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

Number 769

 

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

Premier Li Qiang

December 11, 2023

 

 

Decision of The State Council on amending the Implementation Rules of the Patent Law of the People's Republic of China

 

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

1. Amend Article 2 to read: “Various procedures stipulated in the Patent Law and these Rules shall be handled in writing or in other forms prescribed by the Patent Administration Department of the State Council. The content can be tangibly expressed through electronic data exchange and other methods, And the data messages used for investigation (hereinafter collectively referred to as electronic forms) can be retrieved at any time and shall be deemed to be in written form."

2. Change the second paragraph of Article 4 to the third paragraph, in which "can be served by mail, direct delivery or other methods" to "can be served by electronic form, mail, direct delivery or other methods" party".

Add a paragraph as the second paragraph: "If various documents are submitted to the patent administration department of the State Council in electronic form, the date of entry into the specific electronic system designated by the patent administration department of the State Council shall be the date of submission."

Paragraph 3 is changed to Paragraph 4, and is revised to read: "For various documents mailed by the Patent Administration Department of the State Council, 15 days from the date of issuance of the document, it is presumed to be the date the party received the document. The party can provide evidence to prove the actual receipt As for the date of the document, the actual date of receipt shall prevail.”

Add a paragraph as paragraph 7: "For various documents delivered in electronic form by the patent administration department of the State Council, the date of entry into the electronic system recognized by the parties shall be the date of delivery."

3. In Article 5, “The first day of the various time periods stipulated in the Patent Law and these Rules shall not be counted within the time limit” is changed to “The day on which the various time periods stipulated in the Patent Law and these Rules begin shall not be counted in the time limit” , counting from the next day."

4. Paragraph 1 of Article 6 is revised to read: “If a party delays the time limit stipulated in the Patent Law or these Rules or the time limit specified by the Patent Administration Department of the State Council due to force majeure, resulting in the loss of its rights, the party shall be entitled to the right from the date when the obstacle is removed. Within 2 months and within 2 years from the expiration date, you may request the patent administration department of the State Council to restore your rights.”

The second paragraph is revised to read: “Except for the circumstances specified in the preceding paragraph, if a party delays the time limit stipulated in the Patent Law or these Rules or the time limit specified by the Patent Administration Department of the State Council due to other legitimate reasons, resulting in the loss of its rights, the party may receive the patent from the State Council. Request for restoration of rights to the Patent Administration Department of the State Council within 2 months from the date of notification by the administrative department; however, if the time limit for the reexamination request is delayed, a request may be made to the Patent Administration Department of the State Council for restoration of rights within 2 months from the date of expiration of the reexamination request period.”

Paragraph 4 is revised to read: “If the party requests an extension of the time limit designated by the patent administration department of the State Council, it shall submit a request for extension of time limit to the patent administration department of the State Council before the expiration of the time limit, explain the reasons, and go through relevant procedures.”

5. Amend Article 9 to read: “After receiving a request submitted in accordance with Article 8 of these Rules, the patent administration department of the State Council deems after review that the invention or utility model may involve national security or major interests and needs to be kept confidential, it shall make the request before A confidentiality review notice will be issued to the applicant within 2 months from the date of submission; if the situation is complicated, it can be extended by 2 months.

“If the patent administration department of the State Council notifies a confidentiality review in accordance with the provisions of the preceding paragraph, it shall make a decision on whether confidentiality is required within 4 months from the date of submission of the request, and notify the applicant; if the situation is complicated, it may be extended by 2 months.”

6. Add an article as Article 11: "Patent applications shall follow the principle of good faith. All types of patent applications shall be based on true invention and creation activities, and no fraud shall be allowed."

7. Add one article as Article 16: “Patent work shall implement the strategic deployment of intellectual property rights of the party and the country, improve the level of patent creation, application, protection, management and service in my country, support comprehensive innovation, and promote the construction of an innovative country.

"The patent administration department of the State Council should improve its public service capabilities for patent information, publish patent information completely, accurately and timely, provide basic patent data, and promote the open sharing and interconnection of patent-related data resources."

8. Change Article 15 to Article 17, and merge the first and second paragraphs as the first paragraph, and amend it to read: “Anyone applying for a patent shall submit application documents to the patent administration department of the State Council. The application documents shall comply with stipulated requirements.”

9. Add an article as Article 18: “In accordance with the provisions of Article 18, Paragraph 1 of the Patent Law, if a patent agency is entrusted to apply for a patent and handle other patent affairs in China, involving the following matters, the applicant or patentee may Do it yourself:

“(1) If the application claims priority, submit a copy of the first patent application filed (hereinafter referred to as the earlier application);

“(2) Payment of fees;

"(3) Other matters prescribed by the patent administration department of the State Council."

10. Change Article 17 to Article 20, and modify paragraph 4 to read: “If an invention patent application contains one or more nucleotide or amino acid sequences, the description shall include a sequence listing that complies with the provisions of the patent administration department of the State Council. "

11. Change Article 23 to Article 26, and modify the second paragraph to read: “The abstract of the specification may contain the chemical formula that best describes the invention; for patent applications with drawings, a patent applicant shall also be specified in the request. A drawing of the description that best illustrates the technical features of the invention or utility model shall be used as a drawing of the abstract. Commercial promotional terms shall not be used in the abstract.”

12. Change Article 27 to Article 30 and amend it to read: “The applicant shall submit relevant pictures or photos of the content to be protected for each design product.

“If you apply for a partial design patent, you should submit a view of the entire product, and use a combination of dotted lines and solid lines or other methods to indicate the content of the part to be protected.

“Applicants requesting color protection should submit color pictures or photos.”

13. Change Article 28 to Article 31, and add one paragraph as the third paragraph: “If you apply for a partial design patent, you should state in the brief description that the part requested for protection has been included in the overall product. Except for those indicated by a combination of dashed and solid lines in the view."

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

14. Article 30 is changed to Article 33, and the second paragraph is modified to read: “The academic conference or technical conference mentioned in Article 24 (3) of the Patent Law refers to the relevant competent department of the State Council or Academic conferences or technical conferences organized by national academic groups, as well as academic conferences or technical conferences convened by international organizations recognized by the relevant competent authorities of the State Council.”

Paragraph 3 is revised to read: “If the invention-creation for which a patent is applied for falls under the circumstances listed in Article 24 (2) or (3) of the Patent Law, the applicant shall declare it when filing the patent application and declare it as of the date of application. Submit documents proving that the invention has been exhibited or published and the date of exhibition or publication within 2 months.”

“Item (3) of Article 24 of the Patent Law” in paragraph 4 is changed to “Item (1) or (4) of Article 24 of the Patent Law”.

15. Change Article 32 to Article 35, and amend it to read: “In a patent application, the applicant may claim one or more priorities; if multiple priorities are claimed, the application shall The priority period is calculated from the earliest priority date.

“An applicant for an invention or utility model patent claims priority in his or her country. If the earlier application is an invention patent application, he or she may file an invention or utility model patent application on the same subject matter; if the earlier application is a utility model patent application, he or she may file a utility model patent application on the same subject matter. New or invention patent application. If a design patent applicant claims priority in his or her country and the earlier application is an invention or utility model patent application, he or she may file a design patent application with the same subject for the design shown in the drawings; the earlier application is an appearance design. If you apply for a patent, you may file a design patent application on the same subject matter. However, when filing a later application, if the subject matter of the earlier application falls into any of the following circumstances, it shall not be used as the basis for claiming domestic priority:

“(1) Has claimed foreign priority or domestic priority;

“(2) Patent rights have been granted;

“(3) It is a divisional application filed in accordance with regulations.

“If an applicant claims domestic priority, his or her earlier application will be deemed to have been withdrawn from the date of filing of the later application, except where the design patent applicant requires an invention or utility model patent application as the basis for domestic priority.”

16. Add one article as Article 36: “If the applicant exceeds the time limit specified in Article 29 of the Patent Law and files an invention or utility model patent application on the same subject with the patent administration department of the State Council, if there are justifiable reasons, the applicant may Request restoration of priority within 2 months from the expiration date.”

17. Add an article as Article 37: “If an applicant for an invention or utility model patent claims priority, he may request that the invention or utility model patent claim the right of priority within 16 months from the priority date or within 4 months from the application date. Add or correct priority claims in the book.”

18. Add one article as Article 45: “If the invention or utility model patent application lacks or incorrectly submits the claims, description, or part of the claims or description, but the applicant claims priority on the date of submission, , can be supplemented by citing the earlier application documents within 2 months from the date of submission or within the time limit specified by the patent administration department of the State Council. If the supplementary documents comply with the relevant regulations, the date of submission of the first submitted documents shall be the filing date .”

19. Change Article 44 to Article 50, and amend the first paragraph to read: “The preliminary examination referred to in Articles 34 and 40 of the Patent Law refers to the examination of whether a patent application meets the requirements specified in Article 40 of the Patent Law. Documents and other necessary documents specified in Article 26 or Article 27, whether these documents comply with the prescribed format, and review the following items:

"(1) Whether the application for an invention patent obviously falls under the circumstances specified in Articles 5 and 25 of the Patent Law, and whether it does not comply with Article 17, Paragraph 1 of Article 18, and Paragraph 1 of Article 19 of the Patent Law Or are the provisions of Article 11, Article 19, and Article 29, Paragraph 2 of these Rules obviously inconsistent with Article 2, Paragraph 2, Article 26, Paragraph 5, and Article 31 of the Patent Law? The provisions of paragraph 1, Article 33 of this Article or Articles 20 to 24 of these Rules;

"(2) Whether the application for a utility model patent obviously falls under the circumstances specified in Articles 5 and 25 of the Patent Law, and whether it does not comply with Article 17, Paragraph 1 of Article 18, and Paragraph 1 of Article 19 of the Patent Law or the provisions of Article 11, Articles 19 to 22, and Articles 24 to 26 of these Rules are obviously inconsistent with Article 2, paragraph 3, and Article 20 of the Patent Law Article 2, Paragraph 3 of Article 26, Paragraph 4 of Article 26, Paragraph 1 of Article 31, Article 33 or Article 23 or Paragraph 49 of these Rules According to the provisions of paragraph 1, whether the patent right cannot be obtained in accordance with Article 9 of the Patent Law;

"(3) Whether the design patent application clearly falls within the circumstances specified in Article 5 of the Patent Law and Article 25, Paragraph 1, Item (6), and whether it does not comply with Article 17, Article 18, First of the Patent Law or the provisions of Article 11, Article 19, Article 30 and Article 31 of these Rules are obviously inconsistent with Article 2, paragraph 4, Article 23, paragraph 1 and Article 23 of the Patent Law Whether the provisions of Paragraph 2 of Article 23, Paragraph 2 of Article 27, Paragraph 2 of Article 31, Article 33 or Paragraph 1 of Article 49 of these Rules shall be determined in accordance with Article 49 of the Patent Law Article 9 stipulates that patent rights cannot be obtained;

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

20. Change Article 50 to Article 56, and add a paragraph as the second paragraph: “The applicant may request for delayed examination of the patent application.”

21. Change Article 53 to Article 59 and amend it to read: “According to the provisions of Article 38 of the Patent Law, the circumstances under which an invention patent application should be rejected after substantive examination include:

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

“(2) The application does not comply with Article 2, Paragraph 2, Article 19, Paragraph 1, Article 22, Article 26, Paragraph 3, Article 26, Paragraph 4, and Article 2 of the Patent Law. Article 16, paragraph 5, Article 31, paragraph 1, or Article 11, Article 23, paragraph 2 of these Rules;

"(3) The amendment of the application does not comply with the provisions of Article 33 of the Patent Law, or the divisional application does not comply with the provisions of the first paragraph of Article 49 of these Rules."

22. Change Article 56 to Article 62, and amend the first paragraph to read: “After the decision to grant a utility model or design patent is announced, the patentee specified in Article 66 of the Patent Law , interested parties, and alleged infringers may request the Patent Administration Department of the State Council to make a patent right evaluation report. Applicants may request the Patent Administration Department of the State Council to make a patent right evaluation report when going through the patent registration procedures.”

Paragraph 2 is modified to read: “To request a patent rights evaluation report, a request for a patent rights evaluation report shall be submitted, indicating the patent application number or patent number. Each request shall be limited to one patent application or patent right.”

23. Change Article 57 to Article 63 and amend it to read: “The patent administration department of the State Council shall make a patent evaluation report within 2 months after receiving the request for a patent evaluation report, but the applicant shall If a patent right evaluation report is requested when going through the patent right registration procedures, the patent administration department under the State Council shall make a patent right evaluation report within 2 months from the date of announcement of the grant of the patent right.

