LAWS AND REGULATIONS

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

 

306

The Rules for the Implementation of the Patent Law of the People's Republic of China are hereby promulgated and shall come into force as of July 1, 2001

 

Premier Zhu Rongji

 

June 15, 2001

 

 

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

 

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 "Invention" as used in the Patent Law means a new technical solution to a product, process or improvement thereof.

 

"Utility model" as mentioned in the Patent Law means a new technical scheme suitable for practical use which relates to the shape, structure or combination of the product.

 

The term "design" as used in the Patent Law refers to a new design of the shape or pattern of a product or its combination, as well as the combination of color and shape or pattern, which is aesthetically pleasing and suitable for industrial application.

 

Article 3 The 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.

 

Article 4 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 5 For all documents mailed to the patent administration Department under The State Council, the date of postmarking shall be the date of submission; 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.

 

The documents of the patent administration department under The State Council may be served on the parties by post, direct delivery or by 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.

 

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.

 

Article 6 The first day of any time limit prescribed in the Patent Law and these Rules shall not be counted as such. 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, it shall expire on the first working day after the holiday.

 

Article 7 Where, due to force majeure, 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, resulting in the loss of his rights, he may, within two months from the date of removal of the obstacle, or at the latest within two years from the date of expiration of the time limit, explain the reasons to the patent administration Department under The State Council, together with relevant supporting documents, and request the restoration of his rights.

 

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 for 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, explain the reasons to the patent administration Department under The State Council and request the restoration of his 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, explain its reasons to the patent administration Department under The State Council and complete 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 62 of the Patent Law.

 

Article 8 Where an application for a patent for invention involves state secrets relating to national defense that need to be kept secret, it shall be accepted by the national defense Patent Office. Where the patent administration department under The State Council accepts an application for an invention patent involving state secrets relating to national defense that need to be kept secret, it shall transfer the application to the national defense Patent Office for examination, and the patent administration department under The State Council shall make a decision on the basis of the examination opinions of the national defense Patent Office.

 

Except as provided in the preceding paragraph, after accepting an application for a patent for invention, the patent administration department under The State Council shall transmit the application for which confidentiality examination is required to the relevant competent department under The State Council for examination. The competent department concerned shall, within 4 months from the date of receipt of the application, notify the patent administration department under The State Council of the result of the examination; Where confidentiality is required, the patent administration department under The State Council shall handle the application in accordance with the confidential patent application and notify the applicant.

 

Article 9 The invention-creation mentioned in Article 5 of the Patent Law in violation of the laws of the State shall not include invention-creation whose implementation is prohibited only by the laws of the State.

 

Article 10 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 11 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) Invention-creation made within one year after retirement, retirement or transfer of work, related to the work undertaken by the original unit or the task 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, spare parts, raw materials or technical data not disclosed to the public.

 

Article 12 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 13 Only one patent may be granted for the same invention-creation.

 

In accordance with Article 9 of the Patent Law, where two or more applicants separately apply for a patent for the same invention-creation on the same day, the applicant shall be determined through consultation upon receipt of a notice from the patent administration Department under The State Council.

 

Article 14 Any assignment of the right to apply for a patent or the patent right by a Chinese entity or individual to a foreigner shall be approved by the department in charge of foreign economic relations and trade under The State Council jointly with the administrative department for science and technology under The State Council.

 

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, on the basis of relevant supporting documents or legal documents, go through the formalities for change of the patentee 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.

Chapter II Application for Patent

 

Article 16 Where an application for a patent is filed in writing, the application document in duplicate shall be submitted to the patent administration Department under The State Council.

 

Where an application for a patent is made in any other form prescribed by the patent administration department under The State Council, the prescribed requirements shall be met.

 

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 17 The term "other matters in the request" mentioned in paragraph 2 of Article 26 of the Patent Law refers to:

 

(1) The nationality of the applicant;

 

(2) Where the applicant is an enterprise or other organization, the country where its headquarters is located;

 

(3) Where the applicant appoints a patent agency, the relevant matters that should be indicated; If the applicant has not appointed a patent agency, the name, address, postal code and telephone number of the contact person;

 

(4) Where the right of priority is claimed, the relevant matters that should be indicated;

 

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

 

(6) List of application documents;

 

(7) List of additional documents;

 

(8) Other relevant matters that need to be noted.

 

Article 18 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 applicant shall submit the sequence table as a separate part of the specification and a copy of the sequence table in computer-readable form in accordance with the provisions of the patent Administration Department under The State Council.

 

Article 19 Several drawings attached to an invention or utility model may be drawn on a single drawing and arranged in accordance with "Figure 1, Figure 2,..." The sequence is numbered.

