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Rules for the Implementation of the
Patent Law of the People's Republic of China
¡¡¡¡£¨Promulgated by Decree No. 306 of the State Council of the People's
Republic of China on June 15, 2001, and revised according to the Decision of
the State Council on Amending the Rules for the Implementation of the Patent
Law of the People's Republic of China promulgated on December 28, 2002£©
Zhu RongJi premier
December 28, 2002
¡¡¡¡Chapter I General Provisions
¡¡¡¡Article 1 These Rules are formulated
in accordance with the Patent Law of the People's Republic of China
£¨hereinafter referred to as the Patent Law£©.
¡¡¡¡Article 2 "Invention" in the Patent
Law means any new technical solution relating to a product,
a process or improvement thereof.
¡¡¡¡"Utility model" in the Patent Law means any new technical solution
relating to the shape, the
structure, or their combination, of a product, which is fit for practical
use.
¡¡¡¡"Design" in the Patent Law means any new design of the shape, pattern or
their combination, or
the combination of the color with shape or pattern, of a product, which
creates an aesthetic feeling
and is fit for industrial application.
¡¡¡¡Article 3 Any formalities prescribed
by the Patent Law and these Rules shall be gone through in a written form or
in any other form prescribed by the patent administration department under
the
State Council.
¡¡¡¡Article 4 Any document submitted in
accordance with the provisions of the Patent Law and these Rules shall be in
Chinese; the standard scientific and technical terms shall be used if there
is a
prescribed one set forth by the State; where no generally accepted
translation in Chinese can be
found for a foreign name or scientific or technical term, the one in the
original language shall be
also indicated.
¡¡¡¡Where any certificate(s) or certifying document(s)- submitted in
accordance with the
provisions of the Patent Law and these Rules is in a foreign language, the
patent administration
department under the State Council may, when it deems necessary, request a
Chinese translation of
the certificate£¨s£© or the certifying document£¨s£© be submitted within a
specified time limit;
where the translation is not submitted within the specified time limit, the
certificate£¨s£© or
certifying document£¨s£© shall be deemed not to have been submitted.
¡¡¡¡Article 5 Where any document is sent
by mail to the patent administration department under the State Council, the
date of mailing indicated by the postmark on the envelope shall be deemed to
be the date of filing; where the date of mailing indicated by the postmark
on the envelope is
illegible, the date on which the patent administration department under the
State Council receives
the document shall be the date of filing, except where the date of mailing
is proved by the party
concerned.
¡¡¡¡Any document of the patent administration department under the State
Council may be served by mail, by personal delivery or by other forms. Where
any party concerned appoints a patent agency, the document shall be sent to
the patent agency; where no patent agency is appointed, the document shall
be sent to the liaison person named in the request.
¡¡¡¡Where any document is sent by mail by the patent administration department
under the State
Council, the 16th day from the date of mailing shall be presumed to be the
date on which the party
concerned receives the document£¨s£©.
¡¡¡¡Where any document is delivered personally in accordance with the
provisions of the patent
administration department under the State Council, the date of delivery is
the date on which the
party concerned receives the document£¨s£©.
¡¡¡¡Where the address of any document is not clear and it cannot be sent by
mail, the document may be served by making an announcement. At the
expiration of one month from the date of the
announcement, the document shall be deemed to be served.
¡¡¡¡Article 6 The first day of any time
limit prescribed in the Patent Law and these Rules shall not
be counted in the time limit. Where the time limit is counted by year or by
month, it shall expire
on the corresponding day of the last month; if there is no corresponding day
in that month, the time
limit shall expire on the last day of that month; if a time limit expires on
an official holiday, it
shall expire on the first working day following that official holiday.
¡¡¡¡Article 7 Where a time limit
prescribed in the Patent Law or these Rules or specified by the
patent administration department under the State Council is not observed by
a party concerned
because of force majeure, resulting in loss of his or its rights, he or it
may, within two months
from the date on which the impediment is removed, at the latest within two
years immediately
following the expiration of that time limit, state the reasons, together
with relevant supporting
documents, and request the patent administration department under the State
Council to restore his
or its rights.
¡¡¡¡Where a time limit prescribed in the Patent Law or these Rules or
specified by the patent
administration department under the State Council is not observed by a party
concerned because of
any justified reason, resulting in loss of his or its rights, he or it may,
within two months from
the date of receipt of a notification from the patent administration
department under the State
Council, state the reasons and request the patent administration department
under the State Council
to restore his or its rights.
¡¡¡¡Where the party concerned makes a request for an extension of a time limit
specified by the
patent administration department under the State Council, he or it shall,
before the time limit
expires, state the reasons to the patent administration department under the
State Council and go
through the relevant formalities.
¡¡¡¡The provisions of paragraphs one and two of this Article shall not be
applicable to the time
limit referred to in Articles 24, 29, 42 and 62 of the Patent Law.
¡¡¡¡Article 8 Where an application for a
patent for invention relates to the secrets of the State
concerning national defense and requires to be kept secret, the application
for patent shall be
filed with the patent department of national defense. Where any application
for patent for invention
relating to the secrets of the State concerning national defense and
requiring to be kept secret is
received by the patent administration department under the State Council,
the application shall be
forwarded to the patent department of national defense for examination, and
the patent
administration department under the State Council shall make a decision on
the basis of the
observations of the examination made by the patent department of national
defense.
¡¡¡¡Subject to the provisions of the preceding paragraph, the patent
administration department under the State Council shall, after receipt of an
application for patent for invention which is required
to be examined for the purpose of security, send it to the relevant
competent department under the
State Council for examination. The relevant competent department shall,
within four months from the
date of receipt of the application, notify the patent administration
department under the State
Council of the results of the examination. Where the invention for which a
patent is applied for is
required to be kept secret, the patent administration department under the
State Council shall
handle it as an application for secret patent and notify the applicant
accordingly.
¡¡¡¡Article 9 Any invention-creation that
is contrary to the laws of the State referred to in
Article 5 of the Patent Law shall not include the invention-creation merely
the exploitation of
which is prohibited by the laws of the State.
¡¡¡¡Article 10 The date of filing referred
to in the Patent Law, except for those referred to in
Articles 28 and 42, means the priority date where a priority is claimed.
¡¡¡¡The date of filing referred to in these Rules, except as otherwise
prescribed, means the date of
filing prescribed in Article 28 of the Patent Law.