"For the same utility model or design patent, if multiple requesters request a patent right evaluation report, the Patent Administration Department of the State Council will only make one patent right evaluation report. Any unit or individual may review or copy the patent right evaluation report Report."

24.Delete Article 59, Paragraph 2 of Article 61, and Article 62.

25. Change Article 63 to Article 67 and amend it to read: “After the patent administration department of the State Council conducts a reexamination, it deems that the reexamination request does not comply with the relevant provisions of the Patent Law and these Rules or that the patent application contains other obvious violations of the patent. If the relevant provisions of the law and these Rules are met, the reexamination requester shall be notified and required to state his or her opinions within a specified period. If no reply is made within the specified period, the reexamination request shall be deemed to have been withdrawn; after stating its opinions or making modifications, the Patent Administration Department of the State Council deems that If the relevant provisions of the Patent Law and these Rules are still not complied with, a reexamination decision shall be made to reject the reexamination request.

“After reexamination, the Patent Administration Department of the State Council deems that the original rejection decision does not comply with the relevant provisions of the Patent Law and these Rules, or if it deems that the revised patent application documents have eliminated the defects pointed out in the original rejection decision and reexamination notice, the original rejection shall be revoked. It was decided to proceed with the review process.”

26. Change Article 65 to Article 69, and amend the second paragraph to read: “The reason for the request for invalidation mentioned in the previous paragraph means that the invention-creation for which the patent is granted does not comply with Article 2 of the Patent Law. , Article 19, paragraph 1, Article 22, Article 23, Article 26, paragraph 3, Article 26, paragraph 4, Article 27, paragraph 2, 3 Article 13 or the provisions of Article 11, Paragraph 2 of Article 23, Paragraph 1 of Article 49 of these Rules, or the circumstances stipulated in Article 5 and Article 25 of the Patent Law, or in accordance with Article 9 of the Patent Law stipulates that patent rights cannot be obtained.”

27. Change Article 69 to Article 73, and amend the first paragraph to read: “During the review process of a request for invalidation, the patentee of an invention or utility model patent may amend its claims, However, the scope of protection of the original patent shall not be expanded. If the patent administration department of the State Council makes a decision to maintain the validity of the patent right or declare part of the patent right invalid based on the revised claims, the revised claims shall be announced."

28. Add a chapter as Chapter 5, titled "Compensation for the Term of Patent Rights", including Articles 77 to 84.

29. Add one article as Article 77: “If a request is made for compensation for the duration of the patent right in accordance with the provisions of Paragraph 2 of Article 42 of the Patent Law, the patentee shall have 3 days from the date of announcement of the grant of the patent right. Submit it to the Patent Administration Department of the State Council within this month."

30. Add one article as Article 78: “If compensation is granted for the duration of the patent right in accordance with the provisions of Paragraph 2 of Article 42 of the Patent Law, the compensation period shall be calculated based on the actual number of days of unreasonable delay in the authorization process of the invention patent. .

“The actual number of days that an invention patent is unreasonably delayed in the granting process referred to in the preceding paragraph refers to the period from the date when the invention patent application date has been 4 years and the date has been 3 years since the request for substantive examination to the date when the patent right is announced. The number of days between requests, minus the number of days of reasonable delay and the number of days of unreasonable delay caused by the applicant.

“The following circumstances constitute reasonable delays:

“(1) If the patent right is granted after the patent application documents are modified in accordance with the provisions of Article 66 of these Rules, delays caused by the reexamination process;

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

“(3) Delay caused by other reasonable circumstances.

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

31. Add one article as Article 79: “Unreasonable delay caused by the applicant as stipulated in Paragraph 2 of Article 42 of the Patent Law includes the following situations:

“(1) Failure to respond to the notice issued by the patent administration department of the State Council within the specified period;

“(2) Application for delayed review;

“(3) Delay caused by circumstances specified in Article 45 of these Rules;

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

32. Add one article as Article 80: "The term "new drug-related invention patents" as mentioned in Paragraph 3 of Article 42 of the Patent Law refers to new drug product patents, preparation method patents, and medical use patents that comply with regulations."

33. Add one article as Article 81: “Anyone who requests compensation for the duration of the invention patent right related to a new drug in accordance with the provisions of Article 42, Paragraph 3 of the Patent Law, shall meet the following requirements. Submit to the Patent Administration Department of the State Council within 3 months from the date of marketing authorization:

“(1) If the new drug has multiple patents at the same time, the patentee can only request patent term compensation for one of the patents;

"(2) If a patent involves multiple new drugs at the same time, a patent term compensation request can only be made for one new drug for that patent;

"(3) The patent is within the validity period and has not yet received compensation for the duration of the new drug-related invention patent rights."

34. Add one article as Article 82: “If compensation is granted for the duration of the patent right in accordance with the provisions of Paragraph 3 of Article 42 of the Patent Law, the compensation period shall be from the date of application for the patent to the date when the new drug obtains marketing authorization in China The number of days between the dates minus 5 years shall be determined on the basis of compliance with the provisions of Article 42, Paragraph 3 of the Patent Law.”

35. Add one article as Article 83: “During the patent term compensation period for a new drug-related invention patent, the scope of protection of the patent is limited to the new drug and its approved technical solutions for indications; within the scope of protection, The patentee’s rights and obligations are the same as before the patent term compensation.”

36. Add one article as Article 84: “After reviewing the request for compensation for the duration of the patent right submitted in accordance with the provisions of Paragraph 2 and Paragraph 3 of Article 42 of the Patent Law, the Patent Administration Department of the State Council deems it to be in compliance with the requirements. If the compensation conditions are not met, a decision will be made to grant time limit compensation, and the decision will be registered and announced; if the compensation conditions are not met, a decision will be made not to grant time limit compensation, and the patentee who made the request will be notified."

37. Change Chapter 5 to Chapter 6, and change the name of the chapter to "Special License for Patent Exploitation".

38. One article is added as Article 85: “If the patentee voluntarily declares open licensing of its patent, it shall be made after the grant of the patent right is announced.

“The open license statement should state the following:

“(1) Patent number;

“(2) The name of the patentee;

“(3) Patent license royalty payment methods and standards;

“(4) Patent license term;

“(5) Other matters that need to be clarified.

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

39. Add one article as Article 86: “If the patent right falls under any of the following circumstances, the patentee shall not implement open licensing for it:

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

“(2) It falls under the circumstances of suspension specified in Articles 103 and 104 of these Rules;

“(3) Failure to pay annual fees in accordance with regulations;

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

"(5) Other circumstances that hinder the effective implementation of patent rights."

40. One article is added as Article 87: "If a patent implementation license is achieved through open licensing, the patentee or licensee shall file with the patent administration department of the State Council with written documents that can prove the license is achieved."

41. One article is added as Article 88: "The patentee shall not make an open license statement or obtain patent annual fee reduction or exemption during the implementation period of the open license by providing false materials, concealing facts, etc."

42. Change Article 76 to Article 92, and modify the first paragraph to read: “The unit granted the patent right may make an agreement with the inventor or designer or stipulate the patent rights in its rules and regulations formulated in accordance with the law. The methods and amounts of rewards and remuneration stipulated in Article 15 of the Law. Units granted patent rights are encouraged to implement property rights incentives and adopt equity, options, dividends and other means to enable inventors or designers to reasonably share the benefits of innovation."

43. Change Article 77 to Article 93, and modify the first paragraph to read: “The unit granted the patent right has not agreed with the inventor or designer nor stipulated in its rules and regulations formulated in accordance with the law. If the method and amount of rewards are stipulated in Article 15 of the Patent Law, the bonus shall be paid to the inventor or designer within 3 months from the date of announcement of the grant of the patent right. The minimum bonus for an invention patent shall be no less than 4,000 yuan; The minimum bonus for a utility model patent or design patent is not less than 1,500 yuan.”

44. Change Article 78 to Article 94, and amend it to read: “The unit granted the patent right has not agreed with the inventor or designer or stipulated in the rules and regulations formulated by it in accordance with the law. If the method and amount of remuneration are specified in Article 15, reasonable remuneration shall be given to the inventor or designer in accordance with the provisions of the Law of the People's Republic of China on Promoting the Transformation of Scientific and Technological Achievements."

45. Change Article 79 to Article 95, and amend it to read: “The patent management departments of the people’s governments of provinces, autonomous regions, and municipalities directly under the Central Government, as well as prefecture-level cities, The patent management departments of the district people's governments of autonomous prefectures, leagues, regions and municipalities directly under the Central Government can handle and mediate patent disputes."

46. Delete Article 80.

47. Add one article as Article 96: “Any of the following circumstances shall fall under the category of patent infringement disputes with significant national impact as mentioned in Article 70 of the Patent Law:

“(1) Involving major public interests;

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

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

“(4) Other circumstances that the Patent Administration Department of the State Council deems may have significant impact.

"If the patentee or interested party requests the patent administration department of the State Council to handle a patent infringement dispute, and the relevant case does not belong to a patent infringement dispute with significant impact nationwide, the patent administration department of the State Council may designate a local people's government with jurisdiction to manage patent work. The department handles it.”

48. Add one article as Article 100: “If the applicant or patentee violates the provisions of Article 11 and Article 88 of these Rules, the department responsible for patent law enforcement at or above the county level shall give a warning and may impose a fine of 100,000 yuan. A fine of less than RMB 10,000.”

49. Change Article 84 to 101, and modify the third paragraph to read: “If a product is sold without knowing it is a counterfeit patented product, and the legal source of the product can be proven, the person responsible for the patent at or above the county level shall Law enforcement authorities ordered sales to stop."

50. Article 86 is changed to Article 103, and the second paragraph is revised to read: “Anyone who requests the suspension of relevant procedures in accordance with the provisions of the previous paragraph shall submit a request to the patent administration department of the State Council, stating the reasons, and attaching A copy of the relevant acceptance document indicating the application number or patent number issued by the patent management department or the people's court. If the patent administration department of the State Council believes that the reasons for suspension put forward by the parties are obviously untenable, the relevant procedures may not be suspended."

51. Change Article 89 to Article 106, and add one item as item 5: “(5) Declassification of national defense patents and confidentiality patents.”

Add one item as the ninth item: "(9) Compensation for the term of patent rights."

Add one item as item 10: “(10) Open license for patent implementation”.

52. Change Article 90 to Article 107, and modify the fifth item to read: “(5) An abstract of the description of the utility model patent, and a picture or photograph of the design patent.”

Add one item as the ninth item: "(9) Compensation for the term of patent rights."

Add one item as Article 13: “(13) Open licensing matters for patent implementation”.

Item 13 is changed to Item 15, and is revised to read: “(15) Change of the name, nationality and address of the patentee”.

53. Change Article 93 to Article 110, and delete “patent registration fees and announcement printing fees” in the third item of paragraph 1.

Item 5 of paragraph 1 is revised to read: "(5) Fees for changes in descriptions, fees for requesting patent evaluation reports, fees for requesting invalidation, and fees for certification of copies of patent documents."

The second paragraph is revised to read: “The payment standards for the various fees listed in the previous paragraph shall be determined by the development and reform department and the financial department of the State Council in conjunction with the patent administration department of the State Council in accordance with the division of responsibilities. The finance department and development and reform department of the State Council may, together with the patent administration department of the State Council, according to The types and standards of fees payable for patent applications and other procedures will be adjusted based on actual conditions."

54. Change Article 94 to Article 111, and modify the first paragraph to read: “Various fees stipulated in the Patent Law and these Rules shall be paid in strict accordance with the regulations.”

Delete the second paragraph.

55. Change Chapter 10 to Chapter 11, and change the chapter name to "Special Provisions on International Applications for Inventions and Utility Models".

56. Change Article 104 to Article 121, and modify the fifth item of paragraph 1 to read: “(5) If the international application is filed in a foreign language, submit a Chinese translation of the abstract with accompanying drawings If the abstract is accompanied by drawings, submit a copy of the drawings and specify the abstract drawings. If there is text in the drawing, replace it with the corresponding Chinese text."

Item 6 of paragraph 1 is revised to read: “(6) If the applicant has gone through the change procedures with the International Bureau during the international stage, if necessary, provide documentation proving that the changed applicant enjoys the right to apply.”

57. Delete Article 121.

58. Add one article as Article 128: “If the filing date of an international application is within 2 months after the expiration of the priority period, and the receiving Office in the international phase has approved the restoration of the right of priority, it shall be deemed to have been granted in accordance with this provision. If a request for restoration of priority is made in accordance with the provisions of Article 36 of the Rules; if the applicant does not request restoration of priority during the international phase, or if a request for restoration of priority is made but the receiving Office does not approve it, and the applicant has legitimate reasons, the applicant may apply for restoration of priority from the date of entry. Request to the Patent Administration Department of the State Council to restore the right of priority within 2 months.”

