LAWS AND REGULATIONS

Decree of The State Council of the People's Republic of China

Number 769

 

The Decision of The State Council on Amending the Rules for the Implementation of the Patent Law of the People's Republic of China is hereby promulgated and shall take effect as of January 20, 2024.

Premier　　Li Qiang.

December 11, 2023

 

Decision of The State Council on amending the People's Republic of China

The Implementation Rules of the Patent Law

The State Council has decided to amend the Rules for the Implementation of the Patent Law of the People's Republic of China as follows:

1.Article 2 is amended as follows: "The various procedures provided for in the Patent Law and these Rules shall be handled in writing or in other forms prescribed by the patent administration department under The State Council." Data messages (hereinafter referred to as "electronic form") that are able to present the content in a tangible way, such as by electronic data interchange, and can be accessed at any time for reference shall be deemed to be in written form."

2.Article 4, paragraph 2, is changed to paragraph 3, in which "may be served on the party by post, direct delivery or other means" is amended to "may be served on the party by electronic form, post, direct delivery or other means".

One paragraph is added as the second paragraph: "Where various documents are submitted in electronic form to the patent administration department under The State Council, the date of entry into the specific electronic system designated by the patent administration Department under The State Council shall be the date of submission."

Paragraph 3 is changed to paragraph 4 and amended to read as follows: "For any document mailed by the patent administration department under The State Council, 15 days from the date of issuance of the document shall be presumed to be the date of receipt of the document by the party concerned. If the parties provide evidence to prove the date of actual receipt of the documents, the date of actual receipt shall prevail."

One paragraph is added as paragraph 7: "For all documents served in electronic form by the patent administration department under The State Council, the date on which they enter the electronic system recognized by the parties shall be the date of service."

3.In Article 5, "The first day of the various periods stipulated in the Patent Law and these Rules shall not be counted in the period" is amended to "the day on which the various periods stipulated in the patent Law and these Rules begin shall not be counted in the period, and shall be counted from the next day".

4.Paragraph 1 of Article 6 is amended as follows: "Where a party delays the time limit prescribed by the Patent Law or these Rules or the time limit designated by the patent administration department under The State Council due to irresistible causes, resulting in the loss of his rights, he may, within two months from the date of removal of the obstacle and within two years from the date of expiration of the time limit, request the patent administration Department under The State Council to recover his rights."

Paragraph 2 is amended as follows: "Except as provided for in the preceding paragraph, where a party delays the time limit prescribed in the Patent Law or these Rules or the time limit designated by the patent administration department under The State Council due to other legitimate reasons, resulting in the loss of his rights, he may, within two months from the date of receipt of the notification of the patent administration department under The State Council, request the patent Administration Department under The State Council to recover his rights; However, where the time limit of the request for reexamination is delayed, the applicant may, within two months from the expiration of the time limit of the request for reexamination, request the patent administration department under The State Council for restoration of the right."

Paragraph 4 is amended as follows: "Where a party requests an extension of the time limit designated by the patent administration department under The State Council, it shall, before the expiration of the time limit, submit a request for extension to the patent administration Department under The State Council, explain the reasons, and go through the relevant formalities."

5.Article 9 is amended as follows: "Where the patent administration department under The State Council, after receiving a request submitted in accordance with the provisions of Article 8 of these Rules, finds after examination that the invention or utility model may involve national security or major interests and requires confidentiality, it shall, within 2 months from the date of submission of the request, issue a notice of confidentiality examination to the applicant; In complicated cases, it can be extended by 2 months.

"Where the patent administration department under The State Council notifies it to conduct a confidentiality examination in accordance with the provisions of the preceding paragraph, it shall, within four months from the date of filing of the request, make a decision on the need for confidentiality and notify the applicant; If the situation is complicated, it can be extended by two months."

6.An article is added as Article 11: "The application for a patent shall follow the principle of good faith." Patent applications of all kinds shall be made on the basis of genuine invention-creation activities and shall not be falsified."

7.One article is added as Article 16: "Patent work shall implement the Party and the State's strategic deployment of intellectual property rights, improve the level of China's patent creation, application, protection, management and service, support comprehensive innovation, and promote the construction of an innovative country."

"The patent administration department under The State Council shall enhance its public service capacity for patent information, publish patent information in a complete, accurate and timely manner, provide patent basic data, and promote the open sharing and interconnection of patent-related data resources."

8.Article 15 is changed to Article 17, and the first and second paragraphs are merged and amended as the first paragraph: "Where an application for a patent is filed, an application document shall be submitted to the patent administration department under The State Council. The application documents shall comply with the prescribed requirements."

9.A new article is added as Article 18: "Where a patent agency is appointed to apply for a patent and handle other patent matters in China in accordance with the provisions of paragraph 1 of Article 18 of the Patent Law, the applicant or patentee may handle the following matters on their own:

"(1) Where an application claims priority, a copy of the patent application (hereinafter referred to as the earlier application) filed the first time;

"(2) payment of fees;

"(3) other matters prescribed by the patent administration department under The State Council."

10.Article 17 is changed to Article 20, and paragraph 4 is amended to read: "Where an application for a patent for invention contains one or more nucleotide or amino acid sequences, the specification shall include a sequence table that complies with the provisions of the patent administration department under The State Council."

11.Article 23 is changed to Article 26, and paragraph 2 is amended to read: "The abstract of the specification may contain the chemical formula that best illustrates the invention; Where an application for a patent has drawings attached to it, it shall also designate in the request a drawing attached to the specification that best illustrates the technical features of the invention or utility model as the drawing attached to the abstract. No commercial promotional language may be used in the abstract."

12.Article 27 is changed to Article 30 and amended to read: "The applicant shall submit relevant pictures or photos of the content that needs to be protected for each design product."

"Where an application for a partial design patent is made, a view of the overall product shall be submitted and the contents of the part to be protected shall be indicated by a combination of dotted and solid lines or other means."

"Where the applicant requests protection of color, it shall submit a color picture or photograph."

13、Article 28 is changed to Article 31, and a paragraph is added as paragraph 3: "Where an application is made for a partial design patent, the part requested for protection shall be clearly stated in the brief description, except where it has been indicated in the view of the overall product by combining dotted and solid lines."

The third paragraph is changed to the fourth paragraph and amended to read: "The brief description shall not use commercial propaganda terms, nor shall it describe the performance of the product."

14、Article 30 is changed to Article 33, and the second paragraph is amended to read: "The academic or technical conference mentioned in item (3) of Article 24 of the Patent Law means the academic or technical conference organized by the relevant competent department of The State Council or a national academic body, and the academic or technical conference convened by an international organization approved by the relevant competent department of The State Council."

Paragraph 3 is amended as follows: "Where the invention-creation for which a patent is applied falls under the circumstances listed in item (2) or (3) of Article 24 of the Patent Law, the applicant shall declare at the time of filing the patent application, and submit, within two months from the date of filing, a document certifying that the invention-creation has been exhibited or published, and the date of exhibition or publication."

In paragraph 4, "Item (3) of Article 24 of the Patent Law" is amended to "Item (1) or (4) of Article 24 of the Patent Law".

15、Article 32 is changed to Article 35 and amended to read: "An applicant may claim one or more priorities in a patent application; Where multiple priorities are claimed, the priority period of the application shall be calculated from the earliest priority date.

"Where the applicant for a patent for invention or utility model claims a national priority, and where the earlier application is an application for a patent for invention, it may file an application for a patent for invention or utility model on the same subject matter; Where an earlier application is for a utility model patent, an application for a utility model or invention patent may be filed on the same subject matter. Where the applicant for a patent for design claims a national priority, and where the earlier application is for a patent for invention or utility model, an application for a patent for design with the same subject matter may be filed with respect to the design shown in the appended drawings; Where an earlier application is an application for a design patent, an application for a design patent may be filed on the same subject matter. However, when the latter application is filed, it shall not be used as a basis for claiming national priority if the subject matter of the earlier application is one of the following:

"(1) Foreign or domestic priority has already been claimed;

"(2) where a patent right has been granted;

"(3) It is a sub-case application filed in accordance with the provisions.

"Where an applicant claims the right of national priority, the earlier application shall be deemed withdrawn from the date of filing of the later application, except where the applicant for a design patent claims the application for a patent for invention or utility model as the basis for the right of national priority."

16、A new article is added as Article 36: "Where an applicant, exceeding the time limit prescribed in Article 29 of the Patent Law, files with the patent administration department under The State Council an application for a patent for invention or utility model on the same subject matter, and has legitimate reasons, he may, within two months from the date of expiration of the time limit, request the restoration of the right of priority."

17、One article is added as Article 37: "Where an applicant for a patent for invention or utility model claims a right of priority, he or she may, within 16 months from the date of priority or within 4 months from the date of filing, request that the claim for priority be added to or corrected in the application."

18、One article is added as Article 45: "Where an application for a patent for invention or utility model lacks or incorrectly submits a claim, description, or part of a claim, description, but the applicant claims the right of priority on the date of filing, it may, within two months from the date of filing, or within the time limit designated by the patent administration department under The State Council, make up the filing by invoking the earlier application document." If the supplementary documents comply with the relevant provisions, the date of submission of the first submission of the documents shall be the date of application."

19、Article 44 is changed to Article 50, and the first paragraph is amended as follows: "Preliminary examination as mentioned in Articles 34 and 40 of the Patent Law means examining whether an application for a patent has the documents provided for in Articles 26 or 27 of the Patent Law and other necessary documents, and whether these documents conform to the prescribed format, and examining the following:

"(1) whether the application for a patent for invention clearly falls under the circumstances provided for in Articles 5 and 25 of the Patent Law, whether it does not comply with the provisions of Article 17, paragraph 1 of Article 18, paragraph 1 of Article 19 of the Patent Law, or paragraph 2 of Article 11, Article 19, or Article 29 of the Rules, Whether it clearly does not comply with the provisions of Article 2, paragraph 2, Article 26, paragraph 5, Article 31, paragraph 1, Article 33 of the Patent Law or Articles 20 to 24 of these Rules;

"(2) whether the application for a utility model patent clearly falls under the circumstances provided for in Articles 5 and 25 of the Patent Law, whether it does not comply with the provisions of Article 17, paragraph 1 of Article 18, paragraph 1 of Article 19 of the Patent Law, or Article 11, Article 19-22, and Article 24-26 of these Rules, Whether it is manifestly inconsistent with the provisions of Article 2, paragraph 3, Article 22, paragraph 3, Article 26, paragraph 4, paragraph 1, Article 31, Article 33, or Article 23, Article 49, paragraph 1 of these Rules, or whether it is unable to obtain a patent right in accordance with the provisions of Article 9 of the Patent Law;

"(3) whether the application for a patent for design clearly falls under the circumstances provided for in Article 5, Article 25, paragraph 1 (6) of the Patent Law, whether it does not comply with the provisions of Article 17, paragraph 1 of Article 18 of the Patent Law, or Articles 11, 19, 30 and 31 of these Rules, Whether it is manifestly inconsistent with the provisions of paragraph 4 of Article 2, paragraph 1 of Article 23, paragraph 2 of Article 23, paragraph 2 of Article 27, paragraph 2 of Article 31, paragraph 33, or paragraph 1 of Article 49 of these Rules, or whether the patent right cannot be obtained in accordance with the provisions of Article 9 of the Patent Law;

"(4) Whether the application documents comply with the provisions of Article 2 and paragraph 1 of Article 3 of these Rules."

20、Article 50 is changed to Article 56 and one paragraph is added as paragraph 2: "The applicant may make a request for delayed examination of an application for a patent."

21、Article 53 is changed to Article 59 and amended to read: "In accordance with the provisions of Article 38 of the Patent Law, the circumstances under which an application for an invention patent shall be rejected after substantive examination refer to:

"(1) The application falls under the circumstances provided for in Articles 5 or 25 of the Patent Law, or the patent right cannot be obtained in accordance with Article 9 of the Patent Law;

"(2) The application does not comply with the provisions of paragraph 2 of Article 2, paragraph 1 of Article 19, paragraph 22, paragraph 3 of Article 26, paragraph 4 of Article 26, paragraph 5 of Article 26, paragraph 1 of Article 31 of the Patent Law, or paragraph 2 of Article 11 and Article 23 of these Rules;

"(3) where the amendment of the application is not in conformity with Article 33 of the Patent Law, or the division application is not in conformity with the provisions of paragraph 1 of Article 49 of these Rules."

22、Article 56 is changed to Article 62, and the first paragraph is amended as follows: "After the announcement of the decision to grant the patent right for utility models or designs, the patentee, interested party or accused infringer as provided for in Article 66 of the Patent Law may request the patent administration department under The State Council to make a patent right evaluation report. The applicant may, when going through the formalities for the registration of the patent right, request the patent administration department under The State Council to make a patent right evaluation report."

The second paragraph is amended as follows: "Where a patent right evaluation report is requested, a request for the patent right evaluation report shall be submitted, indicating the patent application number or patent number. Each claim shall be limited to one patent application or patent right."

23、Article 57 is changed to Article 63 and amended as follows: "The patent administration department under The State Council shall make a patent right evaluation report within two months after receiving the request for a patent right evaluation report, but where the applicant requests a patent right evaluation report when going through the patent right registration formalities, the patent administration department under The State Council shall make a patent right evaluation report within two months from the date of the announcement of the grant of the patent right."

"Where multiple claimants request a patent right evaluation report for the same patent right for utility model or design, the patent administration department under The State Council shall make only one patent right evaluation report." Any entity or individual may consult or copy the patent right evaluation report."

24、Article 59, Article 61, paragraph 2, and Article 62 are deleted.

25、Article 63 is changed to Article 67 and amended as follows: "Where the patent administration department under The State Council, after re-examination, considers that the request for re-examination is not in conformity with the relevant provisions of the Patent Law and these Rules or the patent application is in other obvious violation of the relevant provisions of the Patent Law and these Rules, it shall notify the applicant for re-examination and require him to state his opinions within a specified time limit." If no reply is made at the expiration of the time limit, the request for review shall be deemed to have been withdrawn; Where the patent administration department under The State Council considers that the relevant provisions of the Patent Law and these Rules are still not in conformity with the stated opinions or amendments, it shall make a reexamination decision to reject the request for reexamination.