¡¡¡¡Article l1 "A service
invention-creation made by a person in execution of the tasks of the
entity to which he belongs" referred to in Article 6 of the Patent Law means
any invention-creation
made:
¡¡¡¡£¨1£© in the course of performing his own duty;
¡¡¡¡£¨2£© in execution of any task, other than his own duty, which was entrusted
to him by the
entity to which he belongs;
¡¡¡¡£¨3£© within one year from his resignation, retirement or change of work,
where the
invention-creation relates to his own duty or the other task entrusted to
him by the entity to which
he previously belonged.
¡¡¡¡"The entity to which he belongs" referred to in Article 6 of the Patent
Law includes the entity
in which the person concerned is a temporary staff member. "Material and
technical means of the
entity" referred to in Article 6 mean the entity's money, equipment, spare
parts, raw materials or
technical materials which are not disclosed to the public.
¡¡¡¡Article 12 "Inventor" or "creator"
referred to in the Patent Law means any person who makes
creative contributions to the substantive features of an invention-creation.
Any person who, during
the course of accomplishing the invention-creation, is responsible only for
organizational work, or
who offers facilities for making use of material and technical means, or who
takes part in other
auxiliary functions, shall not be considered as inventor or creator.
¡¡¡¡Article l3 For any identical
invention-creation, only one patent right shall be granted.
¡¡¡¡Two or more applicants who respectively file, on the same day,
applications for patent for the
identical invention-creation, as provided for in Article 9 of the Patent
Law, shall, after receipt
of a notification from the patent administration department under the State
Council, hold
consultations among themselves to decide the person or persons who shall be
entitled to file the
application.
¡¡¡¡Article 14 Any assignment of the right
to apply for a patent or of the patent right, by a
Chinese entity or individual, to a foreigner shall be approved by the
competent department for
foreign trade and economic affairs of the State Council in conjunction with
the science and
technology administration department of the State Council.
¡¡¡¡Article 15 Except for the assignment
of the patent right in accordance with the provisions of
Article 10 of the Patent Law, where the patent right is transferred because
of any other reason, the
person or persons concerned shall, on the strength of relevant certifying
documents or legal papers,
request the patent administration department under the State Council to make
a registration of
change in the owner of the patent right.
¡¡¡¡Any license contract for exploitation of the patent which has been
concluded by the patentee
with an entity or individual shall, within three months from the date of
entry into force of the
contract, be submitted to the patent administration department under the
State Council for the
record.
¡¡¡¡Chapter II Application for Patent
¡¡¡¡Article l6 Anyone who applies for a
patent in written form shall file with the patent
administration department under the State Council application documents in
two copies.
¡¡¡¡Anyone who applies for a patent in other forms as provided by the patent
administration
department under the State Council shall comply with the relevant
provisions.
¡¡¡¡Any applicant who appoints a patent agency for applying for a patent, or
for having other patent matters to attend to before the patent
administration department under the State Council, shall
submit at the same time a power of attorney indicating the scope of the
power entrusted.
¡¡¡¡Where there are two or more applicants and no patent agency is appointed,
unless otherwise
stated in the request, the applicant named first in the request shall be the
representative.
¡¡¡¡Article l7 "Other related matters" in
the request referred to in Article 26, paragraph two of
the Patent Law mean:
¡¡¡¡£¨1£© the nationality of the applicant;
¡¡¡¡£¨2£© where the applicant is an enterprise or other organization, the name
of the country in
which the applicant has the principal business office;
¡¡¡¡£¨3£© where the applicant has appointed a patent agency, the relevant
matters which shall be
indicated; where no patent agency is appointed, the name, address, postcode
and telephone number of the liaison person;
¡¡¡¡£¨4£© where the priority of an earlier application is claimed, the relevant
matters which shall
be indicated;
¡¡¡¡£¨5£© the signature or seal of the applicant or the patent agency;
¡¡¡¡£¨6£© a list of the documents constituting the application;
¡¡¡¡£¨7£© a list of the documents appended to the application; and
¡¡¡¡£¨8£© any other related matter which needs to be indicated.
¡¡¡¡Article l8 The description of an
application for a patent for invention or utility model shall
state the title of the invention or utility model, which shall be the same
as it appears in the
request. The description shall include the following:
¡¡¡¡£¨1£© technical field: specifying the technical field to which the technical
solution to be
protected pertains;
¡¡¡¡£¨2£© background art: indicating the background art which can be regarded as
useful for the
understanding, searching and examination of the invention or utility model,
and when possible,
citing the documents reflecting such art;
¡¡¡¡£¨3£© contents of the invention: disclosing the technical problem the
invention or utility model
aims to settle and the technical solution adopted to resolve the problem;
and stating, with
reference to the prior art, the advantageous effects of the invention or
utility model;
¡¡¡¡£¨4£© description of figures: briefly describing each figure in the
drawings, if any;
¡¡¡¡£¨5£© mode of carrying out the invention or utility model: describing in
detail the optimally
selected mode contemplated by the applicant for carrying out the invention
or utility model; where
appropriate, this shall be done in terms of examples, and with reference to
the drawings, if any;
¡¡¡¡The manner and order referred to in the preceding paragraph shall be
followed by the applicant
for a patent for invention or for utility model, and each of the parts shall
be preceded by a
heading, unless, because of the nature of the invention or utility model, a
different manner or
order would result in a better understanding and a more economical
presentation.
¡¡¡¡The description of the invention or utility model shall use standard terms
and be in clear
wording, and shall not contain such references to the claims as: "as
described in claim ¡", nor
shall it contain commercial advertising.
¡¡¡¡Where an application for a patent for invention contains disclosure of one
or more nucleotide
and/or amino acid sequences, the description shall contain a sequence
listing in compliance with the
standard prescribed by the patent administration department under the State
Council. The sequence
listing shall be submitted as a separate part of the description, and a copy
of the said sequence
listing in machine-readable form shall also be submitted in accordance with
the provisions of the
patent administration department under the State Council.
¡¡¡¡Article l9 The same sheet of drawings
may contain several figures of the invention or utility
model, and the figures shall be numbered and arranged in numerical order
consecutively as "Figure l,
Figure 2, ¡".
¡¡¡¡The scale and the distinctness of the drawings shall be as such that a
reproduction with a
linear reduction in size to two-thirds would still enable all details to be
clearly distinguished.