59. Add a chapter as Chapter 12, titled "Special Provisions on International Applications for Designs", including Articles 136 to 144.

60. Add one article as Article 136: “The Patent Administration Department of the State Council shall, in accordance with the provisions of Paragraph 2 and Paragraph 3 of Article 19 of the Patent Law, handle cases in accordance with the Hague Agreement on the International Registration of Industrial Designs (1999 version). ) (hereinafter referred to as the Hague Agreement) for international registration of a design.

“The conditions and procedures for the Patent Administration Department of the State Council to handle applications for international design registration filed in accordance with the Hague Agreement and designating China (referred to as international design applications) shall be governed by the provisions of this chapter; if there are no provisions in this chapter, the provisions of the Patent Law and other chapters of these Rules shall apply. The relevant provisions."

61. Add one article as Article 137: “An international application for a design that has determined the international registration date and designated China in accordance with the Hague Agreement shall be deemed to be a design patent application filed with the patent administration department of the State Council. The registration date shall be deemed as the filing date as referred to in Article 28 of the Patent Law.”

62. One article is added as Article 138: “After the International Bureau publishes the international design application, the patent administration department of the State Council shall examine the international design application and notify the International Bureau of the examination results.”

63. Add one article as Article 139: “If an international design application published by the International Bureau includes one or more priorities, it shall be deemed to have been filed in accordance with the provisions of Article 30 of the Patent Law. Written Statement.

“If the applicant of an international design application claims priority, he shall submit a copy of the earlier application documents within 3 months from the date of publication of the international design application.”

64. Add one article as Article 140: “If the design involved in the international application for design falls under the circumstances listed in Item (2) or (3) of Article 24 of the Patent Law, it shall be Declaration shall be made when filing the international design application, and the relevant supporting documents specified in Article 33, paragraph 3, of these Rules shall be submitted within 2 months from the date of publication of the international design application.”

65. Add one article as Article 141: “If an international design application includes more than two designs, the applicant may submit an application to the State Council within 2 months from the date of publication of the international design application. The patent administration department files a divisional application and pays the fee.”

66. Add one article as Article 142: “If the international design application published by the International Bureau includes a description containing the key points of the design, it shall be deemed that a brief summary has been submitted in accordance with the provisions of Article 31 of these Rules. illustrate."

67. One article is added as Article 143: “If no reason for rejection is found after the international design application is reviewed by the patent administration department of the State Council, the patent administration department of the State Council shall make a decision to grant protection and notify the International Bureau.

"After the patent administration department of the State Council makes a decision to grant protection, it will be announced, and the design patent right will take effect from the date of announcement."

68. One article is added as Article 144: “If the rights change procedures have been completed with the International Bureau, the applicant shall provide relevant certification materials to the Patent Administration Department of the State Council.”

69. The following modifications are made to some provisions:

(1) Article 12 is changed to Article 13, and “technical data” in paragraph 2 is changed to “technical information and data”.

(2) Change Article 16 to Article 19, change "organization code or resident identity document number" in the second item to "unified social credit code or identity document number", and "patent" in the fourth item "Agent's name and practicing certificate number" is changed to "Patent agent's name and patent agent qualification certificate number".

(3) Change Article 26 to Article 29, and add “and genetic information generated by utilizing such materials” after “materials with actual or potential value” in the first paragraph.

(4) Article 37 is changed to Article 42, and the fourth item is modified to read: "(4) Anyone who participated in the review of the original application during the review or invalidation procedure."

(5) Article 39 is changed to Article 44, and the third item is modified to read: "(3) The format of the application documents does not comply with the regulations."

(6) Article 43 is changed to Article 49, and the third paragraph is modified to read: “The application number and filing date of the original application shall be stated in the request for divisional application.”

(7) Modify the "Patent Reexamination Board" in Chapter 4 to the "Patent Administration Department of the State Council".

(8) Article 82 is changed to Article 98, and “Patent Reexamination Board” in paragraph 1 is changed to “Patent Administration Department of the State Council”.

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

(10) Change Article 97 to Article 114, and delete “patent registration fees, announcement printing fees and”.

(11) Article 100 is changed to Article 117, in which "reduction or postponement of payment" is changed to "payment reduction", and "price management department of the State Council" is changed to "development and reform department of the State Council".

(12) Change Article 114 to Article 132, and add “or the date of publication by the patent administration department of the State Council” after the “international publication date” in paragraph 2.

(13) Article 119 is changed to Article 146, "agent" in the second paragraph is changed to "patent agent", and "with accompanying documents" is changed to "should when necessary submit".

In addition, according to the "Decision of the Standing Committee of the National People's Congress on Amending the Patent Law of the People's Republic of China" passed on October 17, 2020, the "Patent Law of the People's Republic of China" is quoted in the "Implementing Rules of the Patent Law of the People's Republic of China". The article serial numbers have been modified accordingly, and the order and text of some articles have been adjusted and modified.

This decision will come into effect on January 20, 2024.

The "Implementing Rules for the Patent Law of the People's Republic of China" will be revised accordingly and the article serial numbers will be adjusted accordingly based on this decision, and will be re-announced.

 

 

Implementing Rules for the Patent Law of the People's Republic of China

(Decree No. 306 of the State Council of the People's Republic of China on June 15, 2001 was promulgated in accordance with the "Decision of the State Council on Amending the Implementing Rules of the Patent Law of the People's Republic of China" on December 28, 2002. The first revision was based on January 9, 2010. The second revision of the "Decision of the State Council on Amending the Implementing Rules of the Patent Law of the People's Republic of China" was revised for the third time based on the "Decision of the State Council on Amending the Implementing Rules of the Patent Law of the People's Republic of China" on December 11, 2023)

 

Chapter 1 General Provisions

 

Article 1 These detailed 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 The various procedures stipulated in the Patent Law and these Rules shall be completed in writing or in other forms prescribed by the patent administration department of the State Council. Data messages (hereinafter collectively referred to as electronic forms) that can tangibly express the content contained therein and can be retrieved at any time through electronic data exchange and other means are deemed to be in written form.

Article 3 Various documents submitted in accordance with the provisions of the Patent Law and these Rules shall be in Chinese; if the state has uniformly stipulated scientific and technological terms, standardized terms shall be used; if there is no unified Chinese translation of foreign names, place names and scientific terms, they shall be indicated original.

If the various certificates and supporting documents submitted in accordance with the provisions of the Patent Law and these Rules are in foreign languages, the Patent Administration Department of the State Council may, when deeming it necessary, require the party concerned to attach a Chinese translation within a specified period; if the certificate is not attached upon expiration of the time limit, it shall be deemed that the certificate has not been submitted. and supporting documents.

Article 4 For various documents mailed to the Patent Administration Department of the State Council, the postmark date shall be the date of submission; if the postmark date is unclear, unless the party concerned can provide proof, the date of receipt by the Patent Administration Department of the State Council shall be the date of submission.

If various documents are submitted to the Patent Administration Department of the State Council in electronic form, the date of entry into the specific electronic system designated by the Patent Administration Department of the State Council shall be the date of submission.

Various documents from the Patent Administration Department of the State Council may be delivered to the parties in electronic form, by mail, directly delivered or by other means. If the party has entrusted a patent agency, the documents shall be sent to the patent agency; if the party has not entrusted a patent agency, the documents shall be sent to the contact person specified in the request.

For various documents mailed by the Patent Administration Department of the State Council, 15 days from the date of issuance of the documents are presumed to be the date when the parties receive the documents. If the party provides evidence that can prove the date of actual receipt of the document, the actual date of receipt shall prevail.

For documents that should be delivered directly according to the provisions of the Patent Administration Department of the State Council, the date of delivery shall be the date of service.

If the document delivery address is unclear and cannot be mailed, it may be served to the party by public announcement. The document will be deemed to have been served after one month has passed since the date of announcement.

For various documents served in electronic form by the Patent Administration Department of the State Council, the date of entry into the electronic system recognized by the parties shall be the date of service.

Article 5 The day on which the various time limits stipulated in the Patent Law and these Rules begin shall not be included in the time limit and shall be calculated from the next day. If the time limit is calculated in years or months, the corresponding day of the last month shall be the expiration date; if there is no corresponding day in the month, the last day of the month shall be the expiration date; if the expiration date is a statutory holiday, the time limit shall be a holiday. The first working day in the future shall be the expiry date.

Article 6 If a party delays the time limit stipulated in the Patent Law or these Rules or the time limit specified by the Patent Administration Department of the State Council due to force majeure reasons, resulting in the loss of its rights, the party shall be entitled to a delay within 2 months from the date when the obstacle is eliminated and from the date of expiration of the time limit. Within 2 years from the date of application, you may apply to the Patent Administration Department of the State Council to restore your rights.

Except for the circumstances specified in the preceding paragraph, if a party delays the time limit stipulated in the Patent Law or these Rules or the time limit specified by the Patent Administration Department of the State Council due to other legitimate reasons, resulting in the loss of its rights, the party may file a claim as of the date of receipt of a notice from the Patent Administration Department of the State Council. Request for restoration of rights to the Patent Administration Department of the State Council within 2 months; however, if the time limit for request for reexamination is delayed, the applicant may request restoration of rights to the Patent Administration Department of the State Council within 2 months from the expiration of the time limit for request for reexamination.

If a party requests the restoration of rights in accordance with the provisions of paragraph 1 or 2 of this article, he shall submit a request for restoration of rights, explain the reasons, attach relevant supporting documents if necessary, and complete the corresponding procedures that should be completed before the loss of rights; in accordance with paragraph 2 of this article If you request restoration of rights according to the provisions of this paragraph, you must also pay a request fee for restoration of rights.

If a party requests an extension of the time limit specified by the patent administration department of the State Council, it shall submit a request for extension of time limit to the patent administration department of the State Council before the expiration of the time limit, explain the reasons, and go through relevant procedures.

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

Article 7 If a patent application involves national defense interests and needs to be kept confidential, it shall be accepted and reviewed by the National Defense Patent Agency; if a patent application accepted by the Patent Administration Department of the State Council involves national defense interests and needs to be kept confidential, it shall be transferred to the National Defense Patent Agency for review in a timely manner. If no reason for rejection is found after examination by the national defense patent agency, the patent administration department of the State Council shall make a decision to grant the national defense patent right.

If the patent administration department of the State Council believes that the invention or utility model patent application it accepts involves national security or major interests other than national defense interests and needs to be kept confidential, it shall promptly make a decision to treat the application as a confidential patent and notify the applicant. The special procedures for the examination and reexamination of confidential patent applications and the invalidation of confidential patent rights shall be prescribed by the patent administration department of the State Council.

Article 8 The invention or utility model completed in China as mentioned in Article 19 of the Patent Law refers to the invention or utility model in which the substantive content of the technical solution is completed in China.

Any unit or individual that applies for a patent in a foreign country for an invention or utility model completed in China shall request the patent administration department of the State Council to conduct a confidentiality review in one of the following ways:

(1) If you directly apply for a patent in a foreign country or submit an international patent application to a relevant foreign institution, you must submit a request to the patent administration department of the State Council in advance and explain your technical plan in detail;

(2) If you plan to apply for a patent in a foreign country or submit an international patent application to a relevant foreign institution after applying for a patent to the patent administration department of the State Council, you must submit a request to the patent administration department of the State Council before applying for a patent in a foreign country or submitting an international patent application to a relevant foreign institution.

Submitting an international patent application to the Patent Administration Department of the State Council shall be deemed to have submitted a confidentiality review request at the same time.

Article 9 After receiving a request submitted in accordance with Article 8 of these Detailed Rules, the patent administration department of the State Council deems after review that the invention or utility model may involve national security or major interests and needs to be kept confidential, it shall submit the request to the State Council within 2 months from the date of submission of the request. The applicant issues a confidentiality review notice; if the situation is complicated, it can be extended for 2 months.

If the patent administration department of the State Council notifies a confidentiality review in accordance with the provisions of the preceding paragraph, it shall make a decision on whether confidentiality is required within 4 months from the date of submission of the request, and notify the applicant; if the situation is complicated, it may be extended by 2 months.

Article 10 The inventions and creations that violate the law as mentioned in Article 5 of the Patent Law do not include inventions and creations whose implementation is prohibited by law.

Article 11 The principle of good faith shall be followed when applying for a patent. Applications for various patents should be based on real invention and creation activities, and no fraud is allowed.

Article 12 Except for the circumstances stipulated in Articles 28 and 42 of the Patent Law, the application date referred to in the Patent Law shall refer to the priority date if there is priority.

