LAWS AND REGULATIONS

(Adopted at the fourth meeting of the Standing Committee of the Sixth National People's Congress on March 12, 1984 in accordance with the Decision of the Standing Committee of the Seventh National People's Congress on Amending the Patent Law of the People's Republic of China at the 27th meeting of the Standing Committee of the Seventh National People's Congress on September 4, 1992, the first amendment was made in accordance with the Standing Committee of the Ninth National People's Congress on August 25, 2000 Second amendment to the Decision on Amending the Patent Law of the People's Republic of China at the 17th Meeting of the Executive Committee)

catalogue

Chapter I General provisions

Chapter II Conditions for grant of patent right

Chapter III Application for Patent

Chapter IV Examination and approval of patent applications

Chapter V Term, termination and invalidity of patent right

Chapter VI Compulsory License for Exploitation of Patent

Chapter VII Protection of Patent Right

Chapter VIII Supplementary Provisions

Chapter I General provisions

Article 1 This Law is formulated for the purpose of protecting patent rights for inventions-creations, encouraging inventions-creations, facilitating the spread and application of inventions-creations, promoting scientific and technological progress and innovation, and meeting the needs of socialist modernization.

Article 2 For the purposes of this Law, invention-creations refer to inventions, utility models and designs.

Article 3 The patent administration department under The State Council shall be responsible for the patent work throughout the country. We accept and examine patent applications and grant patent rights according to law.

The administrative departments for patent affairs of the people's governments of provinces, autonomous regions and municipalities directly under the Central Government shall be responsible for patent administration within their respective administrative areas.

Article 4 Where an invention-creation for which a patent is applied involves national security or major interests and requires confidentiality, it shall be handled in accordance with the relevant provisions of the State.

Article 5 No patent right shall be granted for any invention-creation that violates the laws of the State or social morality or is detrimental to the public interest.

Article 6 A service invention-creation shall be deemed as a service invention-creation made by performing the tasks of the unit or mainly by using the material and technical conditions of the unit. The right to apply for a patent for a service invention-creation belongs to that entity; After the application is approved, the entity shall be the patentee.

For a non-service invention-creation, the right to apply for a patent belongs to the inventor or creator; After the application is approved, the inventor or designer shall be the patentee.

For an invention-creation made using the material and technical resources of the entity, where a contract is concluded between the entity and the inventor or creator, and where the right to apply for a patent and the ownership of the patent right are agreed upon, such agreement shall apply.

Article 7 No entity or individual may suppress an inventor or creator's application for a patent for a non-service invention-creation.

Article 8 For an invention-creation made jointly by two or more entities or individuals, or made by an entity or individual on the commission of another entity or individual, the right to apply for a patent belongs to the entity or individual that made the invention-creation or made it jointly, unless otherwise agreed upon. After the application is approved, the entity or individual that applied for it shall be the patentee.

Article 9 Where two or more applicants apply separately for a patent for the same invention-creation, the patent right shall be granted to the person who filed the application first.

Article 10 The right to apply for a patent and the patent right may be assigned.

Any assignment by a Chinese entity or individual of the right to apply for a patent or of a patent right to a foreigner must be approved by the competent department concerned under The State Council.

Where the right to apply for a patent or the patent right is assigned, the parties shall conclude a written contract and register it with the patent administration department under The State Council, which shall publish it. The assignment of the right to apply for a patent or the patent right shall become effective as of the date of registration.

Article 11. After the grant of the patent right for invention or utility model, except as otherwise provided for in this Law, no entity or individual may, without the permission of the patentee, exploit the patent, that is, make, use, offer to sell, sell or import the patented product for production or business purposes. Or use the patented process and use, offer to sell, sell or import products directly obtained under the patented process.

After the grant of the patent right for a design, no entity or individual may, without the permission of the patentee, exploit the patent, that is, make, sell or import the products patented for its design for production or business purposes.

Article 12 Where any entity or individual exploits the patent of another person, it shall conclude a written exploitation license contract with the patentee and pay the patentee a royalty. The Licensee shall not have the right to allow any entity or individual other than those stipulated in the contract to exploit the patent.