"Where, after reexamination, the patent administration department under The State Council considers that the original rejection decision is not in conformity with the relevant provisions of the Patent Law and these Rules, or considers that the amended patent application documents have eliminated the defects pointed out in the original rejection decision and the notice of reexamination, the original rejection decision shall be revoked and the examination procedure shall continue."

26、Replace Article 65 with Article 69 and amend paragraph 2 to read as follows: "The reasons for the request for invalidation mentioned in the preceding paragraph mean that the invention-creation granted for a patent does not comply with the provisions of Article 2, paragraph 1 of Article 19, Article 22, Article 23, paragraph 3 of Article 26, paragraph 4 of Article 26, paragraph 2 of Article 27, or paragraph 1 of Article 49 of these Rules. Or it falls under the circumstances provided for in Articles 5 or 25 of the Patent Law, or the patent right cannot be obtained in accordance with the provisions of Article 9 of the Patent Law."

27、Article 69 is changed to Article 73, and the first paragraph is amended as follows: "During the examination of the request for invalidation, the patentee of a patent for invention or utility model may modify his claims, provided that the scope of protection of the original patent may not be extended. Where the patent administration department under The State Council has made a decision to maintain the validity of the patent right or to declare part of the patent right invalid on the basis of the amended claims, it shall publish the amended claims."

28、A chapter is added as Chapter V, entitled "Compensation for the term of patent Rights", including articles 77 to 84.

29、A new article is added as Article 77: "Where a request for compensation for the duration of the patent right is made in accordance with the provisions of Article 42, paragraph 2, of the Patent Law, the patentee shall, within three months from the date of the announcement of the grant of the patent right, file a request with the patent administration department under The State Council."

30、One article is added as Article 78: "Where compensation for the duration of the patent right is granted in accordance with the provisions of Article 42, paragraph 2, of the Patent Law, the compensation period shall be calculated according to the actual number of days of unreasonable delay in the granting of the invention patent."

"The actual number of unreasonably delayed days in the granting of an invention patent referred to in the preceding paragraph refers to the number of days between the expiration of four years from the date of application for the invention patent and the expiration of three years from the date of request for substantive examination and the date of announcement of grant of the patent right, minus the number of days of reasonable delay and the number of days of unreasonable delay caused by the applicant."

"The following are reasonable delays:

"(1) where a patent right is granted after the amendment of the patent application documents in accordance with Article 66 of these Rules, the delay caused by the reexamination procedure;

"(2) delays caused by the circumstances provided for in Articles 103 and 104 of these Rules;

"(3) Delay caused by other reasonable circumstances.

"Where the same applicant applies for both a utility model patent and an invention patent for the same invention-creation on the same day, and obtains the patent right for invention in accordance with the provisions of paragraph 4 of Article 47 of these Rules, the term of the patent right for invention shall not apply to the provisions of Article 42, paragraph 2, of the Patent Law."

31、Add one article as Article 79: "Unreasonable delay caused by the applicant as provided for in Article 42, paragraph 2, of the Patent Law includes the following circumstances:

"(1) failing to respond to the notice issued by the patent administration department under The State Council within the specified time limit;

"(2) Application for delay of examination;

"(3) Delays caused by the circumstances provided for in Article 45 of these Rules;

"(4) Other unreasonable delays caused by the applicant."

32、One article is added as Article 80: "Patents for new drug related inventions mentioned in paragraph 3 of Article 42 of the Patent Law refer to patents for new drug products, patents for preparation methods and patents for medical use that meet the provisions."

33、A new article is added as Article 81: "Where, in accordance with the provisions of Article 42, paragraph 3, of the Patent Law, a request for compensation for the duration of the patent right for an invention related to a new drug shall meet the following requirements and be submitted to the patent administration department under The State Council within three months from the date the new drug is granted marketing authorization in China:

"(1) Where multiple patents exist for the new drug at the same time, the patentee may request compensation for the duration of the patent right for only one of these patents;

"(2) Where a patent covers more than one new drug at the same time, a claim for compensation for the duration of the patent right can only be made for one new drug in respect of that patent;

"(3) The patent is within the validity period and has not been compensated for the patent term of the invention related to the new drug."

34、One article is added as Article 82: "Where compensation for the duration of the patent right is granted in accordance with the provisions of paragraph 3 of Article 42 of the Patent Law, the compensation period shall be determined on the basis of the number of days between the date of application of the patent and the date on which the new drug is granted marketing authorization in China, minus 5 years, in compliance with the provisions of paragraph 3 of Article 42 of the Patent Law."

35、One article is added as Article 83: "During the compensation period of the patent right term, the scope of protection of the patent is limited to the new drug and its approved indication related technical scheme; Within the scope of protection, the patentee enjoys the same rights and obligations as before the patent term was compensated."

36、One article is added as Article 84: "Where the patent administration department under The State Council, after examining the request for compensation for the term of the patent right filed in accordance with the provisions of the second and third paragraphs of Article 42 of the Patent Law, finds that the conditions for compensation are met, it shall make a decision to grant the term of compensation and shall register and announce it; Where the conditions for compensation are not met, a decision shall be made not to grant compensation within a specified time limit, and the patentee making the request shall be notified."

37、The fifth chapter is changed to the sixth chapter, and the title of the chapter is amended as "Special License for Patent Exploitation".

38、One article is added as Article 85: "Where the patentee voluntarily declares that the patent is open to license, it shall be filed after the announcement of the grant of the patent right."

"The Open license statement shall state the following:

"(1) Patent number;

"(2) the name or designation of the patentee;

"(3) Methods and standards for payment of patent license royalties;

"(4) the term of the patent license;

"(5) Other matters requiring clarification.

"The content of the open license statement should be accurate and clear, and there should be no commercial propaganda language."

39、A new article is added as Article 86: "Where a patent right has any of the following circumstances, the patentee may not grant it an open license:

"(1) the patent right is within the period of validity of an exclusive or exclusive license;

"(2) falling under the circumstances of suspension provided for in Articles 103 and 104 of these Rules;

"(3) failing to pay the annual fee as prescribed;

"(4) where the patent right is pledged without the consent of the pledgee;

"(5) Other circumstances that impede the effective exploitation of the patent right."

40、One article is added as Article 87: "Where a license for exploitation of a patent is granted through an open license, the patentee or licensee shall file with the patent administration department under The State Council on the strength of a written document proving that the license has been granted."

41、A new article is added as Article 88: "The patentee shall not, by providing false materials, concealing facts or other means, make a declaration of open license or obtain a reduction or reduction of the annual fee of the patent during the implementation of the open license."

42、Article 76 is changed to Article 92, and the first paragraph is amended as follows: "The entity granted a patent right may agree with the inventor or designer or prescribe in its rules and regulations formulated according to law the form and amount of rewards and remuneration provided for in Article 15 of the Patent Law. The entity granted a patent right shall be encouraged to exercise property rights incentives, and the inventor or designer shall reasonably share the benefits of innovation by means of equity, options, dividends, etc."

43、Article 77 is changed to Article 93, and the first paragraph is amended as follows: "Where the entity granted the patent right has not agreed with the inventor or designer nor provided for the form and amount of the award provided for in Article 15 of the Patent Law in its rules and regulations formulated according to law, it shall pay the inventor or designer a bonus within three months from the date of the announcement of the grant of the patent right." The minimum bonus for an invention patent is not less than 4,000 yuan; The minimum bonus for a utility model patent or design patent is not less than 1,500 yuan."

44、Article 78 is changed to Article 94 and amended as follows: "Where the entity granted a patent right has not agreed with the inventor or creator nor has it stipulated in its rules and regulations formulated according to law the form and amount of remuneration provided for in Article 15 of the Patent Law, it shall pay the inventor or creator a reasonable remuneration in accordance with the provisions of the Law of the People's Republic of China on Promoting the Transformation of Scientific and Technological Achievements."

45、Article 79 is changed to Article 95 and amended to read: "The administrative departments for patent affairs of the people's governments of provinces, autonomous regions and municipalities directly under the Central Government, as well as the administrative departments for patent affairs of prefectural level cities, autonomous prefectures, leagues, regions and district people's governments directly under the Central government, which have a large amount of patent administration work and have practical handling capacity, may handle and mediate patent disputes."

46、Delete Article 80.

47、One article is added as Article 96: "In any of the following circumstances, it belongs to the patent infringement disputes that have a major impact in the country as mentioned in Article 70 of the Patent Law:

"(1) where major public interests are involved;

"(2) having a significant impact on the development of the industry;

"(3) major cases that cross provinces, autonomous regions and municipalities directly under the Central Government;

"(4) Other circumstances which the patent administration department under The State Council considers may have a significant impact.

"Where the patentee or an interested party requests the patent administration department under The State Council to handle a patent infringement dispute, and the relevant case does not fall within the scope of a patent infringement dispute with significant national impact, the patent administration department under The State Council may designate the patent administration department of a local people's government with jurisdiction to handle it."

48、One article is added as Article 100: "Where the applicant or the patentee violates the provisions of Articles 11 and 88 of these Rules, the department responsible for patent enforcement at or above the county level shall give him a warning and may impose a fine of not more than 100,000 yuan."

49、Article 84 is changed to Article 101, and paragraph 3 is amended to read: "Where a person sells a product that he does not know is a counterfeit patent, and can prove that the legitimate source of the product, the department responsible for patent law enforcement at or above the county level shall order him to stop the sale."

50、Article 86 is changed to Article 103, and paragraph 2 is amended to read: "Where a request is made to suspend the relevant procedures in accordance with the provisions of the preceding paragraph, a request shall be submitted to the patent administration department under The State Council, explaining the reasons, and a copy of the relevant acceptance document of the administrative department for patent affairs or the people's court indicating the application number or the patent number shall be attached. Where the patent administration department under The State Council considers that the reasons for suspension put forward by the parties are obviously untenable, it may not suspend the relevant procedures."

51、Article 89 is changed to Article 106 and one additional item is added as item 5: "(5) Declassification of national defense patents and secret patents".

One additional item is added as item 9: "(9) Compensation for the term of the patent right".

A new item is added as the tenth item: "(10) Open license for patent exploitation".

52、Article 90 is changed to Article 107, and item 5 is amended to read: "(5) A summary of the specification for a utility model patent, a picture or photograph of a design patent."

One additional item is added as item 9: "(9) Compensation for the term of the patent right".

A new item is added as item 13: "(XIII) Open licensing Matters for exploitation of patents".

Item 13 is changed to item 15 and amended as follows: "(15) Change of name, nationality and address of the patentee".

53、Article 93 is changed to Article 110 and "patent registration fees, announcement and printing fees" in subparagraph 3 of paragraph 1 are deleted.

The fifth item of the first paragraph is amended as follows: "(5) Fees for changes in bibliothecations, fees for patent evaluation reports, fees for requests for invalidation, and fees for certifying copies of patent documents."

The second paragraph is amended as follows: "The payment standards for the various fees listed in the preceding paragraph shall be prescribed by the development and reform department under The State Council, the financial department and the patent administration department under The State Council in accordance with the division of duties." The financial department and the development and reform department under The State Council may, in conjunction with the patent administration department under The State Council, adjust the types and standards of fees payable for applying for a patent and going through other formalities according to the actual situation."

54、Article 94 is changed to Article 111, and the first paragraph is amended to read: "All fees provided for in the Patent Law and these Rules shall be paid in strict accordance with the provisions."

Delete the second paragraph.

55、Chapter 10 is changed to Chapter 11, and the title of the chapter is amended as "Special Provisions on International Applications for Inventions and Utility Models".

56、Article 104 is changed to Article 121, and paragraph 1 (5) is amended as follows: "(5) Where the international application is filed in a foreign language, the Chinese translation of the abstract shall be submitted, and if there are attached drawings and drawings attached to the abstract, a copy of the attached drawings shall be submitted and the attached drawings shall be designated, and if there are text in the attached drawings, the corresponding Chinese text shall be replaced."

The sixth paragraph of paragraph 1 is amended as follows: "(6) Where at the international stage the International Bureau has gone through the formalities for the change of the applicant, it shall, if necessary, provide proof that the changed applicant enjoys the right to apply."

57、Delete Article 121.

58、A new article is added as Article 128: "If the date of filing of an international application is within 2 months after the expiration of the priority period, the receiving Office at the international stage has approved the restoration of the priority, the request for restoration of the priority shall be deemed to have been filed in accordance with Article 36 of these Rules; Where, during the international stage, the applicant does not request the restoration of the right of priority, or has made a request for the restoration of the right of priority but the receiving office has not approved it, the applicant may, within two months from the date of entry, request the patent administration department under The State Council to restore the right of priority."

59、One chapter is added as Chapter XII, entitled "Special Provisions relating to International Applications for Designs", including articles 136 to 144.

60、A new article is added as Article 136: "The Patent Administration Department under The State Council shall, in accordance with the provisions of the second and third paragraphs of Article 19 of the Patent Law, handle applications for the international registration of designs filed in accordance with the Hague Agreement on the International Registration of Industrial Designs (1999) (hereinafter referred to as the Hague Agreement)."

"The provisions of this Chapter shall apply to the conditions and procedures for the processing by the patent Administration Department under The State Council of an application for international registration of a design filed in accordance with the Hague Agreement and designated in China (referred to as an international design application); Where there are no provisions in this Chapter, the relevant provisions of the Patent Law and other chapters of these Detailed Rules shall apply."

61、A new article is added as Article 137: "Where an international application for a design has been established on an international registration date and designated in China in accordance with the Hague Agreement, it shall be deemed to be an application for a design patent filed with the patent administration Department under The State Council, and the international registration date shall be deemed to be the filing date referred to in Article 28 of the Patent Law."