The application date mentioned in these Rules, unless otherwise provided, refers to the application date stipulated in Article 28 of the Patent Law.

Article 13 The term “service inventions and creations completed in the execution of the tasks of the unit” as mentioned in Article 6 of the Patent Law refers to:

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

(2) Inventions and creations made by performing tasks other than the duties assigned by the unit;

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

The unit referred to in Article 6 of the Patent Law includes temporary work units; the material and technical conditions of the unit referred to in Article 6 of the Patent Law refer to the unit’s funds, equipment, parts and components, raw materials or technical information and technical information not disclosed to the public. Information, etc.

Article 14: The inventor or designer referred to in the Patent Law refers to a person who has made creative contributions to the substantive features of an invention. In the process of completing an invention and creation, a person who is only responsible for organizational work, a person who facilitates the utilization of material and technical conditions, or a person who engages in other auxiliary work is not the inventor or designer.

Article 15 In addition to the transfer of patent rights in accordance with Article 10 of the Patent Law, if the patent rights are transferred due to other reasons, the parties concerned shall go through the patent right transfer procedures with the patent administration department of the State Council on the basis of relevant certification documents or legal documents.

A patent license contract concluded between a patentee and another person shall be filed with the patent administration department of the State Council within 3 months from the date of effective date of the contract.

If the patent right is pledged, the pledger and the pledgee shall jointly handle the registration of the pledge with the patent administration department of the State Council.

Article 16 Patent work shall implement the strategic deployment of intellectual property rights of the party and the country, improve the level of patent creation, application, protection, management and service in my country, support comprehensive innovation, and promote the construction of an innovative country.

The patent administration department of the State Council should improve its public service capabilities for patent information, publish patent information completely, accurately and timely, provide basic patent data, and promote the open sharing and interconnection of patent-related data resources.

 

Chapter 2 Patent Application

 

Article 17 To apply for a patent, application documents shall be submitted to the patent administration department of the State Council. Application documents should meet the specified requirements.

Applicants who entrust a patent agency to apply for patents and handle other patent affairs with the patent administration department of the State Council shall submit a letter of authorization at the same time stating the entrustment authority.

If there are more than 2 applicants and no patent agency has been entrusted, the first applicant specified in the request shall be the representative unless otherwise stated in the request.

Article 18 When entrusting a patent agency to apply for patents and handle other patent affairs in China in accordance with the provisions of Article 18, Paragraph 1 of the Patent Law, the applicant or patentee may handle the following matters on their own:

(1) If the application claims priority, submit a copy of the patent application filed for the first time (hereinafter referred to as the earlier application);

(2) Pay fees;

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

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

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

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

(3) The name of the inventor or designer;

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

(5) If priority is claimed, the filing date, application number and name of the original acceptance agency of the earlier application;

(6) Signature or seal of the applicant or patent agency;

(7) List of application documents;

(8) List of additional documents;

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

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

(1) Technical field: indicate the technical field to which the technical solution claimed to be protected belongs;

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

(3) Content of the invention: State the technical problems to be solved by the invention or utility model and the technical solutions adopted to solve the technical problems, and describe the beneficial effects of the invention or utility model in comparison with the existing technology;

(4) Description of drawings: If the manual has drawings, provide a brief description of each drawing;

(5) Specific implementation methods: State in detail the preferred way for realizing the invention or utility model that the applicant believes; if necessary, give examples; if there are drawings, refer to the drawings.

The applicant for an invention or utility model patent shall write the description in the manner and order specified in the preceding paragraph, and write the title in front of each part of the description, unless the nature of the invention or utility model requires writing in other ways or orders to save the length of the description and make it more convenient. Others can accurately understand the invention or utility model.

The description of the invention or utility model should be in standardized terms and clear sentences, and should not use quotations such as "as stated in the claims..." or commercial promotional terms.

If an invention patent application contains one or more nucleotide or amino acid sequences, the description shall include a sequence listing that complies with the provisions of the patent administration department of the State Council.

The description of a utility model patent application shall have drawings showing the shape, structure or combination thereof of the claimed product.

Article 21 The drawings of an invention or utility model shall be numbered in the order of "Figure 1, Figure 2,...".

Reference signs that are not mentioned in the written part of the description of an invention or utility model shall not appear in the drawings, and reference signs that do not appear in the drawings shall not be mentioned in the written part of the description. The reference signs indicating the same component in the application documents shall be consistent.

Drawings should contain no annotations other than necessary words.

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

If the claim contains several claims, they shall be numbered sequentially with Arabic numerals.

The scientific and technical terms used in the claims should be consistent with those used in the description, and may have chemical or mathematical formulas, but shall not have illustrations. Unless absolutely necessary, the terms "as described in the instructions..." or "as shown in the figures..." shall not be used.

The technical features in the claims can refer to the corresponding signs in the drawings of the description. The signs should be placed after the corresponding technical features and placed in parentheses to facilitate understanding of the claims. Reference signs shall not be construed as limitations on the claims.

Article 23 A claim shall contain independent claims and may also contain dependent claims.

The independent claims should reflect the technical solution of the invention or utility model as a whole and record the necessary technical features to solve the technical problem.

Dependent claims should use additional technical features to further qualify the cited claims.

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

(1) Preamble: State the title of the subject matter of the claimed invention or utility model technical solution and the necessary technical features that the subject matter of the invention or utility model shares with the closest existing technology;

(2) Characteristics part: Use "its characteristics are..." or similar terms to describe the technical characteristics that distinguish the invention or utility model from the closest existing technology. These features, together with the features stated in the preamble, define the scope of protection claimed for the invention or utility model.

If the nature of the invention or utility model is not suitable for expression in the preceding paragraph, the independent claims may be drafted in other ways.

An invention or utility model shall have only one independent claim, which shall be written before the dependent claims of the same invention or utility model.

Article 25 The dependent claims of an invention or utility model shall include a quotation part and a qualification part, and shall be drafted in accordance with the following provisions:

(1) Reference part: indicate the number of the cited claim and its subject title;

(2) Qualified part: State the additional technical features of the invention or utility model.

Dependent claims may only refer to preceding claims. Multiple dependent claims that cite two or more claims can only cite the previous claim in an alternative way and cannot serve as the basis for another multiple dependent claim.

Article 26 The abstract of the specification shall state a summary of the content disclosed in the invention or utility model patent application, that is, state 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 and the method for solving the problem. The main points and main uses of the technical solution.

The abstract of the description may contain the chemical formula that best explains the invention; for a patent application with drawings, a drawing of the description that best explains the technical features of the invention or utility model should also be specified in the request as a drawing of the abstract. Commercial promotional terms may not be used in the abstract.

Article 27 If the invention for which a patent is applied for involves new biological materials that are not available to the public, and the description of the biological materials is not sufficient to enable those skilled in the field to implement the invention, the invention shall comply with the Patent Law and these Rules. In addition to the relevant regulations, applicants should also go through the following procedures:

(1) Before the date of application or at the latest on the date of application (if there is priority, the priority date is referred to), submit the sample of the biological material to a depository unit recognized by the patent administration department of the State Council for preservation, and Submit the preservation certificate and survival certificate issued by the preservation institution within 4 months from the date of preservation; if the certificate is not submitted within the expiration date, the sample will be deemed not to have been submitted for preservation;

(2) Provide information on the characteristics of the biological material in the application documents;

(3) A patent application involving the preservation of biological material samples shall state in the request and description the classification and naming of the biological material (indicate the Latin name), the name, address, preservation date and preservation number of the unit where the biological material sample is preserved. ; If it is not stated in the application, it shall be supplemented and corrected within 4 months from the date of application; if it is not supplemented and corrected within the period, it shall be deemed that it has not been submitted for preservation.

Article 28 If an applicant for an invention patent preserves biological material samples in accordance with the provisions of Article 27 of these Rules, after the invention patent application is published, any unit or individual needs to use the biological materials involved in the patent application for experimental purposes. If required, a request shall be made to the patent administration department of the State Council and the following matters shall be stated:

(1) The name or name and address of the requester;

(2) No guarantee of providing the biological materials to anyone else;

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

Article 29 The term “genetic resources” as used in the Patent Law refers to materials obtained from humans, animals, plants or microorganisms that contain genetic functional units and have actual or potential value, as well as genetic information generated by utilizing such materials. Inventions and creations that rely on genetic resources refer to inventions and creations that make use of the genetic functions of genetic resources.

When applying for a patent for an invention-creation that relies on genetic resources, the applicant shall explain it in the request and fill in the form formulated by the patent administration department of the State Council.

Article 30 The applicant shall submit relevant pictures or photos of the content that each design product needs to protect.

When applying for a partial design patent, a view of the entire product should be submitted, and the content of the part to be protected should be indicated by a combination of dotted lines and solid lines or other methods.

Applicants requesting color protection should submit color pictures or photos.

Article 31 A brief description of the design shall state the name and purpose of the design product, the key points of the design, and specify a picture or photo that best illustrates the key points of the design. If views are omitted or colors are requested to be protected, this should be stated in the brief description.

If a design patent application is filed for multiple similar designs of the same product, one of them should be designated as the basic design in the brief description.

When applying for a partial design patent, the part for which protection is sought should be stated in the brief description, unless it is indicated by a combination of dotted lines and solid lines in the view of the overall product.

The brief description must not use commercial promotional language or explain the performance of the product.

Article 32 When the patent administration department of the State Council deems it necessary, it may require the applicant for a design patent to submit samples or models of products 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 shall not be submitted as samples or models.

Article 33 The term “international exhibitions recognized by the Chinese government” as mentioned in Article 24(2) of the Patent Law refers to international exhibitions registered with or recognized by the Bureau International des Expositions as stipulated in the Convention on International Exhibitions.

The academic conferences or technical conferences mentioned in Article 24(3) of the Patent Law refer to academic conferences or technical conferences organized by the relevant competent departments of the State Council or national academic groups, as well as international organizations recognized by the relevant competent departments of the State Council. academic conferences or technical conferences held.

If the invention-creation for which a patent is applied for falls under the circumstances listed in Article 24 (2) or (3) of the Patent Law, the applicant shall declare it when filing the patent application and submit relevant documents within 2 months from the date of application. Documents proving that the invention has been exhibited or published, as well as the date of exhibition or publication.

If the invention-creation for which a patent is applied for falls under the circumstances listed in Item (1) or (4) of Article 24 of the Patent Law, the Patent Administration Department of the State Council may require the applicant to submit supporting documents within a specified period if it deems it necessary.

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

Article 34: If an applicant claims foreign priority in accordance with Article 30 of the Patent Law, the copy of the prior application documents submitted by the applicant shall be certified by the original acceptance agency. According to the agreement signed between the patent administration department of the State Council and the acceptance agency, if the patent administration department of the State Council obtains a copy of the prior application document through electronic exchange or other means, the applicant shall be deemed to have submitted a copy of the prior application document certified by the acceptance agency. If the applicant requests the priority of his or her country and states the filing date and application number of the earlier application in the request, it shall be deemed that a copy of the earlier application document has been submitted.

If a priority is claimed, but one or two of the filing date, application number, and name of the original acceptance agency of the earlier application are omitted or incorrectly written in the request, the patent administration department under the State Council shall notify the applicant to make corrections within the specified time limit. ; If it is not corrected upon expiration, it shall be deemed that priority has not been claimed.

If the name of the applicant claiming priority is inconsistent with the name of the applicant recorded in the copy of the earlier application document, documentation proving the transfer of priority shall be submitted. Failure to submit such certification shall be deemed to have not claimed priority.

The applicant for a design patent claims foreign priority, but his earlier application does not include a brief description of the design, and the brief description submitted by the applicant in accordance with Article 31 of these Rules does not exceed the representation of the pictures or photos in the earlier application document. scope, does not affect its right to priority.

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

An applicant for an invention or utility model patent claims priority in his or her country. If the earlier application is an invention patent application, he or she may file an invention or utility model patent application on the same subject matter; if the earlier application is a utility model patent application, he or she may file a utility model application on the same subject matter. Or apply for an invention patent. If the applicant for a design patent claims priority in his or her country, and the earlier application is an invention or utility model patent application, he or she may file a design patent application with the same subject on the design shown in the drawings; if the earlier application is a design patent application, he or she may file a design patent application on the same subject as the design shown in the drawings; File a design patent application on the same subject. However, when filing a later application, if the subject matter of the earlier application falls under any of the following circumstances, it shall not be used as the basis for claiming domestic priority:

(1) Has claimed foreign priority or domestic priority;

(2) Patent rights have been granted;

(3) It is a divisional application filed in accordance with regulations.

If an applicant claims domestic priority, his or her earlier application will be deemed to have been withdrawn from the date of filing of the later application, except where the design patent applicant requires an invention or utility model patent application as the basis for domestic priority.