 

The size and clarity of the attached drawing should ensure that the details in the drawing can be clearly distinguished when the drawing is reduced to two thirds.

 

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 20 The claims shall state the technical features of the invention or utility model and clearly and briefly state the scope of protection claimed.

 

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 21 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 22 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 23 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 24 The abstract of the specification 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 is accompanied by drawings, it shall also provide an accompanying drawing that best illustrates the technical features of the invention or utility model. The size and clarity of the attached drawing should ensure that the details in the drawing can be clearly distinguished when the drawing is reduced to 4 cm x 6 cm. The text of the abstract shall not exceed 300 words. Commercial promotional language may not be used in the abstract.

 

Article 25 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;

 

(2) 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 26 Where an applicant for a patent for invention reserves a sample of a biological material in accordance with the provisions of Article 25 of these Rules, any entity or individual that, after the publication of the application for a patent for invention, 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 27 The drawing or photograph of a design submitted in accordance with Article 27 of the Patent Law shall not be smaller than 3 cm x 8 cm and shall not be larger than 15 cm x 22 cm.

 

Where an application for a patent for design simultaneously requests the protection of color, a color picture or photograph shall be submitted in duplicate.

 

The applicant shall submit relevant views or photos of the contents of each design product that need to be protected, clearly showing the object of protection requested.

Article 28 Where an application for a patent for design is filed, a brief description of the design shall be stated when necessary.

 

The brief description of the design shall indicate the main points of the design of the product using the design, the colors requested for protection, the omission of views, etc. The brief description shall not use commercial advertising terms and shall not be used to describe the performance of the product.

 

Article 29 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 a 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 30 The term "existing technology" as mentioned in paragraph 3 of Article 22 of the Patent Law refers to the technology publicly published in domestic and foreign publications, publicly used in the country or made known to the public by other means before the date of application (where there is a right of priority, it refers to the priority date), that is, prior art.

 

Article 31 The academic or technical conference referred to in item (2) 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 association.

 

Where the invention-creation for which a patent is applied falls under the circumstances listed in item (1) or (2) of Article 24 of the Patent Law, the applicant shall declare at the time of filing the patent application that the invention-creation has been exhibited or published, and that the invention-creation issued by the organization of the relevant international exhibition, academic conference or technical conference has been exhibited or published within two months from the date of filing. And documents supporting the date of exhibition or publication.

 

Where an invention-creation for which a patent is applied falls under the circumstances listed in item (3) 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 2 of this Article, or fails to submit supporting documents within the specified time limit in accordance with the provisions of paragraph 3 of this Article, the provisions of Article 24 of the Patent Law shall not apply to his application.

 

Article 32 Where an applicant goes through the procedures for claiming priority in accordance with the provisions of Article 30 of the Patent Law, it shall specify in a written declaration the filing date, application number and the country in which the application was first filed (hereinafter referred to as the earlier application); If the written declaration does not indicate the date of filing of the earlier application and the country in which the application was accepted, the declaration shall be deemed not to have been made.

 

Where a foreign priority is claimed, the copy of the prior application documents submitted by the applicant shall be certified by the original accepting authority; Where the name of the earlier applicant is inconsistent with the name of the later applicant in the certification materials submitted, the applicant shall submit the certification materials for the assignment of priority; Where a domestic priority is claimed, the copy of the prior application submitted by the applicant shall be made by the patent administration department under The State Council.

 

Article 33. 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 claims a national priority, and 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. 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 domestic priority, the earlier application shall be deemed withdrawn as of the date on which the later application was filed.

 

Article 34 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) Nationality certificate;

 

(2) If the applicant is an enterprise or other organization, the certificate of the location of its business office or headquarters;

 

(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 35 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 36 The term "same class" as mentioned in paragraph 2 of Article 31 of the Patent Law means that the product belongs to the same subclass in the classification table; Sale or use in sets means that all products have the same design idea and are traditionally sold and used at the same time.

 

Where two or more designs are filed as one application in accordance with the provisions of Article 31, paragraph 2, of the Patent Law, the sequential number of each design shall be marked before the name of the view of each product using the design.

 

Article 37 Where an applicant withdraws his application for a patent, he shall file a statement 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 38 In the preliminary examination, substantive examination, review and invalidation procedures, the personnel 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) where a member of the Patent Reexamination Board has participated in the examination of the original application.

 

Article 39 The patent administration department under The State Council, upon receipt of the request for an application for a patent for invention or utility model, the description (which must include drawings attached) and the claims, or the request for an application for a patent for design and the drawings or photographs of the design, shall specify the date of filing, grant the application number, and notify the applicant.

