a patent for design is filed,
a brief explanation of the design shall, when necessary, be made.
The brief explanation of the design shall include the essential
portion of the design, the colors for which protection is sought
and the omission of the view of the product incorporating the
design. The brief explanation shall not contain any commercial
advertising and shall not be used to indicate the function of the
product.
Rule 29 Where the Patent Administration Department under the
State Council deems necessary, it may require the applicant for a
patent for design to submit a sample or model of the product
incorporating the design. The volume of the sample or model
submitted shall not exceed 30cm x 30cm x 30cm, and its weight
shall not surpass l5 kilograms. Articles that are easy to get
rotten or broken or articles that are dangerous shall not be
submitted as sample or model.
Rule 30 The existing technology referred to in Article 22,
paragraph three of the Patent Law means any technology which has
been publicly disclosed in publications in the country or abroad,
or has been publicly used or made known to the public by any other
means in the country, before the date of filing (or the priority
date where priority is claimed), that is, prior art.
Rule 3l The academic or technological meeting referred to in
Article 24, subparagraph (2) of the Patent Law means any academic
or technological meeting organized by a competent department
concerned of the State Council or by a national academic or
technological association.
Where any invention-creation for which a patent is applied
falls under the provisions of Article 24, subparagraph (l) or (2)
of the Patent Law, the applicant shall, when filing the
application, make a declaration and, within a time limit of two
months from the date of filing, submit certifying documents issued
by the entity which organized the international exhibition or
academic or technological meeting, stating the fact that the
invention-creation was exhibited or published and with the date of
its exhibition or publication.
Where any invention-creation for which a patent is applied
falls under the provisions of Article 24, subparagraph (3) of the
Patent Law, the Patent Administration Department under the State
Council may, when it deems necessary, require the applicant to
submit the relevant certifying documents within the specified time
limit.
Where the applicant fails to make a declaration and submit
certifying documents as required in paragraph two of this Rule, or
fails to submit certifying documents within the specified time
limit as required in paragraph three of this Rule, the provisions
of Article 24 of the Patent Law shall not apply to the
application.
Rule 32 Where any applicant goes through the formalities of
claims priority in accordance with the provisions of Article 30 of
the Patent Law, he or it shall, in his or its written declaration,
indicate the date and the number of the application which was
first filed (hereinafter referred to as the earlier application)
and the country in which the application was filed. If the written
declaration does not contain the filing date of the earlier
application and the name of the country in which the application
was filed, the declaration shall be deemed not to have been made.
Where the foreign priority is claimed, the copy of the earlier
application documents submitted by the applicant shall be
certified by the competent authority of the foreign country in
which the application was filed. Where in the certifying material
submitted, the name of the earlier applicant is not the same as
that of the later one, the applicant shall submit document
certifying the assignment of priority. Where the domestic priority
is claimed, the copy of the earlier application document shall be
prepared by the Patent Administration Department under the State
Council .
Rule 33 An applicant may claim one or more priorities for an
application for a patent; where multiple priorities are claimed,
the priority period for the application shall be calculated from
the earliest priority date.
Where an applicant claims the right of domestic priority, if
the earlier application is one for a patent for invention, he or
it may file an application for a patent for invention or utility
model for the same subject matter; if the earlier application is
one for a patent for utility model, he or it may file an
application for a patent for utility model or invention for the
same subject matter. However, when the later application is filed,
if the subject matter of the earlier application falls under any
of the following, it may not be taken as the basis for claiming
domestic priority:
(1) where the applicant has claimed foreign or domestic
priority;
(2) where it has been granted a patent right;
(3) where it is the subject matter of a divisional application
filed as prescribed.
Where the domestic priority is claimed, the earlier application
shall be deemed to be withdrawn from the date on which the later
application is filed.
Rule 34 Where an application for a patent is filed or the right
of foreign priority is claimed by an applicant having no habitual
residence or business office in China, the Patent Administration
Department under the State Council may, when it deems necessary,
require the applicant to submit the following documents:
(1) a certificate concerning the nationality of the applicant;
(2) a document certifying the seat of the business office or
the headquarters, if the applicant is an enterprise or other
organization;
(3) a document certifying that the country, to which the
foreigner, foreign enterprise or other foreign organization
belongs, recognizes that Chinese entities and individuals are,
under the same conditions as those applied to its nationals,
entitled to the patent right, the right of priority and other
related rights in that country.
Rule 35 Two or more inventions or utility models belonging to a
single general inventive concept which may be filed as one
application in accordance with the provision of Article 3l,
paragraph one of the Patent Law shall be technically inter-related
and contain one or more of the same or corresponding special
technical features. The expression "special technical
features" shall mean those technical features that define a
contribution which each of those inventions or utility models,
considered as a whole, makes over the prior art.
Rule 36 The expression "the same class" referred to
in Article 3l, paragraph two of the Patent Law means that the
product incorporating the designs belongs to the same subclass in
the classification of products for designs. The expression
"be sold or used in sets" means that the products
incorporating the designs have the same designing concept and are
customarily sold and used at the same time.
Where two or more designs are filed as one application in
accordance with the provision of Article 3l, paragraph two of the
Patent Law, they shall be numbered consecutively and the numbers
shall precede the titles of the view of the product incorporating
the design.
Rule 37 When withdrawing an application for a patent, the
applicant shall submit to the Patent Administration Department
under the State Council a declaration to that effect stating the
title of the invention-creation, the filing number and the date of
filing.
Where a declaration to withdraw an application for a patent is
submitted after the preparations for the publication of the
application document has been completed by the Patent
Administration Department under the State Council , the
application document shall be published as scheduled. However, the
declaration withdrawing the application for patent shall be
published in the next issue of the Patent Gazette.
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Chapter
III Examination and Approval of Application for Patent
Rule 38 Where any of the following events occurs, a person who
makes examination or hears a case in the procedures of preliminary
examination, examination as to substance, reexamination or
invalidation shall, on his own initiative or upon the request of
the parties concerned or any other interested person, be excluded
from excising his function:
(1) where he is a near relative of the party concerned or the
agent of the party concerned;
(2) where he has an interest in the application for patent or
the patent right;
(3) where he has any other kinds of relations with the party
concerned or with the agent of the party concerned that may
influence impartial examination and hearing.
(4) where a member of the Patent Reexamination Board who has
taken part in the examination of the same application.
Rule 39 Upon the receipt of an application for a patent for
invention or utility model consisting of a request, a description
(drawings must be included in an application for utility model)
and one or more claims, or an application for a patent for design
consisting of a request and one or more drawings or photographs
showing the design, the Patent Administration Department under the
State Council shall accord the date of filing, issue a filing
number, and notify the applicant.
Rule 40 In any of the following circumstances, the Patent
Administration Department under the State Council shall refuse to
accept the application and notify the applicant accordingly:
(1) where the application for a patent for invention or utility
model does not contain a request, a description (the description
of utility model does not contain drawings) or claims, or the
application for a patent for design does not contain a request,
drawings or photographs;
(2) where the application is not written in Chinese;
(3) where the application is not in conformity with the
provisions of Rule120, paragraph one of these Implementing
Regulations;
(4) where the request does not contain the name and address of
the applicant;
(5) where the application is obviously not in conformity with
the provisions of Article 18, or of Article l9, paragraph one of
the Patent Law;
(6) where the kind of protection (patent for invention, utility
model or design) of the application for a patent is not clear and
definite or cannot be ascertained.