Article 36 If the applicant exceeds the time limit stipulated in Article 29 of the Patent Law and files an invention or utility model patent application with the patent administration department of the State Council on the same subject, and has legitimate reasons, he or she may file a patent application within 2 months from the expiration of the time limit. Request restoration of priority within the request.

Article 37 If an applicant for an invention or utility model patent claims priority, he may request to add or correct the priority claim in the request within 16 months from the priority date or within 4 months from the application date.

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

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

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

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

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

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

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

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

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

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

 

Chapter 3 Review and Approval of Patent Applications

 

Article 42 During the preliminary examination, substantive examination, reexamination and invalidation procedures, if the person conducting the examination and trial falls into any of the following circumstances, he shall voluntarily recuse himself, and the parties or other interested parties may require him to recuse himself:

(1) A close relative of the party or his agent;

(2) Interested in patent application or patent right;

(3) Having other relationships with the parties or their agents, which may affect fair review and trial;

(4) Participated in the review of the original application during the reexamination or invalidation procedure.

Article 43 The patent administration department under the State Council receives a request, description (utility models must include drawings) and claims for an invention or utility model patent application, or a request for a design patent application, pictures or photos of the design After a brief explanation, the application date should be clarified, an application number should be given, and the applicant should be notified.

Article 44 If a patent application document contains any of the following circumstances, the patent administration department of the State Council will not accept the application and notify the applicant:

(1) An invention or utility model patent application lacks a request, description (utility models have no drawings) or claims, or a design patent application lacks a request, pictures or photos, or a brief description;

(2) Not in Chinese;

(3) The format of the application documents does not comply with the regulations;

(4) The applicant’s name or address is missing in the request;

(5) Obviously does not comply with the provisions of Article 17 or Article 18, Paragraph 1 of the Patent Law;

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

Article 45 If an invention or utility model patent application lacks or incorrectly submits claims, descriptions, or parts of the claims or descriptions, but the applicant claims priority on the date of submission, the applicant may file a claim within 2 months from the date of submission. within the time limit specified by the patent administration department of the State Council by citing the earlier application documents. If the supplementary documents comply with the relevant regulations, the date of submission of the first submitted documents shall be the date of application.

Article 46  If the description contains descriptions of the drawings but no drawings or part of the drawings are missing, the applicant shall submit additional drawings or declare to cancel the description of the drawings within the time limit designated by the patent administration department of the State Council. If the applicant submits supplementary drawings, the date of submission or mailing of the drawings to the Patent Administration Department of the State Council shall be the date of application; if the description of the drawings is cancelled, the original filing date shall be retained.

Article 47 If two or more applicants apply for patents for the same invention and creation on the same day (referring to the filing date; if there is priority, it refers to the priority date), they shall negotiate on their own after receiving a notice from the Patent Administration Department of the State Council. Identify the applicant.

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

When the patent administration department of the State Council announces the grant of a utility model patent, it shall announce that the applicant has simultaneously applied for an invention patent in accordance with the provisions of paragraph 2 of this article.

If no reason for rejection is found after examination of the invention patent application, the patent administration department of the State Council shall notify the applicant to declare a waiver of the utility model patent right within the prescribed time limit. If the applicant declares that he has given up the utility model patent right, the patent administration department of the State Council shall make a decision to grant the invention patent right and announce the applicant's statement of giving up the utility model patent right when announcing the grant of the invention patent right. If the applicant does not agree to give up, the patent administration department of the State Council shall reject the invention patent application; if the applicant fails to respond within the time limit, the invention patent application shall be deemed to have been withdrawn.

The utility model patent right shall terminate from the date of announcement of the grant of invention patent right.

Article 48 If a patent application includes two or more inventions, utility models or designs, the applicant may file a divisional application with the Patent Administration Department of the State Council before the expiration of the time limit specified in Paragraph 1 of Article 60 of these Rules. ; However, if the patent application has been rejected, withdrawn or deemed withdrawn, a divisional application cannot be filed.

If the patent administration department of the State Council considers that a patent application does not comply with the provisions of Article 31 of the Patent Law and Article 39 or 40 of these Rules, it shall notify the applicant to modify the application within the specified period; the application shall If the applicant fails to respond within the time limit, the application will be deemed withdrawn.

A divisional application shall not change the category of the original application.

Article 49  A divisional application filed in accordance with the provisions of Article 48 of these Rules may retain the original filing date, and if it enjoys priority, the priority date may be retained, but it shall not exceed the scope recorded in the original application.

Divisional applications shall undergo relevant procedures in accordance with the provisions of the Patent Law and these Rules.

The application number and filing date of the original application shall be stated in the request for divisional application.

Article 50 The term “preliminary examination” as mentioned in Articles 34 and 40 of the Patent Law refers to the examination of whether a patent application has the documents and other necessary documents specified in Article 26 or 27 of the Patent Law. These documents are in compliance with the prescribed format and reviewed for the following:

(1) Whether the application for an invention patent obviously falls within the circumstances stipulated in Articles 5 and 25 of the Patent Law, and whether it does not comply with Article 17, Paragraph 1 of Article 18, Paragraph 1 of Article 19 or Are the provisions of Article 11, Article 19 and Article 29, Paragraph 2 of these Rules obviously inconsistent with Article 2, Paragraph 2, Article 26, Paragraph 5 and Article 31 of the Patent Law? The provisions of paragraph 1, Article 33 or Articles 20 to 24 of these Rules;

(2) Whether the application for a utility model patent clearly falls within the circumstances specified in Articles 5 and 25 of the Patent Law, and whether it does not comply with Article 17, Paragraph 1 of Article 18, and Paragraph 1 of Article 19 of the Patent Law Or are the provisions of Article 11, Articles 19 to 22, and Articles 24 to 26 of these Rules obviously inconsistent with Article 2, paragraph 3, and Article 22 of the Patent Law? Article 26, Paragraph 3, Article 26 Paragraph 4, Article 31 Paragraph 1, Article 33 or Article 23 and Article 49 First of these Rules According to the provisions of this paragraph, whether the patent right cannot be obtained in accordance with Article 9 of the Patent Law;

(3) Whether the design patent application clearly falls within the circumstances specified in Article 5 of the Patent Law and Article 25, Paragraph 1, Item (6), and whether it does not comply with Article 17, Article 18, Paragraph 1 of the Patent Law Or are the provisions of Articles 11, 19, 30 and 31 of these Rules obviously inconsistent with Article 2, Paragraph 4, Article 23, Paragraph 1 and 2 of the Patent Law? Whether the provisions of Paragraph 2 of Article 13, Paragraph 2 of Article 27, Paragraph 2 of Article 31, Article 33 or Paragraph 1 of Article 49 of these Rules shall be determined in accordance with Article 9 of the Patent Law Patent rights cannot be obtained under Article 1;

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

The patent administration department of the State Council shall notify the applicant of the examination opinions and require him to state his opinions or make corrections within a specified period; if the applicant fails to respond within the specified period, his application shall be deemed to have been withdrawn. After the applicant has stated its opinions or made corrections, if the patent administration department of the State Council still considers that the application does not comply with the provisions listed in the preceding paragraph, it shall reject it.

Article 51  In addition to the patent application documents, other documents related to the patent application submitted by the applicant to the patent administration department of the State Council will be deemed not to have been submitted if any of the following circumstances apply:

(1) Failure to use the prescribed format or filling in non-compliance with regulations;

(2) Failure to submit supporting materials as required.

The patent administration department of the State Council shall notify the applicant of the examination opinions deemed to have not been submitted.

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

Article 53 If the applicant specifies the product using the design and its category, he or she shall use the design product classification table published by the patent administration department of the State Council. If the category of the product using the design is not stated or the category written is inaccurate, the patent administration department of the State Council may supplement or amend it.

Article 54 From the date of publication of an invention patent application to the date of announcement of the grant of patent rights, anyone may submit opinions to the patent administration department of the State Council on a patent application that does not comply with the provisions of the Patent Law and explain the reasons.

Article 55 If an applicant for an invention patent is unable to submit the search data or examination result data specified in Article 36 of the Patent Law due to legitimate reasons, he shall make a statement to the patent administration department under the State Council and make a supplementary submission after obtaining the relevant data.

Article 56 When the patent administration department of the State Council conducts a self-examination of a patent application in accordance with the provisions of Paragraph 2 of Article 35 of the Patent Law, it shall notify the applicant.

Applicants may file a request to defer examination of a patent application.

Article 57 When making a request for substantive examination and within 3 months from the date of receipt of the notification that the invention patent application has entered the substantive examination stage from the Patent Administration Department of the State Council, the applicant for an invention patent may voluntarily file an application for an invention patent. Revise.

Applicants for utility model or design patents may proactively propose modifications to their utility model or design patent applications within 2 months from the filing date.

If the applicant makes modifications to the patent application documents after receiving the notice of examination opinion issued by the Patent Administration Department of the State Council, the applicant shall make modifications to address the defects pointed out in the notice.

The patent administration department of the State Council may correct obvious errors in words and symbols in patent application documents on its own initiative. If the patent administration department of the State Council makes modifications on its own initiative, it shall notify the applicant.

Article 58  For modifications to the description or claims of an invention or utility model patent application, except for modifications or additions or deletions of individual words, replacement pages shall be submitted in accordance with the prescribed format. For modifications to pictures or photos in a design patent application, replacement pages must be submitted in accordance with regulations.

Article 59 According to the provisions of Article 38 of the Patent Law, the circumstances under which an invention patent application should be rejected after substantive examination include:

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

(2) The application does not comply with Article 2, Paragraph 2, Article 19, Paragraph 1, Article 22, Article 26, Paragraph 3, Article 26, Paragraph 4, and Article 20 of the Patent Law Article 6, paragraph 5, Article 31, paragraph 1, or Article 11, Article 23, paragraph 2 of these Rules;

(3) The amendment of the application does not comply with the provisions of Article 33 of the Patent Law, or the divisional application does not comply with the provisions of the first paragraph of Article 49 of these Rules.

Article 60  After the patent administration department of the State Council issues a notice of granting a patent right, the applicant shall complete the registration procedures within 2 months from the date of receipt of the notice. If the applicant completes the registration procedures on time, the patent administration department of the State Council shall grant the patent right, issue a patent certificate, and make an announcement.

Failure to complete the registration formalities upon expiration shall be deemed to have given up the right to obtain patent rights.

Article 61  If no reason for rejection is found after examination of a confidential patent application, the patent administration department of the State Council shall make a decision to grant a confidential patent right, issue a confidential patent certificate, and register matters related to the confidential patent right.

Article 62  After the decision to grant a utility model or design patent is announced, the patentee, interested parties, and alleged infringers specified in Article 66 of the Patent Law may request the Patent Administration Department of the State Council to issue a patent right evaluation report. . Applicants may request the patent administration department of the State Council to make a patent evaluation report when going through the patent registration procedures.

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

If the request for a patent right evaluation report does not comply with the regulations, the patent administration department of the State Council shall notify the requester to make corrections within the specified time limit; if the requester fails to make corrections within the specified time limit, it shall be deemed that the request has not been made.

Article 63 The Patent Administration Department of the State Council shall make a patent right evaluation report within 2 months after receiving the request for a patent right evaluation report. However, if the applicant requests a patent right evaluation report when going through the patent registration procedures, the Patent Administration Department of the State Council shall The department shall make a patent evaluation report within 2 months from the date of announcement of the grant of patent rights.

If multiple claimants request a patent right evaluation report for the same utility model or design patent right, the patent administration department under the State Council will only make one patent right evaluation report. Any unit or individual may review or copy the patent evaluation report.

Article 64  Once discovered, the patent administration department of the State Council shall promptly correct errors in patent announcements and patent pamphlets and announce the corrections.

 

Chapter 4 Review of Patent Applications and Invalidation of Patent Rights

 

Article 65  

 When requesting reexamination to the patent administration department of the State Council in accordance with the provisions of Article 41 of the Patent Law, a reexamination request shall be submitted, explaining the reasons, and attaching relevant evidence when necessary.

If the reexamination request does not comply with the provisions of Article 18, Paragraph 1, or Article 41, Paragraph 1 of the Patent Law, the Patent Administration Department of the State Council shall not accept the request and shall notify the reexamination requester in writing and explain the reasons.

If the reexamination request does not comply with the prescribed format, the reexamination requester shall make corrections within the time limit designated by the patent administration department of the State Council; if the reexamination request is not made or corrected within the time limit, the reexamination request shall be deemed not to have been filed.