¡¡¡¡Reference signs not mentioned in the text of the description of the
invention or utility model
shall not appear in the drawings. Reference signs not appearing in the
drawings shall not appear in
the text of the description. Reference signs for the same composite part
shall be used consistently
throughout the application document.
¡¡¡¡The drawings shall not contain any other explanatory notes, except words
which are
indispensable.
¡¡¡¡Article 20 The claims shall define
clearly and concisely the matter for which protection is
sought in terms of the technical features of the invention or utility model.
¡¡¡¡If there are several claims, they shall be numbered consecutively in
Arabic numerals.
¡¡¡¡The technical terminology used in the claims shall be consistent with that
used in the
description. The claims may contain chemical or mathematical formulae but no
drawings. They shall
not, except where absolutely necessary, contain such references to the
description or drawings as:
"as described in part ¡of the description", or "as illustrated in Figure ¡of
the drawings".
¡¡¡¡The technical features mentioned in the claims may, in order to facilitate
quicker understanding
of the claim, make reference to the corresponding reference signs in the
drawings of the
description. Such reference signs shall follow the corresponding technical
features and be placed in
parentheses. They shall not be construed as limiting the claims.
¡¡¡¡Article 2l The claims shall have an
independent claim, and may also contain dependent claims.
¡¡¡¡The independent claim shall outline the technical solution of an invention
or utility model and
state the essential technical features necessary for the solution of its
technical problem.
¡¡¡¡The dependent claim shall, by additional technical features, further
define the claim that it
refers to.
¡¡¡¡Article 22 An independent claim of an
invention or utility model shall contain a preamble
portion and a characterizing portion, and be presented in the following
form:
¡¡¡¡£¨1£© a preamble portion: indicating the title of the claimed subject matter
of the technical
solution of the invention or utility model, and those technical features
which are necessary for the
definition of the claimed subject matter but which, in combination, are part
of the most related
prior art;
¡¡¡¡£¨2£© a characterizing portion: stating, in such words as "characterized in
that¡ "or in
similar expressions, the technical features of the invention or utility
model, which distinguish it
from the most related prior art. Those features, in combination with the
features stated in the
preamble portion, serve to define the scope of protection of the invention
or utility model.
¡¡¡¡Where the manner specified in the preceding paragraphs is not appropriate
to be followed because of the nature of the invention or utility model, an
independent claim may be presented in a
different manner.
¡¡¡¡An invention or utility model shall have only one independent claim, which
shall precede all the
dependent claims relating to the same invention or utility model.
¡¡¡¡Article 23 Any dependent claim of an
invention or utility model shall contain a reference
portion and a characterizing portion, and be presented in the following
manner:
¡¡¡¡£¨l£© a reference portion: indicating the serial number£¨s£© of the claim£¨s£©
referred to, and the title of the subject matter;
¡¡¡¡£¨2£© a characterizing portion: stating the additional technical features of
the invention or
utility model.
¡¡¡¡Any dependent claim shall only refer to the preceding claim or claims. Any
multiple dependent
claims, which refer to two or more claims, shall refer to the preceding one
in the alternative only,
and shall not serve as a basis for any other multiple dependent claims.
¡¡¡¡Article 24 The abstract shall consist
of a summary of the disclosure as contained in the
application for patent for invention or utility model. The summary shall
indicate the title of the
invention or utility model, and the technical field to which the invention
or utility model
pertains, and shall be drafted in a way which allows the clear understanding
of the technical
problem, the gist of the technical solution of that problem, and the
principal use or uses of the
invention or utility model.
¡¡¡¡The abstract may contain the chemical formula which best characterizes the
invention. In an
application for a patent which contains drawings, the applicant shall
provide a figure which best
characterizes the technical features of the invention or utility model. The
scale and the
distinctness of the figure shall be as such that a reproduction with a
linear reduction in size to
4cm x 6cm would still enable all details to be clearly distinguished. The
whole text of the abstract
shall contain not more than 300 words. There shall be no commercial
advertising in the abstract.
¡¡¡¡Article 25 Where an invention for
which a patent is applied concerns a new biological material
which is not available to the public and which cannot be described in the
application in such a
manner as to enable the invention to be carried out by a person skilled in
the art, the applicant
shall, in addition to the other requirements provided for in the Patent Law
and these Rules, go
through the following formalities:
¡¡¡¡£¨1£© depositing a sample of the biological material with a depositary
institution designated by
the patent administration department under the State Council before, or at
the latest, on the date
of filing £¨or the priority date where priority is claimed£©, and submit at
the time of filing or at
the latest, within four months from the filing date, a receipt of deposit
and the viability proof
from the depository institution; where they are not submitted within the
specified time limit, the
sample of the biological material shall be deemed not to have been
deposited;
¡¡¡¡£¨2£© giving in the application document relevant information on the
characteristics of the
biological material;
¡¡¡¡£¨3£© indicating, where the application relates to the deposit of the
biological material, in
the request and the description the scientific name £¨with its Latin name£©
and the name and address of the depositary institution, the date on which
the sample of the biological material was deposited and the accession number
of the deposit; where, at the time of filing, they are not indicated, they
shall be supplied within four months from the date of filing; where after
the expiration of the time limit they are not supplied, the sample of the
biological material shall be deemed not to have been deposited.
¡¡¡¡Article 26 Where the applicant for a
patent for invention has deposited a sample of the
biological material in accordance with the provisions of Article 25 of these
Rules, and after the
application for patent for invention is published, any entity or individual
that intends to make use
of the biological material, to which the application relates, for the
purpose of experiment shall
make a request to the patent administration department under the State
Council, containing the
following items:
¡¡¡¡£¨1£© the name or title and address of the claimant;
¡¡¡¡£¨2£© an undertaking not to make the biological material available to any
other person;
¡¡¡¡£¨3£© an undertaking to use the biological material for experimental purpose
only before the
grant of the patent right.
¡¡¡¡Article 27 The size of drawings or
photographs of a design submitted in accordance with the
provisions of Article 27 of the Patent Law shall not be smaller than 3cm x
8cm, nor larger than l5cm
x 22cm.
¡¡¡¡Where an application for a patent for design seeking concurrent protection
of colors is filed, a
drawing or photograph in color shall be submitted in two copies.