Rule 41 Where the description states that it contains
explanatory notes to the drawings but the drawings or part of them
are missing, the applicant shall, within the time limit specified
by the Patent Administration Department under the State Council ,
either furnish the drawings or make a declaration for the deletion
of the explanatory notes to the drawings. If the drawings are
submitted later, the date of their delivery at, or mailing to, the
Patent Administration Department under the State Council shall be
the date of filing of the application; if the explanatory notes to
the drawings are to be deleted, the initial date of filing shall
be retained.
Rule 42 Where an application for a patent contains two or more
inventions, utility models or designs, the applicant may, before
the expiration of the time limit provided for in Rule 54,
paragraph one of these Implementing Regulations, submit to the
Patent Administration Department under the State Council a
divisional application. However, where an application for patent
has been rejected, withdrawn or is deemed to have been withdrawn,
no divisional application may be filed.
If the Patent Administration Department under the State Council
finds that an application for a patent is not in conformity with
the provisions of Article 3l of the Patent Law or of Rule 35 or 36
of these Implementing Regulations, it shall invite the applicant
to amend the application within a specified time limit; if the
applicant fails to make any response after the expiration of the
specified time limit, the application shall be deemed to have been
withdrawn.
The divisional application may not change the kind of
protection of the initial application.
Rule 43 A divisional application filed in accordance with the
provisions of Rule 42 of these Implementing Regulations shall be
entitled to the filing date and, if priority is claimed, the
priority date of the initial application, provided that the
divisional application does not go beyond the scope of disclosure
contained in the initial application.
The divisional application shall go through all the formalities
in accordance with the provisions of the Patent Law and these
Implementing Regulations.
The filing number and the date of filing of the initial
application shall be indicated in the request of the divisional
application. When the divisional application is filed, it shall be
accompanied by a copy of the initial application; if priority is
claimed for the initial application, a copy of the priority
document of the initial application shall also be submitted.
Rule 44 "Preliminary examination" referred to in
Articles 34 and 40 of the Patent Law means the check of an
application for a patent to see whether or not it contains the
documents as provided for in Articles 26 or 27 of the Patent Law
and other necessary documents, and whether or not those documents
are in the prescribed form; such check shall also include the
following:
(1) whether or not any application for a patent for invention
obviously falls under Articles 5 or 25 of the Patent Law, or is
not in conformity with the provisions of Article l8 or of Article
l9, paragraph one of the Patent Law, or is obviously not in
conformity with the provisions of Article 3l, paragraph one, or
Article 33 of the Patent Law, or of Rule 2, paragraph one, or Rule
18, or Rule 20 of these Implementing Regulations;
(2) whether or not any application for a patent for utility
model obviously falls under Article 5 or 25 of the Patent Law, or
is not in conformity with the provisions of Article l8 or of
Article l9, paragraph one of the Patent Law, or is obviously not
in conformity with the provisions of Article 26, paragraph three
or four, or of Article 3l, paragraph one, or of Article 33 of the
Patent Law, or of Rule 2, paragraph two, or of Rule l3, paragraph
one, or of Rule l8 to 23, or of Rule 43, paragraph one of these
Implementing Regulations, or is not entitled to a patent right in
accordance with the provisions of Article 9 of the Patent Law;
(3) whether or not any application for a patent for design
obviously falls under Article 5 of the Patent Law, or is not in
conformity with the provisions of Article l8 or of Article l9,
paragraph one of the Patent Law, or is obviously not in conformity
with the provisions of Article 3l, paragraph two, or of Article 33
of the Patent Law, or of Rule 2, paragraph three, or of Rule l3,
paragraph one, or of Rule 43, paragraph one of these Implementing
Regulations, or is not entitled to a patent right in accordance
with the provisions of Article 9 of the Patent Law. The Patent
Administration Department under the State Council shall notify the
applicant of its opinions after checking his or its application
and invite him or it to state his or its observations or to
correct his or its application within the specified time limit. If
the applicant fails to make any response within the specified time
limit, the application shall be deemed to have been withdrawn.
Where, after the applicant has made his or its observations or the
corrections, the Patent Administration Department under the State
Council still finds that the application is not in conformity with
the provisions of the Articles and the Rules cited in the
preceding subparagraphs, the application shall be rejected.
Rule 45 Apart from the application for patent, any document
relating to the patent application which is submitted to the
Patent Administration Department under the State Council , shall,
in any of the following circumstances, be deemed not to have been
submitted:
(1) where the document is not presented in the prescribed form
or the indications therein are not in conformity with the
prescriptions;
(2) where no certifying document is submitted as prescribed.
The Patent Administration Department under the State Council
shall notify the applicant of its opinion after checking that the
document is deemed not to have been submitted.
Rule 46 Where the applicant requests an earlier publication of
its or his application for a patent for invention, a statement
shall be made to the Patent Administration Department under the
State Council . The Patent Administration Department under the
State Council shall, after preliminary examination of the
application, publish it immediately, unless it is to be rejected.
Rule 47 The applicant shall, when indicating in accordance with
Article 27 of the Patent Law the product incorporating the design
and the class to which that product belongs, refer to the
classification of products for designs published by the Patent
Administration Department under the State Council . Where no
indication, or an incorrect indication, of the class to which the
product incorporating the design belongs is made, the Patent
Administration Department under the State Council shall supply the
indication or correct it.
Rule 48 Any person may, from the date of publication of an
application for a patent for invention till the date of announcing
the grant of the patent right, submit to the Patent Administration
Department under the State Council his observations, with reasons
therefor, on the application which is not in conformity with the
provisions of the Patent Law.
Rule 49 Where the applicant for a patent for invention cannot
furnish, for justified reasons, the documents concerning any
search or results of any examination specified in Article 36 of
the Patent Law, it or he shall make a statement to the Patent
Administration Department under the State Council and submit them
when the said documents are available.
Rule 50 The Patent Administration Department under the State
Council shall, when proceeding on its own initiative to examine an
application for a patent in accordance with the provisions of
Article 35, paragraph two of the Patent Law, notify the applicant
accordingly.
Rule 5l When a request for examination as to substance is made,
and that, within the time limit of three months after the receipt
of the notification of the Patent Administration Department under
the State Council, the application has entered into examination as
to substance, the applicant for a patent for invention may amend
the application for a patent for invention on its or his own
initiative.
Within two months from the date of filing, the applicant for a
patent for utility model or design may amend the application for a
patent for utility model or design on its or his own initiative.
Where the applicant amends the application after receiving the
notification of opinions of the examination as to substance of the
Patent Administration Department under the State Council , he or
it shall make the amendment as required by the notification.
The Patent Administration Department under the State Council
may, on its own initiative, correct the obvious clerical mistakes
and symbol mistakes in the documents of application for a patent.
Where the Patent Administration Department under the State Council
corrects mistakes on its own initiative, it shall notify the
applicant.