 

Article 40 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) and a claim, or the application for a patent for design lacks a request, pictures or photographs;

 

(2) Where the Chinese language is not used;

 

(3) Does not comply with the provisions of paragraph 1 of Article 120 of these Rules;

 

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

 

(5) Manifestly inconsistent with the provisions of Article 18 or paragraph 1 of Article 19 of the Patent Law;

 

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

 

Article 41 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 42 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 54 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 35 or 36 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 43 For a division application filed in accordance with the provisions of Article 42 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 of disclosure of 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. When submitting a division application, the applicant shall submit a copy of the original application documents; Where the original application enjoys the right of priority, a copy of the priority documents of the original application shall be submitted.

 

Article 44 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 within the provisions of Articles 5 and 25 of the Patent Law, or does not comply with the provisions of Article 18 and paragraph 1 of Article 19 of the Patent Law, or clearly does not comply with the provisions of Article 31, paragraph 1 and Article 33 of the Patent Law, or Article 2, paragraph 1, Article 18 and Article 20 of these Rules;

 

(2) Whether the application for a utility model patent clearly falls within the provisions of Articles 5 and 25 of the Patent Law, or does not comply with the provisions of Articles 18 and 19, paragraph 1, of the Patent Law, Or it is manifestly inconsistent with the provisions of Article 26, paragraph 3, paragraph 4, Article 31, paragraph 1, and Article 33 of the Patent Law, Article 2, paragraph 2, Article 13, paragraph 1, 18 to 23, or paragraph 1 of Article 43 of the Rules, or 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 within the provisions of Article 5 of the Patent Law, or does not comply with the provisions of Article 18, paragraph 1 of Article 19 of the Patent Law, or clearly does not comply with the provisions of Article 31, paragraph 2, Article 33, paragraph 3 of Article 2, paragraph 1 of Article 13, or paragraph 1 of Article 43 of the Patent Law, Or the patent cannot be obtained in accordance with Article 9 of the Patent Law.

 

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 45 Any document relating to a patent application submitted by an applicant to the patent administration Department under The State Council, other than the patent application document, shall be deemed not to have been submitted under any of the following circumstances:

 

(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 46 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 47 Where, in accordance with the provisions of Article 27 of the Patent Law, the product to which the design is used and the category to which it belongs, the applicant shall use the classification table of the design product published by the patent administration department under The State Council. 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 48. From the date of publication of the application for a patent for invention until the date of the announcement of the grant of the patent right, any person may submit his opinions and reasons to the patent administration Department under The State Council concerning an application for a patent that does not conform to the provisions of the Patent Law.

Article 49 Where an applicant for a patent for invention is unable to submit the information on search or the information on the results of examination provided for in Article 36 of the Patent Law for legitimate reasons, he shall make a declaration to the patent administration department under The State Council and make a supplementary submission after obtaining the relevant information.

 

Article 50. 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.

 

Article 51 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 notice 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 such amendment in accordance with the requirements of 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 52 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 53 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 substance refer to:

 

(1) The application does not comply with the provisions of paragraph 1 of Article 2 of these Rules;

 

(2) The application falls within the provisions of Article 5 or 25 of the Patent Law, or does not comply with Article 22 of the Patent Law, paragraph 1 of Article 13, paragraph 1 of Article 20 or paragraph 2 of Article 21 of these Rules, or fails to obtain a patent right in accordance with the provisions of Article 9 of the Patent Law;

 

(3) The application does not comply with the provisions of the third or fourth paragraphs of Article 26 or the first paragraph of Article 31 of the Patent Law;

 

(4) 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 43 of these Rules.

 

Article 54. After the patent Administration Department under The State Council has issued a notice 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 55 After the decision to grant the patent right for utility model has been announced, the utility model patentee may request the patent administration department under The State Council to make a search report on the patent for utility model.

 

Where a search report for a utility model patent is requested, a request shall be submitted and the patent number of the utility model patent shall be specified. Each request shall be limited to one utility model patent.

 

The patent administration department under The State Council shall, upon receipt of the request for a search report on the patent for utility model, examine it. Where the request does not meet the prescribed requirements, the requestor shall be notified to make corrections within a specified time limit.

 

Article 56 Where, after examination, the request for a patent search report for utility model conforms to the provisions, the patent administration department under The State Council shall make a patent search report for utility model in a timely manner.

 

Where, after searching, the patent administration department under The State Council considers that the utility model patent concerned does not conform to the provisions of Article 22 of the Patent Law on novelty or creativity, it shall cite the comparison document, state the reasons, and attach a copy of the comparison document cited.

 

Article 57 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 58 The Patent Reexamination Board shall be composed of technical and legal experts designated by the patent administration department under The State Council. The head of the board shall concurrently be the head of the patent administration department under The State Council.