¡¡¡¡The applicant shall, in respect of the subject matter of the product
incorporating the design
which is in need of protection, submit the relevant views and stereoscopic
drawings or photographs,
so as to clearly show the subject matter for which protection is sought.
¡¡¡¡Article 28 Where an application for a
patent for design is filed, a brief explanation of the
design shall, when necessary, be made.
¡¡¡¡The brief explanation of the design shall include the essential portion of
the design, the
colors for which protection is sought and the omission of the view of the
product incorporating the
design. The brief explanation shall not contain any commercial advertising
and shall not be used to
indicate the function of the product.
¡¡¡¡Article 29 Where the patent
administration department under the State Council deems it
necessary, it may require the applicant for a patent for design to submit a
sample or model of the
product incorporating the design. The volume of the sample or model
submitted shall not exceed 30cm x 30cm x 30cm, and its weight shall not
surpass l5 kilograms. Articles that are easy to get rotten or broken or
articles that are dangerous shall not be submitted as sample or model.
¡¡¡¡Article 30 The existing technology
referred to in Article 22, paragraph three of the Patent Law
means any technology which has been publicly disclosed in domestic or
foreign publications, or has
been publicly and domestically used or made known to the public by any other
means, before the date of filing £¨or the priority date where priority is
claimed£©, that is, prior art.
¡¡¡¡Article 3l The academic or technological meeting referred to in
Article 24, subparagraph £¨2£© of the Patent Law means any academic or
technological meeting organized by a relevant competent department of the
State Council or by a national academic or technological association.
¡¡¡¡Where any invention-creation for which a patent is applied for falls under
the provisions of
Article 24, subparagraph £¨l£© or £¨2£© of the Patent Law, the applicant shall,
when filing the
application, make a declaration and, within a time limit of two months from
the date of filing,
submit certifying documents issued by the entity which organized the
international exhibition or
academic or technological meeting, stating the fact that the
invention-creation was exhibited or
published on the date of its exhibition or publication.
¡¡¡¡Where any invention-creation for which a patent is applied for falls under
the provisions of
Article 24, subparagraph £¨3£© of the Patent Law, the patent administration
department under the
State Council may, when it deems necessary, require the applicant to submit
the relevant certifying
documents within the specified time limit.
¡¡¡¡Where the applicant fails to make a declaration and submit certifying
documents as required in
paragraph two of this Article, or fails to submit certifying documents
within the specified time
limit as required in paragraph three of this Article, the provisions of
Article 24 of the Patent Law
shall not apply to the application.
¡¡¡¡Article 32 Where any applicant claims
priority in accordance with the provisions of Article 30
of the Patent Law, he or it shall, in his or its written declaration,
indicate the date and the
number of the application which is first filed £¨hereinafter referred to as
the earlier application
£© and the country in which the application is filed. If the written
declaration does not contain
the filing date of the earlier application and the name of the country in
which the application is
filed, the declaration shall be deemed not to have been made.
¡¡¡¡Where the foreign priority is claimed, the copy of the earlier application
documents submitted
by the applicant shall be certified by the competent authority of the
foreign country in which the
application is filed. Where in the certifying material submitted, the name
or title of the later
applicant is not the same as that of the earlier one, the applicant shall
submit document certifying
the assignment of priority. Where the domestic priority is claimed, the copy
of the earlier
application document shall be prepared by the patent administration
department under the State
Council.
¡¡¡¡Article 33 An applicant may claim one
or more priorities for an application for one patent;
where multiple priorities are claimed, the priority period for the
application shall be calculated
from the earliest priority date.
¡¡¡¡Where an applicant claims the right of domestic priority, if the earlier
application is one for
a patent for invention, he or it may file an application for a patent for
invention or utility model
for the same subject matter; if the earlier application is one for a patent
for utility model, he or
it may file an application for a patent for utility model or invention for
the same subject matter.
However, when the later application is filed, if the subject matter of the
earlier application falls
under any of the following circumstances, it may not be taken as the basis
for claiming domestic
priority:
¡¡¡¡£¨1£© where it has claimed foreign or domestic priority;
¡¡¡¡£¨2£© where it has been granted a patent right;
¡¡¡¡£¨3£© where it is a divisional application filed as prescribed.
¡¡¡¡Where the domestic priority is claimed, the earlier application shall be
deemed to be withdrawn
from the date on which the later application is filed.
¡¡¡¡Article 34 Where an application for a
patent is filed or the right of foreign priority is
claimed by an applicant having no habitual residence or business office in
China, the patent
administration department under the State Council may, when it deems
necessary, require the
applicant to submit the following documents:
¡¡¡¡£¨1£© a certificate of nationality :
¡¡¡¡£¨2£© a document certifying the seat of the business office or the
headquarters, if the
applicant is an enterprise or other organization;
¡¡¡¡£¨3£© a document certifying that the country, to which the foreigner,
foreign enterprise or
other foreign organization belongs, recognizes that Chinese entities and
individuals are, under the
same conditions as those applied to its nationals, entitled to the patent
right, the priority and
other related rights in that country.
¡¡¡¡Article 35 Two or more inventions or
utility models belonging to a single general inventive
concept which may be filed as one application in accordance with the
provisions in Article 3l,
paragraph one of the Patent Law shall be technically inter-related and
contain one or more of the
same or corresponding special technical features. The expression "special
technical features" shall
mean those technical features that define a contribution which each of those
inventions or utility
models, considered as a whole, makes over the prior art.
¡¡¡¡Article 36 The expression "the same
class" referred to in Article 3l, paragraph two of the
Patent Law means that the products incorporating the designs belong to the
same subclass in the
classification of products for designs. The expression "be sold or used in
sets" means that the
products incorporating the designs have the same designing concept and are
customarily sold and used at the same time.
¡¡¡¡Where two or more designs are filed as one application in accordance with
the provisions in
Article 3l, paragraph two of the Patent Law, they shall be numbered
consecutively and the numbers
shall precede the titles of the view of the product incorporating the
design.
¡¡¡¡Article 37 When withdrawing an
application for a patent, the applicant shall submit to the
patent administration department under the State Council a declaration
stating the title of the
invention-creation, the filing number and the date of filing.
¡¡¡¡Where a declaration to withdraw an application for a patent is submitted
after the patent
administration department under the State Council has completed the
preparations for the publication of the application document, the
application document shall be published as scheduled. However, the
declaration withdrawing the application for patent shall be publicized in
the Patent Gazette published later.