Rule 52 When an amendment to the description or the claims in
an application for a patent for invention or utility model is
made, a replacement sheet in prescribed form shall be submitted,
unless the amendment concerns only the alteration, insertion or
deletion of a few words. Where an amendment to the drawings or
photographs of an application for a patent for design is made, a
replacement sheet shall be submitted as prescribed.
Rule 53 In accordance with the provisions of Article 38 of the
Patent Law, the circumstances where an application for a patent
for invention shall be rejected by the Patent Administration
Department under the State Council after examination as to
substance are as follows:
(1) where the application does not comply with the provisions
of Rule 2, paragraph one of these Implementing Regulations;
(2) where the application falls under the provisions of Article
5 or 25 of the Patent Law, or it does not comply with the
provisions of Article 22 of the Patent Law or of Rule l3,
paragraph one, or of Rule 20, paragraph one, or of Rule 21,
paragraph two of these Implementing Regulations, or the applicant
is not entitled to a patent right in accordance with the
provisions of Article 9 of the Patent Law;
(3) where the application does not comply with the provisions
of Article 26, paragraph three or four, or of Article 3l,
paragraph one of the Patent Law;
(4) where the amendment to the application does not comply with
the provisions of Article 33 of the Patent Law, or the divisional
application does not comply with the provisions of Rule 43,
paragraph one of these Implementing Regulations.
Rule 54 After the Patent Administration Department under the
State Council issues the notification to grant the patent right,
the applicant shall go through the formalities of registration
within two months from the date of receipt of the notification. If
the applicant completes the formalities of registration within the
said time limit, the Patent Administration Department under the
State Council shall grant the patent right, issue the patent
certificate and announce it.
If the applicant does not go through the formalities of
registration within the time limit, he or it shall be deemed to
have abandoned its or his right to obtain the patent right.
Rule 55 After the announcement of the decision to grant a
patent for utility model, the patentee of the said patent for
utility model may request the Patent Administration Department
under the State Council to make a search report on the utility
model patent.
Where such person requests for a search report on a utility
model patent, he shall submit a request, indicating the patent
number of the said patent for utility model. Each request shall be
limited for one patent for utility model.
After receiving a request for a search report on a utility
model patent, the Patent Administration Department under the State
Council shall proceed to make an examination of the request. Where
the request does not comply with the requirements as prescribed,
the said department shall notify the requesting person to amend
the request within a specified time limit.
Rule 56 Where, after examination, the request for a search
report on a utility model patent complies with the provisions, the
Patent Administration Department under the State Council shall
promptly make a search report on the utility model patent.
Where the Patent Administration Department under the State
Council finds, after search, that the patent for utility model
concerned does not comply with the provisions of Article 22 of the
Patent Law concerning novelty or inventiveness, it shall cite the
documents considered to be relevant, state the reasons therefor
and send the copies of the cited relevant documents together with
the report.
Rule 57 The Patent Administration Department under the State
Council shall correct promptly the mistakes in the patent
announcements and documents issued by it once they are discovered,
and the corrections shall be announced.
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Chapter
IV Reexamination of Patent Application and Invalidation of Patent
Right
Rule 58 The Patent Reexamination Board shall consist of
technical and legal experts appointed by the Patent Administration
Department under the State Council . The person responsible for
the Patent Administration Department under the State Council shall
be the Director of the Board.
Rule 59 Where the applicant requests the Patent Reexamination
Board to make a reexamination in accordance with the provisions of
Article 41 of the Patent Law, it or he shall file a request for
reexamination, state the reasons and, when necessary, attach the
relevant supporting documents.
Where the request for reexamination does not comply with the
prescribed form, the person making the request shall rectify it
within the time limit fixed by the Patent Reexamination Board. If
the requesting person fails to meet the time limit for making
rectification, the request for reexamination shall be deemed not
to have been filed.
Rule 60 The person making the request may amend its or his
application at the time when it or he requests reexamination or
makes responses to the notification of reexamination of the Patent
Reexamination Board. However, the amendments shall be limited only
to remove the defects pointed out in the decision of rejection of
the application, or in the notification of reexamination.
The amendments to the application for patent shall be in two
copies.
Rule 61 The Patent Reexamination Board shall remit the request
for reexamination which the Board has received to the examination
department of the Patent Administration Department under the State
Council which has made the examination of the application
concerned to make an examination. Where that examination
department agrees to revoke its former decision upon the request
of the person requesting reexamination, the Patent Reexamination
Board shall make a decision accordingly and notify the requesting
person.
Rule 62 Where, after reexamination, the Patent Reexamination
Board finds that the request does not comply with the provisions
of the Patent Law and these Implementing Regulations, it shall
invite the person requesting reexamination to submit his
observations within a specified time limit. If the time limit for
making response is not met, the request for reexamination shall be
deemed to have been withdrawn. Where, after the requesting person
has made its observations and amendments, the Patent Reexamination
Board still finds that the request does not comply with the
provisions of the Patent Law and these Implementing Regulations,
it shall make a decision of reexamination to maintain the earlier
decision rejecting the application.
Where, after reexamination, the Patent Reexamination Board
finds that the decision rejecting the application does not comply
with the provisions of the Patent Law and these Implementing
Regulations, or that the amended application has removed the
defects as pointed out by the decision rejecting the application,
it shall make a decision to revoke the decision rejecting the
application, and ask the examination department which has made the
examination to continue the examination procedure.
Rule 63 At any time before the Patent Reexamination Board makes
its decision on the request for reexamination, the requesting
person may withdraw his request for reexamination.
Where the requesting person withdraws his request for
reexamination before the Patent Reexamination Board makes its
decision, the procedure of reexamination is terminated.
Rule 64 Anyone requesting invalidation or part invalidation of
a patent right in accordance with the provisions of Article 45 of
the Patent Law shall submit a request and the necessary evidence
in two copies. The request for invalidation shall state in detail
the grounds for filing the request, making reference to all the
evidence as submitted, and indicate the piece of evidence on which
each ground is based.
The grounds on which the request for invalidation is based,
referred to in the preceding paragraph, mean that the
invention-creation for which the patent right is granted does not
comply with the provisions of Article 22, Article 23, or of
Article 26, paragraph three or four, or of Article 33 of the
Patent Law, or of Rule 2, or of Rule l3, paragraph one, or of Rule
20, paragraph one, or of Rule 21, paragraph two of these
Implementing Regulations; or the invention-creation falls under
the provisions of Articles 5 or 25 of the Patent Law; or the
applicant is not entitled to be granted the patent right in
accordance with the provisions of Article 9 of the Patent Law.
Rule 65 Where the request for invalidation does not comply with
the provisions of Rule 64 of these Implementing Regulations, the
Patent Reexamination Board shall not accept it.
Where, after a decision on any request for invalidation of the
patent right is made, invalidation based on the same facts and
evidence is requested once again, the Patent Reexamination Board
shall not accept it.
Where a request for invalidation of a patent for design is
based on the ground that the patent for design is in conflict with
a prior right of another person, but no effective ruling or
judgement is submitted to prove such conflict of rights , the
Patent Reexamination Board shall not accept it.
