LAWS AND REGULATIONS

Order of The State Council and the Central Military Commission 

(No. 418) 

The Regulations on National Defense Patents are hereby promulgated and shall come into force as of November 1, 2004.

Premier of The State Council Wen Jiabao

September 17, 2004

Chapter I General provisions 

Article 1 These Regulations are formulated in accordance with the Patent Law of the People's Republic of China for the purpose of protecting patent rights for inventions related to national defense, ensuring state secrets, facilitating the popularization and application of inventions-creations, promoting the development of science and technology for national defense, and meeting the needs of the modernization of national defense. 

Article 2 A national defense patent refers to an invention patent that involves the interests of national defense and has a potential role in national defense construction and needs to be kept secret. 

Article 3 The State Patent Office for National defense (hereinafter referred to as the national defense Patent Office) shall be responsible for accepting and examining applications for national defense patents. Where, upon examination by the national defense patent institution, it is found to be in conformity with the provisions of these Regulations, the patent administration department under The State Council shall grant the national defense patent right. 

The competent department of Science, Technology and Industry for national Defense under The State Council and the General Armaments Department of the Chinese People's Liberation Army (hereinafter referred to as the General Armaments Department) are respectively responsible for the administration of national defense patents in the local and military systems. 

Article 4 No national defense patent may be applied for an invention that involves national defense interests or has a potential role in national defense construction and is determined to be a top-secret state secret. 

Prior to declassification, applications for national defense patents and the confidentiality of national defense patents shall be administered in accordance with the Law of the People's Republic of China on Guarding State Secrets and the relevant provisions of the State. 

Article 5 The term of protection of national defense patent right shall be 20 years, counted from the date of filing. 

Article 6 Where, during the protection period of a national defense patent, it is necessary to change the classification or declassify due to changes in circumstances or to extend the confidentiality period after the termination of the national defense patent right, the national defense Patent Office may make a decision to change the classification, declassify or extend the confidentiality period. However, where a national defense patent is determined to be a state secret before the application is made, the consent of the organ or unit that originally determined the classification and confidentiality period or the organ at a higher level shall be obtained. 

The entity or individual that has been granted a national defense patent right (hereinafter referred to as the national defense patentee) may file a written application with the national defense patent institution for changing the classification, declassifying or extending the confidentiality period; If it belongs to a state-owned enterprise, institution or military unit, it shall attach the opinions of the organ or unit that originally determined the classification and confidentiality period or the organ at a higher level. 

The national defense patent institution shall publish the decision to change the classification, declassify or extend the confidentiality period in the Internal Notification of National Defense Patents published by the institution, notify the national defense patentee, and at the same time submit the declassified national defense patent to the patent administration department under The State Council for conversion into a general patent. The patent administration department under The State Council shall promptly announce the declassified national defense patent to the public. 

Article 7 The right to apply for a national defense patent and the national defense patent right may, upon approval, be transferred to any Chinese unit or individual in the country. 

To transfer the right to apply for a national defense patent or a national defense patent right, it shall ensure that state secrets are not disclosed and that national defense and army construction are not affected, and shall file a written application with the national defense patent institution, which shall, after preliminary examination, submit it to the competent department of Science, technology and industry for national defense under The State Council and the General Armors Department for examination and approval in accordance with the division of duties provided for in paragraph 2 of Article 3 of these Regulations. 

The competent department of science, technology and industry for national defense under The State Council and the General Armaments Department shall, within 30 days from the date of acceptance of the application by the national defense Patent Office, make a decision on approval or disapproval. Where a decision of disapproval is made, the applicant shall be notified in writing and the reasons shall be explained. 

Where the assignment of the right to apply for a national defense patent or a national defense patent right is approved, the parties shall conclude a written contract and register it with the national defense patent institution, which shall publish it in the Internal Notification of National Defense Patents. The right to apply for a national defense patent or the assignment of a national defense patent right shall become effective as of the date of registration. 

Article 8 It is prohibited to transfer the right to apply for a national defense patent or the national defense patent right to any foreign entity or individual or to any foreign entity or institution in China. 

Article 9 Where it is necessary to entrust a patent agency to apply for a national defense patent and handle other national defense patent matters, a patent agency designated by the national defense patent agency shall be entrusted to handle the matter. Patent agencies and their staff shall have the obligation to keep confidential the state secrets that they come to know in the course of handling national defense patent applications and other national defense patent affairs.

Chapter II Application, examination and authorization of national defense patents 

Article 10 Where an application for a national defense patent is filed, documents such as a request, a description and its abstract, and a claim shall be submitted to the national defense Patent Office. 