¡¡¡¡Chapter III Examination and Approval of
Application for Patent
¡¡¡¡Article 38 Where any of the following
events occurs, a person who makes examination or hears a case in the
procedures of preliminary examination, examination as to substance,
reexamination or invalidation shall, on his own initiative or upon the
request of the parties concerned or any other interested person, be excluded
from exercising his functions:
¡¡¡¡£¨1£© where he is a near relative of the party concerned or of the latter's
agent;
¡¡¡¡£¨2£© where he has an interest in the application for patent or the patent
right;
¡¡¡¡£¨3£© where he has any other kind of relations with the party concerned or
with the latter's
agent that may influence impartial examination and hearing.
¡¡¡¡£¨4£© where he is a member of the Patent Reexamination Board who has ever
taken part in the examination of the same initial application.
¡¡¡¡Article 39 Upon the receipt of an
application for a patent for invention or utility model
consisting of a request, a description £¨drawings must be included in an
application for utility
model£© and one or more claims, or an application for a patent for design
consisting of a request
and one or more drawings or photographs showing the design, the patent
administration department
under the State Council shall accord the date of filing, issue a filing
number, and notify the
applicant.
¡¡¡¡Article 40 In any of the following
circumstances, the patent administration department under the State Council
shall refuse to accept the application document and notify the applicant
accordingly:
¡¡¡¡£¨1£© where the application for a patent for invention or utility model does
not contain a
request, a description £¨the description of utility model does not contain
drawings£© or claims, or
the application for a patent for design does not contain a request, drawings
or photographs;
¡¡¡¡£¨2£© where the application document is not written in Chinese;
¡¡¡¡£¨3£© where the application document is not in conformity with the
provisions of Article 120,
paragraph one of these Rules;
¡¡¡¡£¨4£© where the request does not contain the name or title and address of
the applicant;
¡¡¡¡£¨5£© where the application document is obviously not in conformity with the
provisions of
Article 18, or of Article l9, paragraph one of the Patent Law;
¡¡¡¡£¨6£© where the category of the application for a patent £¨patent for
invention, utility model
or design£©is not clear and definite or cannot be ascertained.
¡¡¡¡Article 41 Where the description
states that it contains explanatory notes to the drawings but
the drawings or part of them are missing, the applicant shall, within the
time limit specified by
the patent administration department under the State Council, either furnish
the drawings or make a
declaration for the deletion of the explanatory notes to the drawings. If
the drawings are submitted
later, the date of their delivery at, or mailing to, the patent
administration department under the
State Council shall be the date of filing of the application; if the
explanatory notes to the
drawings are to be deleted, the initial date of filing shall be retained.
¡¡¡¡Article 42 Where an application for a
patent contains two or more inventions, utility models or
designs, the applicant may, before the expiration of the time limit provided
for in Article 54,
paragraph one of these Rules, submit to the patent administration department
under the State Council a divisional application. However, where an
application for patent has been rejected or withdrawn or is deemed to have
been withdrawn, no divisional application may be filed.
¡¡¡¡If the patent administration department under the State Council finds that
an application for a
patent is not in conformity with the provisions of Article 3l of the Patent
Law or of Article 35 or
36 of these Rules, it shall invite the applicant to amend the application
within a specified time
limit; if the applicant fails to make any response after the expiration of
the specified time limit,
the application shall be deemed to have been withdrawn.
¡¡¡¡The divisional application may not change the category of the initial
application.
¡¡¡¡Article 43 For a divisional
application which is filed in accordance with the provisions of
Article 42 of these Rules, the initial date of filing may be retained; if
the priority is claimed,
the priority date of the initial application may be retained, provided that
the divisional
application does not go beyond the scope of disclosure contained in the
initial application.
¡¡¡¡The divisional application shall go through all the formalities in
accordance with the
provisions of the Patent Law and these Rules.
¡¡¡¡The filing number and the date of filing of the initial application shall
be indicated in the
request of the divisional application. When a divisional application is
filed, it shall be
accompanied by a copy of the initial application document; if priority is
claimed for the initial
application, a copy of the priority document of the initial application
shall also be submitted.
¡¡¡¡Article 44 "Preliminary examination"
referred to in Articles 34 and 40 of the Patent Law means the examination of
an application for a patent to see whether or not it contains the documents
provided for in Article 26 or 27 of the Patent Law and other necessary
documents, and whether or not those documents are in the prescribed form;
such examination shall also include the following:
¡¡¡¡£¨1£© whether or not any application for a patent for invention obviously
falls under Article 5
or 25 of the Patent Law, or is not in conformity with the provisions of
Article l8 or of Article l9,
paragraph one, or is obviously not in conformity with the provisions of
Article 3l, paragraph one,
or Article 33 of the Patent Law or of Article 2, paragraph one, or Article
18, or Article 20 of
these Rules;
¡¡¡¡£¨2£© whether or not any application for a patent for utility model
obviously falls under
Article 5 or 25 of the Patent Law, or is not in conformity with the
provisions of Article l8 or of
Article l9, paragraph one of the Patent Law, or is obviously not in
conformity with the provisions
of Article 26, paragraph three or four, or of Article 3l, paragraph one, or
Article 33 of the Patent
Law or of Article 2, paragraph two, or of Article l3, paragraph one, or of
Articles l8 to 23, or of
Article 43, paragraph one of these Rules, or is not entitled to a patent
right in accordance with
the provisions of Article 9 of the Patent Law;
¡¡¡¡£¨3£© whether or not any application for a patent for design obviously falls
under Article 5 of
the Patent Law, or is not in conformity with the provisions of Article l8 or
of Article l9,
paragraph one of the Patent Law, or is obviously not in conformity with the
provisions of Article
3l, paragraph two, or of Article 33 of the Patent Law, or of Article 2,
paragraph three, or of
Article l3, paragraph one, or of Article 43, paragraph one of these Rules,
or is not entitled to a
patent right in accordance with the provisions of Article 9 of the Patent
Law.
¡¡¡¡The patent administration department under the State Council shall notify
the applicant of its
opinions after examining his or its application and invite him or it to
state his or its
observations or to correct his or its application within the specified time
limit. If the applicant
fails to make any response within the specified time limit, the application
shall be deemed to have
been withdrawn. Where, after the applicant has made his or its observations
or the corrections, the
patent administration department under the State Council still finds that
the application is not in
conformity with the provisions in the preceding paragraph, the application
shall be rejected.