Where the request for invalidation of the patent right does not
comply with the prescribed form, the person making the request
shall rectify it within the time limit specified by the Patent
Reexamination Board. If the rectification fails to be made within
the time limit, the request for invalidation shall be deemed not
to have been made.
Rule 66 After a request for invalidation is accepted by the
Patent Reexamination Board, the person making the request may add
reasons or supplement evidence within one month from the date when
the request for invalidation is filed. Additional reasons or
evidence which are submitted after the specified time limit may be
disregarded by the Patent Reexamination Board.
Rule 67 The Patent Reexamination Board shall send a copy of the
request for invalidation of the patent right and copies of the
relevant documents to the patentee and invite it or him to present
its or his observations within a specified time limit.
The patentee and the person making request for invalidation
shall, within the specified time limit, make responses to the
notification concerning transmitted documents or the notification
concerning the examination of the request for invalidation sent by
the Patent Reexamination Board. Where no response is made within
the specified time limit, the examination of the Patent
Reexamination Board will not be affected.
Rule 68 In the course of the examination of the request for
invalidation, the patentee for the patent for invention or utility
model concerned may amend its or his claims, but may not broaden
the scope of patent protection. The patentee for the patent for
invention or utility model concerned may not amend its or his
description or drawings. The patentee for the patent for design
concerned may not amend its or his drawings, photographs or the
brief explanation of the design.
Rule 69 The Patent Reexamination Board may, at the request of
the parties concerned or in accordance with the needs of the case,
decide to hold an oral procedure in respect of a request for
invalidation. Where the Patent Reexamination Board decides to hold
an oral procedure in respect of a request for invalidation, it
shall send notifications to the parties concerned, indicating the
date and place of the oral procedure to be held. The parties
concerned shall make response to the notification within the
specified time limit.
Where the person requesting invalidation fails to make response
to the notification of the oral procedure sent by the Patent
Reexamination Board within the specified time limit, and fails to
take part in the oral procedure, the request for invalidation
shall be deemed to have been withdrawn. Where the patentee fails
to take part in the oral procedure, the Patent Reexamination Board
may proceed to examine by default.
Rule 70 In the course of the examination of a request for
invalidation, the time limit specified by the Patent Reexamination
Board shall not be extended.
Rule 71 The person requesting invalidation may withdraw his
request before the Patent Reexamination Board makes a decision on
it.
Where the person requesting invalidation withdraws his request
before the Patent Reexamination Board makes a decision on it, the
examination of the request for invalidation is terminated.
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Chapter
V Compulsory License for Exploitation of Patent
Rule 72 After the expiration of three years from the date of
the grant of the patent right, any entity may, in accordance with
the provisions of Article 48 of the Patent Law, request the Patent
Administration Department under the State Council to grant a
compulsory license.
Any entity requesting a compulsory license shall submit to the
Patent Administration Department under the State Council a request
for compulsory license, state the reasons therefor, and attach
relevant certifying documents each in two copies.
The Patent Administration Department under the State Council
shall send a copy of the request for compulsory license to the
patentee, who shall make his or its observations within the time
limit specified by the Patent Administration Department under the
State Council . Where no response is made within the time limit,
the Patent Administration Department under the State Council will
not be affected in making a decision concerning a compulsory
license.
The decision of the Patent Administration Department under the
State Council granting a compulsory license for exploitation shall
limit the exploitation of the compulsory license to be
predominately for the supply of the domestic market. Where the
invention-creation involved in the compulsory license relates to
the semi-conductor technology, the exploitation of the compulsory
license shall be limited only for public non-commercial use or to
remedy a practice determined after judicial or administrative
process to be anti-competitive.
Rule 73 Where any entity or individual requests, in accordance
with the provisions of Article 54 of the Patent Law, the Patent
Administration Department under the State Council to adjudicate
the fees for exploitation, it or he shall submit a request for
adjudication and furnish documents showing that the parties
concerned have not been able to conclude an agreement in respect
of the amount of the exploitation fee. The Patent Administration
Department under the State Council shall make an adjudication
within three months from the date of receipt of the request and
notify the parties concerned accordingly. .
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Chapter
VI Reward and Remuneration of Inventors or Creators of Service
Inventions-Creations
Rule 74 The State-owned enterprise or institution to which a
patent right is granted shall, within three months from the date
of the announcement of the grant of the patent right, award to the
inventor or creator of a service invention-creation a sum of money
as prize. The sum of money prize for a patent for invention shall
not be less than RMB 2000 yuan; the sum of money prize for a
patent for utility model or design shall not be less than RMB 500
yuan.
Where an invention-creation is made on the basis of an
inventor's or creator's proposal adopted by the entity to which he
belongs, the State-owned enterprise or institution to which a
patent right is granted shall award to him a money prize on
favorable terms.
For the money prize awarded to the inventor or creator, the
enterprise may have it included into its production cost, and the
institution may have it disbursed out of its operating expenses.
Rule 75 The State-owned enterprise or institution to which a
patent right is granted shall, after exploiting the patent for
invention-creation within the duration of the patent right, draw
each year from the profits after taxation earned from exploitation
of the invention or utility model a percentage of not less than
2%, or from the profits after taxation earned from exploitation of
the design a percentage of not less than 0.2%, and award it to the
inventor or creator as remuneration. The entity may, as an
alternative, by making reference to the said percentage, award a
lump sum of money to the inventor or creator as remuneration once
and for all.
Rule 76 Where any State-owned enterprise or institution to
which a patent right is granted authorizes any other entity or
individual to exploit its patent, it shall draw from the profits
it receives for exploitation of the said patent after taxation a
percentage of not less than 10% and award it to the inventor or
creator as remuneration.
Rule 77 The provisions of this Chapter may be implemented by
any other Chinese entity by making reference thereto.
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Chapter
VII Protection of Patent Right
Rule 78 The administrative authority for patent affairs
referred to in the Patent Law and these Implementing Regulations
means the department responsible for the administrative work
concerning patent affairs set up by the people's government of any
province, autonomous region, or municipality directly under the
Central Government, or by the people's government of any city
which consists of districts, has a large amount of patent
administration work to attend to and has the ability to deal with
the matter.
Rule 79 In addition to the provisions of Article 57 of the
Patent Law, the administrative authority for patent affairs may
also mediate in the following patent disputes at the request of
the parties concerned:
(1) any dispute over the ownership of the right to apply for
patent and the patent right;
(2) any dispute over the qualification of the inventor or
creator;
(3) any dispute over the award and remuneration of the inventor
or creator of a service invention-creation;
(4) any dispute over the appropriate fee to be paid for the
exploitation of an invention after the publication of the
application for patent but before the grant of patent right.
In respect of the dispute referred to in subparagraph (4),
where the patentee requests the administrative authority for
patent affairs to mediate, the request shall be made after the
grant of the patent right.
Rule 80 The Patent Administration Department under the State
Council shall provide professional guidance to the administrative
authorities for patent affairs in handling and mediating patent
disputes.
Rule 81 Where any party concerned requests handling or
mediation of a patent dispute, it shall fall under the
jurisdiction of the administrative authority for patent affairs
where the requested party has his location or where the act of
infringement has taken place.