62、A new article is added as Article 138: "After the International Bureau has published an international application for a design, the patent administration department under The State Council shall examine the international application for a design and notify the International Bureau of the result of the examination."

63、A new article is added as Article 139: "Where an international application for a design published by the International Bureau includes one or more priorities, a written declaration shall be deemed to have been made in accordance with Article 30 of the Patent Law."

"Where the applicant for an international application for design claims the right of priority, it shall submit a copy of the earlier application documents within three months from the date of publication of the international application for design."

64、A new article is added as Article 140: "Where the design involved in an international application for design falls under the circumstances listed in item (2) or (3) of Article 24 of the Patent Law, a declaration shall be made when the international application for design is filed, and the relevant supporting documents provided for in paragraph 3 of Article 33 of these Rules shall be submitted within two months from the date of publication of the international application for design."

65、A new article is added as Article 141: "Where an international application for design includes two or more designs, the applicant may, within two months from the date of publication of the international application for design, file a divisional application with the patent administration Department under The State Council and pay a fee."

66、A new article is added as Article 142: "Where the international application for a design published by the International Bureau includes a description containing the main points of the design, a summary description shall be deemed to have been submitted in accordance with article 31 of these Rules."

67、An additional article is added as Article 143: "Where, after examination by the patent administration department under The State Council, there is no reason for rejection of an international application for design, the patent administration Department under The State Council shall make a decision granting protection and notify the International Bureau."

"After the patent administration department under The State Council has made a decision to grant protection, it shall publish it, and the patent right for design shall become effective as of the date of the announcement."

68、A new article is added as Article 144: "Where the formalities for the alteration of rights have been completed at the International Bureau, the applicant shall provide the relevant supporting materials to the patent administration department under The State Council."

69、Some provisions are amended as follows:

(1) Change Article 12 to Article 13, and amend "technical data" in paragraph 2 to "technical information and data".

(2) Article 16 is changed to Article 19, the "organization code or resident ID card number" in the second item is changed to "unified social credit code or ID card number", and the "patent agent's name and practice license number" in the fourth item is changed to "patent agent's name and patent agent's qualification certificate number".

(3) Replace Article 26 with Article 29 by adding "and genetic information derived from the use of such materials" after "materials of actual or potential value" in paragraph 1.

(4) Article 37 is changed to Article 42, and item 4 is amended as follows: "(4) Those who participated in the examination of the original application during the review or invalidation procedures".

(5) Article 39 is changed to Article 44, and subparagraph 3 is amended as follows: "(3) The format of the application documents does not meet the requirements".

(6) Article 43 is changed to Article 49, and paragraph 3 is amended as follows: "The application number and date of application of the original application shall be clearly stated in the request for a division application."

(7) The "Patent Reexamination Board" in Chapter 4 is amended as "the patent administration department under The State Council".

(8) Article 82 is changed to Article 98, and the "Patent Reexamination Board" in paragraph 1 is amended to read "the patent administration department under The State Council".

(9) Article 83 is changed to Article 99, and the "administrative department for patent work" in paragraph 2 is amended to "the department responsible for patent law enforcement at or above the county level".

(10) Article 97 is changed to Article 114 and the words "patent registration fees, announcement and printing fees" are deleted.

(11) Article 100 is changed to Article 117, in which "reduction or suspension of payment" is amended to "reduction of payment", and "price administrative department of The State Council" is amended to "development and reform department of The State Council".

(12) Article 114 is changed to Article 132 by adding "or the date of publication by the patent administration department under The State Council" after "international publication day" in paragraph 2.

(13) Article 119 is changed to Article 146, the "agent" in paragraph 2 is amended to "patent agent", and the "accessory" is amended to "shall be submitted when necessary".

In addition, in accordance with the Decision of the Standing Committee of the National People's Congress on Amending the Patent Law of the People's Republic of China adopted on October 17, 2020, the serial number of the provisions of the Patent Law of the People's Republic of China cited in the Implementation Rules of the Patent Law of the People's Republic of China has been modified accordingly, and the order and text of some provisions have been adjusted and modified.

This decision shall come into force on January 20, 2024.

The Rules for the Implementation of the Patent Law of the People's Republic of China shall be revised accordingly in accordance with this Decision and the serial number of the provisions shall be adjusted accordingly and repromulgated.

Implementation Rules of the Patent Law of the People's Republic of China

(Order No. 306 of The State Council of the People's Republic of China on June 15, 2001 promulgated the first amendment in accordance with the Decision of The State Council on Amending the Implementing Rules of the Patent Law of the People's Republic of China on December 28, 2002 and the second amendment in accordance with the Decision of The State Council on Amending the Implementing Rules of the Patent Law of the People's Republic of China on January 9, 2010 Amended the third time in accordance with the Decision of The State Council on Amending the Implementing Rules of the Patent Law of the People's Republic of China on December 11, 2023)

 

Chapter I General provisions

 

Article 1　These Rules are formulated in accordance with the Patent Law of the People's Republic of China (hereinafter referred to as the Patent Law).

Article 2　All procedures provided for in the Patent Law and these Rules shall be handled in writing or in other forms prescribed by the patent administration department under The State Council. Data messages (hereinafter referred to as electronic form) that are able to represent the content in a tangible way, such as by electronic data interchange, and can be accessed at any time for reference shall be deemed to be in written form.

Article 3　All documents submitted in accordance with the Patent Law and these Rules shall be in Chinese; Where there are uniformly prescribed scientific and technological terms by the State, standard words shall be used; Where there is no unified Chinese translation of the names of foreigners, place names and scientific and technological terms, the original shall be indicated.

Where any certificate or certification submitted in accordance with the provisions of the Patent Law and these Rules is in a foreign language, the patent administration department under The State Council may, when it deems it necessary, require the party concerned to attach a Chinese translation within a specified time limit; If it has not been attached at the expiration of the time limit, it shall be deemed that the certificate and supporting documents have not been submitted.

Article 4　For all documents mailed to the patent administration Department under The State Council, the date of delivery shall be the postmark date of mailing; Where the date of the postmark is not clear, the date of receipt by the administrative department for patent under The State Council shall be the date of filing, unless the party concerned is able to provide proof.

Where various documents are submitted in electronic form to the patent administration department under The State Council, the date of entry into the specific electronic system designated by the patent administration Department under The State Council shall be the date of submission.

The documents of the patent administration department under The State Council may be served on the parties by electronic form, post, direct delivery or any other means. Where a party entrusts a patent agency, the documents shall be sent to the patent agency; If no patent agency is appointed, the document shall be sent to the contact person specified in the request.

Any document mailed by the patent administration department under The State Council shall be presumed to be received by the party concerned after the expiration of 15 days from the date of issuance of the document. If the parties provide evidence to prove the date of actual receipt of the document, the actual date of receipt shall prevail.

For documents that should be delivered directly according to the provisions of the patent administration department under The State Council, the date of delivery shall be the date of service.

If the address of the document is not clear and cannot be mailed, it may be served on the party by way of public announcement. The document shall be deemed to have been served one month after the date of the announcement.

For any document served by the patent administration department under The State Council in electronic form, the date on which it enters the electronic system recognized by the parties shall be the day of service.

Article 5　The date on which any time limit prescribed in the Patent Law and these Rules begins shall not be counted as the time limit, and shall be counted from the next day. Where a time limit is calculated in years or months, the corresponding day of the last month shall be the day on which the time limit expires; 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 a statutory holiday, the time limit shall expire on the first working day after the holiday.

Article 6　Where a party delays the time limit prescribed by the Patent Law or these Rules or the time limit designated by the patent administration department under The State Council due to irresistible causes, resulting in the loss of his rights, he may, within two months from the date of removal of the obstacle and within two years from the date of expiration of the time limit, request the patent administration Department under The State Council to recover his rights.

In addition to the circumstances provided for in the preceding paragraph, where a party delays the time limit prescribed in the Patent Law or these Rules or the time limit designated by the patent administration department under The State Council due to other legitimate reasons, resulting in the loss of his rights, he may, within two months from the date of receipt of the notification of the patent administration department under The State Council, request the patent Administration Department under The State Council to recover his rights; However, where the time limit of the request for reexamination is delayed, the applicant may, within two months from the expiration of the time limit of the request for reexamination, request the patent administration department under The State Council for restoration of the right.

Where a party requests the restoration of his rights in accordance with the provisions of the first or second paragraph of this Article, he shall submit a request for the restoration of his rights, state the reasons, attach relevant supporting documents if necessary, and go through the corresponding procedures that should be completed before the loss of his rights; A person who requests restoration of his or her rights in accordance with the provisions of paragraph 2 of this article shall also pay a fee for the restoration of his or her rights.

Where a party requests the extension of the time limit designated by the patent administration department under The State Council, it shall, before the expiration of the time limit, submit to the patent administration Department under The State Council a request for the extension, explain the reasons, and go through the relevant formalities.

The provisions of paragraphs 1 and 2 of this Article shall not apply to the time limit provided for in Articles 24, 29, 42 and 74 of the Patent Law.

Article 7　Where an application for a patent involves the interests of national defense and requires confidentiality, it shall be accepted and examined by the national defense Patent Office; Where a patent application accepted by the patent administration department under The State Council involves national defense interests and requires confidentiality, it shall be promptly transferred to the national defense Patent Office for examination. Where no reason for rejection is found after examination by the national defense patent institution, the patent administration department under The State Council shall make a decision to grant the patent right for national defense.

Where the patent administration department under The State Council considers that an application for a patent for invention or utility model accepted by it involves national security or major interests other than the interests of national defense and requires confidentiality, it shall promptly make a decision to treat the application in accordance with the confidentiality of the patent application and notify the applicant. The special procedures for examination and reexamination of an application for a secret patent and for invalidation of a secret patent right shall be prescribed by the patent administration department under The State Council.

Article 8　"An invention or utility model completed in China" as mentioned in Article 19 of the Patent Law means an invention or utility model whose substantial content of the technical scheme is completed within the territory of China.

Any entity or individual that applies to a foreign country for a patent for an invention or utility model completed in China shall request the patent administration department under The State Council to conduct confidential examination in one of the following ways:

(1) Where an application for a patent is filed directly with a foreign country or an international application for a patent is filed with a relevant foreign institution, a request shall be filed in advance with the patent administration department under The State Council and a detailed description of the technical plan thereof;

(2) Where, after filing an application for a patent with the patent administration department under The State Council, he intends to file an application for a patent in a foreign country or an international application for a patent with the relevant foreign institution, he shall file a request with the patent administration department under The State Council before filing the application for a patent in a foreign country or the international application with the relevant foreign institution.

Where an international patent application is submitted to the patent administration department under The State Council, it shall be deemed that a request for confidentiality examination has been made at the same time.

Article 9　Where, after receiving a request submitted in accordance with the provisions of Article 8 of these Rules, the patent administration department under The State Council considers, after examination, that the invention or utility model may involve national security or major interests and requires confidentiality, it shall, within two months from the date of filing of the request, issue a notice of confidentiality examination to the applicant; In complicated cases, it can be extended by 2 months.

Where the patent administration department under The State Council notifies it to conduct a confidentiality examination in accordance with the provisions of the preceding paragraph, it shall, within 4 months from the date of filing of the request, make a decision on the need for confidentiality and notify the applicant; In complicated cases, it can be extended by 2 months.

Article 10 The invention-creation in violation of the law as mentioned in Article 5 of the Patent Law does not include the invention-creation whose implementation is prohibited only by law.

Article 11 The principle of good faith shall be followed in applying for a patent. Patent applications of any kind shall be filed on the basis of genuine invention-creation activities and shall not be falsified.

Article 12 With the exception of the circumstances provided for in Articles 28 and 42 of the Patent Law, the date of application referred to in the Patent Law, where there is a priority, refers to the priority date.

Unless otherwise provided for in these Detailed Rules, the date of filing refers to the date of filing provided for in Article 28 of the Patent Law.

Article 13 The term "service invention-creation" as mentioned in Article 6 of the Patent Law means:

(1) Inventions and creations made in the course of their own work;

(2) Inventions and creations made in the performance of tasks other than those assigned by the unit;

(3) Inventions made within one year after retirement or transfer from the original unit, or after termination of labor or personnel relations, related to their own work undertaken in the original unit or tasks assigned by the original unit.

The term "the unit" as mentioned in Article 6 of the Patent Law includes the temporary working unit; The term "material and technical conditions of an entity" as mentioned in Article 6 of the Patent Law refers to its capital, equipment, parts and components, raw materials, or technical information and materials not disclosed to the public.

Article 14 An inventor or designer as mentioned in the Patent Law means a person who has made a creative contribution to the substantive features of the invention-creation. In the process of completing an invention-creation, a person who is only responsible for organizing work, facilitating the use of material and technical conditions, or engaging in other auxiliary work is not an inventor or designer.

Article 15 Where, in addition to the assignment of the patent right in accordance with the provisions of Article 10 of the Patent Law, the patent right is transferred due to any other cause, the parties shall, by presentation of relevant supporting documents or legal documents, go through the formalities for the transfer of the patent right with the patent administration department under The State Council.

A patent licensing contract concluded between the patentee and another person shall be filed with the patent administration department under The State Council within three months from the effective date of the contract.

Where the patent right is pledged, the pledgor and the pledgee shall jointly register the pledge with the patent administration department under The State Council.

Article 16 Patent work shall implement the Party's and the State's strategic deployment of intellectual property rights, improve the level of China's patent creation, application, protection, management and service, support all-round innovation, and promote the construction of an innovation-oriented country.

The patent administration department under The State Council shall enhance its public service capacity for patent information, publish patent information in a complete, accurate and timely manner, provide patent basic data, and promote the open sharing and interconnection of patent-related data resources.

Chapter II Application for Patent

Article 17 An application for a patent shall be submitted to the patent administration Department under The State Council. The application documents shall comply with the prescribed requirements.

Where an applicant entrusts a patent agency to apply for a patent or to handle any other patent affairs with the patent administration department under The State Council, it shall simultaneously submit a power of attorney indicating the authority of entrustment.