¡¡¡¡Article 45 Apart from the application
for patent, any document relating to the patent
application, which the applicant has submitted to the patent administration
department under the
State Council, shall be deemed not to have been submitted in any of the
following circumstances:
¡¡¡¡£¨1£© where the document is not presented in the prescribed form or the
indications therein are not in conformity with the provisions;
¡¡¡¡£¨2£© where no certifying document is submitted as prescribed.
¡¡¡¡The patent administration department under the State Council shall notify
the applicant of its
examination opinion that the document is deemed not to have been submitted.
¡¡¡¡Article 46 Where the applicant
requests an earlier publication of its or his application for a
patent for invention, a statement shall be made to the patent administration
department under the
State Council. The patent administration department under the State Council
shall, after preliminary
examination of the application, publicize it immediately, unless it is to be
rejected.
¡¡¡¡Article 47 The applicant shall, when
indicating in accordance with the provisions of Article 27
of the Patent Law the product incorporating the design and the class to
which that product belongs,
refer to the classification of products for designs publicized by the patent
administration
department under the State Council. Where no indication, or an incorrect
indication, of the class to
which the product incorporating the design belongs is made, the patent
administration department
under the State Council shall supply the indication or correct it.
¡¡¡¡Article 48 Any person may, from the
date of publication of an application for a patent for
invention till the date of announcing the grant of the patent right, submit
to the patent
administration department under the State Council his observations, with the
reasons therefor, on
the application which is not in conformity with the provisions of the Patent
Law.
¡¡¡¡Article 49 Where the applicant for a
patent for invention cannot furnish, for justified reasons,
the documents concerning any search or result of any examination specified
in Article 36 of the
Patent Law, it or he shall make a statement to the patent administration
department under the State
Council and submit them when the said documents are available.
¡¡¡¡Article 50 The patent administration
department under the State Council shall, when proceeding on its own
initiative to examine an application for a patent in accordance with the
provisions of Article 35, paragraph two of the Patent Law, notify the
applicant accordingly.
¡¡¡¡Article 5l When requesting for
examination as to substance or within three months after the
receipt of the notification of the patent administration department under
the State Council that the
application has entered into examination as to substance, the applicant for
a patent for invention
may amend the application for a patent for invention on its or his own
initiative.
¡¡¡¡Within two months from the date of filing, the applicant for a patent for
utility model or
design may amend the application for a patent for utility model or design on
its or his own
initiative.
¡¡¡¡Where the applicant amends the application after receiving the
notification of opinions of the
examination as to substance of the patent administration department under
the State Council, he or
it shall make the amendment as required by the notification.
¡¡¡¡The patent administration department under the State Council may, on its
own initiative, correct
the obvious clerical mistakes and symbol mistakes in the documents of
application for a patent.
Where the patent administration department under the State Council corrects
mistakes on its own
initiative, it shall notify the applicant.
¡¡¡¡Article 52 When an amendment to the
description or the claims in an application for a patent for invention or
utility model is made, a replacement sheet in prescribed form shall be
submitted,
unless the amendment concerns only the alteration, insertion or deletion of
a few words. Where an
amendment to the drawings or photographs of an application for a patent for
design is made, a
replacement sheet shall be submitted as prescribed.
¡¡¡¡Article 53 In accordance with the
provisions of Article 38 of the Patent Law, the circumstances in which an
application for patent for invention shall be rejected by the patent
administration department under the State Council after examination as to
substance are as follows:
¡¡¡¡£¨1£© where the application does not comply with the provisions of Article
2, paragraph one of these Rules;
¡¡¡¡£¨2£© where the application falls under the provisions of Article 5 or 25 of
the Patent Law, or
it does not comply with the provisions of Article 22 of the Patent Law or of
Article l3, paragraph
one, or of Article 20, paragraph one, or of Article 21, paragraph two of
these Rules, or the
applicant is not entitled to a patent right in accordance with the
provisions of Article 9 of the
Patent Law;
¡¡¡¡£¨3£© where the application does not comply with the provisions of Article
26, paragraph three or four, or of Article 3l, paragraph one of the Patent
Law;
¡¡¡¡£¨4£© where the amendment to 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 Article 43,
paragraph one of these Rules.
¡¡¡¡Article 54 After the patent
administration department under the State Council issues the
notification to grant the patent right, the applicant shall go through the
formalities of
registration within two months from the date of receipt of the notification.
If the applicant
completes the formalities of registration within the said time limit, the
patent administration
department under the State Council shall grant the patent right, issue the
patent certificate and
make an announcement.
¡¡¡¡If the applicant does not go through the formalities of registration
within the time limit, he
or it shall be deemed to have abandoned its or his right to obtain the
patent right.
¡¡¡¡Article 55 After the announcement of
the decision to grant a patent for utility model, the
patentee of the said patent for utility model may request the patent
administration department under
the State Council to make a search report on the utility model patent.
¡¡¡¡Where such person requests for a search report on a utility model patent,
he shall submit a
request, indicating the patent number of the said patent for utility model.
Each request shall be
limited for one patent for utility model.
¡¡¡¡After receiving a request for a search report on a utility model patent,
the patent administration department under the State Council shall proceed
to make an examination of the request. Where the request does not comply
with the requirements as prescribed, the said department shall notify the
person making the request to amend the request within a specified time
limit.
¡¡¡¡Article 56 Where, after examination,
the request for a search report on a utility model patent
complies with the provisions, the patent administration department under the
State Council shall
promptly make a search report on the utility model patent.
¡¡¡¡Where, after search, the patent administration department under the State
Council finds that the
patent for utility model concerned does not comply with the provisions of
Article 22 of the Patent
Law concerning novelty or inventiveness, it shall cite the documents
considered to be relevant,
state the reasons therefor and have the copies of the cited relevant
documents attached.
¡¡¡¡Article 57 The patent administration
department under the State Council shall promptly correct the mistakes in
patent announcements and documents once they are discovered, and the
corrections shall be announced.
¡¡¡¡Chapter IV Reexamination of Patent
Application and Invalidation of Patent Right
¡¡¡¡Article 58 The Patent Reexamination
Board shall consist of technical and legal experts appointed by the patent
administration department under the State Council. The responsible person of
the patent administration department under the State Council shall be the
Director General of the Board.