 

Article 59 Where a request for reexamination is made to the Patent Reexamination Board in accordance with the provisions of Article 41 of the Patent Law, a request for reexamination shall be submitted, stating the reasons and, if necessary, supporting relevant evidence.

 

Where the written 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 Reexamination Board. 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 60 The person making the request for reexamination or responding to the notice of reexamination issued by the Patent Reexamination Board may 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.

 

The amended patent application document shall be submitted in duplicate.

 

Article 61 The Patent Reexamination Board shall transmit the application for reexamination it has received to the original examination department of the patent administration department under The State Council for examination. Where, at the request of the applicant for reexamination, the original examination department agrees to revoke the original decision, the Patent Reexamination Board shall make a reexamination decision accordingly and notify the applicant for reexamination.

 

Article 62 Where, after re-examination, the Patent Reexamination Board finds that the request for reexamination is not in conformity with the relevant provisions of the Patent Law and these Rules, it shall notify the person making the request 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 Reexamination Board 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 maintain the original rejection decision.

 

Where, after re-examination, the Patent Reexamination Board 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, it shall revoke the original rejection decision and the original examination department shall continue the examination procedure.

 

Article 63 The person making the request for reexamination may withdraw his request for reexamination before the Patent Reexamination Board makes a decision.

 

Where the applicant for reexamination withdraws his request for reexamination before the Patent Reexamination Board makes a decision, the reexamination procedure shall be terminated.

 

Article 64 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 made, a request for invalidation of the patent right and the necessary evidence shall be submitted to the Patent Reexamination Board in duplicate. 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 does not comply with the provisions of Article 22, 23, the third, fourth or 33rd paragraphs of Article 26 of the Patent Law, or the provisions of Article 2, paragraph 1 of Article 13, paragraph 1 of Article 20 or paragraph 2 of Article 21 of these Detailed Rules, or falls within the provisions of Article 5 or 25 of the Patent Law. Or the patent cannot be obtained in accordance with Article 9 of the Patent Law.

 

Article 65 Where a request for invalidation of a patent right is not in conformity with Article 64 of these Rules, the Patent Reexamination Board shall not accept it.

 

Where, after the Patent Reexamination Board has made a decision on the request for invalidation, it makes another request for invalidation on the same grounds and with the same evidence, the Patent Reexamination Board shall not accept the request.

 

Where a request for invalidation of the patent right for a design is made on the ground that the design for which the patent right is granted conflicts with the lawful right previously obtained by another person, but no effective decision or judgment proving the conflict of rights has been submitted, the Patent Reexamination Board shall not accept it.

 

 

Where the request for invalidation of the patent right does not conform to the prescribed format, the person requesting invalidation shall make corrections within the time limit specified by the Patent Reexamination Board. 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 66 After the Patent Reexamination Board has accepted 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 Reexamination Board may not consider them.

 

Article 67 The Patent Reexamination Board 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 Reexamination Board; Where no reply has been made within the time limit, the examination by the Patent Reexamination Board shall not be affected.

 

Article 68 During the examination of the request for invalidation, the patentee of a patent for invention or utility model may amend his claims, provided that the scope of protection of the original patent may not be extended.

 

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 69 The Patent Reexamination Board may, at the request of the parties or as the case requires, decide to conduct an oral hearing of the request for invalidation.

 

Where the Patent Reexamination Board 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 Reexamination Board 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 70 In the procedure for examining a request for invalidation, the time limit designated by the Patent Reexamination Board may not be extended.

 

Article 71 Before the Patent Reexamination Board makes a decision on the request for invalidation, the person making the request for invalidation may withdraw his request.

 

Where the applicant for invalidation withdraws his request before the Patent Reexamination Board makes a decision, the procedure for examining the request for invalidation shall be terminated.

 

Chapter V Compulsory license for Exploitation of patent

 

Article 72 After the expiration of three years from the date on which the patent right is granted, any entity may, in accordance with the provisions of Article 48 of the Patent Law, request the patent administration department under The State Council to grant a compulsory license.

 

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 attaching the relevant supporting documents in duplicate.

 

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 on compulsory licensing made by the patent administration department under The State Council shall not be affected.

 

In the decision of the patent administration department under The State Council granting a compulsory license for exploitation, the compulsory license shall be limited to the purpose of supplying the domestic market. Where the invention or creation involved in the compulsory license is semiconductor technology, the implementation of the compulsory license is limited to the public non-commercial use, or the use determined by judicial or administrative procedures to be anti-competitive and granted relief.