Where there are more than two applicants and no patent agency is appointed, unless otherwise stated in the request, the first applicant specified in the request shall be the representative.

Article 18 Where a patent agency is appointed to apply for a patent and handle other patent matters in China in accordance with the provisions of Article 18, paragraph 1, of the Patent Law, the applicant or patentee may handle the following matters on their own:

(1) Where an application for priority is claimed, a copy of the patent application (hereinafter referred to as the earlier application) filed the first time;

(2) payment of fees;

(3) Other matters prescribed by the patent administration department under The State Council.

Article 19 A request for an application for a patent for invention, utility model or design shall state the following:

(1) The name of the invention, utility model or design;

(2) If the applicant is a Chinese entity or individual, its name, address, postal code, unified social credit code or ID card number; If the applicant is a foreigner, foreign enterprise or other foreign organization, his or her name, nationality or country or region of registration;

(3)The name of the inventor or designer;

(4)Where the applicant entrusts a patent agency, the name and code of the entrusted agency and the name, qualification certificate number and contact telephone number of the patent agent designated by the agency;

(5) Where the right of priority is claimed, the filing date, application number of the prior application and the name of the original accepting institution;

(6) The signature or seal of the applicant or the patent agency;

(7) List of application documents;

(8) List of additional documents;

(9) Other relevant matters that need to be specified.

Article 20 The description of an application for a patent for invention or utility model shall indicate the name of the invention or utility model, which shall be consistent with the name in the request. The specification shall include the following:

(1) Technical field: indicating the technical field to which the technical solution requested for protection belongs;

(2) Background technology: indicating the background technology useful for the understanding, retrieval and examination of the invention or utility model; Where possible, and cite documents reflecting these background techniques;

(3) Contents of the invention: indicating the technical problems to be solved by the invention or utility model and the technical solutions adopted to solve the technical problems, and indicating the beneficial effects of the invention or utility model against the prior art;

(4) Description of drawings: If there are drawings attached to the manual, make a brief description of the drawings;

(5) The specific mode of implementation: specify in detail the preferred mode of realization of the invention or utility model considered by the applicant; If necessary, give examples; If there are attached drawings, refer to the attached drawings.

The applicant for a patent for invention or utility model shall write the description in the manner and order provided for in the preceding paragraph, and indicate the title before each part of the description, unless the nature of the invention or utility model can be written in another manner or order to save space in the description and enable others to accurately understand the invention or utility model.

The description of the invention or utility model shall be standardized and clear, and shall not use "if the rights require..." Stated..." Quotations of the same category shall not use commercial propaganda terms.

Where the application for a patent for invention contains one or more nucleotide or amino acid sequences, the specification shall include a sequence table conforming to the provisions of the patent administration department under The State Council.

The description of the application for a utility model patent shall contain drawings indicating the shape, structure or combination of the product for which protection is sought.

Article 21 Several drawings attached to an invention or utility model shall be in accordance with "Figure 1, Figure 2,..." The sequence is numbered.

Drawings marks not mentioned in the text part of the specification of the invention or utility model may not appear in the drawings, and drawings marks not mentioned in the text part of the specification may not be mentioned. The drawing marks indicating the same component in the application documents shall be consistent.

The drawings should contain no other comments than the necessary words.

Article 22 The claims shall record the technical characteristics of the invention or utility model.

If the claims contain several claims, they shall be numbered in the order of Arabic numerals.

The technical terms used in the claims shall be consistent with the technical terms used in the specification, and may have chemical or mathematical formulas, but shall not have illustrations. Except where absolutely necessary, "as described in the instructions... As described in part "or" as shown in... The expression "as shown".

The technical features in the claims may refer to the corresponding marks in the drawings attached to the specification, which shall be placed after the corresponding technical features and placed in brackets to facilitate the understanding of the claims. The drawing marks shall not be construed as a limitation of the claims.

Article 23 A claim shall have independent claims and may also have subordinate claims.

Independent claims shall reflect the technical scheme of the invention or utility model as a whole and record the necessary technical features to solve the technical problem.

Subordinate claims shall be further qualified by additional technical features to the referenced claims.

Article 24 An independent claim for an invention or utility model shall include a preamble part and a characteristic part, and shall be prepared in accordance with the following provisions:

(1) The preamble part: indicating the subject name of the technical solution of the invention or utility model for which protection is sought and the necessary technical features shared by the subject matter of the invention or utility model with the nearest prior art;

(2) Features: Use "characterized by..." Or similar terms indicating the technical features of the invention or utility model that distinguish it from the nearest prior art. These features, together with the features stated in the preceding part, define the scope of protection claimed by the invention or utility model.

Where the nature of the invention or utility model is not suitable for expression in the preceding manner, the independent claim may be written in other ways.

An invention or utility model shall have only one independent claim, which precedes the subordinate claims of the same invention or utility model.

Article 25 A subordinate claim for an invention or utility model shall include a part of citation and a part of qualification, and shall be prepared in accordance with the following provisions:

(1) The quoting part: indicating the number of the quoted claim and the name of its subject;

(2) The limited part: indicating the additional technical features of the invention or utility model.

A subordinate claim may refer only to the preceding claim. A multiple dependent claim that refers to more than two claims may only refer to the preceding claim in an alternative manner and may not be used as the basis for another multiple dependent claim.

Article 26 The abstract of the description shall state a summary of the contents disclosed in the application for a patent for invention or utility model, that is, the name of the invention or utility model and the technical field to which it belongs, and clearly reflect the technical problem to be solved, the main points of the technical solution to the problem and the main uses.

A summary of the specification may contain the chemical formula that best illustrates the invention; Where an application for a patent has drawings attached to it, it shall also designate in the request a drawing attached to the specification that best illustrates the technical features of the invention or utility model as the drawing attached to the abstract. Commercial promotional language may not be used in the abstract.

Article 27 Where the invention for which a patent is applied relates to a new biological material, the biological material is not available to the public, and the description of the biological material is not sufficient to enable technicians in the field to implement the invention, in addition to complying with the relevant provisions of the Patent Law and these Rules, the applicant shall also go through the following procedures:

(1) Before the filing date or at the latest on the filing date (if there is a priority, the priority date), submit the sample of the biological material to a depositary unit recognized by the patent administration department under The State Council for storage, and submit the certificate of preservation and proof of survival issued by the depositary unit at the time of filing or at the latest within four months from the filing date; If the certificate is not submitted at the expiration of the time limit, the sample shall be deemed to have not been submitted for storage;

(b) in the application documents, provide information about the characteristics of the biological material;

(3) A patent application involving the storage of biological material samples shall indicate in the request and description the classification and naming of the biological material (indicating the Latin name), the name, address, date of storage and storage number of the unit storing the biological material samples; If it is not stated in the application, it shall be corrected within 4 months from the date of application; If no correction is made at the expiration of the time limit, it shall be deemed not to have been submitted for safekeeping.

Article 28 Where an applicant for a patent for invention reserves a sample of a biological material in accordance with the provisions of Article 27 of these Rules, and after the publication of the application for a patent for invention, any entity or individual that needs to use the biological material involved in the application for a patent for experimental purposes shall make a request to the patent administration department under The State Council and state the following particulars:

(1) The name and address of the person making the request;

(2) A guarantee not to provide the biomaterial to any other person;

(3) A guarantee that it will be used only for experimental purposes before the patent right is granted.

Article 29 The term "genetic resources" as used in the Patent Law refers to materials of actual or potential value derived from human bodies, animals, plants or microorganisms, which contain genetic functional units, and genetic information derived from the use of such materials; The term "invention-creation accomplished by relying on genetic resources" as mentioned in the Patent Law refers to the invention-creation accomplished by using the genetic function of genetic resources.

Where an application for a patent is filed for an invention-creation that relies on genetic resources, the applicant shall give an explanation in the application and fill in the form drawn up by the patent administration department under The State Council.

Article 30 The applicant shall submit relevant pictures or photos of the contents that need to be protected for each design product.

Where an application for a partial design patent is filed, a view of the whole product shall be submitted and the contents of the part to be protected shall be indicated by a combination of dotted and solid lines or other means.

Where the applicant requests protection of color, it shall submit color pictures or photographs.

Article 31 A brief description of a design shall indicate the name and purpose of the product of the design, the main points of the design, and designate a picture or photograph that best illustrates the main points of the design. Omit the view or request to protect the color, should be stated in the brief description.

Where an application for a design patent is filed for a number of similar designs of the same product, one of them shall be designated as the basic design in the brief description.

Where an application for a partial design patent is made, the part requested for protection shall be indicated in the brief description, except for the part indicated in the view of the overall product by combining dotted and solid lines.

The brief description shall not use commercial advertising terms, nor shall it describe the performance of the product.

Article 32 The patent administration department under The State Council may, when it deems it necessary, require the applicant for a patent for design to submit a sample or model of the product using the design. The volume of the sample or model shall not exceed 30 cm ×30 cm ×30 cm, and the weight shall not exceed 15 kg. Perishable, fragile or dangerous goods may not be submitted as samples or models.

Article 33 The international exhibition recognized by the Chinese government as mentioned in subparagraph (2) of Article 24 of the Patent Law means the international exhibition registered with or recognized by the International Exhibition Bureau as provided for in the Convention on International Exhibitions.

The academic or technical conference referred to in item (3) of Article 24 of the Patent Law means the academic or technical conference organized by the relevant competent department of The State Council or a national academic body, as well as the academic or technical conference convened by an international organization approved by the relevant competent department of The State Council.

Where the invention-creation for which a patent is applied falls under the circumstances listed in item (2) or (3) of Article 24 of the Patent Law, the applicant shall make a declaration at the time of filing the patent application, and submit, within two months from the date of filing, documents certifying that the invention-creation has been exhibited or published and the date of exhibition or publication.

Where the invention-creation for which a patent is applied falls under the circumstances listed in item (1) or (4) of Article 24 of the Patent Law, the patent administration department under The State Council may, when it deems it necessary, require the applicant to submit supporting documents within a specified time limit.

Where the applicant fails to make a declaration and submit supporting documents in accordance with the provisions of paragraph 3 of this Article, or fails to submit supporting documents within the specified time limit in accordance with the provisions of paragraph 4 of this Article, the provisions of Article 24 of the Patent Law shall not apply to his application.

Article 34 Where an applicant claims a foreign right of priority in accordance with the provisions of Article 30 of the Patent Law, the copy of the earlier application submitted by the applicant shall be certified by the original accepting office. In accordance with the agreement signed between the patent administration department under The State Council and the accepting institution, where the patent administration department under The State Council obtains a copy of the earlier application document through electronic exchange or other means, the applicant shall be deemed to have submitted a copy of the earlier application document certified by the accepting institution. Where the applicant claims national priority and specifies the filing date and application number of the earlier application in the request, it shall be deemed to have submitted a copy of the earlier application document.

Where the right of priority is claimed, but one or two items of the filing date, the application number or the name of the original accepting institution are omitted or incorrectly included in the request, the patent administration department under The State Council shall notify the applicant to make corrections within the specified time limit; If no rectification is made at the expiration of the time limit, the right of priority shall be deemed not to be claimed.

Where the name of the applicant claiming the right of priority is inconsistent with the name or name of the applicant recorded in the copy of the earlier application documents, the applicant shall submit the certification materials for the assignment of the right of priority. If the certification materials are not submitted, the applicant shall be deemed to have not claimed the right of priority.

Where the applicant for a patent for design claims a foreign right of priority, where the earlier application does not include a brief description of the design, and the brief description submitted by the applicant in accordance with Article 31 of these Rules does not exceed the scope indicated by the pictures or photographs of the earlier application documents, the right of priority shall not be affected.

Article 35 In an application for a patent, an applicant may claim one or more priorities; Where multiple priorities are claimed, the priority period of the application shall be calculated from the earliest priority date.

Where the applicant for a patent for invention or utility model claims a national priority, and where the earlier application is an application for a patent for invention, it may file an application for a patent for invention or utility model on the same subject matter; Where an earlier application is for a utility model patent, an application for a utility model or invention patent may be filed on the same subject matter. Where the applicant for a patent for design claims a national priority, and where the earlier application is for a patent for invention or utility model, an application for a patent for design with the same subject matter may be filed with respect to the design shown in the appended drawings; Where an earlier application is an application for a design patent, an application for a design patent may be filed on the same subject matter. However, when the latter application is filed, it shall not be used as a basis for claiming national priority if the subject matter of the earlier application is one of the following:

(1) Foreign or domestic priority has already been claimed;

(2) Where a patent right has been granted;

(3) It is a sub-case application filed in accordance with the provisions.

Where the applicant claims the right of national priority, the earlier application shall be deemed withdrawn from the date of filing of the later application, except where the applicant for a design patent claims the application for a patent for invention or utility model as the basis for the right of national priority.

Article 36 Where an applicant, exceeding the time limit prescribed in Article 29 of the Patent Law, files with the patent administration department under The State Council an application for a patent for invention or utility model on the same subject matter, with justifiable reasons, it may, within 2 months from the date of expiration of the time limit, request the restoration of the right of priority.

Article 37 Where an applicant for a patent for invention or utility model claims a right of priority, he or she may, within 16 months from the date of priority or within 4 months from the date of filing, request that the claim for priority be added to or corrected in the application.

Article 38 Where an applicant has no habitual residence or business establishment in China applies for a patent or claims foreign priority, the patent administration department under The State Council may, when it deems it necessary, require it to provide the following documents:

(1) If the applicant is an individual, his or her nationality certificate;

(2) If the applicant is an enterprise or other organization, the certification documents of the country or region where it is registered;

(3) The country to which the applicant belongs recognizes that Chinese entities and individuals may enjoy patent rights, priority rights and other patent-related rights in that country under the same conditions as nationals of that country.

Article 39 In accordance with the provisions of Article 31, paragraph 1, of the Patent Law, two or more inventions or utility models that may be submitted as a single patent application and belong to a general invention idea shall be technically interrelated and contain one or more identical or corresponding specific technical features, where specific technical features refer to each invention or utility model as a whole. Technical characteristics that contribute to prior art.