¡¡¡¡Article 59 Where the applicant
requests the Patent Reexamination Board to make a reexamination in
accordance with the provisions of Article 41 of the Patent Law, it or he
shall file a request for reexamination, state the reasons and, when
necessary, attach the relevant supporting documents.
¡¡¡¡Where the request for reexamination does not comply with the prescribed
form, the person making the request shall rectify it within the time limit
specified by the Patent Reexamination Board. If the person making the
request fails to meet the time limit for making rectification, the request
for
reexamination shall be deemed not to have been filed.
¡¡¡¡Article 60 The person making the
request may amend its or his application at the time when it or he requests
reexamination or makes responses to the reexamination notification of the
Patent
Reexamination Board. However, the amendments shall be limited only to remove
the defects pointed out in the decision of rejection of the application, or
in the reexamination notification.
¡¡¡¡The amendments to the application for patent shall be in two copies.
¡¡¡¡Article 61 The Patent Reexamination
Board shall send the request for reexamination that the
Board has received to the original examination department of the patent
administration department
under the State Council for examination. Where the original examination
department agrees to revoke its original decision upon the request of the
person requesting reexamination, the Patent
Reexamination Board shall make a decision accordingly and notify the person
making the request.
¡¡¡¡Article 62 Where, after reexamination,
the Patent Reexamination Board finds that the request
does not comply with the provisions of the Patent Law and these Rules, it
shall notify the person
requesting reexamination to submit his observations within a specified time
limit. If the time limit
for making response is not met, the request for reexamination shall be
deemed to have been
withdrawn. Where, after the person requesting reexamination has made its
observations and
amendments, the Patent Reexamination Board still finds that the request does
not comply with the
provisions of the Patent Law and these Rules, it shall make a decision of
reexamination to maintain
the earlier decision rejecting the application for patent.
¡¡¡¡Where, after reexamination, the Patent Reexamination Board finds that the
decision rejecting the application for patent does not comply with the
provisions of the Patent Law and these Rules, or
that the amended application has removed the defects as pointed out by the
decision rejecting the
application, it shall make a decision to revoke the decision rejecting the
application for patent,
and ask the original examination department to continue the examination
procedure.
¡¡¡¡Article 63 At any time before the
Patent Reexamination Board makes its decision on the request for
reexamination, the person making the request may withdraw his request for
reexamination.
¡¡¡¡Where the person making the request withdraws his request for
reexamination before the Patent Reexamination Board makes its decision, the
procedure of reexamination is terminated.
¡¡¡¡Article 64 Anyone requesting
invalidation or part invalidation of a patent right in accordance
with the provisions of Article 45 of the Patent Law shall submit a request
and necessary evidence in
two copies. The request for invalidation shall state in detail the grounds
for filing the request
for invalidation, making reference to all the evidence as submitted, and
indicate the piece of
evidence on which each ground is based.
¡¡¡¡The grounds on which the request for invalidation is based, referred to in
the preceding
paragraph, mean that the invention-creation for which the patent right is
granted does not comply
with the provisions of Article 22 or 23, or of Article 26, paragraph three
or four, or of Article 33
of the Patent Law, or of Article 2, or of Article l3, paragraph one, or of
Article 20, paragraph
one, or of Article 21, paragraph two of these Rules; or it falls under the
provisions of Article 5
or 25 of the Patent Law; or the person is not entitled to be granted the
patent right in accordance
with the provisions of Article 9 of the Patent Law.
¡¡¡¡Article 65 Where the request for
invalidation does not comply with the provisions of Article 64 of these
Rules, the Patent Reexamination Board shall not accept it.
¡¡¡¡Where, after a decision on any request for invalidation of the patent
right is made,
invalidation based on the same facts and evidence is requested once again,
the Patent Reexamination
Board shall not accept it.
¡¡¡¡Where a request for invalidation of a patent for design is based on the
ground that the patent
for design is in conflict with a prior right of another person, if, however,
no decision of settlement or no judgment of any court which has entered into
force to prove such conflict of rights has been submitted, the Patent
Reexamination Board shall not accept it.
¡¡¡¡Where the request for invalidation of the patent right does not comply
with the prescribed form, the person making the request shall rectify it
within the time limit specified by the Patent
Reexamination Board. If the rectification fails to be made within the time
limit, the request for
invalidation shall be deemed not to have been filed.
¡¡¡¡Article 66 After the Patent
Reexamination Board has accepted a request for invalidation, the
person making the request may add reasons or supplement proofs within one
month from the date when the request for invalidation is filed. The Patent
Reexamination Board may not take into account any additional reasons or
supplementary proofs that are submitted after the specified time limit.
¡¡¡¡Article 67 The Patent Reexamination
Board shall send a copy of the request for invalidation of
the patent right and copies of the relevant documents to the patentee and
refuse it or him to
present its or his observations within a specified time limit.
¡¡¡¡The patentee and the person making the request for invalidation shall,
within the specified time
limit, make responses to the notification concerning transmitted documents
or the notification
concerning the examination of the request for invalidation sent by the
Patent Reexamination Board.
Where no response is made within the specified time limit, the examination
of the Patent
Reexamination Board will not be affected.
¡¡¡¡Article 68 In the course of the
examination of the request for invalidation, the patentee for
patent for invention or utility model may amend its or his claims, but may
not broaden the scope of
patent protection.
¡¡¡¡The patentee for patent for invention or utility model may not amend its
or his description or
drawings. The patentee for patent for design may not amend its or his
drawings, photographs or the
brief explanation of the design.
¡¡¡¡Article 69 The Patent Reexamination
Board may, at the request of the parties concerned or in
accordance with the need of the case, decide to conduct oral proceedings in
respect of a request for
invalidation.
¡¡¡¡Where the Patent Reexamination Board decides to conduct oral proceedings
in respect of a request for invalidation, it shall send notification of oral
proceedings to the parties concerned,
indicating the date and place of the oral proceedings to be held. The
parties concerned shall make
response to the notification within the specified time limit.
¡¡¡¡Where the person requesting invalidation fails to make response to the
notification of oral
proceedings sent by the Patent Reexamination Board within the specified time
limit, and fails to
take part in the oral proceedings, the request for invalidation shall be
deemed to have been
withdrawn. Where the patentee fails to take part in the oral proceedings,
the Patent Reexamination
Board may proceed to examine by default.
