LAWS AND REGULATIONS

Order of the President of the People's Republic of China

(6th Session No. 11)

The Patent Law of the People's Republic of China was adopted at the Fourth Meeting of the Standing Committee of the Sixth National People's Congress of the People's Republic of China on March 12, 1984, and is hereby promulgated. It came into force on 1 April 1985.

March 12, 1984

Patent Law of People's Republic of China

(Adopted at the Fourth Meeting of the Standing Committee of the Sixth National People's Congress on March 12, 1984, Promulgated by Order No. 11 of the President of the People's Republic of China on March 12, 1984, and effective as of April 1, 1985)

Chapter I General rules

Article 1 This Law is formulated for the purpose of protecting patent rights for inventions-creations, encouraging inventions-creations, facilitating the dissemination and application of inventions-creations, promoting the development of science and technology, 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 Office of the People's Republic of China shall accept and examine patent applications and grant patent rights to invention-creations conforming to the provisions of this Law.

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 For a service invention-creation that performs the tasks of its own entity or is made mainly by taking advantage of its material resources, the right to apply for a patent belongs to that entity. For a non-service invention-creation, the right to apply for a patent belongs to the inventor or creator. If, after the application is approved, an entity under ownership by the whole people applies, the patent right shall be held by that entity; Where an application is made by a unit or individual under collective ownership, the patent right shall be owned by that unit or individual.

Where a service invention-creation is completed by a staff member of a foreign-capital enterprise or a Chinese-foreign equity joint venture within the territory of China, the right to apply for a patent belongs to that enterprise; 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 patent right shall belong to the enterprise or individual applying for it.

The owner and holder of a patent right are collectively referred to as the patentee.

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 Where an invention-creation is completed by the collaboration of two or more entities or by an entity accepting a research or design task entrusted by another entity, the right to apply for a patent belongs to the entity that completed or jointly completed it, unless otherwise agreed upon. After the application is approved, the patent right shall be owned or held by the entity applying for it.

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 of the right to apply for a patent or the patent right by an entity owned by the whole people must be approved by the competent authority at a higher level.

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 must conclude a written contract, which shall become effective after it has been registered and announced by the Patent Office.

Article 11. After the grant of the patent right for invention or utility model, no entity or individual, except as provided in Article 14 of this Law, may exploit the patent, that is, make, use or sell the patented product or use the patented process for production or business purposes, without the permission of the patentee.

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 or sell the products patented for its design for production or business purposes.

Article 12 Where any entity or individual exploits a patent of another person, except as provided for in Article 14 of this Law, it must 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 The competent department concerned under The State Council and the people's governments of provinces, autonomous regions and municipalities directly under the Central Government shall, in accordance with the State plan, have the power to decide that any patent for an important invention-creation held by an entity under ownership by the whole people under its jurisdiction shall be allowed to be exploited by a designated entity, and the exploiting entity shall pay a royalty to the entity holding the patent right in accordance with the provisions of the State.

Where a 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, the relevant competent department under The State Council shall, after reporting to The State Council for approval, handle the matter with reference 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 owner or holder of a patent right shall award the inventor or designer of a service invention-creation. After the exploitation of a patent for invention-creation, the inventor or designer shall be rewarded 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 State Council of the People's Republic of China 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.

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 Office and, after obtaining the consent of the competent department concerned under The State Council, entrust a patent agency designated by The State Council to handle the matter.

Article 21 Before the publication or announcement of a patent application, the personnel of the Patent Office 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 domestic or foreign publications, has been publicly used in the country, or has otherwise become known to the public, and no identical invention or utility model has been filed with the Patent Office by another person 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 or not similar to any design that has been publicly published in a publication in or out of the country or that has been publicly used in the country before the date of filing.

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 of intellectual activity;

3. Methods of diagnosis and treatment of diseases;

4. Food, beverages and condiments;

5. Pharmaceuticals and substances obtained by chemical methods;

6.Animal and plant varieties;

7. Materials obtained by means of nuclear transformation.

For the production methods of the products listed in subparagraphs 4 to 6 of the preceding paragraph, patent rights may be granted in accordance with the provisions of this Law.