Where two or more administrative authorities for patent affairs
all have jurisdiction over a patent dispute, any party concerned
may file his or its request with one of them to handle or mediate
the matter. Where requests are filed with two or more
administrative authorities for patent affairs, the administrative
authority for patent affairs that first accepts the request shall
have jurisdiction.
Where administrative authorities for patent affairs have a
dispute over their jurisdiction, the administrative authority for
patent affairs of their common higher level people's government
shall designate the administrative authority for patent affairs to
exercise the jurisdiction; if there is no such administrative
authority for patent affairs of their common higher level people's
government, the Patent Administration Department under the State
Council shall designate the administrative authority for patent
affairs to exercise the jurisdiction.
Rule 82 Where, in the course of handling a patent infringement
dispute, the defendant requests invalidation of the patent right
and his request is accepted by the Patent Reexamination Board, he
may request the administrative authority for patent affairs
concerned to suspend the handling of the matter.
If the administrative authority for patent affairs considers
that the reasons set forth by the defendant for the suspension are
obviously untenable, it may not suspend the handling of the
matter..
Rule 83 Where any patentee affixes a patent marking on the
patented product or on the package of that product in accordance
with the provisions of Article 15 of the Patent Law, he or it
shall make the affixation in the manner as prescribed by the
Patent Administration Department under the State Council .
Rule 84 Any of the following is an act of passing off the
patent of another person as one's own:
(1) without authorization, indicating the patent number of
another person on the product or on the package of that product
made or sold by him or it;
(2) without authorization, using the patent number of another
person in the advertisement or in any other promotional materials
of his or its product, so as to mislead other persons to regard
the technology concerned as the patented technology of another
person;
(3) without authorization, using the patent number of another
person in the contract entered into by him or it , so as to
mislead other persons to regard the technology referred to in the
contract as the patented technology of another person;
(4) counterfeiting or transforming any patent certificate,
patent document or patent application document of another person.
Rule 85 Any of the following is an act of passing a
non-patented product off as patented product or passing a
non-patented process off as patented process:
(1) making or selling non-patented products which are affixed
with patent marking;
(2) continuing to affix patent marking on the products that are
made or sold after the patent right concerned has been declared
invalid;
(3) passing any non-patented technology off as patented
technology in the advertisements or in any other promotional
materials;
(4) stating any non-patented technology as patented technology
in any contract entered into by him or it;
(5) counterfeiting or transforming any patent certificate,
patent document or patent application document.
Rule 86 Any party concerned to a dispute over the ownership of
the right to apply for a patent or the patent right, which is
pending before the administrative authority for patent affairs or
the people's court, may request the Patent Administration
Department under the State Council to suspend the relevant
procedures.
Any party requesting the suspension of the relevant procedures
in accordance with the preceding paragraph, shall submit a written
request to the Patent Administration Department under the State
Council , and attach a copy of the document acknowledging the
receipt of the relevant request from the administrative authority
for patent affairs or the people's court.
After the decision made by the administrative authority for
patent affairs or the judgment rendered by the people's court
enters into force, the parties concerned shall request the Patent
Administration Department under the State Council to resume the
suspended procedure. If, within one year from the date when the
request for suspension is filed, no decision is made on the
dispute relating to the ownership of the right to apply for a
patent or the patent right, and it is necessary to continue the
suspension, the party who or that the request shall, within the
said time limit, request to extend the suspension. If, at the
expiration of the said time limit, no such request for extension
is filed, the Patent Administration Department under the State
Council shall resume the procedure on its own initiative.
Rule 87 Where, in hearing civil cases, the people's court has
ordered the adoption of measures for a patent right preservation,
the Patent Administration Department under the State Council, for
the purpose of assisting the execution of the order, shall suspend
the relevant procedure concerning the preserved patent right. At
the expiration of the time limit for preservation, if there is no
order of the people's court to continue the preservation, the
Patent Administration Department under the State Council shall
resume the relevant procedure on its own initiative.
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Chapter
VIII Patent Registration and Patent Gazette
Rule 88 The Patent Administration Department under the State
Council shall keep a Patent Register in which the registration of
the following matters relating to patent application or patent
right shall be made:
(1) any grant of the patent right;
(2) any transfer of the right of patent application or the
patent right;
(3) any pledge and preservation of the patent right and their
discharge;
(4) any patent license contract for exploitation submitted for
the record;
(5) any invalidation of the patent right;
(6) any cessation of the patent right;
(7) any restoration of the patent right;
(8) any compulsory license for exploitation of the patent;
(9) any change in the name, nationality and address of the
patentee.
Rule 89 The Patent Administration Department under the State
Council shall publish the Patent Gazette at regular intervals,
publishing or announcing the following:
(1) the bibliographic data contained in patent applications;
(2) the abstract of the description of an invention or utility
model, the drawings or photographs of a design and its brief
explanation;
(3) any request for examination as to substance of an
application for a patent for invention and any decision made by
the Patent Administration Department under the State Council to
proceed on its own initiative to examine as to substance an
application for a patent for invention;
(4) any declassification of secret patents;
(5) any rejection, withdrawal and deemed withdrawal of an
application for a patent for invention after its publication;
(6) any grant of the patent right;
(7) any invalidation of the patent right;
(8) any cessation of the patent right;
(9) any transfer of the patent application or the patent right;
(10) any patent license contract for exploitation submitted for
the record;
(11) any pledge and preservation of the patent right and their
discharge;
(12) any grant of compulsory license for exploitation of the
patent;
(13) any restoration of a patent application or patent right;
(14) any change in the name or address of the patentee;
(15) any notification to a party whose address is not known;
(16) any correction made by the Patent Administration
Department under the State Council ; and
(17) any other related matters.
The description and its drawings, and the claims of an
application for a patent for invention or utility model shall be
separately published in full in pamphlet form by the Patent
Administration Department under the State Council
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Chapter
IX Fees
Rule 90 When any person files an application for a patent with,
or has other formalities to go through at, the Patent
Administration Department under the State Council , he or it shall
pay the following fees:
(1) filing fee, additional fee for filing application, and
printing fee for publishing the application;
(2) substantive examination fee for an application for patent
for invention, and reexamination fee;
(3) registration fee for the grant of patent right, printing
fee for the announcement of grant of patent right, maintenance fee
for application, and annual fee;
(4) fee for a change in the bibliographic data, fee for
claiming priority, fee for requesting restoration of rights, fee
for requesting extension of a time limit, and fee for establishing
a search report on a utility model patent;
(5) fee for requesting invalidation, fee for requesting
suspension of the patent procedure, fee for requesting a
compulsory license, fee for requesting adjudication on
exploitation fee of a compulsory license. The amount of the fees
referred to in the preceding paragraph shall be prescribed by the
price administration department under the State Council in
conjunction with the Patent Administration Department under the
State Council .
Rule 91 The fees provided for in the Patent Law and in these
Implementing Regulations may be paid directly to the Patent
Administration Department under the State Council or paid by way
of bank or postal remittance, or by way of any other means as
prescribed by the Patent Administration Department under the State
Council . Where any fee is paid by way of bank or postal
remittance, the applicant or the patentee shall indicate on the
money order at least the correct filing number or the patent
number and the name of the fee paid. If the requirements as
prescribed in this paragraph are not complied with, the payment of
the fee shall be deemed not to have been made.