The applicant for a national defense patent shall prepare the application document in accordance with the requirements and uniform format prescribed by the national defense patent institution, and deliver it to the national defense patent institution in person or through confidential correspondence or other confidential means, and shall not post it by ordinary mail. 

The date on which the national defense Patent Office receives the national defense patent application document shall be the filing date; If the application documents are sent by private mail, the date of the postmark shall be the date of application.

Article 11 Where the national defense Patent Office regularly sends its personnel to the patent administration department under The State Council to check the general patent application and finds that it involves the interests of national defense or has a potential role in national defense construction and needs to be kept secret, it shall, with the approval of the patent administration department under The State Council, convert it into a national defense patent application and notify the applicant.

After an ordinary patent application is converted into an application for a national defense patent, the national defense Patent Office shall examine the application for a national defense patent in accordance with the relevant provisions of these Regulations. 

Article 12 An invention for which a patent right for national defense is granted shall possess novelty, inventiveness and practicality.

Novelty means that the same invention has not been publicly published in a foreign publication, published in a domestic publication, used in the country, or otherwise known to the public before the filing date, nor has the same invention been applied for by another person and obtained a national defense patent right after the filing date. 

Creativity means that the invention has outstanding substantive features and significant progress compared with the technology existing before the date of filing. 

Practicality means that the invention can be manufactured or used and can produce a positive effect. 

Article 13 An invention for which a national defense patent is applied shall not lose its novelty if, within six months before the date of filing, any of the following occurs: 

(1) Exhibited for the first time at an internal exhibition organized by the relevant competent department of The State Council or the relevant competent department of the Chinese People's Liberation Army; 

(2) It was first published at an internal academic or technical conference convened by the relevant competent department of The State Council or the relevant competent department of the Chinese People's Liberation Army; 

(3) Where another person discloses its contents without the consent of the applicant for a national defense patent. 

Where there are any of the circumstances listed in the preceding paragraph, the applicant for a national defense patent shall make a declaration at the time of application, and provide relevant supporting documents within 2 months from the date of application. 

Article 14 Where, after examining an application for a national defense patent, the national defense Patent Office finds that it is not in conformity with the provisions of these Regulations, it shall notify the applicant for a national defense patent to state its opinions or to amend or correct its application for a national defense patent within a specified time limit; If the applicant fails to reply within the time limit without justifiable reasons, the defense patent application shall be deemed to have been withdrawn. 

The applicant for a national defense patent may, within 6 months from the date of filing or when responding to the notice of the first examination opinion, take the initiative to amend his application for a national defense patent.

The applicant shall not amend its national defense patent application documents beyond the scope set out in the original specification and claims. 

Article 15 Where, after the applicant for a national defense patent has stated his opinions or amended or corrected the application for a national defense patent, the national defense Patent Office considers that it is still not in conformity with the provisions of these Regulations, it shall reject it. 

Article 16 The national defense patent institution shall establish a national defense Patent Reexamination Board to be responsible for the reexamination and invalidation of national defense patents. 

The National defense Patent Reexamination Board shall be composed of technical and legal experts, and its chairman shall be the head of the national defense patent institution. 

Article 17 Where an applicant for a national defense patent is not satisfied with the decision of the national defense Patent Office to reject the application, it may, within three months from the date of receipt of the notification, request the National Defense Patent Reexamination Board for reexamination. After the National Defense Patent Reexamination Board has made a decision, it shall notify the applicant for a national defense patent.

Article 18 Where, after examination, it is found that there is no reason for rejection of an application for a patent for national defence, or where, after reexamination, it is found that the application for a patent for national defence should not be rejected, the patent administration department under The State Council shall make a decision to grant the patent right for national defence and entrust the Patent Office for national defence to issue the patent certificate for national defence. At the same time, the date of application, the date of authorization and the patent number of the national defense patent shall be published in the Patent Gazette published by the patent administration department under The State Council. The national defense patent institution shall register the relevant matters of the national defense patent and publish them in the Internal Bulletin of National Defense Patent. 

Article 19 Where any entity or individual considers that the grant of a patent right for national defense is not in conformity with the provisions of these Regulations, it may file a request with the National Defense Patent Reexamination Board for invalidation of the said patent right for national defense. 

Article 20. After examining the request for invalidation of the patent right for national defense and making a decision, the National Defense Patent Reexamination Board shall notify the applicant and the national defense patentee. The decision to invalidate a national defense patent right shall be registered by the national defense patent institution and published in the Internal Bulletin of National Defense Patent, and the patent administration department under The State Council shall publish it in the Patent Gazette.

Chapter III Implementation of National defense patents

Article 21 The national defense patent institution shall, within three months from the date of granting the patent right for national defense, send a copy of the relevant document of the national defense patent to the relevant competent department under The State Council or the relevant competent department of the Chinese People's Liberation Army. The department that receives the copy of the document shall, within 4 months, put forward written opinions on the implementation of the national defense patent and notify the national defense Patent Office. 