Article 40 Where, in accordance with the provisions of Article 31, paragraph 2, of the Patent Law, multiple similar designs of the same product are filed as one application, the other designs of the product shall be similar to the basic designs specified in the brief description. The number of similar designs in one design patent application shall not exceed 10.

The term "two or more designs of products of the same category and sold or used in sets" mentioned in paragraph 2 of Article 31 of the Patent Law means that the products belong to the same category in the classification table, are traditionally sold or used at the same time, and the designs of the products have the same design concept.

Where two or more designs are submitted as one application, the sequential number of each design shall be marked before the name of each picture or photograph of each design product.

Article 41. Where an applicant withdraws his application for a patent, he shall file a declaration with the patent administration Department under The State Council indicating the name of the invention-creation, the application number and the date of filing.

Where the declaration of withdrawal of the patent application is made after the patent administration department under The State Council has made the printing preparations for publication of the patent application documents, the application documents shall still be published; However, the declaration of withdrawal of the patent application shall be published in the patent Gazette published at a later date.

Chapter III Examination and approval of patent applications

Article 42 In the procedures for preliminary examination, substantive examination, review and invalidation, the persons conducting the examination and hearing shall withdraw themselves under any of the following circumstances, and the parties or other interested parties may request them to withdraw:

(1) he is a near relative of the party concerned or his agent;

(2) having an interest in the patent application or patent right;

(3) having other relations with a party or his agent, which may affect the impartial examination and hearing;

(4) having participated in the examination of the original application during the review or invalidation procedure.

Article 43 The patent administration department under The State Council, upon receipt of the request for an application for a patent for invention or utility model, a description (which must include drawings attached) and claims, or the request for an application for a patent for design, drawings or photographs of the design and a brief description thereof, shall specify the date of filing, grant the application number, and notify the applicant.

Article 44 Where a patent application document contains any of the following circumstances, the patent administration department under The State Council shall not accept it and shall notify the applicant:

(1) Where the application for a patent for invention or utility model lacks a request, description (without drawings attached to a utility model) or a claim, or where the application for a patent for design lacks a request, pictures or photographs, or a brief description;

(2) Where the Chinese language is not used;

(3) The format of the application documents does not conform to the provisions;

(4) The letter of request lacks the name or name of the applicant, or lacks an address;

(5) Manifestly inconsistent with the provisions of Article 17 or paragraph 1 of Article 18 of the Patent Law;

(6) Where the category of the patent application (invention, utility model or design) is unclear or difficult to determine.

Article 45 Where an application for a patent for invention or utility model lacks or incorrectly submits the claim or description, or part of the claim or description, but the applicant claims the right of priority on the date of filing, it may make up the filing by invoking the earlier application within two months from the date of filing or within the time limit specified by the patent administration department under The State Council. If the supplementary documents comply with the relevant provisions, the date of submission of the first submission of the documents shall be the application date.

Article 46 Where a description of the appended drawings is written in the specification but there is no or part of the appended drawings, the applicant shall, within the time limit designated by the patent administration department under The State Council, make a supplementary submission of the appended drawings or make a declaration to cancel the description of the appended drawings. Where the applicant submits supplementary drawings, the date on which the appended drawings are submitted or mailed to the administrative department for patent under The State Council shall be the date of application; If the description of the attached drawing is cancelled, the original application date shall be retained.

Article 47 Two or more applicants on the same day (the date of application; Where there is a right of priority, "priority date"), the applicant shall, after receiving a notice from the patent administration department under The State Council, determine the applicant through consultation.

Where the same applicant applies for both a utility model patent and an invention patent for the same invention-creation on the same day (referring to the date of filing), it shall indicate separately in the application that another patent has been applied for the same invention-creation; Where no explanation is given, it shall be dealt with in accordance with the provisions of Article 9, paragraph 1, of the Patent Law that only one patent right can be granted for the same invention-creation.

Where the patent administration department under The State Council announces the grant of the patent right for utility model, it shall announce the explanation that the applicant has simultaneously applied for the patent for invention in accordance with the provisions of paragraph 2 of this Article.

Where it is found after examination that there is no reason for rejection of the application for a patent for invention, the patent administration department under The State Council shall notify the applicant to renounce the patent right for utility model within the prescribed time limit. Where the applicant makes a renunciation, the patent administration department under The State Council shall make a decision to grant the patent right for invention and, when announcing the grant of the patent right for invention, announce the applicant's declaration of renunciation of the patent right for utility model. Where the applicant does not agree to the waiver, the patent administration department under The State Council shall reject the application for a patent for invention. Where the applicant fails to reply at the expiration of the time limit, the application for patent for invention shall be deemed to have been withdrawn.

The patent right for utility model shall terminate on the date of the announcement granting the patent right for invention.

Article 48 Where an application for a patent includes two or more inventions, utility models or designs, the applicant may, before the expiration of the time limit provided for in paragraph 1 of Article 60 of these Rules, file a divisived application with the patent administration department under The State Council. However, where the patent application has been rejected, withdrawn or deemed to have been withdrawn, no division application may be filed.

Where the patent administration department under The State Council considers that an application for a patent is not in conformity with the provisions of Article 31 of the Patent Law or Article 39 or 40 of these Rules, it shall notify the applicant to amend the application within a specified time limit. If the applicant fails to reply within the time limit, the application shall be deemed to have been withdrawn.

A subdivision application shall not change the class of the original application.

Article 49 For a division application filed in accordance with the provisions of Article 48 of these Rules, the original filing date may be retained, and if the priority is enjoyed, the priority date may be retained, but it shall not exceed the scope recorded in the original application.

A division application shall go through the relevant procedures in accordance with the provisions of the Patent Law and these Rules.

The application number and application date of the original application shall be clearly stated in the request for a division application.

Article 50 The term "preliminary examination" as mentioned in Articles 34 and 40 of the Patent Law means examining whether an application for a patent contains the documents provided for in Articles 26 or 27 of the Patent Law and other necessary documents, and whether these documents conform to the prescribed format, and examining the following:

(1) Whether the application for a patent for invention clearly falls under the circumstances provided for in Articles 5 and 25 of the Patent Law, whether it does not comply with the provisions of Article 17, paragraph 1 of Article 18, paragraph 1 of Article 19 of the Patent Law, or paragraph 2 of Article 11, Article 19 and Article 29 of these Rules, Whether it clearly does not comply with the provisions of Article 2, paragraph 2, Article 26, paragraph 5, Article 31, paragraph 1, Article 33 of the Patent Law or Articles 20 to 24 of these Rules;

(2) whether the application for a utility model patent clearly falls under the circumstances provided for in Articles 5 and 25 of the Patent Law, whether it does not comply with Article 17, paragraph 1 of Article 18, paragraph 1 of Article 19 of the Patent Law, or the provisions of Article 11, Article 19-22, and Article 24-26 of these Rules, Whether it is manifestly inconsistent with the provisions of Article 2, paragraph 3, Article 22, paragraph 3, Article 26, paragraph 4, paragraph 1, Article 31, Article 33, or Article 23, Article 49, paragraph 1 of these Rules, or whether it is unable to obtain a patent right in accordance with the provisions of Article 9 of the Patent Law;

(3) Whether the application for a patent for design clearly falls under the circumstances provided for in Article 5, Article 25, paragraph 1 (6) of the Patent Law, whether it does not comply with the provisions of Article 17, paragraph 1 of Article 18 of the Patent Law or Articles 11, 19, 30 and 31 of these Rules, Whether it is manifestly inconsistent with the provisions of paragraph 4 of Article 2, paragraph 1 of Article 23, paragraph 2 of Article 23, paragraph 2 of Article 27, paragraph 2 of Article 31, paragraph 33, or paragraph 1 of Article 49 of these Rules, or whether the patent right cannot be obtained in accordance with the provisions of Article 9 of the Patent Law;

(4) Whether the application documents comply with the provisions of Article 2 and paragraph 1 of Article 3 of these Rules.

The patent administration department under The State Council shall notify the applicant of its examination opinions and require it to state its opinions or make corrections within a specified time limit. If the applicant fails to reply within the time limit, his application shall be deemed withdrawn. Where, after the applicant has stated his opinions or made corrections, the patent administration department under The State Council still considers that the provisions listed in the preceding paragraph are not met, it shall be rejected.

Article 51 Where, in addition to the patent application documents, the other documents relating to the patent application submitted by the applicant to the patent administration Department under The State Council fall under any of the following circumstances, they shall be deemed not to have been submitted:

(1) failing to use the prescribed form or filling in a form that does not conform to the provisions;

(2) failing to submit certification materials as required.

The patent administration department under The State Council shall notify the applicant of the examination opinions deemed to be unsubmitted.

Article 52 Where an applicant requests early publication of his application for a patent for invention, he shall make a declaration to the patent administration department under The State Council. After preliminary examination of the application, the patent administration department under The State Council shall, unless it is rejected, immediately publish the application.

Article 53 Where the applicant specifies the product to which the design is used and the category to which it belongs, the classification list of the design products published by the patent administration department under The State Council shall be used. Where the category of the product to which the design is used is not specified or the category written is inaccurate, the patent administration department under The State Council may supplement or amend it.

Article 54. From the date of publication of the application for a patent for invention to the date of the announcement of the grant of the patent right, any person may make comments to the patent administration Department under The State Council regarding an application for a patent that does not comply with the provisions of the Patent Law, and state the reasons thereof.

Article 55 Where an applicant for a patent for invention is unable to submit the information on search or the information on the results of examination as provided for in Article 36 of the Patent Law for legitimate reasons, he or she shall make a declaration to the patent administration department under The State Council and make a supplementary submission after obtaining the relevant information.

Article 56 When the patent administration department under The State Council conducts its own examination of an application for a patent in accordance with the provisions of Article 35, paragraph 2, of the Patent Law, it shall notify the applicant.

The applicant may file a request for delayed examination of the patent application.

Article 57 An applicant for a patent for invention may, at the time of filing the request for substantive examination and within 3 months from the date of receipt of the notification from the patent administration department under The State Council that the application for a patent for invention has entered the stage of substantive examination, voluntarily propose amendments to the application for a patent for invention.

The applicant for a patent for utility model or design may, within 2 months from the date of filing, voluntarily propose to amend the application for a patent for utility model or design.

Where an applicant amends the patent application document after receiving the notice of examination opinions issued by the patent administration Department under The State Council, it shall make amendments in view of the defects pointed out in the notice.

The patent administration department under The State Council may, on its own, amend any obvious errors in characters or symbols in the patent application documents. Where the patent administration department under The State Council makes any amendment on its own initiative, it shall notify the applicant.

Article 58 The modified part of the description or claim of an application for a patent for invention or utility model, except for the modification or addition or deletion of individual words, shall be submitted with replacement pages in accordance with the prescribed format. Any modification of a picture or photograph of an application for a patent for design shall be submitted to a replacement page in accordance with the provisions.

Article 59 In accordance with Article 38 of the Patent Law, the circumstances under which an application for a patent for invention shall be rejected upon examination of its substance refer to:

(1) The application falls under the circumstances provided for in Articles 5 or 25 of the Patent Law, or the patent right cannot be obtained in accordance with Article 9 of the Patent Law;

(2) The application does not comply with the provisions of paragraph 2 of Article 2, paragraph 1 of Article 19, paragraph 22, paragraph 3 of Article 26, paragraph 4 of Article 26, paragraph 5 of Article 26, paragraph 1 of Article 31 of the Patent Law, or paragraph 2 of Article 11 and Article 23 of these Rules;

(3) The amendment of 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 paragraph 1 of Article 49 of these Rules.

Article 60. After the patent administration Department under The State Council issues the notice of granting the patent right, the applicant shall complete the registration formalities within two months from the date of receipt of the notice. Where the applicant completes the registration formalities on time, the patent administration department under The State Council shall grant the patent right, issue the patent certificate, and announce it.

Where the registration formalities have not been completed at the expiration of the time limit, the right to obtain the patent right shall be deemed to have been abandoned.

Article 61 Where it is found after examination that there is no reason for rejection of an application for a secret patent, the patent administration department under The State Council shall make a decision to grant a secret patent right, issue a secret patent certificate and register the relevant matters concerning the secret patent right.

Article 62 After the announcement of the decision to grant the patent right for utility model or design, the patentee, the interested party or the accused infringer as provided for in Article 66 of the Patent Law may request the patent administration department under The State Council to make a patent right evaluation report. The applicant may, when going through the formalities for registration of the patent right, request the patent administration department under The State Council to make a patent right evaluation report.

Where a patent right evaluation report is requested, a request for the patent right evaluation report shall be submitted, indicating the patent application number or patent number. Each request shall be limited to one patent application or patent right.

Where the request for a patent right evaluation report does not comply with the provisions, the patent administration department under The State Council shall notify the applicant to make corrections within a specified time limit. If the claimant fails to make the correction within the time limit, the request shall be deemed to have not been made.

Article 63 The patent administration department under The State Council shall make a patent right evaluation report within two months after receiving the request for a patent right evaluation report. However, where the applicant requests a patent right evaluation report when going through the patent right registration formalities, the patent administration department under The State Council shall make a patent right evaluation report within two months from the date of the announcement of the grant of the patent right.

Where multiple claimants request a patent right evaluation report for the same patent right for utility model or design, the patent administration department under The State Council shall make only one patent right evaluation report. Any entity or individual may consult or copy the patent right evaluation report.

Article 64 The patent administration department under The State Council shall, upon discovery of any errors in the patent announcement or patent document, promptly correct them and publish the corrections made.

Chapter IV Review of patent applications and invalidation of patent rights

Article 65 Where, in accordance with the provisions of Article 41 of the Patent Law, a request for reexamination is filed with the patent administration Department under The State Council, a request for reexamination shall be submitted, stating the reasons and, if necessary, supporting relevant evidence.