 

Article 73 Where, in accordance with the provisions of Article 54 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 the two parties cannot reach an agreement. 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 VI The inventor of a service invention-creation

 

Or designing people's rewards and compensation

 

Article 74 A state-owned enterprise or institution that has been granted a patent right shall, within three months from the date of the announcement of the patent right, pay a bonus to the inventor or designer. The bonus for a patent for invention shall not be less than 2,000 yuan; The bonus for a utility model patent or design patent shall not be less than 500 yuan.

Where an invention-creation is completed as a result of the proposal of the inventor or creator being adopted by the unit to which he belongs, the state-owned enterprise or institution that has been granted a patent right shall pay a bonus in preference to the other.

 

The prize paid to the inventor or designer may be included in the cost of the enterprise, and the institution may deduct it from the operating expenses.

 

Article 75 A state-owned enterprise or institution that has been granted a patent right shall, during the term of validity of the patent right and after exploiting the patent for invention-creation, withdraw no less than 2% per year after tax from the profits derived from exploiting the invention or utility model patent, or no less than 0.2% after tax from the profits derived from exploiting the patent for design, to pay to the inventor or creator as remuneration. Or pay the inventor or designer a one-time reward in reference to the above proportion.

 

Article 76 Where a state-owned enterprise or institution that has been granted a patent right permits any other entity or individual to exploit its patent, it shall, after paying taxes, pay not less than 10% of the royalties collected from the license to exploit the patent as remuneration to the inventor or designer.

 

Article 77 The provisions of this Chapter on bonuses and remuneration may be implemented by reference by other Chinese units.

 

Chapter VII Protection of Patent Right

 

Article 78 The term "department for the administration of patent affairs" as mentioned in the Patent Law and these Rules means the department for the administration of patent affairs established by the people's governments of provinces, autonomous regions and municipalities directly under the Central Government and by the people's governments of cities divided into districts that have a heavy workload in patent administration and have actual processing capacity.

 

Article 79 In addition to the provisions of Article 57 of the Patent Law, the administrative authority for patent affairs may, at the request of the parties, 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) Disputes over the reward and remuneration of the inventor or designer of a service invention;

 

(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.

 

For the disputes listed in item (4) of the preceding paragraph, the patentee shall request the administrative authority for patent affairs for mediation after the grant of the patent right.

 

Article 80 The patent administration department under The State Council shall provide operational guidance to the administrative department for patent affairs in handling and mediating patent disputes.

 

Article 81 Where a party requests the settlement or mediation of a patent 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 infringing act 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 82 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 Reexamination Board, 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 83 Where, in accordance with the provisions of Article 15 of the Patent Law, the patentee indicates 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.

 

Article 84 The following acts shall be acts of counterfeiting the patent of another person:

 

(1) Without permission, marking the patent number of another person on the product manufactured or sold by it or on the package of the product;

 

(2) Using the patent number of another person in advertisements or other promotional materials without permission, so that the technology involved is mistaken for the patented technology of another person;

 

(3) Using the patent number of another person in the contract without permission, so that the technology covered by the contract is mistaken for the patented technology of another person;

 

(4) Forging or altering the patent certificate, patent document or patent application document of another person.

 

Article 85 The following acts shall be acts of passing off a non-patented product as a patented product or passing off a non-patented process as a patented process:

 

(1) manufacture or sale of non-patented products marked with patent marks;

 

(2) after the patent right has been declared invalid, continue to mark the patent mark on the products manufactured or sold;

 

(3) to use non-patented technology as patented technology in advertising or other promotional materials;

 

(4) referring to the non-patented technology as patented technology in the contract;

 

(5) forging or altering the patent certificate, patent document or patent application document.

 

Article 86 Where a party disputes the ownership of the right to apply for a patent or the patent right and has requested the administrative authority for patent affairs to settle the dispute or has brought 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 written request shall be submitted to the patent administration department under The State Council, together with a copy of the relevant acceptance documents of the administrative department for patent affairs or the people's court.

 

After the processing decision 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 87 Where the people's court has ordered the adoption of preservation measures for the patent right in the trial of a civil case, the patent administration department under The State Council shall suspend the relevant procedures for the preserved patent right when assisting in the execution. 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. 

 

Chapter VIII Patent Registration and Patent Bulletin 

 

Article 88 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) Invalidation of the patent right;

 

(6) Termination of the patent right;

 

(7) Restoration of the patent right;

 

(8) Compulsory license for exploitation of a patent;

 

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

Article 89 The patent administration department under The State Council shall publish a patent gazette on a regular basis, promulgate or announce the following:

(1) The description of the patent application;

 

(2) A summary of the description of the invention or utility model, pictures or photographs of the design and a brief description thereof;

 

(3) 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;

 

(4) Declassification of confidential patents;

 

(5) Rejection, withdrawal or deemed withdrawal of an application for a patent for invention after publication;

 

(6) Grant of patent right;

 

(7) Invalidation of the patent right;

 

(8) Termination of the patent right;

 

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

 

(10) Filing of patent licensing contracts;

 

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

 

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

 

(13) Restoration of a patent application or patent right;

 

(14) Changes in the name or address of the patentee;

 

(15) Notice to a party whose address is unknown;

 

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

 

(17) Other relevant matters.