Article 13. After the publication of the application for a patent for invention, the applicant may require the unit or individual exploiting the invention to pay an appropriate fee.

Article 14 Where a patent for invention of a state-owned enterprise or institution is of great significance to the interests of the State or the public, the competent department concerned under The State Council and the people's government of a province, autonomous region or municipality directly under the Central Government may, after being reported to and approved by The State Council, decide to popularize and apply it within the approved scope and allow designated units to exploit it. The exploiting unit shall pay a royalty to the patentee in accordance with the provisions of the State.

Where the invention patent of a unit or individual under collective ownership in China is of great significance to the interests of the State or the public and needs to be popularized and applied, reference shall be made to the provisions of the preceding paragraph.

Article 15 The patentee shall have the right to indicate the patent mark and the patent number on the patented product or on the package of that product.

Article 16 The entity that is granted a patent right shall award the inventor or designer of a service invention-creation. After the exploitation of a patent for invention-creation, a reasonable remuneration shall be paid to the inventor or creator according to the scope of popularization and application and the economic benefits obtained.

Article 17 The inventor or creator shall have the right to be identified as such in the patent document.

Article 18 Where a foreigner, foreign enterprise or other foreign organization having no habitual residence or business establishment in China files an application for a patent in China, the application shall be handled in accordance with this Law in accordance with any agreement concluded between the country to which the applicant belongs and China or any international treaty to which both countries are parties, or in accordance with the principle of reciprocity.

Article 19 Where a foreigner, foreign enterprise or other foreign organization having no habitual residence or business establishment in China applies for a patent or handles other patent matters in China, it shall entrust a patent agency designated by the patent administration department under The State Council to handle the matter.

Where a Chinese entity or individual applies for a patent or handles other patent matters in China, it may entrust a patent agency to handle the matter.

A patent agency shall abide by laws and administrative regulations and handle patent applications or other patent matters as entrusted by its principal. The principal shall be liable to keep confidential the contents of the invention-creation, except where the patent application has been published or announced. Specific measures for the administration of patent agencies shall be formulated by The State Council.

Article 20 Where a Chinese entity or individual applies for a patent in a foreign country for an invention-creation completed in China, it shall first file an application for a patent with the patent administration department under The State Council, entrust its designated patent agency to handle the matter, and comply with the provisions of Article 4 of this Law.

A Chinese entity or individual may file an international application for a patent in accordance with the relevant international treaties to which the People's Republic of China is party. An applicant filing an international application for patent shall comply with the provisions of the preceding paragraph.

The patent administration department under The State Council shall handle international patent applications in accordance with the relevant international treaties to which the People's Republic of China is a party, this Law and the relevant provisions of The State Council.

Article 21 The patent administration department under The State Council and its patent Reexamination Board shall, in accordance with the requirements of being objective, fair, accurate and timely, handle any patent application or request in accordance with law.

Before the publication or announcement of an application for a patent, the personnel of the patent administration department under The State Council and other relevant personnel shall be obliged to keep its contents confidential.

Chapter II Conditions for grant of patent right

Article 22 An invention or utility model for which a patent right is granted shall possess novelty, inventiveness and practicality.

Novelty means that, before the date of filing, no identical invention or utility model has been publicly published in publications at home or abroad, has been publicly used in the country, or has become known to the public by any other means, and no application for the same invention or utility model has been filed by another person with the patent administration department under The State Council and has been recorded in the patent application documents published after the date of filing.

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

Practicality means that the invention or utility model can be manufactured or used and can produce positive effects.

Article 23 The design for which patent right is granted shall be different from and not similar to any design that has been publicly published in a publication in or out of the country or has been publicly used in the country before the date of filing, and shall not conflict with any prior lawful right obtained by any other person.

Article 24 An invention-creation for which a patent is applied for does not lose its novelty where, within six months before the date of filing, any of the following occurs:

(1) Exhibited for the first time at an international exhibition sponsored or recognized by the Chinese government;

(2) It was first published at a prescribed academic or technical meeting;

(3) Others disclose its contents without the consent of the applicant.