Where the request for reexamination is not in conformity with the provisions of paragraph 1 of Article 18 or paragraph 1 of Article 41 of the Patent Law, the patent administration department under The State Council shall not accept it and shall notify the applicant for reexamination in writing and state the reasons.

Where the request for reexamination does not conform to the prescribed form, the person making the request for reexamination shall make corrections within the time limit designated by the patent administration department under The State Council. If no correction is made at the expiration of the time limit, the request for review shall be deemed not to have been made.

Article 66 The applicant may, when filing a request for reexamination or responding to the notice of reexamination issued by the patent administration department under The State Council, amend the patent application documents. However, the amendment shall be limited to eliminating the defects indicated in the rejection decision or the notice of review.

Article 67 Where, after reexamination, the patent administration department under The State Council considers that the request for reexamination is not in conformity with the relevant provisions of the Patent Law and these Rules, or that the patent application is in other obvious violation of the relevant provisions of the Patent Law and these Rules, it shall notify the applicant for reexamination and require him to state his opinions within a specified time limit. If no reply is made at the expiration of the time limit, the request for review shall be deemed to have been withdrawn; Where the patent administration department under The State Council considers that the relevant provisions of the Patent Law and these Rules are still not in conformity with the stated opinions or amendments, it shall make a reexamination decision to reject the request for reexamination.

Where, after reexamination, the patent administration department under The State Council considers that the original rejection decision is not in conformity with the relevant provisions of the Patent Law and these Rules, or considers that the amended patent application documents have eliminated the defects pointed out in the original rejection decision and the notice of reexamination, it shall revoke the original rejection decision and continue the examination procedure.

Article 68 The applicant for reexamination may withdraw his request for reexamination before the patent administration department under The State Council makes a decision.

Where the applicant for reexamination withdraws his request for reexamination before the patent administration department under The State Council makes a decision, the reexamination procedure shall be terminated.

Article 69 Where, in accordance with the provisions of Article 45 of the Patent Law, a request for invalidation or partial invalidation of the patent right is requested, the application for invalidation of the patent right and the necessary evidence in duplicate shall be submitted to the patent administration Department under The State Council. The request for invalidation shall, in combination with all the evidence submitted, specify the reasons for the request for invalidation and indicate the evidence on which each reason is based.

The reasons for the request for invalidation mentioned in the preceding paragraph mean that the invention-creation granted a patent does not comply with the provisions of Article 2, paragraph 1 of Article 19, Article 22, Article 23, paragraph 3 of Article 26, paragraph 4 of Article 26, paragraph 2 of Article 27, or paragraph 1 of Article 49 of these Rules. Or it falls under the circumstances provided for in Articles 5 or 25 of the Patent Law, or it cannot obtain a patent right in accordance with the provisions of Article 9 of the Patent Law.

Article 70 Where a request for invalidation of a patent right is not in conformity with paragraph 1 of Article 18 of the Patent Law or Article 69 of these Rules, the patent administration department under The State Council shall not accept it.

Where, after the administrative department for Patent under The State Council has made a decision on the request for invalidation, it again requests for invalidation on the same grounds and evidence, the administrative department for patent under The State Council shall not accept the request.

Where a request for invalidation of the patent right for a design is made on the ground that it is not in conformity with the provisions of paragraph 3 of Article 23 of the Patent Law, but no evidence proving the conflict of rights is submitted, the patent administration department under The State Council shall not accept it.

Where the request for invalidation of the patent right does not conform to the prescribed format, the person requesting the invalidation shall make corrections within the time limit specified by the patent administration department under The State Council. If no correction is made at the expiration of the time limit, the request for invalidation shall be deemed not to have been made.

Article 71 After the patent administration department under The State Council accepts the request for invalidation, the person making the request may, within one month from the date of filing the request for invalidation, add additional reasons or supplementary evidence. Where reasons or supplementary evidence are added within the time limit, the patent administration department under The State Council may not consider them.

Article 72 The patent administration department under The State Council shall send copies of the request for invalidation of the patent right and the relevant documents to the patentee and request him to state his opinions within the specified time limit.

The patentee and the person requesting invalidation shall, within the specified time limit, reply to the notice of transfer of documents or the notice of examination of the request for invalidation issued by the patent administration department under The State Council; Where no reply has been made within the time limit, the examination by the patent administration department under The State Council shall not be affected.

Article 73. During the examination of the request for invalidation, the patentee of a patent for invention or utility model may amend his claims; however, the scope of protection of the original patent may not be extended. Where the patent administration department under The State Council has made a decision to maintain the validity of the patent right or to declare part of the patent right invalid on the basis of the amended claims, it shall announce the amended claims.

The patentee of a patent for invention or utility model may not modify the patent description and drawings, and the patentee of a design patent may not modify pictures, photographs or brief descriptions.

Article 74 The patent administration department under The State Council may, at the request of a party or as the case requires, decide to conduct an oral hearing of the request for invalidation.

Where the patent administration department under The State Council decides to conduct an oral hearing of the request for invalidation, it shall issue a notice of oral hearing to the parties, informing them of the date and place of the oral hearing. The parties shall reply within the time limit specified in the notice.

Where the person making the request for invalidation fails to respond to the notice of oral hearing issued by the patent administration department under The State Council within the prescribed time limit and does not participate in the oral hearing, his request for invalidation shall be deemed to have been withdrawn; If the patentee does not participate in the oral hearing, he may hear the case in absentia.

Article 75 In the procedure for examining a request for invalidation, the time limit specified by the patent administration department under The State Council shall not be extended.

Article 76 Before the patent administration department under The State Council makes a decision on the request for invalidation, the person making the request for invalidation may withdraw his request.

Where, before the patent administration Department under The State Council makes a decision, the applicant for invalidation withdraws his request or his request for invalidation is deemed to have been withdrawn, the examination procedure for the request for invalidation shall be terminated. However, where the patent administration department under The State Council considers that a decision to declare the patent right invalid or partially invalid can be made on the basis of the examination conducted, the examination procedure shall not be terminated.

Chapter V Patent term compensation

Article 77 Where a request for compensation for the duration of the patent right is made in accordance with the provisions of Article 42, paragraph 2, of the Patent Law, the patentee shall file the request with the patent administration department under The State Council within three months from the date of the announcement of the grant of the patent right.

Article 78 Where compensation for the term of the patent right is granted in accordance with the provisions of Article 42, paragraph 2, of the Patent Law, the term of compensation shall be calculated according to the actual number of days of unreasonable delay in the granting of the patent for invention.

The actual number of unreasonably delayed days in the granting of an invention patent as mentioned in the preceding paragraph refers to the number of days between the expiration of four years from the date of filing for the invention patent and the expiration of three years from the date of the request for substantive examination to the date of the announcement of the grant of the patent right, minus the number of days of reasonable delay and the number of days of unreasonable delay caused by the applicant.

The following circumstances are reasonable delays:

(1) Where the patent right is granted after the amendment of the patent application documents in accordance with Article 66 of these Rules, the delay caused by the reexamination procedure;

(2) Delay caused by the circumstances provided for in Articles 103 and 104 of these Rules;

(3) Delay caused by other reasonable circumstances.

Where the same applicant applies for both a utility model patent and an invention patent for the same invention-creation on the same day, and obtains the patent right for invention in accordance with the provisions of paragraph 4 of Article 47 of these Rules, the term of the patent right for invention shall not apply to the provisions of paragraph 2 of Article 42 of the Patent Law.

Article 79 Unreasonable delay caused by the applicant as provided for in Article 42, paragraph 2, of the Patent Law includes the following circumstances:

(1) Failing to reply to the notice issued by the patent administration department under The State Council within the specified time limit;

(2) Application for delay of examination;

(3) Delay caused by the circumstances provided for in Article 45 of these Rules;

(4) Other unreasonable delays caused by the applicant.

Article 80 For the purposes of Article 42, paragraph 3, of the Patent Law, a patent for an invention related to a new drug means a patent for a new drug product, a patent for a preparation method, or a patent for medical use that complies with the provisions.

Article 81 Where, in accordance with the provisions of Article 42, paragraph 3, of the Patent Law, a request for compensation for the duration of the patent right for an invention related to a new drug shall meet the following requirements and be submitted to the patent administration department of The State Council within three months from the date the new drug is granted marketing authorization in China:

(1) Where multiple patents exist for the new drug at the same time, the patentee may request compensation for the duration of the patent right for only one of the patents;

(2) Where a patent covers more than one new drug at the same time, a claim for compensation of the patent term can only be made for one new drug in respect of that patent;

(3) The patent is within the validity period, and has not yet obtained the patent term compensation for new drug related inventions.

Article 82 Where compensation for the duration of the patent right is granted in accordance with the provisions of Article 42, paragraph 3, of the Patent Law, the duration of compensation shall be determined on the basis of the number of days between the date of application for the patent and the date on which the new drug is granted marketing authorization in China, minus 5 years, in compliance with the provisions of Article 42, paragraph 3, of the Patent Law.

Article 83. During the period of compensation for the term of the patent right, the scope of protection of a patent for an invention related to a new drug shall be limited to the technical scheme related to the new drug and its approved indications; Within the scope of protection, the patentee enjoys the same rights and obligations as before the patent term was compensated.

Article 84. Where the patent administration department under The State Council, after examining a request for compensation for the duration of the patent right filed in accordance with the provisions of the second and third paragraphs of Article 42 of the Patent Law, finds that the conditions for compensation are met, it shall make a decision to grant compensation for the duration of the patent right, and shall register and announce it. Where the conditions for compensation are not met, a decision shall be made to deny the time limit for compensation, and the patentee making the request shall be notified.

Chapter VI Special License for Exploitation of Patent

Article 85 Where the patentee voluntarily declares that the patent is open to license, it shall file the declaration after the announcement of the grant of the patent right.

The open license statement shall state the following:

(1) Patent number;

(2) The name of the patentee;

(3) Methods and standards for payment of patent license royalties;

(4) The term of the patent license;

(5) Other matters requiring clarification.

The content of the open license statement shall be accurate and clear, and there shall be no commercial propaganda terms.

Article 86 In any of the following circumstances, the patentee may not grant an open license to the patent right:

(1) the patent right is within the period of validity of the exclusive or exclusive license;

(2) falling under the circumstances of suspension provided for in Articles 103 and 104 of these Rules;

(3) failing to pay the annual fee as required;

(4)where the patent right is pledged without the consent of the pledgee;

(5) other circumstances that impede the effective exploitation of the patent right.

Article 87 Where a license for exploitation of a patent is granted through an open license, the patentee or licensee shall file with the patent administration department under The State Council for the record by presenting a written document proving that the license has been granted.

Article 88 The patentee shall not, by providing false materials, concealing facts or other means, make a declaration of open license or obtain a reduction or reduction of the annual patent fee during the implementation of the open license.

Article 89 The term "insufficient exploitation of the patent" as mentioned in Article 53 (1) of the Patent Law means that the patentee and its licensee cannot exploit the patent in a manner or on a scale that meets the domestic demand for the patented product or the patented process.

The term "patented drug" as mentioned in Article 55 of the Patent Law refers to any patented product in the field of medicine needed to solve public health problems or any product directly obtained by means of a patented process, including the patented active ingredient required for the manufacture of the product and the diagnostic supplies required for the use of the product.

Article 90 Where a compulsory license is requested, a request for a compulsory license shall be submitted to the patent administration Department under The State Council, stating the reasons and accompanied by relevant supporting documents.

The patent administration department under The State Council shall send a copy of the request for compulsory license to the patentee. The patentee shall state his or her opinions within the time limit specified by the patent administration Department under The State Council. Where no reply has been made within the time limit, the decision of the patent administration department under The State Council shall not be affected.

Before making a decision to reject the request for a compulsory license or to grant a compulsory license, the patent administration department under The State Council shall notify the applicant and the patentee of the decision to be made and the reasons for it.

The decision of the patent administration department under The State Council to grant a compulsory license in accordance with the provisions of Article 55 of the Patent Law shall also comply with the provisions of the relevant international treaties concluded or acceded to by China on granting a compulsory license for the purpose of solving public health problems, except where China has made reservations.

Article 91 Where, in accordance with the provisions of Article 62 of the Patent Law, the patent administration department under The State Council is requested to make a ruling on the amount of the royalty, the parties shall submit a written request for the ruling, accompanied by supporting documents showing that no agreement can be reached between the two parties. The patent administration department under The State Council shall, within three months from the date of receipt of the request, make a ruling and notify the party concerned.

Chapter VII Awards and remuneration to the inventor or designer of a service invention-creation

Article 92 The entity that is granted a patent right may agree with the inventor or creator or prescribe in its rules and regulations formulated according to law the form and amount of the award or remuneration provided for in Article 15 of the Patent Law. The entity granted a patent right shall be encouraged to exercise property rights incentives, and the inventor or designer shall reasonably share the benefits of innovation by means of equity, options, dividends, etc.

The rewards and remuneration given to the inventor or designer by the enterprise or institution shall be handled in accordance with the relevant provisions of the State on financial and accounting systems.

Article 93　Where the entity that has been granted a patent right has not agreed with the inventor or creator nor provided for the form and amount of the award as provided for in Article 15 of the Patent Law in its rules and regulations formulated according to law, it shall pay the inventor or creator a bonus within three months from the date of the announcement of the grant of the patent right. The minimum bonus for an invention patent is not less than 4,000 yuan; The bonus for a utility model patent or design patent shall not be less than 1500 yuan.

Where an invention-creation is completed as a result of the proposal of the inventor or designer being adopted by the entity to which the inventor or designer belongs, the entity to which the patent right has been granted shall pay a bonus with the preference.

Article 94　Where the entity that has been granted a patent right has not agreed with the inventor or creator nor provided for the form and amount of remuneration as provided for in Article 15 of the Patent Law in its rules and regulations formulated according to law, it shall pay the inventor or creator a reasonable remuneration in accordance with the provisions of the Law of the People's Republic of China on Promoting the Transformation of Scientific and Technological Achievements.