 

The specification of the invention or utility model, the drawings attached thereto and the claims shall be published in full separately by the patent administration department under The State Council.

  

Chapter IX Expenses

 

Article 90 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 fees, application surcharges, and publication and printing fees;

 

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

 

(3) Patent registration fees, announcement and printing fees, application and maintenance fees, and annual fees;

 

(4) Fees for changes in the description, fees for priority claims, fees for restoration of rights, fees for extension of time limits, and fees for utility model patent search reports;

 

(5) Request fee for invalidation, request fee for suspension of proceedings, request fee for compulsory license, and request fee for adjudication of compulsory license royalties.

 

The standards for payment of the fees listed in the preceding paragraph shall be prescribed jointly by the price administrative department under The State Council and the patent administrative department under The State Council.

 

Article 91 The fees provided for in the Patent Law and these Rules may be paid directly to the patent administration department under The State Council, or by remittance by post or bank, or by any other means prescribed by the patent Administration Department under The State Council.

 

Where payment is made by post or bank, the correct application number or patent number and the name of the fee paid shall be indicated on the remittance form submitted to the patent administration department under The State Council. Those who do not comply with the provisions of this paragraph shall be deemed to have not gone through the payment procedures.

 

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 office remittance, the date of postmark of the post office remittance shall be the payment date. If the fee is paid by bank remittance, the date of actual remittance by the bank shall be the payment date; However, if the payment date exceeds 15 days from the date of remittance to the date of receipt by the patent administration department under The State Council, the date of receipt by the patent administration Department under The State Council shall be the payment date, unless a certificate is issued by the post office or bank.

 

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

 

Article 92 The applicant shall, upon receipt of the notice of acceptance, pay the application fee, publication and printing fee and necessary surcharges within 2 months at the latest from the date of application; 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 93 Where a party requests substantive examination, restoration of rights or reexamination, it shall pay the fees 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 94 Where the applicant for a patent for invention has not been granted a patent right within two years from the date of filing, he shall pay a maintenance fee for the application as of the third year.

 

Article 95 When going through the registration formalities, the applicant shall pay the patent registration fee, the fee for announcement and printing, and the annual fee for the year in which the patent right is granted. The applicant for a patent for invention shall pay the application maintenance fee for each year, excluding the year in which the patent right is granted. Those who fail to pay the fees at the expiration of the time limit shall be deemed to have not gone through the registration formalities. The subsequent annual fees shall be paid in advance within one month before the expiration of the previous year.

Article 96 Where the patentee fails to pay the annual fee after the year in which the patent right was granted or the amount paid is insufficient, 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 have been paid and pay the late fee at the same time. 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 97 Fees for changes in bibliocontents, fees for search reports on utility model patents, fees for requests for suspension of proceedings, fees for requests for compulsory licenses, fees for adjudication requests for compulsory license royalties, and fees for invalidation requests shall be paid in accordance with relevant provisions within one month from the date of filing the request; 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.

 

Article 98 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 or suspension of payment. The measures for reduction or suspension of payment shall be formulated by the patent administration department under The State Council in consultation with the financial department under The State Council and the price administrative department under The State Council.

 

Chapter X Special provisions on international applications

 

Article 99 The patent administration department under The State Council shall, in accordance with Article 20 of the Patent Law, accept an international application for patent filed in accordance with the Patent Cooperation Treaty.

 

The provisions of this Chapter shall apply to the conditions and procedures for the entry into the national phase in China of an international patent application filed in accordance with the Patent Cooperation Treaty and designated in China (hereinafter referred to as an international 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.

 

Article 100 An international application for which an international filing date has been fixed and China designated 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.

 

If, during the international phase, the international application or the designation of China in the international application is withdrawn or deemed to be withdrawn, the validity of the international application in China shall cease.