Article 25 No patent right shall be granted for any of the following:

(1) Scientific discoveries;

(2) Rules and methods for intellectual activities;

(3) Methods of diagnosis and treatment of diseases;

(4) Animal and plant varieties;

(5) Substances obtained by means of nuclear transformation.

Patent right may be granted in accordance with the provisions of this Law for the production methods of the products listed in item (4) of the preceding paragraph.

Chapter III Application for Patent

Article 26 Where an application is filed for a patent for invention or utility model, documents such as a request, a description and its abstract, and a claim shall be submitted.

The request shall state the name of the invention or utility model, the name of the inventor or creator, the name and address of the applicant, and other matters.

The specification shall give a clear and complete description of the invention or utility model to the extent that a person skilled in the technical field of the invention or utility model can realize it; Where necessary, drawings shall be attached. The abstract shall briefly state the technical essentials of the invention or utility model.

The claims shall be based on the specification and state the scope of the patent protection claimed.

Article 27 Where an application for a patent for design is filed, documents such as a request and drawings or photographs of the design shall be submitted, and the product using the design and the class to which it belongs shall be clearly stated.

Article 28 The date on which the patent administration department under The State Council receives the patent application document shall be the filing date. If the application documents are sent by mail, the date of the postmark shall be the filing date.

Article 29 Where an applicant files another application in China for a patent on the same subject matter within twelve months from the date of the first filing of the application for a patent for invention or utility model in a foreign country, or within six months from the date of the first filing of the application for a patent for design in a foreign country, in accordance with any agreement concluded between that foreign country and China or any international treaty to which both countries are parties, Or priority may be enjoyed in accordance with the principle of mutual recognition of priority.

Where, within twelve months from the date of the first filing of an application for a patent for invention or utility model in China, the applicant files another application with the patent administration department under The State Council for a patent on the same subject matter, it may enjoy the right of priority.

Article 30. Where an applicant claims the right of priority, he or she shall make a written declaration when applying for the right of priority, and submit, within three months, a copy of the patent application document first filed; Where a written declaration is not made or a copy of the patent application document is not submitted within the time limit, the right of priority shall not be deemed to be claimed.

Article 31 An application for a patent for invention or utility model shall be limited to one invention or utility model. Two or more inventions or utility models belonging to one general invention idea may be submitted as one application.

An application for a design patent shall be limited to one design used in a product. Two or more designs for products of the same class that are sold or used in sets may be submitted as one application.

Article 32 An applicant may withdraw his application for a patent at any time before the patent right is granted.

Article 33 An applicant may amend its patent application documents; however, the amendment to the application document for a patent for invention or utility model may not go beyond the scope indicated in the original description and claims, and the amendment to the application document for a patent for design may not go beyond the scope indicated in the original drawings or photographs.

Chapter IV Examination and approval of patent applications

Article 34. Where, after receiving an application for a patent for invention, the patent administration department under The State Council finds, after preliminary examination, that it meets the requirements of this Law, it shall publish it immediately after the expiration of 18 months from the date of filing. The patent administration department under The State Council may, upon the request of the applicant, publish the application at an early date.

Article 35. The patent administration department under The State Council may, at the request of the applicant at any time within three years from the date of filing of an application for a patent for invention, conduct substantive examination of the application. If the applicant fails to request a substantive examination within the time limit without justifiable reasons, the application shall be deemed to have been withdrawn.

The patent administration department under The State Council may, on its own initiative, conduct substantive examination of an application for a patent for invention when it deems it necessary.

Article 36. When an applicant for a patent for invention requests substantive examination, he or she shall submit reference materials relating to his or her invention before the date of filing.

Where an application for a patent for invention has been filed in a foreign country, the patent administration department under The State Council may require the applicant to submit, within a specified time limit, information on the searches conducted for the purpose of examining the application or the information on the results of examination in that country; If the application is not submitted within the time limit without good reason, the application shall be deemed to have been withdrawn.