Article 66 The petitioner may modify the patent application documents when filing a reexamination request or responding to the reexamination notice issued by the Patent Administration Department of the State Council; however, the modification shall be limited to eliminating the defects pointed out in the rejection decision or the reexamination notice.

Article 67 If, after conducting a reexamination, the patent administration department of the State Council deems that the reexamination request does not comply with the relevant provisions of the Patent Law and these Rules or that the patent application contains other obvious violations of the relevant provisions of the Patent Law and these Rules, it shall notify the person requesting the reexamination and require him or her to State your opinion within the specified time limit. If there is no reply within the time limit, the reexamination request shall be deemed to have been withdrawn; after stating its opinions or making modifications, if the patent administration department of the State Council believes that it still does not comply with the relevant provisions of the Patent Law and these Rules, it shall make a reexamination decision to reject the reexamination request.

If, after reexamination, the patent administration department of the State Council deems that the original rejection decision does not comply with the relevant provisions of the Patent Law and these Rules, or if it deems that the revised patent application documents have eliminated the defects pointed out in the original rejection decision and reexamination notice, the original rejection decision shall be revoked. , the review process continues.

Article 68 The reexamination requester may withdraw his reexamination request before the patent administration department of the State Council makes a decision.

If the reexamination requester withdraws his reexamination request before the patent administration department of the State Council makes a decision, the reexamination procedure shall be terminated.

Article 69  In accordance with the provisions of Article 45 of the Patent Law, those who request to declare the patent right invalid or partially invalid shall submit a request for invalidation of the patent right and necessary evidence in duplicate to the patent administration department of the State Council. The request for invalidation should combine all the evidence submitted, specify the reasons for the invalidation request, and indicate the evidence on which each reason is based.

The reasons for requesting invalidation mentioned in the preceding paragraph refer to the fact that the invention-creation for which the patent is granted does not comply with Article 2, Article 19, Paragraph 1, Article 22, Article 23, and Article 26 of the Patent Law. Article 3, Article 26, paragraph 4, Article 27, paragraph 2, Article 33 or Article 11, Article 23, paragraph 2, and Article 49 of these Rules The provisions of paragraph 1 may fall under the circumstances stipulated in Articles 5 and 25 of the Patent Law, or the patent right cannot be obtained in accordance with the provisions of Article 9 of the Patent Law.

Article 70 If a request for invalidation of a patent right does not comply with the provisions of Article 18, Paragraph 1 of the Patent Law or Article 69 of these Rules, the Patent Administration Department of the State Council will not accept it.

After the Patent Administration Department of the State Council makes a decision on the request for invalidation, if a request for invalidation is made with the same reasons and evidence, the Patent Administration Department of the State Council will not accept the request.

If a request is made to declare the design patent right invalid on the grounds that it does not comply with the provisions of Article 23, Paragraph 3 of the Patent Law, but no evidence proving the conflict of rights is submitted, the Patent Administration Department of the State Council will not accept the application.

If the request for invalidation of patent rights does not comply with the prescribed format, the invalidation requester shall make corrections within the time limit specified by the patent administration department of the State Council; if no corrections are made within the time limit, the request for invalidation shall be deemed not to have been made.

Article 71 After the patent administration department under the State Council accepts a request for invalidation, the requester may add reasons or supplement evidence within one month from the date of filing the request for invalidation. If reasons or evidence are added after the time limit, the patent administration department of the State Council may not consider it.

Article 72 The patent administration department of the State Council shall send a request for invalidation of patent rights and copies of relevant documents to the patentee, requiring the patentee to state its opinions within a specified time limit.

The patentee and the invalidation requester shall reply within the specified time limit to the notice of document transfer or the notice of review of request for invalidation issued by the patent administration department of the State Council; failure to respond within the time limit will not affect the hearing of the patent administration department of the State Council.

Article 73 During the review process of a request for invalidation, the patentee of an invention or utility model patent may amend its claims, but may not expand the scope of protection of the original patent. If the patent administration department of the State Council makes a decision to maintain the validity of the patent right or declare part of the patent right invalid based on the revised claims, the revised claims shall be announced.

The patentee of an invention or utility model patent may not modify the patent specification and drawings, and the patentee of a design patent may not modify pictures, photos and brief descriptions.

Article 74: The patent administration department of the State Council may decide to conduct an oral hearing of a request for invalidation based on the request of the party concerned or the needs of the case.

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

If the invalidation requester fails to respond within the specified time limit to the oral hearing notice issued by the Patent Administration Department of the State Council and does not participate in the oral hearing, his request for invalidation will be deemed to have been withdrawn; if the patentee does not participate in the oral hearing, the patentee may be heard in absentia.

Article 75 During the review procedure for a request for invalidation, the time limit specified by the patent administration department of the State Council shall not be extended.

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

Before the patent administration department of the State Council makes a decision, if the invalidation requester withdraws his request or his invalidation request is deemed to have been withdrawn, the invalidation request review procedure shall be terminated. However, if the patent administration department under the State Council believes that a decision can be made to declare the patent right invalid or partially invalid based on the examination work that has been carried out, the examination procedure will not be terminated.

 

Chapter 5 Compensation for Patent Term

 

Article 77 If a request is made for compensation for the duration of the patent right in accordance with the provisions of Paragraph 2 of Article 42 of the Patent Law, the patentee shall submit the request to the patent administration department of the State Council within 3 months from the date of announcement of the grant of the patent right.

Article 78 If compensation for the duration of the patent right is granted in accordance with the provisions of Paragraph 2 of Article 42 of the Patent Law, the compensation period shall be calculated based on the actual number of days of unreasonable delay in the granting process of the invention patent.

The actual number of days of unreasonable delay in the authorization process of an invention patent referred to in the preceding paragraph refers to the interval from the date when the invention patent application date reaches 4 years and from the date of request for substantive examination to 3 years to the date when the patent right is announced. days, minus the number of days of reasonable delay and the number of days of unreasonable delay caused by the applicant.

The following circumstances are reasonable delays:

(1) If the patent right is granted after modifying the patent application documents in accordance with the provisions of Article 66 of these Rules, delays caused by the reexamination process;

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

(3) Delay caused by other reasonable circumstances.

If the same applicant applies for both a utility model patent and an invention patent for the same invention-creation on the same day, and obtains the invention patent right in accordance with the provisions of Article 47, Paragraph 4 of these Rules, the term of the invention patent right shall not be subject to Article 4 of the Patent Law. The provisions of paragraph 2 of Article 12.

Article 79 The unreasonable delay caused by the applicant as stipulated in Paragraph 2 of Article 42 of the Patent Law includes the following situations:

(1) Failure to respond to the notice issued by the patent administration department of the State Council within the specified time limit;

(2) Application for delayed review;

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

(4) Other unreasonable delays caused by the applicant.

Article 80 The term “new drug-related invention patents” as mentioned in Paragraph 3 of Article 42 of the Patent Law refers to new drug product patents, preparation method patents, and medical use patents that comply with regulations.

Article 81 In accordance with the provisions of Paragraph 3 of Article 42 of the Patent Law, a request for compensation for the duration of the invention patent right related to a new drug shall meet the following requirements and submit a request to the State Council within 3 months from the date when the new drug obtains marketing authorization in China. The patent administration department proposed:

(1) If the new drug has multiple patents at the same time, the patentee can only request patent term compensation for one of the patents;

(2) If a patent involves multiple new drugs at the same time, a patent term compensation request can only be made for one new drug for that patent;

(3) The patent is within the validity period and has not yet received compensation for the duration of the new drug-related invention patent rights.

Article 82 If compensation is granted for the duration of the patent right in accordance with the provisions of Paragraph 3 of Article 42 of the Patent Law, the compensation period shall be based on the number of days between the patent application date and the date when the new drug obtains marketing authorization in China minus 5 years. Determined on the basis of compliance with the provisions of Article 42, Paragraph 3 of the Patent Law.

Article 83 During the patent term compensation period for a new drug-related invention patent, the scope of protection of the patent is limited to the new drug and its approved technical solutions for indications; within the scope of protection, the rights and obligations of the patentee shall Same as before patent term compensation.

Article 84 After reviewing the request for compensation for the duration of the patent right submitted in accordance with the provisions of Paragraph 2 and Paragraph 3 of Article 42 of the Patent Law, the Patent Administration Department of the State Council shall make a decision to grant duration compensation if it deems that the conditions for compensation are met. , and be registered and announced; if the compensation conditions are not met, a decision will be made not to grant time limit compensation, and the patentee who made the request will be notified.

 

Chapter 6 Special License for Patent Exploitation

 

Article 85 If a patentee voluntarily declares open licensing of its patent, it shall do so after the grant of the patent right is announced.

The open license statement should state the following matters:

(1) Patent number;

(2) The name of the patentee;

(3) Patent licensing fee payment methods and standards;

(4) Patent license term;

(5) Other matters that need to be clarified.

The content of the open license statement should be accurate and clear, and no commercial promotional language should be used.

Article 86 If a patent right falls under any of the following circumstances, the patentee shall not implement open licensing for it:

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

(2) It falls under the circumstances of suspension specified in Articles 103 and 104 of these Rules;

(3) Failure to pay annual fees in accordance with regulations;

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

(5) Other circumstances that hinder the effective implementation of patent rights.

Article 87 If a patent implementation license is obtained through open licensing, the patentee or licensee shall file with the patent administration department of the State Council with written documents that can prove that the license has been reached.

Article 88 The patentee shall not make an open licensing statement or obtain patent annual fee reduction or exemption during the implementation period of the open license by providing false materials, concealing facts, etc.

Article 89 The term "failure to fully implement the patent" as mentioned in Article 53 (1) of the Patent Law means that the patentee and its licensee do not implement the patent in a manner or on a scale that meets domestic requirements for patented products or patents. method requirements.

The term "patented medicines" as mentioned in Article 55 of the Patent Law refers to any patented product in the medical field needed to solve public health problems or products directly obtained according to patented methods, including patented medicines required to manufacture the product. of the active ingredients and the diagnostic supplies required to use the product.

Article 90 To request compulsory license, a request for compulsory license shall be submitted to the patent administration department of the State Council, stating the reasons and attaching relevant supporting documents.

The patent administration department under the State Council shall send a copy of the request for compulsory license to the patentee, and the patentee shall state his opinions within the time limit designated by the patent administration department under the State Council; failure to respond within the time limit shall not affect the decision made by the patent administration department under the State Council.

Before making a decision to reject a request for compulsory license or grant a compulsory license, the patent administration department under the State Council shall notify the requester and the patentee of the proposed decision and the reasons.

When the patent administration department of the State Council makes a decision to grant a compulsory license in accordance with the provisions of Article 55 of the Patent Law, it shall also comply with the provisions of the relevant international treaties that China has concluded or participated in regarding the granting of compulsory licenses for the purpose of solving public health problems. However, if China has reservations except.

Article 91 In accordance with the provisions of Article 62 of the Patent Law, when requesting the patent administration department of the State Council to adjudicate the amount of royalties, the party concerned shall submit a request for adjudication and attach documents proving that the two parties cannot reach an agreement. The patent administration department of the State Council shall make a ruling within 3 months from the date of receipt of the request and notify the parties concerned.

 

Chapter 7 Rewards and remuneration for inventors or designers of service-based inventions

 

Article 92 The unit that is granted a patent right may agree with the inventor or designer or stipulate in its rules and regulations formulated in accordance with the law the method and amount of rewards and remuneration specified in Article 15 of the Patent Law. Encourage units that are granted patent rights to implement property rights incentives and adopt equity, options, dividends and other means to enable inventors or designers to reasonably share the benefits of innovation.

Rewards and remuneration given to inventors or designers by enterprises and institutions shall be handled in accordance with the relevant national financial and accounting system regulations.

Article 93 If the unit to which the patent right is granted has not agreed with the inventor or designer or stipulated in its legally formulated rules and regulations the method and amount of the reward specified in Article 15 of the Patent Law, it shall announce the grant of the patent. Bonuses will be issued to the inventor or designer within 3 months from the date of grant of the right. The minimum bonus for an invention patent is not less than 4,000 yuan; the minimum bonus for a utility model patent or design patent is not less than 1,500 yuan.

For inventions and creations completed because the inventor or designer's suggestions are adopted by the unit to which he/she belongs, the unit to which the patent right is granted shall be given preferential bonuses.

Article 94 If the unit to which the patent right is granted has not agreed with the inventor or designer or stipulated in its legally formulated rules and regulations the form and amount of remuneration specified in Article 15 of the Patent Law, it shall be liable in accordance with the provisions of the People's Republic of China According to the provisions of the Law of the Republic of China on Promoting the Transformation of Scientific and Technological Achievements, the inventor or designer shall be given reasonable remuneration.