 

Article 101 The applicant for an international application shall, within 20 months from the priority date referred to in Article 2 of the Patent Cooperation Treaty (this chapter is referred to as the "priority date"), complete the following formalities with the patent administration department under The State Council for the entry of the international application into the national phase in China; Where the international application selects China within 19 months from the priority date and the selection continues to be valid, the applicant of the international application shall, within 30 months from the priority date, complete the following procedures with the patent administration department under The State Council for the entry of the international application into the national phase in China:

 

(1) Submit a written statement on the entry of its international application into the Chinese national phase. The declaration shall indicate the international application number, and indicate in Chinese the type of patent right claimed, the name of the invention, the name of the applicant, the address of the applicant and the name of the inventor, which shall be consistent with the records of the International Bureau;

 

(2) Pay the application fee, application surcharge and publication and printing fee as provided for in paragraph 1 of Article 90 of these Rules;

 

(3) Where the international application is filed in a language other than Chinese, the Chinese translation of the description, the claims, the text in the attached drawings and the abstract of the original international application shall be submitted; Where an international application is filed in Chinese, a copy of the abstract in the internationally published document shall be submitted;

 

(4) If the international application has attached drawings, a copy of the attached drawings shall be submitted. Where an international application is filed in Chinese, copies of the abstracts and drawings in the internationally published documents shall be submitted.

 

If the applicant fails to go through the formalities for entering the Chinese national phase within the time limit specified in the preceding paragraph, he may, after paying the grace fee, go through the formalities before the expiration of the corresponding time limit of 22 months or 32 months from the priority date.

 

Article 102 Where the applicant fails to complete the formalities for entering the national phase in China within the time limit prescribed in paragraph 2 of Article 101 of these Rules, or where any of the following circumstances occurs at the expiration of the time limit, the validity of his international application in China shall cease:

 

(1) The international application number is not specified in the declaration on entering the national phase in China;

 

(2) Failing to pay the application fee prescribed in paragraph 1 of Article 90 of these Rules, the publication and printing fee and the grace fee prescribed in paragraph 2 of Article 101 of these Rules;

 

(3) Where the international application is filed in a language other than Chinese and the Chinese translation of the description and claims of the original international application is not submitted.

 

Where the validity of an international application in China has ceased, the provisions of paragraph 2 of Article 7 of these Rules shall not apply.

 

Article 103 Where an applicant goes through the formalities for entering the Chinese national phase under any of the following circumstances, the patent administration department under The State Council shall notify the applicant to make corrections within the specified time limit:

 

(1) Failing to submit the Chinese translation or copy of the abstract;

 

(2) Failing to submit a copy of the attached drawing or a copy of the abstract;

 

(3) Failing to specify in Chinese the name of the invention-creation, the name or designation of the applicant, the address of the applicant and the name of the inventor in the declaration on entering the national phase in China;

 

(4) The content or form of the declaration on entering the national phase in China is not in conformity with the provisions.

 

If the applicant fails to make corrections upon the expiration of the time limit, his application shall be deemed withdrawn.

 

Article 104 Where an 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 applicant shall submit the revised Chinese translation before the patent administration department under The State Council has made preparations for national publication. 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 105 When going through the formalities for entering the Chinese national phase, the applicant shall also meet the following requirements:

 

(1) If the inventor is not specified in the international application, the name of the inventor shall be specified in the declaration of entry into the Chinese national phase;

 

(2) In the international stage, if the International Bureau has gone through the formalities for the change of the applicant, it shall provide proof that the applicant enjoys the right to apply after the change;

 

(3) If the applicant is not the same person as the applicant for the earlier application on which the priority is based, or if the name is changed after the earlier application is filed, the applicant shall, when necessary, provide proof that the applicant enjoys the priority;

 

(4) Where the invention-creation involved in the international application falls under one of the circumstances listed in item (1) or (2) of Article 24 of the Patent Law, and a declaration was made at the time of filing the international application, it shall be explained in the declaration on entry into the national phase in China, and the relevant supporting documents provided for in paragraph 2 of Article 31 of these Rules shall be submitted within two months from the date of the formalities for entry into the national phase in China.

 

Where the applicant fails to meet the requirements of items (1), (2) and (3) of the preceding paragraph, the patent administration department under The State Council shall notify the applicant to make corrections within a specified time limit. Where the contents of item (1) or (2) are not corrected at the expiration of the time limit, the application shall be deemed to have been withdrawn; Where the contents of item (3) are not corrected at the expiration of the time limit, the priority claim shall be deemed not to have been filed.

 

Where the applicant fails to meet the requirements of paragraph 1 (4) of this Article, the provisions of Article 24 of the Patent Law shall not apply to his application.

 

Article 106 Where, in accordance with the provisions of the Patent Cooperation Treaty, the applicant has made an explanation for the storage of samples of biological materials, the requirements of item (3) of Article 25 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 has not specified it in the declaration on entering the national phase in China, it shall make corrections within 4 months from the date of going through the procedures for entering the national phase in China. 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 the applicant submits to the patent administration department under The State Council, within four months from the date of going through the formalities for entering the national phase in China, the certificate of preservation and the certificate of survival of the biological material sample shall be deemed to have been submitted within the time limit prescribed in Item (1) of Article 25 of these Rules.