Article 37 Where, after examination of the substance of an application for a patent for invention, the patent administration department under The State Council finds that the application for a patent for invention is not in conformity with the provisions of this Law, it shall notify the applicant and request it to state its views or amend the application within a specified time limit. If a reply is not made within the time limit without justifiable reasons, the application shall be deemed to have been withdrawn.

Article 38 Where an application for a patent for invention is still considered by the patent administration department under The State Council to be incompatible with the provisions of this Law after the applicant has stated his opinions or made amendments, it shall be rejected.

Article 39 Where it is found after examination of substance that there is no reason for rejection of an application for a patent for invention, the patent administration department under The State Council shall make a decision to grant the patent right for invention, issue a certificate of patent for invention, and register and announce it at the same time. The patent right for invention shall take effect as of the date of announcement.

Article 40 Where it is found after preliminary examination that there is no reason for rejection of an application for a patent for utility model or design, the patent administration department under The State Council shall make a decision to grant the patent right for utility model or the patent right for design, issue the corresponding patent certificate, and register and announce it. The patent right for utility models and the patent right for designs shall become effective as of the date of announcement.

Article 41 The patent administration department under The State Council shall establish a patent reexamination Board. Where the applicant for patent is not satisfied with the decision of the patent administration department under The State Council rejecting the application, it may, within three months from the date of receipt of the notification, request the Patent Reexamination Board for reexamination. After re-examination, the Patent Reexamination Board shall make a decision and notify the patent applicant.

Where the applicant for patent is not satisfied with the decision of the Patent Reexamination Board, it may, within three months from the date of receipt of the notification, institute legal proceedings in the people's court.

Chapter V Term, termination and invalidity of patent right

Article 42 The term of patent right for invention shall be twenty years, the term of patent right for utility model and patent right for design shall be ten years, counted from the date of filing.

Article 43 The patentee shall pay an annual fee starting from the year in which the patent right is granted.

Article 44 In any of the following circumstances, the patent right shall terminate before the expiration of its term:

(1) Failing to pay the annual fee as required;

(2) Where the patentee renounces his or her patent right by a written declaration.

Where a patent right terminates before its expiration, it shall be registered and announced by the patent administration department under The State Council.

Article 45. Where, from the date of the announcement of the grant of the patent right by the patent administration Department under The State Council, any entity or individual considers that the grant of the said patent right is not in conformity with the relevant provisions of this Law, it may request the Patent Reexamination Board to declare the patent right invalid.

Article 46. The Patent Reexamination Board shall promptly examine and make a decision on the request for invalidation of the patent right, and notify the applicant and the patentee of the request. The decision declaring the patent right invalid shall be registered and announced by the patent administration department under The State Council.

Where any party is dissatisfied with the decision of the Patent Reexamination Board declaring the patent right invalid or maintaining the patent right, it may, within three months from the date of receipt of the notification, institute legal proceedings in the people's court. The people's court shall notify the other party to the invalidation request procedure to participate in the proceedings as a third party.

Article 47 An invalidated patent right shall be deemed to have ceased to exist from the very beginning.

The decision to declare the patent right invalid shall not have retroactive effect on the judgments or rulings of patent infringement made and executed by the people's court before the declaration of the patent right invalid, the decisions on the settlement of patent infringement disputes that have been performed or enforced, and the patent licensing contracts and patent right assignment contracts that have been performed. However, compensation shall be paid for any loss caused to others by the patentee's malice.

If, in accordance with the provisions of the preceding paragraph, the patentee or the assignor of the patent right does not return the patent royalty or the assignment fee to the licensee or the assignee of the patent right, this is a clear violation of the principle of equity, the patentee or the assignor of the patent right shall return all or part of the patent royalty or the assignment fee to the licensee or the assignee of the patent right.

Chapter VI Compulsory License for Exploitation of Patent

Article 48 Where an entity having the conditions for exploitation requests, on reasonable terms, permission from the patentee of an invention or utility model to exploit its patent, and such permission cannot be obtained within a reasonable period of time, the patent administration department under The State Council may, upon the application of that entity, grant a compulsory license to exploit the patent for invention or utility model.