Article 22 The relevant competent department under The State Council and the competent department of the Chinese People's Liberation Army may allow the units designated by them to exploit the national defense patent within their own systems or departments; Where it is necessary to designate and implement a national defense patent in its own system or other departments, a written application shall be filed with the national defense patent institution, which shall, in accordance with the division of duties provided for in paragraph 2 of Article 3 of these Regulations, report to the competent department of Science, technology and industry for national defense under The State Council and the General Armaments Department for approval before implementation.

The national defense Patent Office shall register the designated implementation of national defense patents and publish them in the Internal Bulletin of National Defense Patents. 

Article 23 The entity exploiting another person's national defense patent shall conclude a written exploitation contract with the national defense patentee, pay a fee to the national defense patentee in accordance with the provisions of Article 25 of these Regulations, and report it to the national defense Patent Office for the record. The implementing unit shall not allow any entity other than those stipulated in the contract to exploit the national defense patent.

Article 24 Where a national defense patentee permits a foreign entity or individual to exploit its national defense patent, it shall ensure that state secrets are not disclosed and that the construction of national defense and the armed forces is not affected, and shall file a written application with the national defense patent institution, which shall, after preliminary examination, assign duties according to the second paragraph of Article 3 of these Regulations. Timely submit to the competent department of Science, Technology and Industry for national Defense under The State Council and the General Armaments Department for examination and approval.

The competent department of science, technology and industry for national defense under The State Council and the General Armaments Department shall, within 30 days from the date of acceptance of the application by the national defense Patent Office, make a decision on approval or disapproval. Where a decision of disapproval is made, the applicant shall be notified in writing and the reasons shall be explained. 

Article 25 Where another person exploits a national defense patent, he shall pay the national defense patent royalties to the national defense patentee. Where a national defense patent arising from the use of the national defense scientific research funds directly invested by the State or other national defense funds for scientific research meets the purpose of the use of the funds for which the national defense patent was generated, only the necessary national defense patent exploitation fees may be paid; However, unless otherwise agreed in the scientific research contract or otherwise stipulated in the scientific research assignment.

The expenses for the exploitation of national defense patents mentioned in the preceding paragraph refer to the expenses incurred in the exploitation of national defense patents for the provision of technical materials, training of personnel and further development of technology.

Article 26 The amount of the exploitation fee or usage fee for the designated exploitation of a national defense patent shall be determined through consultation between the national defense patentee and the exploitation unit. If no agreement can be reached, the defense Patent Office shall make a ruling. 

Article 27 The State shall compensate the national defense patentee. After issuing the national defense patent certificate, the national defense Patent Office shall pay the national defense patent compensation fee to the national defense patentee, and the specific amount shall be determined by the national defense Patent Office. Where it is a service invention, the national defense patentee shall pay no less than 50% of the compensation to the inventor.

Chapter IV Administration and protection of national defense patent.

Article 28 The Internal Notification of National Defense Patent published by the national defense Patent Institution is a state secret document, and its scope of knowledge shall be determined by the national defense patent institution.

The Internal Bulletin of National Defense Patents published the following contents:

(1) Description items recorded in the application for a national defense patent;

(2) A claim for a national defense patent;

(3) A summary of the description of the invention;

(4) Grant of national defense patent right;

(5) Termination of the patent right for national defense;

(6)Invalidation of national defense patent right;

(7) Transfer of the right to apply for a national defense patent or the national defense patent right;

(8) Designation and implementation of national defense patents;

(9) Filing of contracts for licensing exploitation of national defense patents;

(10) Changing the classification and declassification of national defense patents;

(11) Extension of the confidentiality period for national defense patents;

(12) Changes in the name or name or address of the national defense patentee;

(13) Other relevant matters.

Article 29 After the grant of a patent right for national defense, under any of the following circumstances, the patent specification for national defense may be consulted with the consent of the national defense patent institution:

(1) Filing a request for invalidation of the patent right for national defense;

(2) Where it is necessary to exploit a national defense patent;

(3) Where a dispute over a national defense patent occurs;

(4) Necessary for national defense scientific research.

The viewer shall have the obligation to keep confidential the state secrets that he has come to know in the course of inspection.

Article 30 The relevant competent departments under The State Council, the relevant competent departments of the Chinese People's Liberation Army and the administrative departments of science, technology and industry for national defense of all provinces, autonomous regions and municipalities directly under the Central Government shall designate an agency to administer the work of national defense patents and notify the national defense patent institutions. The agency that manages the work of national defense patents is under the guidance of the national defense patent Agency.