Chapter VIII Protection of Patent Right

Article 95　The administrative departments for patent affairs of the people's governments of provinces, autonomous regions and municipalities directly under the Central Government, as well as the administrative departments for patent affairs of prefecture-level cities, autonomous prefectures, confederations, regions and district people's governments directly under the Central Government, which have a large amount of patent administration and have practical handling capacity, may handle and mediate patent disputes.

Article 96　Under any of the following circumstances, it belongs to the patent infringement dispute with significant national impact as mentioned in Article 70 of the Patent Law:

(1) involving major public interests;

(2) Having a significant impact on the development of the industry;

(3) major cases across provinces, autonomous regions and municipalities directly under the Central Government;

(4) Other circumstances which the patent administration department under The State Council considers may have a significant impact.

Where the patentee or an interested party requests the patent administration department under The State Council to handle the patent infringement dispute, and the relevant case does not belong to the patent infringement dispute which has major national impact, the patent administration department under The State Council may designate the patent administration department of the local people's government with jurisdiction to handle the dispute.

Article 97　Where a party requests for settlement of a patent infringement dispute or mediation of a patent infringement dispute, it shall be under the jurisdiction of the administrative department for patent affairs in the place where the person requested is located or where the infringement is committed.

Where two or more administrative departments for patent affairs have jurisdiction over a patent dispute, the parties may file a request with one of the administrative departments for patent affairs; Where a party makes a request to two or more competent departments for the administration of patent affairs, the request shall be under the jurisdiction of the department for the administration of patent affairs that first accepts the request.

Where there is a dispute over jurisdiction between the administrative departments for patent affairs, the administrative departments for patent affairs of the people's government at a higher level shall designate them for jurisdiction. Where there is no administrative department for patent affairs under a common people's government at a higher level, the patent administration department under The State Council shall designate such department for jurisdiction.

Article 98　In the course of handling a patent infringement dispute, where the person requested makes a request for invalidation and the request is accepted by the patent administration department under The State Council, it may request the administrative department for patent affairs to suspend the handling.

Where the administrative authority for patent affairs considers that the reasons for suspension put forward by the claimant are obviously untenable, it may not suspend the processing.

Article 99　Where the patentee, in accordance with the provisions of Article 16 of the Patent Law, marks a patent mark on its patented product or on the package of that product, it shall do so in the manner prescribed by the patent administration department under The State Council.

Where the trademark of a patent does not conform to the provisions of the preceding paragraph, the department responsible for patent law enforcement at or above the county level shall order it to make corrections.

Article 100　Where the applicant or the patentee violates the provisions of Articles 11 and 88 of these Rules, the department responsible for patent enforcement at or above the county level shall give him a warning and may impose a fine of not more than 100,000 yuan.

Article 101　The following acts are acts of passing off a patent as provided for in Article 68 of the Patent Law:

(1) Marking a patent mark on a product or its package for which no patent right has been granted, continuing to mark a patent mark on the product or its package after the patent right has been declared invalid or terminated, or marking the patent number of another person on the product or its package without permission;

(2) selling the products mentioned in item (1);

(3) referring in a product description or other materials to a technology or design for which no patent right has been granted as a patented technology or a patented design, referring to a patent application as a patent, or using the patent number of another person without permission, so that the public may mistake the technology or design involved as a patented technology or patented design;

(4) forging or altering patent certificates, patent documents or patent application documents;

(5) Any other act that confuses the public and misidentifies the technology or design for which no patent right has been granted as a patented technology or design.

Where, before the termination of the patent right, a patented product, a product directly obtained by a patented method, or its packaging is marked with a patent mark in accordance with the law, and a promise to sell or sell the product after the termination of the patent right, it does not constitute a counterfeit patent act.

Where a person sells a product that is not known to be a counterfeit patent and can prove the legitimate source of the product, the department responsible for patent law enforcement at or above the county level shall order him to stop the sale.

Article 102　Except as provided for in Article 65 of the Patent Law, the administrative authority for patent affairs may, at the request of the parties concerned, mediate the following patent disputes:

(1) Disputes over the right to apply for a patent or the ownership of the patent right;

(2) Disputes over the qualifications of the inventor or designer;

(3) A dispute over the reward or remuneration of the inventor or designer of a service invention-creation;

(4) Disputes over the use of the invention after the publication of the application for a patent for invention and before the grant of the patent right without paying the appropriate fees;

(5) Other patent disputes.

With respect to a dispute listed in item (4) of the preceding paragraph, where a party requests the administrative authority for patent affairs for mediation, the request shall be made after the grant of the patent right.

Article 103　Where a dispute arises over the ownership of the right to apply for a patent or the patent right and a party has requested the administrative department for patent affairs to mediate or bring a suit before a people's court, it may request the patent administration department under The State Council to suspend the relevant procedures.

Where a request for suspension of the relevant procedures is made in accordance with the provisions of the preceding paragraph, a request shall be submitted to the patent administration department under The State Council, explaining the reasons, and a copy of the relevant acceptance documents of the administrative department for patent affairs or the people's court indicating the application number or the patent number shall be attached. Where the patent administration department under The State Council considers that the reasons for suspension put forward by the parties are obviously untenable, it may not suspend the relevant procedures.

 

After the conciliation statement made by the administrative authority for patent affairs or the judgment made by the people's court becomes effective, the parties shall go through the formalities for resuming the relevant procedures with the patent administration department under The State Council. Where, within one year from the date of the request for suspension, the dispute concerning the right to apply for a patent or the ownership of the patent right has not been settled, and it is necessary to continue to suspend the relevant procedures, the claimant shall request an extension of the suspension within the time limit. Where no request has been made to extend the time limit, the patent administration department under The State Council shall resume the relevant procedures on its own.

Article 104　Where the people's court orders the right to apply for a patent or the patent right to take preservation measures in the trial of a civil case, the patent administration department under The State Council shall suspend the relevant procedures for the right to apply for a patent or the patent right to be preserved on the date of receipt of the written decision indicating the application number or the patent number and the notice of assistance in enforcement. Where the period of preservation expires and the people's court has not ruled to continue taking the measures of preservation, the patent administration department under The State Council shall resume the relevant procedures on its own.

Article 105　Suspension of the relevant procedures by the patent administration department under The State Council in accordance with Articles 103 and 104 of these Rules means suspension of the procedures for preliminary examination, substantive examination and reexamination of an application for a patent, the procedure for grant of patent right and the procedure for invalidation of patent right; The formalities for renunciation, alteration or transfer of the patent right or the right to apply for a patent shall be suspended, the formalities for pledge of the patent right shall be suspended, and the formalities for termination of the patent right before its expiration shall be suspended.

Chapter IX Patent Registration and Patent Bulletin

Article 106　The patent administration department under The State Council shall maintain a patent register to register the following matters relating to patent applications and patent rights:

(1) Grant of patent right;

(2) Transfer of the right to apply for a patent or the patent right;

(3) Pledge, preservation and dissolution of the patent right;

(4) Filing of patent licensing contracts;

(5) declassification of national defense patents and secret patents;

(6) invalidation of the patent right;

(7) Termination of the patent right;

(8) Restoration of the patent right;

(9) Compensation for the term of the patent right;

(10) open license for exploitation of the patent;

(11) compulsory license for exploitation of a patent;

(12) Changes in the name, nationality and address of the patentee.

Article 107　The patent administration department under The State Council shall regularly publish a patent gazette, which shall publish or announce the following contents:

(1) The description and summary of the invention patent application;

(2) the request for substantive examination of an application for a patent for invention and the decision of the patent administration department under The State Council to conduct substantive examination of the application for a patent for invention on its own initiative;

(3) Rejection, withdrawal, deemed withdrawal, abandonment, recovery or transfer of an application for a patent for invention after publication;

(4) Grant of patent right and description of patent right;

(5) An abstract of the specification for the patent for utility model, a picture or photograph of the patent for design;

(6) declassification of national defense patents and secret patents;

(7) invalidation of the patent right;

(8) termination or restoration of the patent right;

(9) Compensation for the term of the patent right;

(10) Transfer of patent right;

(11) Filing of patent licensing contracts;

(12) Pledge, preservation and rescission of patent right;

(13) Matters of open license for exploitation of the patent;

(14) Granting of a compulsory license for exploitation of a patent;

(15) Changes in the name, nationality and address of the patentee;

(16) Service of documents by public notice;

(17) Corrections made by the patent administration department under The State Council;

(18) Other relevant matters.

Article 108　The patent administration department under The State Council shall make available to the public, free of charge, the patent bulletin, the single copy of the application for a patent for invention and the single copy of the patent for invention, utility model and design.

Article 109　The patent administration department under The State Council shall be responsible for exchanging patent documents with patent offices or regional patent organizations of other countries or regions in accordance with the principle of reciprocity.

Chapter X Expenses

110.　When applying for a patent and going through other formalities with the patent administration department under The State Council, the following fees shall be paid:

(1) Application fee, application surcharge, publication and printing fee, and priority claim fee;

(2) Fees for substantive examination and reexamination of an application for a patent for invention;

(3) Annual fees;

(4) Claims for restoration of rights and claims for extension of time limits;

(5) Fee for change of description, fee for request of patent right evaluation report, fee for request of invalidation, fee for certificate of copy of patent document.

The standards for payment of the fees listed in the preceding paragraph shall be prescribed by the development and reform department under The State Council, the financial department and the patent administration department under The State Council in accordance with the division of duties. The financial department and the development and reform department under The State Council may, in conjunction with the patent administration department under The State Council, adjust the types and standards of fees payable for applying for a patent and going through other formalities according to the actual situation.

Article 111　All fees provided for in the Patent Law and these Rules shall be paid in strict accordance with the relevant provisions.

Where a fee is paid directly to the patent administration department under The State Council, the payment date shall be the payment date; If the fee is paid by post remittance, the date of the postmark of the post office remittance shall be the payment date; If the fee is paid by bank transfer, the date of actual remittance by the bank shall be the payment date.

Where the patent fee is overpaid, repaid or wrongly paid, the party may, within three years from the date of payment, file a request for refund with the patent administration department under The State Council, which shall refund it.

Article 112　The applicant shall pay the application fee, publication and printing fee and necessary application surcharge within 2 months from the date of application or within 15 days from the date of receipt of the notification of acceptance; If the payment has not been made or has not been made in full at the time limit, the application shall be deemed to have been withdrawn.

Where an applicant claims the right of priority, it shall pay the right of priority claim fee along with the application fee; Where the payment has not been made or has not been made in full at the expiration of the time limit, the right of priority shall be deemed not to be claimed.

Article 113　Where a party requests substantive examination or reexamination, it shall pay the fee within the relevant time limit prescribed in the Patent Law and these Rules; If the payment has not been made or has not been made in full at the expiration of the time limit, it shall be deemed that no request has been made.

Article 114　When going through the registration formalities, the applicant shall pay the annual fee for the year in which the patent right is granted; If the payment has not been made or has not been made in full at the expiration of the time limit, it shall be deemed that the registration formalities have not been completed.

Article 115　The annual fee after the year in which the patent right is granted shall be paid before the expiration of the previous year. Where the patentee fails to pay the annual fee or fails to pay it in full, the patent administration department under The State Council shall notify the patentee to make the payment within six months from the date on which the annual fee should be paid, together with the late fee; The amount of late payment fee shall be calculated at 5% of the full annual fee for each month exceeding the prescribed payment time. If the patent right is not paid at the expiration of the time limit, the patent right shall terminate from the date on which the annual fee shall be paid.

Article 116　The fee for restoration of rights shall be paid within the relevant time limit prescribed in these Rules; If the payment has not been made or has not been made in full at the expiration of the time limit, it shall be deemed that no request has been made.

The request fee for extension of time limit shall be paid before the expiration of the corresponding time limit; If the payment has not been made or has not been made in full at the expiration of the time limit, it shall be deemed that no request has been made.

The fee for the change of description items, the fee for the request for patent right evaluation report and the fee for the request for invalidation shall be paid within 1 month from the date of filing the request. If the payment has not been made or has not been made in full at the expiration of the time limit, it shall be deemed that no request has been made.

Article 117　Where the applicant or the patentee has difficulty in paying any of the fees provided for in these Rules, he or she may, in accordance with the provisions, make a request to the patent administration department under The State Council for reduction of the payment. The measures for such reduction shall be formulated by the financial department under The State Council jointly with the development and reform department under The State Council and the patent administration department under The State Council.

Chapter XI Special Provisions on international Applications for inventions and utility models

Article 118　The patent administration department under The State Council shall, in accordance with Article 19 of the Patent Law, accept international patent applications filed under the Patent Cooperation Treaty.

The provisions of this Chapter shall apply to the conditions and procedures for an international patent application filed in accordance with the Patent Cooperation Treaty and designated in China (hereinafter referred to as an international application) to enter the processing stage of the patent administration department under The State Council (hereinafter referred to as entering the national stage in China); Where there are no provisions in this Chapter, the relevant provisions of the Patent Law and other chapters of these Detailed Rules shall apply.

Article 119　An international application whose international filing date has been determined and designated in China in accordance with the Patent Cooperation Treaty shall be deemed to be a patent application filed with the patent administration department under The State Council, and the international filing date shall be deemed to be the filing date referred to in Article 28 of the Patent Law.

Article 120　The applicant for an international application shall, within 30 months from the priority date referred to in Article 2 of the Patent Cooperation Treaty (referred to in this chapter as the priority date), complete the formalities for entering the Chinese national phase with the patent administration department under The State Council; If the applicant fails to go through the formalities within the time limit, after paying the grace fee, he may go through the formalities for entering the national stage in China within 32 months from the priority date.