 

Chapter 8 Protection of Patent Rights

 

Article 95 The patent management departments of the people's governments of provinces, autonomous regions, and municipalities directly under the Central Government, as well as the patent management departments of the district people's governments of prefecture-level cities, autonomous prefectures, leagues, regions, and municipalities directly under the Central Government that have a large workload of patent management and have the actual handling capacity, Can handle and mediate patent disputes.

Article 96 Any of the following circumstances shall fall under the category of patent infringement disputes with significant national impact as referred to in Article 70 of the Patent Law:

(1) Involving major public interests;

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

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

(4) Other circumstances that the patent administration department of the State Council deems may have significant impact.

If the patentee or interested party requests the patent administration department of the State Council to handle a patent infringement dispute, and the relevant case does not belong to a patent infringement dispute with significant impact nationwide, the patent administration department of the State Council may designate a department of the local people's government with jurisdiction to manage patent work. deal with.

Article 97 If a party requests to handle a patent infringement dispute or mediate a patent dispute, the patent administration department at the place where the respondent is located or where the infringement occurred shall have jurisdiction.

For patent disputes where two or more patent management departments have jurisdiction, the party concerned may make a request to one of the patent management departments; if a party files a request to two or more patent management departments with jurisdiction, the party that first The administrative department responsible for handling patent matters shall have jurisdiction.

If there is a dispute over jurisdiction between departments that manage patent affairs, the jurisdiction shall be designated by the patent administration department of their common superior people's government; if there is no common superior patent administration department, the jurisdiction shall be designated by the patent administration department of the State Council.

Article 98 During the process of handling a patent infringement dispute, if the respondent files a request for invalidation and the request is accepted by the patent administration department of the State Council, he may request the patent management department to suspend the processing.

If the patent management department believes that the reasons for suspension proposed by the respondent are obviously untenable, it may not suspend the processing.

Article 99 If the patentee, in accordance with the provisions of Article 16 of the Patent Law, marks a patent mark on its patented product or the packaging of the product, it shall mark it in the manner prescribed by the patent administration department of the State Council.

If a patent mark does not comply with the provisions of the preceding paragraph, the department responsible for patent law enforcement at or above the county level shall order it to make corrections.

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

Article 101 The following acts are acts of counterfeiting patents as stipulated in Article 68 of the Patent Law:

(1) Marking patent logos on products or their packaging that have not been granted patent rights, continuing to mark products or their packaging with patent logos after the patent rights are declared invalid or terminated, or marking products or product packaging without permission someone else’s patent number;

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

(3) In product manuals and other materials, refer to technology or designs that have not been granted patent rights as patented technology or patented designs, refer to patent applications as patents, or use other people's patent numbers without permission, causing the public to misunderstand the involved technologies or designs. Technology or design is mistaken for patented technology or patented design;

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

(5) Other behaviors that confuse the public and mistake unpatented technology or designs for patented technologies or patented designs.

If a patented product, a product obtained directly by a patented method, or its packaging is marked with a patent logo in accordance with the law before the patent right expires, and if the product is promised or sold after the patent right is terminated, it does not constitute patent counterfeiting.

Anyone who sells products that are not known to be counterfeit patented products and can prove the legal origin of the product will be ordered to stop selling by the department responsible for patent enforcement at or above the county level.

Article 102 In addition to the provisions of Article 65 of the Patent Law, the patent management department may mediate the following patent disputes at the request of the parties:

(1) Disputes over patent application rights and ownership of patent rights;

(2) Disputes over the qualifications of inventors and designers;

(3) Disputes over rewards and remuneration for inventors and designers of service-based inventions;

(4) Disputes over using the invention after the invention patent application is published and before the patent right is granted without paying appropriate fees;

(5) Other patent disputes.

For disputes listed in Item (4) of the preceding paragraph, if the parties request mediation from the patent administration department, they shall do so after the patent right is granted.

Article 103 If a party has a dispute over the right to apply for a patent or the ownership of the patent right, and has requested mediation from the patent administration department or filed a lawsuit in the People's Court, it may request the patent administration department under the State Council to suspend the relevant procedures.

To request the suspension of relevant procedures in accordance with the provisions of the preceding paragraph, a request shall be submitted to the patent administration department of the State Council, stating the reasons, and attaching a copy of the relevant acceptance document indicating the application number or patent number from the patent administration department or the people's court. If the patent administration department of the State Council believes that the reasons for suspension put forward by the parties are obviously untenable, the relevant procedures may not be suspended.

After the mediation letter issued by the patent administrative department or the judgment issued by the people's court takes effect, the parties concerned shall go through the procedures for resuming relevant procedures with the patent administration department of the State Council. If the dispute over the right to apply for a patent or the ownership of the patent right cannot be resolved within one year from the date of the request for suspension, and the relevant procedures need to be continued to be suspended, the requester shall request an extension of the suspension within this period. If no extension is requested upon expiration, the patent administration department of the State Council shall resume relevant procedures on its own initiative.

Article 104 If the people's court decides to take preservation measures against the patent application right or patent right in the trial of a civil case, the patent administration department under the State Council shall, after receiving the ruling stating the application number or patent number and the notice of assistance in enforcement, Suspension of the protected patent application right or relevant procedures for the patent right. If the preservation period expires and the people's court does not rule to continue taking preservation measures, the patent administration department of the State Council shall resume the relevant procedures on its own initiative.

Article 105 The suspension of relevant procedures by the patent administration department of the State Council in accordance with the provisions of Articles 103 and 104 of these Rules refers to the suspension of the preliminary examination, substantive examination, and reexamination procedures of patent applications, and the procedures for granting patent rights. and patent right invalidation procedures; suspend procedures for abandoning, changing, transferring patent rights or patent application rights, patent right pledge procedures, and termination procedures before the expiration of the patent right term, etc.

 

Chapter 9 Patent Registration and Patent Gazette

 

Article 106 The patent administration department of the State Council shall set up a patent registration book to register the following matters related to patent applications and patent rights:

(1) Grant of patent rights;

(2) Transfer of patent application rights and patent rights;

(3) Pledge, preservation and release of patent rights;

(4) Filing of patent licensing contracts;

(5) Decryption of national defense patents and confidential patents;

(6) Declaration of invalidity of patent rights;

(7) Termination of patent rights;

(8) Restoration of patent rights;

(9) Compensation for the term of patent rights;

(10) Open license for patent implementation;

(11) Compulsory license for patent implementation;

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

Article 107 The patent administration department of the State Council regularly publishes patent gazettes and publishes or announces the following contents:

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

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

(3) Rejection, withdrawal, deemed withdrawal, deemed abandonment, restoration and transfer of invention patent applications after publication;

(4) The granting of patent rights and the recording of patent rights;

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

(6) Decryption of national defense patents and confidential patents;

(7) Declaration of invalidity of patent rights;

(8) Termination and restoration of patent rights;

(9) Compensation for the term of patent rights;

(10) Transfer of patent rights;

(11) Filing of patent licensing contracts;

(12) Pledge, preservation and release of patent rights;

(13) Open licensing matters for patent implementation;

(14) Grant of compulsory license for patent implementation;

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

(16) Announcement and delivery of documents;

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

(18) Other relevant matters.

Article 108 The patent administration department of the State Council shall provide patent gazettes, individual copies of invention patent applications, and separate copies of invention patents, utility model patents, and design patents for free inspection by the public.

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

 

Chapter 10 Expenses

 

Article 110 When applying for a patent and handling other procedures with the patent administration department of the State Council, the following fees shall be paid:

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

(2) Substantive examination fees and re-examination fees for invention patent applications;

(3) Annual fee;

(4) Fees for requesting restoration of rights and requesting fees for extension of time limit;

(5) Fees for changes to bibliographic items, fees for requesting patent rights evaluation reports, fees for requesting invalidation, and fees for certifying copies of patent documents.

The payment standards for the various fees listed in the preceding paragraph shall be stipulated by the development and reform department and the financial department of the State Council in conjunction with the patent administration department of the State Council in accordance with the division of responsibilities. The finance department and development and reform department of the State Council may, in conjunction with the patent administration department of the State Council, adjust the types and standards of fees payable for patent application and other procedures based on the actual situation.

Article 111 Various fees stipulated in the Patent Law and these Rules shall be paid in strict accordance with the regulations.

If the fee is paid directly to the Patent Administration Department of the State Council, the day of payment shall be the day of payment; if the fee is paid by post office remittance, the postmark date remitted by the post office shall be the date of payment; if the fee is paid by bank remittance, the actual remittance by the bank shall be the date of payment. The day of payment is the day of payment.

If the patent fee is overpaid, repaid, or wrongly paid, the party concerned may submit a refund request to the patent administration department of the State Council within 3 years from the date of payment, and the patent administration department of the State Council shall refund the patent fee.

Article 112 The applicant shall pay the application fee, publication printing fee and necessary application surcharge within 2 months from the date of application or within 15 days from the date of receipt of the acceptance notice; If payment is made in full, the application will be deemed withdrawn.

If the applicant claims priority, he shall pay the priority claim fee at the same time as the application fee; if the application fee is not paid upon expiration or is not paid in full, it shall be deemed that priority has not been claimed.

Article 113 If a party requests substantive examination or reexamination, it shall pay the fee within the relevant time limit stipulated in the Patent Law and these Rules; if the fee is not paid upon expiration or is not paid in full, it shall be deemed that the request has not been made.

Article 114 When the applicant goes through the registration formalities, he shall pay the annual fee for the year when the patent right is granted; if the annual fee is not paid upon expiration or is not paid in full, it shall be deemed that the registration formalities have not been completed.

Article 115 Annual fees after the year in which the patent right is granted shall be paid before the expiration of the previous year. If the patentee fails to pay or fails to pay in full, the patent administration department under the State Council shall notify the patentee to pay the annual fee within 6 months from the expiration of the due date, and at the same time pay a late payment fee; the amount of the late payment fee shall be calculated based on the amount of the annual fee that exceeds the prescribed amount. The time is 1 month, and 5% of the full annual fee for that year will be charged; if the annual fee is not paid at the end of the period, the patent right will be terminated from the date when the annual fee is due.

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

The request fee for extension of time limit shall be paid before the expiration date of the corresponding time limit; if it is not paid upon expiration or is not paid in full, the request shall be deemed not to have been made.

The fee for change of bibliographic matters, request fee for patent right evaluation report, and request fee for invalidation declaration shall be paid within one month from the date of filing the request; if it is not paid within the time limit or is not paid in full, it shall be deemed that the request has not been made.

Article 117 If an applicant or patentee has difficulty paying the various fees stipulated in these Rules, he or she may submit a request for payment reduction to the patent administration department of the State Council in accordance with the regulations. The method for reducing payment shall be formulated by the finance department of the State Council in conjunction with the development and reform department of the State Council and the patent administration department of the State Council.

 

Chapter 11 Special Provisions on International Applications for Inventions and Utility Models

 

Article 118 The Patent Administration Department of the State Council shall accept international applications for patents filed in accordance with the Patent Cooperation Treaty in accordance with Article 19 of the Patent Law.

The conditions and procedures for filing and specifying China’s international patent application in accordance with the Patent Cooperation Treaty (hereinafter referred to as the international application) and entering the processing stage of the patent administrative department of the State Council (hereinafter referred to as entering the Chinese national stage) shall be governed by the provisions of this chapter; if there are no provisions in this chapter, the Patent Law shall apply and the relevant provisions of other chapters of these Rules.

Article 119 An international application with a determined international filing date and designation of China in accordance with the Patent Cooperation Treaty shall be deemed to be a patent application submitted to the Patent Administration Department of the State Council, and the international filing date shall be deemed to be referred to in Article 28 of the Patent Law. application date.

Article 120 The applicant for an international application shall, within 30 months from the priority date referred to in Article 2 of the Patent Cooperation Treaty (referred to as the priority date in this chapter), go through the procedures for entering the Chinese national phase with the Patent Administration Department of the State Council. ; If the applicant fails to complete the procedures within this period, after paying the grace fee, the applicant can complete the procedures for entering the Chinese national phase within 32 months from the priority date.