Where any fee is paid directly to the Patent Administration
Department under the State Council , the date on which the fee is
paid shall be the date of payment; where any fee is paid by way of
postal remittance, the date of remittance indicated by the
postmark shall be the date of payment; where any fee is paid by
way of bank transfer, the date on which the transfer of the fee is
done shall be the date of payment. Where, however, the time
between such a date and the date of receipt of the order by the
Patent Administration Department under the State Council lasts
more than fifteen days, unless the date of remittance or transfer
is proved by the bank or the post office, the date of receipt by
the Patent Administration Department under the State Council shall
be the date of payment.
Where any patent fee is paid in excess of the amount as
prescribed, paid repeatedly or wrongly, the party making the
payment may, within one year from the date of payment, request a
refund from the Patent Administration Department under the State
Council .
Rule 92 The applicant shall, after receipt of the notification
of acceptance of the application from the Patent Administration
Department under the State Council , pay the filing fee, the
printing fee for the publication of the application and the
necessary additional fees at the latest within two months from the
filing date. If the fees are not paid or not paid in full within
the time limit, the application shall be deemed to be withdrawn.
Where the applicant claims priority, he or it shall pay the fee
for claiming priority at the same time with the payment of the
filing fee. If the fee is not paid or not paid in full within the
time limit, the claim for priority shall be deemed not to have
been made.
Rule 93 Where the party concerned makes a request for an
examination as to substance, a restoration of right or a
reexamination, the relevant fee shall be paid within the time
limit as prescribed respectively for such requests by the Patent
Law. If the fee is not paid or not paid in full within the time
limit, the request is deemed not to have been made.
Rule 94 Where the applicant for a patent for invention has not
been granted a patent right within two years from the date of
filing, it or he shall pay a fee for the maintenance of the
application from the third year.
Rule 95 When the applicant goes through the formalities of
registration of the grant of patent right, it or he shall pay a
registration fee for the grant of patent right, printing fee for
the announcement of grant of patent right and the annual fee of
the year in which the patent right is granted. The applicant for a
patent for invention shall pay the application maintenance fee for
all the years, with the exception of the year in which the patent
right is granted. If such fees are not paid within the prescribed
time limit, the registration of the grant of patent right shall be
deemed not to have been made. The subsequent annual fees shall be
paid in advance within the month before the expiration of the
preceding year.
Rule 96 Where the annual fee of the patent right after the year
in which the patent is granted is not paid in due time by the
patentee, or the fee is not paid in full, the Patent
Administration Department under the State Council shall notify the
patentee to pay the fee or to make up the insufficiency within six
months from the expiration of the time limit within which the
annual fee is due to be paid, and at the same time pay a
surcharge. The amount of the surcharge shall be, for each month of
late payment, 5% of the whole amount of the annual fee of the year
within which the annual fee is due to be paid. Where the fee and
the surcharge are not paid within the time limit, the patent right
shall lapse from the expiration of the time limit within which the
annual fee should be paid.
Rule 97 The fee for a change in the bibliographic data, fee for
establishing a search report on a utility model patent, fee for
requesting suspension of the patent procedure, fee for requesting
a compulsory license, fee for requesting adjudication on
exploitation fee of a compulsory license and fee for requesting
invalidation shall be paid as prescribed within one month from the
date on which such request is filed. The fee for requesting
extension of a time limit shall be paid before the expiration of
the said time limit. If the fee is not paid or not paid in full
within the time limit, the request shall be deemed not to have
been made.
Rule 98 Where any applicant or patentee has difficulties in
paying the various fees prescribed in these Implementing
Regulations, he may, in accordance with the prescriptions, submit
a request to the Patent Administration Department under the State
Council for a reduction or postponement of the payment. Measures
for the reduction and postponement of the payment shall be
prescribed by the Patent Administration Department under the State
Council in consultation with the finance administration department
and the price administration department under the State Council.
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Chapter
X Special Provisions Concerning International Application
Rule 99 The Patent Administration Department under the State
Council receives international patent applications filed under the
Patent Cooperation Treaty in accordance with the provisions of
Article 20 of the Patent Law.
Where any international application filed under the Patent
Cooperation Treaty designating China (hereinafter referred to as
the international application) enters the Chinese national phase,
the requirements and procedures prescribed in this Chapter shall
apply. Where no provisions are made in this Chapter, the relevant
provisions in the Patent Law and in any other chapters of these
Implementing Regulations shall apply.
Rule 100 Any international application which has been accorded
an international filling date in accordance with the Patent
Cooperation Treaty and which has designated China shall be deemed
as an application for patent filed with the Patent Administration
Department under the State Council, and the said filing date shall
be deemed as the filing date referred to in Article 28 of the
Patent Law.
Where, in the international phase, an international application
or its designation of China is withdrawn or deemed to be
withdrawn, the effect of the said international application in
China shall cease.
Rule 101 Rule 101 Any applicant for an international
application entering the Chinese national phase shall, within 30
months from the priority date as referred to in Article 2 of the
Patent Cooperation Treaty (referred to as "the priority
date" in this chapter), go through the following formalities
at the Patent Administration Department under the State Council:
(1) submitting a written statement concerning the entry of his
or its international application into the Chinese national phase.
The statement shall indicate the international application number,
and also indicate in Chinese the kind of patent protection sought,
the title of the invention-creation, the name or title of the
applicant, the address of the applicant and the name of the
inventor. Such indications shall be the same as those recorded by
the International Bureau;
(2) paying the filing fee, the additional fee for filing
application and the printing fee for publishing the application as
provided in Rule 90, paragraph one of these Implementing
Regulations;
(3) where an international application is filed in a language
other than Chinese, the Chinese translation of the description,
the claims, the text matter of the drawings, and the abstract of
the initial international application shall be furnished; where an
international application is filed in Chinese, a copy of the
abstract published in the international publication shall be
furnished.
(4) where an international application contains drawings, a
copy of the drawings shall be furnished. Where an international
application is filed in Chinese, a copy of the figure of the
drawings in the abstract as published in the international
publication shall be furnished.
If the applicant fails to go through the relevant formalities
for entering the Chinese national phase within the time limit
prescribed in the preceding paragraph, he or it may, after paying
a surcharge for the late entry, go through these formalities
before the expiration of the respective time limit of 32 months
respectively from "the priority date".
Rule 102 Where the applicant fails to go through the
formalities for entering the Chinese national phase, within the
time limit prescribed in Rule 101, paragraph two of these
Implementing Regulations or any of the following circumstance
occurs at the expiration of the said time limit, the effect of his
or its international application shall cease in China:
(1) where the international application number is not indicated
in the statement concerning entry into the Chinese national phase;
(2) where the filing fee, the printing fee for publishing the
application prescribed in Rule 90, paragraph one of these
Implementing Regulations, or the surcharge for the late entry as
prescribed in Rule 101, paragraph two of these Implementing
Regulations is not paid;
(3) where the international application is filed in a language
other than Chinese, the Chinese translation of the description and
the claims of the initial international application are not
furnished.
Where the effect of an international application has ceased in
China, the provisions of Rule 7, paragraph two of these
Implementing Regulations shall not apply.