Article 49 In the event of a national emergency or extraordinary situation, or for the public interest, the patent administration department under The State Council may grant a compulsory license to exploit the patent for invention or utility model.

Article 50 Where an invention or utility model for which a patent right has been obtained represents a significant technological progress of significant economic significance over the invention or utility model for which a patent right has been obtained previously, and the exploitation of which depends on the exploitation of the previous invention or utility model, the patent administration department under The State Council may, upon the application of the later patentee, grant a compulsory license to exploit the previous invention or utility model.

Where a compulsory license for exploitation is granted in accordance with the provisions of the preceding paragraph, the patent administration department under The State Council may, upon the application of the previous patentee, also grant a compulsory license for exploitation of the later invention or utility model.

Article 51 A unit or individual applying for a compulsory license for exploitation in accordance with the provisions of this Law shall provide proof that it has not been able to conclude a license contract for exploitation with the patentee on reasonable terms.

Article 52 The decision of the patent administration department under The State Council granting a compulsory license for exploitation shall be notified promptly to the patentee, and shall be registered and announced.

The decision granting a compulsory license for exploitation shall specify the scope and time of exploitation according to the reasons for the compulsory license. Where the reasons for the compulsory license are eliminated and do not recur, the patent administration department under The State Council shall, at the request of the patentee, make a decision to terminate the compulsory license after examination.

Article 53 A unit or individual that has obtained a compulsory license for exploitation shall not enjoy the exclusive right of exploitation and shall not have the right to permit others to exploit it.

Article 54 The entity or individual that has obtained a compulsory license for exploitation shall pay the patentee a reasonable royalty, the amount of which shall be determined through consultation between the two parties. Where no agreement can be reached between the two parties, the patent administration department under The State Council shall make a ruling.

Article 55 Where the patentee is not satisfied with the decision made by the patent administration department under The State Council concerning the exploitation of a compulsory license, or where the patentee or the entity or individual that has obtained a compulsory license for exploitation is not satisfied with the decision made by the patent administration Department under The State Council concerning the exploitation of a compulsory license, he or she may, within three months from the date of receipt of the notification, institute legal proceedings before the People's Court.

Chapter VII Protection of Patent Right

Article 56 The scope of protection of the patent right for invention or utility model shall be governed by the contents of the claims. The description and the appended drawings may be used to interpret the claims.

The scope of protection of the patent right for design shall be subject to the product of the patented design represented in the drawing or photograph.

Article 57 Where a dispute arises from exploitation of the patent without the permission of the patentee, that is, infringement of the patent right of the patentee, it shall be settled by the parties through consultation. Where consultation is unwilling or fails, the patentee or an interested party may bring a suit before a people's court or request the administrative department for patent affairs to handle the matter. If the administrative authority for patent affairs determines that the infringing act is established, it may order the infringer to stop the infringing act immediately. If the party refuses to accept the decision, it may, within 15 days of receiving the notice of disposition, institute legal proceedings in a People's court in accordance with the Administrative Procedure Law of the People's Republic of China. Where the infringer neither brings a suit nor stops the infringing act within the time limit, the administrative authority for patent affairs may apply to the people's court for compulsory execution. At the request of the parties concerned, the administrative department for patent affairs that handles the matter may mediate the amount of compensation for the infringement of the patent right; If mediation fails, the parties may bring a suit in a people's court in accordance with the Civil Procedure Law of the People's Republic of China.

Where a patent infringement dispute involves an invention patent for a method of manufacturing a new product, the unit or individual manufacturing the same product shall provide proof that the method of manufacturing its product is different from the patented method; Where a patent for utility model is involved, the people's court or the administrative department for patent affairs may require the patentee to produce a search report made by the patent administration department under The State Council.

Article 58 Whoever counterfeits another person's patent shall, in addition to bearing civil liability according to law, be ordered by the administrative authority for patent affairs to make corrections and make a public announcement, confiscate the illegal gains and may concurrently impose a fine of not more than three times the illegal gains; if there are no illegal gains, a fine of not more than 50,000 yuan may be imposed; If the case constitutes a crime, criminal responsibility shall be investigated according to law.