Article 121 Applicants who go through the procedures for entering the Chinese national phase in accordance with the provisions of Article 120 of these Rules shall meet the following requirements:

(1) Submit a written declaration of entering the Chinese national phase in Chinese, indicating the international application number and the type of patent rights requested;

(2) Pay the application fee and publication printing fee specified in Article 110, Paragraph 1 of these Rules, and, if necessary, the grace fee specified in Article 120 of these Rules;

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

(4) In the written declaration of entering the national phase in China, state the title of the invention, the name of the applicant, the address and the name of the inventor. The above content should be consistent with the records of the International Bureau of the World Intellectual Property Organization (hereinafter referred to as the International Bureau) If the inventor is not named in the international application, the name of the inventor shall be stated in the above statement;

(5) If the international application is filed in a foreign language, submit a Chinese translation of the abstract. If there are drawings and drawings attached to the abstract, submit a copy of the drawings and specify the drawings for the abstract. If there are text in the drawing, replace it with the corresponding Chinese text. ;

(6) If the applicant has gone through the change procedures with the International Bureau during the international stage, if necessary, provide documentation proving that the changed applicant enjoys the right to apply;

(7) Pay the application surcharge specified in paragraph 1 of Article 110 of these Rules when necessary.

If the requirements of Items (1) to (3) of Paragraph 1 of this Article are met, the Patent Administration Department of the State Council shall issue an application number, specify the date when the international application enters the national phase in China (hereinafter referred to as the entry date), and notify the applicant of its international application. The application has entered the Chinese national phase.

If the international application has entered the Chinese national phase but does not meet the requirements of Items (4) to (7) of Paragraph 1 of this Article, the Patent Administration Department of the State Council shall notify the applicant to make corrections within the specified time limit; if the applicant fails to make corrections within the specified time limit, the applicant shall The application is deemed withdrawn.

Article 122 If an international application falls under any of the following circumstances, its validity in China will be terminated:

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

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

(3) The applicant has gone through the procedures for entering the Chinese national phase, but still fails to meet the requirements of Items (1) to (3) of Article 121 of these Rules at the expiration of 32 months from the priority date.

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

Article 123 If the international application has been modified during the international phase, and the applicant requests to conduct examination on the basis of the modified application documents, the Chinese translation of the modified parts shall be submitted within 2 months from the date of entry. If the Chinese translation is not submitted within this period, the patent administration department of the State Council will not consider the amendments proposed by the applicant during the international stage.

Article 124 If the invention-creation involved in the international application falls under any of the circumstances listed in Article 24 (2) or (3) of the Patent Law, and the applicant has made a statement when filing the international application, the applicant shall It shall be explained in the written declaration of entering the Chinese national phase, and the relevant supporting documents specified in paragraph 3 of Article 33 of these Rules shall be submitted within 2 months from the date of entry; if no explanation is given or the supporting documents are not submitted within the time limit, , the provisions of Article 24 of the Patent Law are not applicable to its application.

Article 125 If the applicant has provided instructions for the preservation of biological material samples in accordance with the provisions of the Patent Cooperation Treaty, it shall be deemed to have met the requirements of Article 27 (3) of these Rules. The applicant should indicate in the declaration of entering the national phase in China the document recording the preservation of biological material samples and the specific recording location in the document.

If the applicant has recorded the preservation of biological material samples in the description of the originally submitted international application, but has not specified it in the declaration of entering the national phase in China, it must make corrections within 4 months from the date of entry. If no correction is made upon expiration of the period, the biological material will be deemed not to have been submitted for preservation.

If the applicant submits the biological material sample preservation certificate and survival certificate to the Patent Administration Department of the State Council within 4 months from the date of entry, it will be deemed to have been submitted within the time limit specified in Article 27, Item (1) of these Rules.

Article 126  If the invention-creation involved in the international application relies on genetic resources, the applicant shall explain it in the written statement that the international application enters the Chinese national phase and fill in the form formulated by the patent administration department of the State Council.

Article 127 If the applicant has claimed one or more priorities in the international phase, and the priority claim continues to be valid when entering the Chinese national phase, it shall be deemed to have been filed in accordance with the provisions of Article 30 of the Patent Law. Written Statement.

The applicant shall pay the priority claim fee within 2 months from the date of entry; if the fee is not paid upon expiration or is not fully paid, the priority shall be deemed not to have been claimed.

If the applicant has submitted copies of the prior application documents during the international phase in accordance with the provisions of the Patent Cooperation Treaty, it is not necessary to submit copies of the prior application documents to the Patent Administration Department of the State Council when going through the procedures for entering the Chinese national phase. If the applicant fails to submit a copy of the earlier application documents during the international phase, the patent administration department of the State Council may, if it deems it necessary, notify the applicant to make a supplementary submission within a specified time limit; if the applicant fails to make a supplementary submission within the specified time limit, the priority claim shall be deemed to have not been made. .

Article 128 If the filing date of an international application is within 2 months after the expiration of the priority period, and the receiving Office in the international phase has approved the restoration of the right of priority, it shall be deemed to have been filed in accordance with the provisions of Article 36 of these Rules. Request for restoration of priority; during the international phase, the applicant has not requested restoration of priority, or has made a request for restoration of priority but the receiving office has not approved it. If the applicant has legitimate reasons, he may apply to the Patent Administration Department of the State Council within 2 months from the date of entry. Restore priority.

Article 129 If the patent administration department of the State Council is requested to process and examine the international application in advance before the expiration of 30 months from the priority date, the applicant shall not only go through the procedures for entering the Chinese national phase, but also shall comply with Article 1 of the Patent Cooperation Treaty. Paragraph 2 of Article 23 provides for filing a request. If the International Bureau has not transmitted the international application to the Patent Administration Department of the State Council, the applicant shall submit a confirmed copy of the international application.

Article 130  For an international application seeking to obtain a utility model patent right, the applicant may voluntarily propose modifications to the patent application documents within 2 months from the date of entry.

For international applications seeking to obtain invention patent rights, the provisions of Article 57, Paragraph 1, of these Rules shall apply.

Article 131 If the applicant discovers that there are errors in the Chinese translation of the text in the submitted description, claims or drawings, he may submit corrections based on the original international application text within the following prescribed period:

(1) Before the patent administration department of the State Council makes preparations for announcing an invention patent application or announcing a utility model patent right;

(2) Within 3 months from the date of receipt of the notice issued by the Patent Administration Department of the State Council that the invention patent application has entered the substantive examination stage.

If the applicant corrects errors in the translation, he shall make a written request and pay the prescribed translation correction fee.

If the applicant corrects the translation in accordance with the requirements of the notice from the Patent Administration Department of the State Council, he shall go through the procedures specified in paragraph 2 of this article within the designated time limit; if the prescribed procedures are not completed within the time limit, the application shall be deemed to have been withdrawn.

Article 132 For an international application requesting an invention patent right, if the patent administration department of the State Council deems after preliminary examination that it complies with the relevant provisions of the Patent Law and these Rules, it shall be published in the Patent Gazette; the international application shall be in a language other than Chinese. If submitted, the Chinese translation of the application documents shall be published.

If an international application for an invention patent is published internationally in Chinese by the International Bureau, the provisions of Article 13 of the Patent Law shall apply from the date of international publication or the date of publication by the Patent Administration Department of the State Council; if the application is published in languages other than Chinese by the International Bureau, For international publication, the provisions of Article 13 of the Patent Law shall apply from the date of publication by the Patent Administration Department of the State Council.

For international applications, the publication referred to in Articles 21 and 22 of the Patent Law refers to the publication specified in paragraph 1 of this article.

Article 133 If the international application contains two or more inventions or utility models, the applicant may file a divisional application in accordance with the provisions of Article 48, Paragraph 1 of these Rules, starting from the date of entry.

During the international phase, when the International Searching Authority or the International Preliminary Examining Authority considers that the international application does not meet the unity requirements stipulated in the Patent Cooperation Treaty, the applicant fails to pay additional fees in accordance with the regulations, resulting in some parts of the international application not being searched or not being reviewed internationally. Preliminary examination, when entering the Chinese national phase, the applicant requests that the said part be used as the basis for examination. If the patent administration department of the State Council believes that the international search authority or the international preliminary examination authority has made a correct judgment on the unity of the invention, it shall notify the applicant within the designated period. Pay the unitary restoration fee within the period. If the payment is not made at the expiration of the time limit or is not paid in full, the part of the international application that has not been searched or that has not been subject to international preliminary examination will be deemed to be withdrawn.

Article 134 If an international application is refused an international filing date or declared withdrawn by the relevant international authority during the international phase, the applicant may, within 2 months from the date of receipt of the notification, request the International Bureau to file the international application file. A copy of any document in the document shall be forwarded to the Patent Administration Department of the State Council, and the procedures specified in Article 120 of these Rules shall be completed with the Patent Administration Department of the State Council within that period. The Patent Administration Department of the State Council shall, after receiving the documents transmitted by the International Bureau, make a Review whether the decisions made by the unit are correct.

Article 135 If a patent right granted based on an international application exceeds the scope of protection determined in accordance with Article 64 of the Patent Law due to an error in translation, the scope of protection determined in accordance with the original text of the international application shall be limited in accordance with the original text. The scope of protection shall prevail; if the scope of protection is smaller than the scope expressed in the original text of the international application, the scope of protection at the time of grant shall prevail.

 

Chapter 12 Special Provisions on International Applications for Designs

 

Article 136 The Patent Administration Department of the State Council shall, in accordance with the provisions of Paragraph 2 and Paragraph 3 of Article 19 of the Patent Law, handle claims filed in accordance with the Hague Agreement on the International Registration of Industrial Designs (1999 text) (hereinafter referred to as the Hague Agreement) Application for international registration of design.

The conditions and procedures for the Patent Administration Department of the State Council to handle applications for international design registration filed in accordance with the Hague Agreement and designated in China (referred to as international design applications) shall be governed by the provisions of this Chapter; if there are no provisions in this Chapter, the relevant provisions of the Patent Law and other chapters of these Rules shall apply. Regulation.

Article 137 An international application for a design that has determined the international registration date and designated China in accordance with the Hague Agreement shall be deemed to be a design patent application submitted to the Patent Administration Department of the State Council, and the international registration date shall be deemed as Article 28 of the Patent Law. The filing date referred to in Article 1.

Article 138 After the International Bureau publishes the international design application, the patent administration department of the State Council shall examine the international design application and notify the International Bureau of the examination results.

Article 139 If the international design application published by the International Bureau includes one or more priorities, it shall be deemed that a written declaration has been made in accordance with Article 30 of the Patent Law.

If the applicant of the international design application claims priority, he shall submit copies of the earlier application documents within 3 months from the date of publication of the international design application.

Article 140 If the design involved in the international design application falls under the circumstances listed in Item (2) or (3) of Article 24 of the Patent Law, a declaration shall be made when filing the international design application and shall be Submit the relevant supporting documents specified in Paragraph 3 of Article 33 of these Rules within 2 months from the date of publication of the international design application.

Article 141 If an international design application includes two or more designs, the applicant may file a divisional application with the patent administration department of the State Council within 2 months from the date of publication of the international design application and pay the cost.

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

Article 143  If the international application for a design is examined by the patent administration department of the State Council and no reason for rejection is found, the patent administration department of the State Council shall make a decision to grant protection and notify the International Bureau.

After the patent administration department of the State Council makes a decision to grant protection, it will be announced, and the design patent right will take effect from the date of announcement.

Article 144  If the rights change procedures have been completed with the International Bureau, the applicant shall provide relevant certification materials to the patent administration department of the State Council.

 

Chapter 13 Supplementary Provisions

 

Article 145 With the consent of the Patent Administration Department of the State Council, anyone may inspect or copy the patent application files and patent registers that have been published or announced, and may request the Patent Administration Department of the State Council to issue a copy of the patent register.

Files of patent applications that have been deemed withdrawn, rejected or voluntarily withdrawn will not be kept after 2 years from the date of expiration of the patent application.

The case files of patent rights that have been abandoned, declared invalid and terminated will not be kept after 3 years from the date of expiration of the patent rights.

Article 146 Submission of application documents or various procedures to the patent administration department of the State Council shall be signed or sealed by the applicant, patentee, other interested parties or their representatives; if a patent agency is entrusted, the signature or seal shall be signed by Stamped by the patent agency.

Requests to change the name of the inventor, the name, nationality and address of the patent applicant and patentee, the name and address of the patent agency, and the name of the patent attorney shall go through the formalities for changing the bibliographic matters with the patent administration department of the State Council. If necessary, Documentation supporting the reasons for the change should be submitted.

Article 147 When mailing documents related to applications or patent rights to the patent administration department of the State Council, registered letters must be used and parcels are not allowed.

In addition to submitting patent application documents for the first time, when submitting various documents and completing various procedures to the patent administration department of the State Council, the application number or patent number, the name of the invention and the name of the applicant or patentee shall be indicated.

A letter should only contain documents from the same application.

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

Article 149  These detailed rules shall come into effect on July 1, 2001. The "Details for the Implementation of the Patent Law of the People's Republic of China", which was revised and approved by the State Council on December 12, 1992, and issued by the China Patent Office on December 21, 1992, was abolished at the same time.

Source: Chinese government website

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