Article 121　Where an applicant goes through the formalities for entering the national phase in China in accordance with the provisions of Article 120 of these Rules, it shall meet the following requirements:

(1) Submit a written declaration in Chinese to enter the national phase in China, indicating the international application number and the type of patent right required;

(2) to pay the application fee, publication and printing fee as prescribed in paragraph 1 of Article 110 of these Rules and, if necessary, the grace fee as prescribed in Article 120 of these Rules;

(3) If the international application is filed in a foreign language, submit the Chinese translation of the description of the original international application and the claims;

(4) In the written declaration to enter the national phase in China, state the name of the invention-creation, the name or title of the applicant, the address and the name of the inventor, which shall be consistent with the records of the International Bureau of the World Intellectual Property Organization (hereinafter referred to as the International Bureau); If the inventor is not named in the international application, the name of the inventor shall be stated in the above-mentioned declaration;

(5) Where the international application is filed in a foreign language, submit the Chinese translation of the abstract, if there are attached drawings and drawings attached to the abstract, submit a copy of the attached drawings and designate the attached drawings of the abstract, and replace it with the corresponding Chinese text if there is text in the attached drawings;

(6) In the international stage, the International Bureau has completed the formalities for the change of the applicant, if necessary, to provide proof that the applicant enjoys the right to apply after the change;

(7) When necessary, pay the application surcharge provided for in paragraph 1 of Article 110 of these Rules.

Where the requirements of subparagraphs (1) to (3) of paragraph 1 of this Article are met, the patent administration department under The State Council shall issue an application number, specify the date on which the international application enters the national phase in China (hereinafter referred to as the entry date), and notify the applicant that the international application has entered the national phase in China.

Where an international application has entered the Chinese national phase but does not meet the requirements of subparagraphs (4) to (7) of paragraph 1 of this Article, the patent administration department under The State Council shall notify the applicant to make corrections within a specified time limit. If no rectification is made at the expiration of the time limit, the application shall be deemed withdrawn.

Article 122　The validity of an international application in China shall cease under any of the following circumstances:

(1) During the international phase, the international application is withdrawn or deemed to be withdrawn, or the designation of China in the international application is withdrawn;

(2) The applicant fails to complete the formalities for entering the national phase in China in accordance with Article 120 of these Rules within 32 months from the priority date;

(3) where the applicant has completed the formalities for entering the national phase in China, but still fails to meet the requirements of items (1) to (3) of Article 121 of these Rules upon the expiration of 32 months from the priority date.

Where the validity of an international application ceases in China in accordance with the provisions of item (1) of the preceding paragraph, the provisions of Article 6 of these Rules shall not apply; Where the validity of an international application ceases in China in accordance with the provisions of items (2) and (3) of the preceding paragraph, the provisions of paragraph 2 of Article 6 of these Rules shall not apply.

Article 123　If the international application has been amended during the international phase and the applicant requests that the examination be conducted on the basis of the amended application documents, the Chinese translation of the amended part shall be submitted within 2 months from the date of entry. Where no Chinese translation is submitted within the time limit, the patent administration department under The State Council shall not consider the amendment proposed by the applicant at the international stage.

Article 124　Where the invention-creation involved in the international application falls under one of the circumstances listed in item (2) or (3) of Article 24 of the Patent Law, and a declaration was made at the time of filing the international application, the applicant shall make an explanation in the written declaration of entering the national phase in China, and submit the relevant supporting documents provided for in paragraph 3 of Article 33 of these Rules within two months from the date of entry; Where no explanation has been given or no supporting documents have been submitted within the time limit, the provisions of Article 24 of the Patent Law shall not apply to the application.

Article 125　Where the applicant, in accordance with the provisions of the Patent Cooperation Treaty, has made an explanation of the storage of biological material samples, the requirements of Article 27 (3) of these Rules shall be deemed to have been satisfied. The applicant shall specify in the declaration of entering the national phase in China the document recording the storage of biological material samples and the specific location of the record in the document.

If the applicant has recorded the storage of biological material samples in the specification of the international application originally submitted, but it has not been specified in the declaration of entering the national phase in China, it shall make corrections within 4 months from the date of entry. If no correction is made at the expiration of the time limit, the biological material shall be deemed not to have been submitted for storage.

Where, within 4 months from the date of entry, the applicant submits to the patent administration Department under The State Council the certificate of preservation and the certificate of survival of the biological material sample, the applicant shall be deemed to have submitted the certificate within the time limit prescribed in Item (1) of Article 27 of these Rules.

Article 126　Where the invention-creation involved in the international application relies on genetic resources to complete, the applicant shall give an explanation in the written statement on the entry of the international application into the national phase in China, and fill in the form formulated by the patent administration department under The State Council.

Article 127　Where the applicant has claimed one or more priority rights in the international phase, and the claim continues to be valid when it enters the Chinese national phase, it shall be deemed to have made a written declaration in accordance with Article 30 of the Patent Law.

The applicant shall pay the priority claim fee within 2 months from the date of entry; Where the payment has not been made or has not been made in full at the expiration of the time limit, the right of priority shall be deemed not to have been claimed.

Where the applicant has submitted a copy of the earlier application documents in the international phase in accordance with the provisions of the Patent Cooperation Treaty, it is not necessary to submit a copy of the earlier application documents to the patent administration department under The State Council when going through the formalities for entering the national phase in China. Where the applicant fails to submit a copy of the earlier application at the international stage, the patent administration department under The State Council may, when deemed necessary, notify the applicant to make up the copy within a specified time limit. Where the applicant fails to submit the application within the time limit, its claim for priority shall be deemed to have not been filed.

Article 128　If, within 2 months after the expiration of the priority period, the date of filing of the international application, the receiving Office at the international stage has approved the restoration of the priority, the request for restoration of the priority shall be deemed to have been submitted in accordance with the provisions of Article 36 of these Rules; In the international stage, the applicant does not request the restoration of the right of priority, or has made a request for the restoration of the right of priority but the receiving office has not approved it, and the applicant has legitimate reasons, may request the patent administration department under The State Council to restore the right of priority within two months from the date of entry.

Article 129　Where, before the expiration of 30 months from the priority date, the patent administration department under The State Council is requested to process and examine the international application in advance, the applicant shall, in addition to going through the formalities for entering the national phase in China, make a request in accordance with the provisions of Article 23, paragraph 2, of the Patent Cooperation Treaty. Where the International Bureau has not transmitted the international application to the patent Administration Department under The State Council, the applicant shall submit a confirmed copy of the international application.

Article 130　In the case of an international application for a patent right for utility models, the applicant may, within 2 months from the date of entry, voluntarily propose to amend the patent application documents.

The provisions of paragraph 1 of Article 57 of these Rules shall apply to the international application for the patent right for invention.

Article 131　Where the applicant finds that there are errors in the Chinese translation of the text in the description, claim or attached drawing submitted, he or she may, within the following prescribed time limit, make corrections in accordance with the original text of the international application:

(1) before the patent administration department under The State Council makes preparations for the publication of the application for a patent for invention or the announcement of the patent right for utility model;

(2) within 3 months from the date of receipt of the notice issued by the patent administration department under The State Council that the application for a patent for invention has entered the stage of substantive examination.

Where the applicant corrects a translation error, he shall submit a written request and pay the prescribed translation correction fee.

Where the applicant corrects the translation in accordance with the requirements of the notification issued by the patent Administration Department under The State Council, it shall complete the formalities provided for in paragraph 2 of this Article within the specified time limit; Where the prescribed formalities have not been completed at the expiration of the time limit, the application shall be deemed to have been withdrawn.

Article 132　Where the patent administration department under The State Council, after preliminary examination, finds that the international application for the patent right for invention is in conformity with the relevant provisions of the Patent Law and these Rules, it shall publish it in the Patent Gazette. Where an international application is filed in a language other than Chinese, the Chinese translation of the application documents shall be published.

Where an international application for a patent right for invention is published internationally in Chinese by the International Bureau, the provisions of Article 13 of the Patent Law shall apply as of the date of international publication or the date of publication by the patent administration department under The State Council. Where an international publication is made by the International Bureau in a language other than Chinese, the provisions of Article 13 of the Patent Law shall apply from the date of publication by the patent administration department under The State Council.

For international applications, the term "publication" in Articles 21 and 22 of the Patent Law means the publication provided for in paragraph 1 of this article.

Article 133　Where an international application contains two or more inventions or utility models, the applicant may, as of the date of entry, file a divisional application in accordance with the provisions of paragraph 1 of Article 48 of these Rules.

In the international phase, when the international search authority or the international preliminary examination authority considers that the international application does not meet the single requirements stipulated in the Patent Cooperation Treaty, the applicant fails to pay the surcharge in accordance with the provisions, resulting in some parts of the international application without international search or international preliminary examination, and when entering the Chinese national phase, the applicant requires that the said parts be used as the basis for examination. Where the patent administration department under The State Council considers that the international searching authority or the international preliminary examination authority has made a correct judgment on the singleness of the invention, it shall notify the applicant to pay the singleness recovery fee within a specified time limit. Where payment has not been made or has not been made in full at the expiration of the time limit, the part of the international application that has not been searched or has not been subjected to international preliminary examination shall be deemed withdrawn.

Article 134　Where, during the international phase of an international application, the relevant international unit refuses to grant the international filing date or declares that it has been withdrawn, the applicant may, within two months from the date of receipt of the notification, request the International Bureau to transmit a copy of any document in the file of the international application to the patent administration department under The State Council and, within that time limit, complete the procedures provided for in Article 120 of these Rules to the patent Administration Department under The State Council. The patent administration department under The State Council shall, after receiving the documents transmitted by the International Bureau, review whether the decision made by the international unit is correct.

Article 135　Where a patent right granted on the basis of an international application is incorrectly translated and the scope of protection determined in accordance with Article 64 of the Patent Law exceeds the scope expressed in the original text of the international application, the scope of protection limited in accordance with the original text shall prevail; If the scope of protection is less than that expressed in the original text of the international application, the scope of protection at the time of authorization shall prevail.

 

Chapter XII Special provisions on international applications for designs

 

Article 136　The patent administration department under The State Council shall, in accordance with the provisions of the second and third paragraphs of Article 19 of the Patent Law, handle the application for international registration of designs filed in accordance with the Hague Agreement on the International Registration of Industrial Designs (1999) (hereinafter referred to as the Hague Agreement).

The provisions of this Chapter shall apply to the conditions and procedures of the patent Administration Department under The State Council for processing an application for international registration of a design filed in accordance with the Hague Agreement and designated in China (referred to as an international application for design); Where there are no provisions in this Chapter, the relevant provisions of the Patent Law and other chapters of these Detailed Rules shall apply.

Article 137　Where an international application for a design has been established on an international registration date and designated in China in accordance with the Hague Agreement, it shall be deemed to be an application for a design patent filed with the patent administration Department under The State Council, and the international registration date shall be deemed to be the filing date referred to in Article 28 of the Patent Law.

Article 138　After the International Bureau has published the international application for design, the patent administration department under The State Council shall examine the international application for design and notify the International Bureau of the result of the examination.

Article 139　Where an international application for a design published by the International Bureau includes one or more priorities, a written declaration shall be deemed to have been made in accordance with Article 30 of the Patent Law.

Where the applicant for the international application for design claims the right of priority, it shall submit a copy of the earlier application documents within 3 months from the date of publication of the international application for design.

Article 140　Where the design involved in an international application for design falls under the circumstances listed in item (2) or (3) of Article 24 of the Patent Law, a declaration shall be made when the international application for design is filed, and the relevant supporting documents provided for in paragraph 3 of Article 33 of these Rules shall be submitted within 2 months from the date of publication of the international application for design.

Article 141　Where an international application for design includes two or more designs, the applicant may, within two months from the date of publication of the international application for design, file a divisional application with the patent administration Department under The State Council and pay a fee.

Article 142　Where the international application for design published by the International Bureau includes a description containing the main points of the design, a summary description shall be deemed to have been submitted in accordance with the provisions of Article 31 of these Rules.

Article 143　Where, after examination by the patent administration department under The State Council, there is no reason for rejection of an international application for design, the patent administration Department under The State Council shall make a decision granting protection and notify the International Bureau.

After the patent administration department under The State Council has made the decision to grant protection, it shall publish the patent right for design. The patent right shall become effective as of the date of the announcement.

Article 144　Where the formalities for the alteration of rights have been completed at the International Bureau, the applicant shall provide the relevant certification materials to the patent administration department under The State Council.

 

Chapter XIII Supplementary Provisions

 

Article 145　With the consent of the patent administration department under The State Council, any person may consult or copy the case file and patent register of a patent application that has been published or announced, and may request the patent administration Department under The State Council to issue a copy of the patent register.

The case file of a patent application that has been regarded as withdrawn, rejected or voluntarily withdrawn shall not be kept after the expiration of two years from the date of the expiration of the patent application.

The case file of a patent right that has been abandoned, declared completely invalid or terminated shall not be kept after the expiration of three years from the date of expiration of the patent right.

Article 146　Where an application document is submitted to the patent administration department under The State Council or various formalities are completed, it shall be signed or sealed by the applicant, the patentee, any other interested party or its representative; Where a patent agency is entrusted, it shall be sealed by the patent agency.

Where a request is made to change the name of the inventor, the name, nationality and address of the applicant for patent and the patentee, the name, address of the patent agency and the name of the patent agent, the administrative department for patent under The State Council shall go through the formalities for the alteration of the bibliography, and shall, when necessary, submit supporting materials for the reasons for the alteration.

Article 147　Documents relating to the application or patent right shall be mailed to the patent administration department under The State Council by registered mail, not by parcel.

Where, in addition to filing a patent application for the first time, various documents are submitted to the patent administration department under The State Council and various formalities are completed, the application number or patent number, the name of the invention-creation and the name or name of the applicant or patentee shall be indicated.

One letter should contain only documents relating to the same application.

148.　The patent administration department under The State Council shall formulate guidelines for patent examination in accordance with the Patent Law and these Rules.

149.　These Rules shall come into force as of July 1, 2001. The Rules for the Implementation of the Patent Law of the People's Republic of China, as amended by The State Council on December 12, 1992 and promulgated by the Patent Office of China on December 21, 1992, shall be repealed simultaneously.

 

Source: Chinese government website