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 Office 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 a foreign applicant files another application in China for a patent for the same invention or utility model within twelve months from the date of the first application for a patent for the same invention or utility model in a foreign country, or within six months from the date of the first application for a patent for the same design in a foreign country, the applicant shall, in accordance with any agreement concluded between the country to which it belongs and China or any international treaty to which it is a party, Or, in accordance with the principle of mutual recognition of priority, the applicant may enjoy priority, that is, the date on which the applicant first filed the application in a foreign country is the date of application.

Where the applicant claims the right of priority under any of the circumstances listed in Article 24 of this Law, the term of the right of priority shall be counted from the date on which the circumstances arise.

Article 30 Where an applicant claims the right of priority, he or she shall, at the time of application, make a written statement indicating the date on which the application was filed in a foreign country and the country in which the application was accepted, and submit, within three months, a copy of the application document certified by the acceptance authority of that country; Failure to make a written declaration or to submit documents within the time limit shall be deemed not to have claimed priority.

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, but it shall not go beyond the scope specified in the original specification.

Chapter IV Examination and approval of patent applications

Article 34. Where, after receiving an application for a patent for invention, the Patent Office finds, after preliminary examination, that it meets the requirements of this Law, it shall publish it within 18 months from the date of filing. The Patent Office may, upon request of the applicant, publish the application at an early date.

Article 35. When an application for a patent for invention is filed within three years from the date of filing, the Patent Office may, at the request of the applicant at any time, 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 Office may, on its own, 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 applicant, when requesting substantive examination, shall submit information on the search conducted for examination of the application in that country or information on the results of examination; If the application is not submitted 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 Office 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 require him to state his views or amend his 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 Office to be not in conformity with the provisions of this Law after the applicant has stated his comments or made amendments, it shall be rejected.

Article 39 Where no reason for rejection of an application for a patent for invention is found after examination of substance, the Patent Office shall make an examination and approval of the application, publish it, and notify the applicant.

Article 40 Where, after receiving an application for a patent for utility model or design, the Patent Office finds, after preliminary examination, that the application meets the requirements of this Law, it shall no longer conduct substantive examination, and shall forthwith make an announcement and notify the applicant.

Article 41. Any person may, within three months from the date of publication of an application for a patent, file an opposition to the application with the Patent Office in accordance with the provisions of this Law. The Patent Office shall send a copy of the objection to the applicant, and the applicant shall submit a written reply within three months from the date of receipt of the copy of the objection. If a written reply is not submitted within the time limit without good reason, the application shall be deemed to have been withdrawn.

Article 42. Where, after examination, the Patent Office finds that the opposition is established, it shall make a decision to reject the application and notify the opposing party and the applicant.

Article 43 The Patent Office shall establish a Patent reexamination Board. Where the applicant is not satisfied with the decision of the Patent Office rejecting the application, he or 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 applicant.

Where the applicant for a patent for invention is not satisfied with the decision of the Patent Reexamination Board rejecting the request for reexamination, he or she may, within three months from the date of receipt of the notification, institute legal proceedings in the People's court.

The decision made by the Patent Reexamination Board on the applicant's request for reexamination of utility models and designs shall be final.

Article 44. Where there is no objection to the application for a patent, or the objection is not established upon examination, the Patent Office shall make a decision to grant the patent right, issue a patent certificate, and register and publish the relevant matters.

Chapter V Term, termination and invalidity of patent right

Article 45 The term of the patent right for invention shall be fifteen years, counted from the date of filing.

The term of the patent right for utility model or design shall be five years, counted from the date of filing. Before the expiration of the term, the patentee may apply for a renewal of three years.

Where the patentee enjoys the right of priority, the term of the patent right shall be counted from the date of application in China.

Article 46 The patentee shall pay an annual fee starting from the year in which the patent right is granted.

Article 47 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 patent right by a written declaration.

The termination of the patent right shall be registered and announced by the Patent Office.

Article 48. Where, after the grant of a patent right, any entity or individual considers that the grant of the said patent right is not in conformity with the provisions of this Law, it may request the Patent Reexamination Board to declare the patent right invalid.

Article 49. The Patent Reexamination Board shall examine the request for invalidation of the patent right, make a decision, and notify the applicant and the patentee of the decision. The decision declaring the patent right invalid shall be registered and announced by the Patent Office.