Article 59 Where a non-patented product is passed off as a patented product or a non-patented process is passed off as a patented process, the administrative authority for patent affairs shall order it to make corrections and make a public announcement, and may impose a fine of not more than 50,000 yuan.

Article 60 The amount of compensation for the infringement of the patent right shall be determined on the basis of the losses suffered by the right holder as a result of the infringement or the profits obtained by the infringer as a result of the infringement. If it is difficult to determine the infringed party's loss or the benefit obtained by the infringed party, it shall be reasonably determined by reference to the multiple of the patent license fee.

Article 61 Where the patentee or an interested party has evidence to prove that another person is committing or is about to commit an act infringing his or her patent right, which, if not stopped in time, will cause irreparable damage to his or her legitimate rights and interests, he or it may, before bringing a suit, apply to the people's court for measures to order the cessation of the relevant act and property preservation.

In handling the application mentioned in the preceding paragraph, the people's court shall apply the provisions of Articles 93 to 96 and 99 of the Civil Procedure Law of the People's Republic of China.

Article 62 The limitation of action for infringement of a patent right shall be two years, counted from the date on which the patentee or an interested party becomes aware or should become aware of the infringing act.

Where an appropriate royalty is not paid for the use of the invention between the publication of the application for a patent for invention and the grant of the patent right, the limitation of action for the patentee to claim payment of the royalty shall be two years, counting from the date on which the patentee became aware or should have become aware that another person was using the invention; however, where the patentee became aware or should have been aware before the grant of the patent right, counting from the date on which the patent right was granted.

Article 63 Any of the following circumstances shall not be deemed to infringe the patent right:

(1) where, after the sale of a patented product manufactured or imported by the patentee or with the permission of the patentee, or a product directly obtained by means of a patented process, the patentee uses, offers to sell or sells the product;

(2) where, before the date of filing for the patent, the same product has been manufactured, the same process has been used, or the necessary preparations have been made for the manufacture or use of the same product, and continues to manufacture or use the same product or use only within the original scope;

(3) where a foreign means of transport temporarily passing through China's territorial land, territorial waters or airspace, in accordance with an agreement concluded between the country to which it belongs and China or an international treaty to which it is a party, or in accordance with the principle of reciprocity, uses the relevant patent in its installations and equipment for its own needs;

(4) where the patent concerned is used exclusively for scientific research and experimentation.

Any person who, for production or business purposes, uses or sells a patented product without knowing that it was manufactured and sold without the permission of the patentee or a product directly obtained by means of a patented process, shall not be liable for compensation if he can prove that the product is of lawful origin.

Article 64 Whoever, in violation of the provisions of Article 20 of this Law, files an application for a patent in a foreign country and divulges state secrets shall be subject to administrative sanctions by the unit to which he belongs or by the competent authority at a higher level; If the case constitutes a crime, criminal responsibility shall be investigated according to law.

Article 65 Any inventor or creator who infringes upon his right to apply for a patent for a non-service invention-creation or other rights and interests provided for in this Law shall be subject to administrative sanctions by the unit to which he belongs or by the competent authority at a higher level.

Article 66 The administrative authority for patent affairs shall not participate in any business activities such as recommending patented products to the public.

Where the administrative authority for patent affairs violates the provisions of the preceding paragraph, the administrative authority at a higher level or the supervisory organ shall order it to make corrections, eliminate the effects, and confiscate any illegal income; If the circumstances are serious, the persons directly in charge and other persons directly responsible shall be given administrative sanctions according to law.

Article 67 Where any functionary of a State organ engaged in patent administration or any other functionary of a relevant state organ neglects his duty, abuses his power or engages in malpractices for personal gains, if the case constitutes a crime, he shall be investigated for criminal responsibility according to law; If the case does not constitute a crime, administrative sanctions shall be imposed according to law.

Chapter VIII Supplementary Provisions

Article 68 Any applicant who applies for a patent and goes through other formalities with the patent administration department under The State Council shall pay fees in accordance with the relevant provisions.

Article 69 This Law shall enter into force as of April 1, 1985.