Rule 103 Where any of the following circumstances occur at the
time when the applicant goes through the formalities for entering
the Chinese national phase, the Patent Administration Department
under the State Council shall notify the applicant to make
corrections within the specified time limit:
(1) where the Chinese translation of the abstract or a copy of
the abstract is not furnished;
(2) where a copy of the drawings or a copy of the figure of the
drawings in the abstract is not furnished;
(3) where the title of the invention-creation, the name of the
applicant, the address of the applicant and the name of the
inventor are not indicated in Chinese in the statement concerning
entry into the Chinese national phase;
(4) where the content or the form of the statement concerning
entry into the Chinese national phase is not in conformity with
the provisions.
If, at the expiration of the time limit, the applicant fails to
make the corrections, his or its application shall be deemed to be
withdrawn.
Rule 104 Where an international application is amended in the
international phase and the applicant requests that the
examination be based on the amended application, the Chinese
translation of the amendments shall be prescribed by the applicant
before completion of the technical preparations for national
publication of the application by the Patent Administration
Department under the State Council. Where the Chinese translation
is not furnished within the said time limit, the amendments made
in the international phase shall not be taken into consideration
by the Patent Administration Department under the State Council .
Rule 105 When the applicant goes through the formalities for
entering the Chinese national phase, he or it shall also fulfill
the following requirements:
(1) where the inventor is not indicated in the international
application, the name of the inventor shall be indicated in the
statement concerning entry into the Chinese national phase;
(2) where the applicant has gone through the formalities for
the change in the applicant before the International Bureau in the
international phase, the document certifying the right of the new
applicant to the international application shall be furnished;
(3) where the applicant is not the same person as the applicant
of the earlier application which is the basis of the priority
claimed, or where the applicant has changed his or its name after
filing the earlier application, the document certifying the right
of the applicant to claim priority shall be furnished when
necessary;
(4) Where any invention-creation to which the international
application relates has one of the events referred to in Article
24, subparagraph (1) or (2) of the Patent Law and where statements
have been made in this respect when the international application
was filed, the applicant shall indicate it in the statement
concerning entry into the Chinese national phase, and furnish the
relevant certificates prescribed in Rule 31, paragraph two of
these Implementing Regulations within two months from the date of
going through the formalities for entering the Chinese national
phase.
Where the applicant fails to satisfy the requirements provided
for in subparagraph (1), (2) or (3) of the preceding paragraph,
the Patent Administration Department under the State Council shall
notify the applicant to make corrections within the specified time
limit. Where, within the time limit, no correction is made in
respect of the requirement provided for in subparagraph (1) or
(2), the application shall be deemed to be withdrawn; Where,
within the time limit, no correction is made in respect of the
requirement provided for in subparagraph (3), the claim for
priority shall be deemed not to have been made.
Where the applicant fails to fulfill the requirement provided
for in subparagraph (4) of paragraph one of this Rule, the
provisions of Article 24 of the Patent Law shall not apply to his
or its international application.
Rule 106 Where the applicant has made indications concerning
deposited biological materials in accordance with the provisions
of the Patent Cooperation Treaty, the requirements provided for in
Rule 25, subparagraph (3) of these Implementing Regulations shall
be deemed to have been fulfilled. In the statement concerning
entry into the Chinese national phase, the applicant shall
indicate the documents recording the particulars of the deposit of
the biological materials, and the exact location of the record in
the documents.
Where particulars concerning the deposit of the biological
materials are contained in the description of the international
application as initially filed, but there is no such indication in
the statement concerning the entry into the Chinese national
phase, the applicant shall make correction within four months from
the date of going through the formalities for entering the Chinese
national phase. If the correction is not made at the expiration of
the time limit, the biological materials shall be deemed not to
have been deposited.
Where the applicant submits the certificates of the deposit and
the viability of the biological materials to the Patent
Administration Department under the State Council within four
months from the date of going through the formalities for entering
the Chinese national phase, the deposit of biological materials
shall be deemed to have been made within the time limit as
provided for in Rule 25, subparagraph (1) of these Implementing
Regulations.
Rule 107 Where the applicant claims one or multiple priorities
in the international phase and such claims remain valid at the
time when the application enters the Chinese national phase, the
applicant shall be deemed to have submitted the written
declaration in accordance with the provisions of Article 30 of the
Patent Law.
Where there are clerical mistakes or the application number of
the earlier application is missing in the written declaration
claiming the priority made in the international phase, the
applicant may request to make corrections or to fill in the
missing application number of the earlier application at the time
of going through the formalities for entering the Chinese national
phase. Where a request for making corrections is made, the
applicant shall pay the fee for correcting the claim for priority.
Where the applicant has submitted a copy of the earlier
application in the international phase in accordance with the
provisions of the Patent Cooperation Treaty, he or it shall be
exempted form submitting a copy of the earlier application to the
Patent Administration Department under the State Council at the
time of going through the formalities for entering the Chinese
national phase. Where the applicant has not submitted a copy of
the earlier application in the international phase, and if the
Patent Administration Department under the State Council deems
necessary, it may notify the applicant to submit a copy of the
earlier application within the specified time limit. If no copy is
submitted at the expiration of the time limit, his or its claim
for priority shall be deemed not to have been made.
Where the claim for priority is deemed not to have been made in
the international phase and the information is already published
by the International Bureau, the applicant may, if he has
justified reasons, request the Patent Administration Department
under the State Council to restore his or its claim for priority
at the time of going through the formalities for entering the
Chinese national phase.
Rule 108 Where, before the expiration of 30 months from
"the priority date", the applicant files a request with
the Patent Administration Department under the State Council for
early processing and examination of his or its international
application, he or it shall, in addition to going through the
formalities for entering the Chinese national phase, submit a
request in accordance with the provisions in Article 23, paragraph
two of the Patent Cooperation Treaty. Where the international
application has not been transmitted by the International Bureau
to the Patent Administration Department under the State Council,
the applicant shall submit a confirmed copy of the international
application.
Rule 109 With regard to an international application for a
patent for utility model, the applicant may file a request with
the Patent Administration Department under the State Council to
amend the description, the drawings and the claims within one
month from the date of going through the formalities for entering
the Chinese national phase.
With regard to an international application for a patent for
invention, the provisions of Rule 51, paragraph one of these
Implementing Regulations shall apply.
Rule 110 Where the applicant finds that there are mistakes in
the Chinese translation of the description, the claims or the text
matter of the drawings as filed, he or it may correct the
translation in accordance with the international application as
filed within the following time limits:
(1) before the completion of technical preparations for
national publication by the Patent Administration Department under
the State Council ;
(2) within three months from the date of receipt of the
notification sent by the Patent Administration Department under
the State Council , stating that the application for a patent for
invention has entered into the substantive examination phase.
Where the applicant intends to correct the mistakes in the
translation, he or it shall file a written request, furnish a
replace sheet of the translation and pay the prescribed fee for
the correction of the translation. Where the applicant makes
correction of the translation in accordance with the notification
of the Patent Administration Department under the State Council ,
he or it shall, within the specified time limit, go through the
formalities prescribed in paragraph two of this Rule. If the
prescribed formalities are not gone through at the expiration of
the time limit, the international application shall be deemed to
be withdrawn.