Where any party is dissatisfied with the decision of the Patent Reexamination Board declaring the patent right for invention invalid or maintaining the patent right for invention, it may, within three months from the date of receipt of the notification, institute legal proceedings in a people's court.

The decision made by the Patent Reexamination Board on the request for invalidation of the patent right for utility models and designs shall be final.

Article 50 A patent right declared invalid shall be deemed to have ceased to exist from the very beginning.

Chapter VI Compulsory License for Exploitation of Patent

Article 51 The patentee shall have the obligation to manufacture the patented product or use the patented process in China, or to permit others to manufacture the patented product or use the patented process in China.

Article 52 Where the patentee of an invention or utility model fails to perform the obligations provided for in Article 51 of this Law without justifiable reasons at the expiration of three years from the date of the grant of the patent right, the Patent Office may grant a compulsory license to exploit the said patent upon application by an entity qualified for exploitation.

Article 53 Where an invention or utility model for which a patent right has been granted is technically more advanced than the invention or utility model for which a patent right has been granted, and its exploitation depends on the exploitation of the previous invention or utility model, the Patent Office 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 Office may, upon the application of the previous patentee, also grant a compulsory license for exploitation of the latter invention or utility model.

Article 54 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 55 The decision made by the Patent Office granting a compulsory license for exploitation shall be registered and announced.

Article 56 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 57 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 agreed upon by both parties. Where no agreement can be reached between the two parties, the Patent Office shall make a ruling.

Article 58 Where the patentee is not satisfied with the decision of the Patent Office on the exploitation of a compulsory license or the ruling on the exploitation of a compulsory license, he may, within three months from the date of receipt of the notification, institute legal proceedings in a people's court.

Chapter VII Protection of Patent Right

Article 59 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 60 Where the patentee exploits his or her patent without the permission of the patentee, the patentee or any interested party may request the patent administration authority to deal with the infringement, or may directly bring a suit before a people's court. When handling the matter, the patent administration authority shall have the right to order the infringer to stop the infringing act and compensate for the losses. If the party is not satisfied, it may bring a suit in a people's court within three months from the date of receipt of the notification. Where the patent administration authority has neither brought a suit nor fulfilled the obligation at the expiration of the time limit, it may request the people's court for compulsory execution.

In the event of an infringement dispute, if the invention patent is a method of manufacturing a product, the unit or individual manufacturing the same product shall provide proof of its method of manufacturing the product.

Article 61 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.

Article 62 Under any of the following circumstances, the patent right shall not be deemed to have been infringed:

(1) Where, after the sale of a patented product made by the patentee or made with the permission of the patentee, the patentee uses or sells the product;

(2) Using or selling a patented product without knowing that it was manufactured and sold without the permission of the patentee;

(3) 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 the manufacture or use of the same product continues only within the original scope;

(4) Where a foreign means of transport temporarily passing through the territory, territorial waters or airspace of China, in accordance with an agreement concluded between the country to which it belongs and China or an international treaty to which both parties are parties, or in accordance with the principle of reciprocity, uses the relevant patent in its installations and equipment for its own needs;

(5) Use of the relevant patent exclusively for scientific research and experiments.

Article 63 Where anyone counterfeits the patent of another person, he shall be dealt with in accordance with the provisions of Article 60 of this Law. If the circumstances are serious, the person directly responsible shall be investigated for criminal responsibility by applying mutatis mutinis the provisions of Article 127 of the Criminal Law.

Article 64 Whoever, in violation of the provisions of Article 20 of this Law, without authorization files an application for a patent to a foreign country and divulges important state secrets shall be given administrative sanctions by the unit to which he belongs or by the competent authority at a higher level; If the circumstances are serious, 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 Where any staff member of a Patent Office or any relevant state staff member engages in malpractices for personal gain, the Patent Office or the competent authority concerned shall impose an administrative sanction on him; If the circumstances are serious, criminal responsibility shall be investigated mutatis mutand in accordance with the provisions of Article 188 of the Criminal Law.

Chapter VIII Supplementary Provisions

Article 67 Any person who applies for a patent and goes through other formalities with the Patent Office shall pay fees in accordance with the relevant provisions.

Article 68 Rules for the implementation of this Law shall be formulated by the Patent Office and shall enter into force after being submitted to The State Council for approval.

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