 

Article 107 Where an applicant has claimed one or more priority rights during 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.

 

Where the written declaration of priority submitted by the applicant in the international stage has errors or does not indicate the application number of the earlier application, the applicant may make a request for correction or indicate the application number of the earlier application when going through the procedures for entering the Chinese national stage. Where the applicant submits a request for correction, it shall pay a fee for requesting the right of correction.

 

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.

 

Where the claim for priority is deemed to have not been filed in the international phase and the information has been published by the International Bureau, the applicant may, with legitimate reasons, request the patent administration department under The State Council to restore its claim for priority when going through the formalities for entering the national phase in China.

Article 108 Where, before the expiration of 20 months from the priority date, the patent administration department under The State Council is requested to process and examine an international application in advance, the applicant shall, in addition to going through the formalities for entering the national phase in China, file 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 109 Where an international application for the patent right for utility model is requested, the applicant may, within one month from the date of going through the formalities for entering the national phase in China, file with the patent administration department under The State Council an amendment to the specification, appended drawings and written claims.

 

The provisions of paragraph 1 of Article 51 of these Rules shall apply to the international application for the patent right for invention.

 

Article 110 Where an 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 limits, make corrections in accordance with the original text of the international application:

 

(1) before the patent administration department under The State Council has made preparations for national publication;

 

(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 make a written request, submit a translation correction page, 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 111 Where the patent administration department under The State Council, after preliminary examination, finds that an 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 from the date of international publication; 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 112 Where an international application contains two or more inventions or utility models, the applicant may, after completing the formalities for entering the Chinese national phase, file a divisional application in accordance with the provisions of paragraph 1 of Article 42 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 113 Where an applicant submits documents and pays fees in accordance with the provisions of Article 101 of these Rules, the date on which the administrative department for patent under The State Council receives the documents shall be the date of submission and the date on which the fees are received shall be the date of payment.

 

Where the delivery of the submitted documents is delayed, the applicant shall, within 1 month from the date of discovery of the delay, prove that the documents have been delivered for mailing 5 days prior to the expiration of the time limit prescribed in Article 101 of these Rules, the documents shall be deemed to have been received on the expiration date. However, the time for the applicant to provide the certificate shall not be later than 6 months after the expiration of the time limit prescribed in Article 101 of these Rules.

 

The applicant may submit documents to the patent administration Department under The State Council in accordance with the provisions of Article 101 of these Rules by fax. Where the applicant uses facsimile, the date on which the patent administration department under The State Council receives the facsimile shall be the date of submission. The applicant shall, within 14 days from the date of sending the fax, submit the original fax to the patent administration Department under The State Council. If the original is not submitted at the expiration of the time limit, the document shall be deemed not to have been submitted.

 

Article 114 Where an international application claims the right of priority, the applicant shall pay the right of priority claim fee when going through the formalities for entering the Chinese national phase; Where payment is not made or not made in full, the patent administration department under The State Council shall notify the applicant to make payment within the specified 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 the right of priority has not been claimed.

 

Article 115 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. 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 or not.

 

Article 116 Where a patent right granted on the basis of an international application is incorrectly translated so that the scope of protection determined in accordance with Article 56 of the Patent Law exceeds the scope expressed in the original text of the international application, the scope of protection restricted on the basis of 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 XI Supplementary Provisions

 

Article 117 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 118 The application documents submitted to the patent administration department under The State Council or the various formalities shall be in a uniform form formulated by the patent administration department under The State Council, and shall be signed or sealed by the applicant, the patentee, any other interested person or their 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 agent, the administrative department for patent under The State Council shall go through the formalities for the alteration of the bibliography and shall be accompanied by supporting materials for the reason for the alteration.

 

Article 119 Documents relating to an application or patent right shall be mailed to the patent administration department under The State Council by registered mail, and parcels shall not be used.

 

The application number or patent number, the name of the invention-creation and the name of the applicant or the patentee shall be indicated in all documents submitted to the patent administration department under The State Council and all formalities, except for the initial submission of the application documents.

 

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

 

Article 120 All kinds of application documents shall be typed or printed in black, neat and clear handwriting, and shall not be altered. Drawings shall be drawn with drawing tools and black ink, lines shall be uniform and clear, and shall not be altered.

 

Requests, specifications, claims, drawings and abstracts shall be numbered in Arabic numerals respectively.

 

The text of the application documents shall be written horizontally. Paper is limited to one side.

 

Article 121 The patent administration department under The State Council shall, in accordance with the Patent Law and these Rules, formulate guidelines for patent examination.

 

Article 122 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.