Rule 111 With regard to any international application for a
patent for invention, if the Patent Administration Department
under the State Council , after preliminary examination, considers
it in compliance with the provisions of the Patent Law and these
Implementing Regulations, it shall publish it in the Patent
Gazette; where the international application is filed in a
language other than Chinese, the Chinese translation of the
international application shall be published.
Where the international publication of an international
application for a patent for invention by the International Bureau
is in Chinese, the provisions of Article 13 of the Patent Law
shall apply from the date of the international publication. If the
international publication by the International Bureau is in a
language other than Chinese, the provisions of Article 13 of the
Patent Law shall apply from the date of the publication of the
Chinese translation by the Patent Administration Department under
the State Council .
With regard to an international application, the publication
referred to in Articles 21 and 22 of the Patent Law means the
publication referred to in paragraph one of this Article.
Rule 112 Where two or more inventions or utility models are
contained in an international application, the applicant may,
after going through the formalities for entering the Chinese
national phase, submit a divisional application in accordance with
the provisions in Rule 42, paragraph one of these Implementing
Regulations. Where, in the international phase, some parts of the
international application have not been the subject of
international search or international preliminary examination
because the International Searching Authority or the International
Preliminary Examination Authority considers that the international
application does not comply with the requirement of unity of
invention prescribed in the Patent Cooperation Treaty, and the
applicant fails to pay the additional fee, whereas at the time of
going through the formalities for entering the Chinese national
phase, the applicant requests that the said parts be the basis of
examination, the Patent Administration Department under the State
Council , finding that the decision concerning unity of invention
made by the International Searching Authority or the International
Preliminary Examination Authority is justified, shall notify the
applicant to pay the restoration fee for unity of invention within
the specified time limit. Where the fee is not paid or not paid in
full at the expiration of the prescribed time limit, those parts
of the international application which have not been searched or
have not been the subject of international preliminary examination
shall be deemed to be withdrawn.
Rule 113 Where the applicant furnishes the documents and pays
the fees in accordance with the provisions of Rule 101 of these
Implementing Regulations, the date on which the Patent
Administration Department under the State Council receives the
documents shall be the date of submitting, and the date on which
it receives the fees shall be the date of payment.
Where there is delay in the mailing of the documents and the
applicant proves, within one month from the date on which he finds
the delay, that the documents have been mailed five days prior to
the expiration of the time limit prescribed in Rule 101 of these
Implementing Regulations, the documents shall be deemed to have
been received on the date on which the time limit expires.
However, the time for the applicant to furnish evidence may not be
later than six months after the expiration of the time limit
prescribed in Rule 101 of these Implementing Regulations.
Where documents are to be submitted to the Patent
Administration Department under the State Council in accordance
with the provisions of Rule 101 of these Implementing Regulations,
the applicant may send them by fax. Where the applicant submits
the documents by fax, the date on which the Patent Administration
Department under the State Council receives the fax shall be the
date of submitting. The applicant shall submit to the Patent
Administration Department under the State Council the original
copy within 14 days from the date of the transmission by fax.
Where the original copy is not submitted within the time limit,
the documents shall be deemed not to have been submitted.
Rule 114 Where an international application claims the
priority, the applicant shall, at the time of going through the
formalities for entering the Chinese national phase, pay the fee
for claiming the priority; if the fee is not paid or not paid in
full, the Patent Administration Department under the State Council
shall notify the applicant to pay it within the specified time
limit; if the fee is still not paid or not paid in full at the
expiration of the time limit, the claim for priority shall be
deemed not to have been made.
Rule 115 Where an international application in the
international phase has been refused to be accorded an
international filling date or has been declared to be deemed
withdrawn by an international authority concerned, the applicant
may, within two months from the date on which he or it receives
the notification, request the International Bureau to send the
copy of any document in the file of the international application
to the Patent Administration Department under the State Council ,
and shall go through the formalities prescribed in Rule 101 of
these Implementing Regulations within the said time limit at the
Patent Administration Department under the State Council . After
receiving the documents sent by the International Bureau, the
Patent Administration Department under the State Council shall
review the decision made by the international authority concerned
to find whether it is correct.
Rule 116 With regard to a patent right granted on the basis of
an international application, if the scope of protection
determined in accordance with the provisions of Article 56 of the
Patent Law exceeds the scope of the international application in
its original language because of incorrect translation, the scope
of protection granted on the international application shall be
limited according to the original language of the application; if
the scope of protection granted on the international application
is narrower than the scope of the application in its original
language, the scope of protection shall be determined according to
the patent in the language when it is granted.
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Chapter
XI Supplementary Provisions
Rule 117 Any person may, after approval by the Patent
Administration Department under the State Council , consult or
copy the files of the published or announced patent applications
and the Patent Register. Any person may request the Patent
Administration Department under the State Council to issue a copy
of extracts from the Patent Register.
The files of the patent applications which have been withdrawn
or deemed to be withdrawn or which have been rejected, shall not
be preserved after expiration of two years from the date on which
the applications cease to be valid.
Where the patent right has been abandoned, wholly invalidated
or ceased, the files shall not be preserved after expiration of
three years from the date on which the patent right ceases to be
valid.
Rule 118 Any patent application which is filed with, or any
formality which is gone through at, the Patent Administration
Department under the State Council shall comply with the unified
form prescribed by the Patent Administration Department under the
State Council, and signed or sealed by the applicant, the
patentee, any other interested person or his or its
representative. Where any patent agency is appointed, it shall be
sealed by such agency.
Where a change in the name of the inventor, or in the name,
nationality and address of the applicant or the patentee, or in
the name and address of the patent agency and the name of patent
agent is requested, a request for a change in the bibliographic
data shall be made to the Patent Administration Department under
the State Council , together with the relevant certifying
documents.
Rule 119 The document relating to a patent application or
patent right which is mailed to the Patent Administration
Department under the State Council shall be mailed by registered
letter, not by parcel. Except for any patent application filed for
the first time, any document which is submitted to and any
formality which is gone through at the Patent Administration
Department under the State Council , the filing number or the
patent number, the title of the invention-creation and the name of
the applicant or the patentee shall be indicated.
Only documents relating to the same application shall be
included in one letter.
Rule 120 Various kinds of application documents shall be typed
or printed. All the characters shall be in black ink, neat and
clear. They shall be free from any alterations. The drawings shall
be made in black ink with the aid of drafting instruments. The
lines shall be uniformly thick and well defined, and free from
alterations. The request, description, claims, drawings and
abstract shall be numbered separately in Arabic numerals and
arranged in numerical order.
The written language of the application shall run from left to
right. Only one side of each sheet shall be used.
Rule 121 The Patent Administration Department under the State
Council shall formulate Guidelines for Examination in accordance
with the Patent Law and these Implementing Regulations.
Rule 122 These Implementing Regulations shall enter into force
on July 1, 2001. The Implementing Regulations of the Patent Law of
the People's Republic of China approved by the State Council on
December 12, 1992 and promulgated by the Patent Office of the
People's Republic of China on December 21, 1992 shall be repealed
at the same time.
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