¡¡¡¡Article 70 In the course of the
examination in respect of a request for invalidation, the time
limit specified by the Patent Reexamination Board shall not be extended.
¡¡¡¡Article 71 The person requesting
invalidation may withdraw his request before the Patent
Reexamination Board makes a decision on it.
¡¡¡¡Where the person requesting invalidation withdraws his request before the
Patent Reexamination Board makes a decision on it, the examination of the
request for invalidation is terminated.
¡¡¡¡Chapter V Compulsory License for
Exploitation of Patent
¡¡¡¡Article 72 After the expiration of
three years from the date of the grant of the patent right,
any entity may, in accordance with the provisions of Article 48 of the
Patent Law, request the
patent administration department under the State Council to grant a
compulsory license.
¡¡¡¡Any entity requesting a compulsory license shall submit to the patent
administration department
under the State Council a request for compulsory license, state the reasons
therefor, and attach
relevant certifying documents each in two copies.
¡¡¡¡The patent administration department under the State Council shall send a
copy of the request
for compulsory license to the patentee, who shall make his or its
observations within the time limit
specified by the patent administration department under the State Council.
Where no response is made within the time limit, the patent administration
department under the State Council will not be
affected in making a decision concerning a compulsory license.
¡¡¡¡The decision of the patent administration department under the State
Council granting a
compulsory license for exploitation shall limit the exploitation of the
compulsory license to be
predominately for the supply of the domestic market. Where the
invention-creation involved in the
compulsory license relates to the semi-conductor technology, the
exploitation of the compulsory
license shall be limited only for public non-commercial use or to remedy a
practice determined after
judicial or administrative process to be anti-competitive.
¡¡¡¡Article 73 Where any entity or
individual requests, in accordance with the provisions of Article
54 of the Patent Law, the patent administration department under the State
Council to adjudicate the
fees for exploitation, it or he shall submit a request for adjudication and
furnish documents
showing that the parties concerned have not been able to conclude an
agreement in respect of the
amount of the exploitation fee. The patent administration department under
the State Council shall
make an adjudication within three months from the date of receipt of the
request and notify the
parties concerned accordingly.
¡¡¡¡Chapter VI Reward and Remuneration of
Inventors or Creators of Service Inventions-Creations
¡¡¡¡Article 74 The State-owned enterprise
or institution to which a patent right is granted shall,
within three months from the date of the announcement of the grant of the
patent right, offer a
reward to the inventor or creator of a service invention-creation. The
reward for a patent for
invention shall not be less than 2000 yuan; the reward for a patent for
utility model or design
shall not be less than 500 yuan.
¡¡¡¡Where an invention-creation is made on the basis of an inventor's or
creator's proposal adopted by the entity to which he belongs, the
State-owned enterprise or institution to which a patent right is granted
shall offer a reward to him on favorable terms.
¡¡¡¡For the reward to the inventor or creator, the enterprise may have it
included into its
production cost, and the institution may have it disbursed out of its
operating expenses.
¡¡¡¡Article 75 The State-owned enterprise
or institution to which a patent right is granted shall,
after exploiting the patent for invention-creation within the duration of
the patent right, draw
each year from the profits after taxation earned from exploitation of the
invention or utility model
a percentage of not less than 2%, or from the profits after taxation earned
from exploitation of the
design a percentage of not less than 0.2%, and award it to the inventor or
creator as remuneration.
The entity may, as an alternative, by making reference to the said
percentage, award a lump sum of
money to the inventor or creator as remuneration once and for all.
¡¡¡¡Article 76 Where any State-owned
enterprise or institution to which a patent right is granted
authorizes any other entity or individual to exploit its patent, it shall
draw from the fees it
receives for exploitation of the said patent after taxation a percentage of
not less than 10% and
award it to the inventor or creator as remuneration.
¡¡¡¡Article 77 The provisions of this
Chapter may be implemented by any other Chinese entity by
making reference thereto.
¡¡¡¡Chapter VII Protection of Patent Right
¡¡¡¡Article 78 The administrative
authority for patent affairs referred to in the Patent Law and
these Rules means the department responsible for the administrative work
concerning patent affairs
set up by the people's government of any province, autonomous region, or
municipality directly under the Central Government or by the people's
government of any city divided into districts which has a large amount of
patent administration work to attend to and has the ability to deal with the
matter.
¡¡¡¡Article 79 In addition to the
provisions of Article 57 of the Patent Law, the administrative
authority for patent affairs may also mediate in the following patent
disputes at the request of the
parties concerned:
¡¡¡¡£¨1£© any dispute over the ownership of the right to apply for patent and
the patent right;
¡¡¡¡£¨2£© any dispute over the qualification of the inventor or creator;
¡¡¡¡£¨3£© any dispute over the reward and remuneration of the inventor or
creator of a service
invention-creation;
¡¡¡¡£¨4£© any dispute over the appropriate fee to be paid for the exploitation
of an invention after
the publication of the application for patent but before the grant of patent
right.
¡¡¡¡In respect of the dispute referred to in subparagraph £¨4£©, where the
patentee requests the
administrative authority for patent affairs to mediate, the request shall be
made after the grant of
the patent right.
¡¡¡¡Article 80 The patent administration
department under the State Council shall provide
professional guidance to the administrative authorities for patent affairs
in handling and mediating
patent disputes.
¡¡¡¡Article 81 Where any party concerned
requests for handling or mediation of a patent dispute, it shall fall under
the jurisdiction of the administrative authority for patent affairs of the
place
where the requested party has his location or where the act of infringement
takes place.
¡¡¡¡Where two or more administrative authorities for patent affairs all have
jurisdiction over a
patent dispute, the party concerned may file his or its request with one of
them. Where requests are
filed with two or more administrative authorities for patent affairs, the
administrative authority
for patent affairs that first accepts the request shall have jurisdiction.
¡¡¡¡Where administrative authorities for patent affairs have a dispute over
their jurisdiction, the
administrative authority for patent affairs of their common higher level
people's government shall
designate the administrative authority for patent affairs to exercise the
jurisdiction; if there is
no such administrative authority for patent affairs of their common higher
level people's
government, the patent administration department under the State Council
shall designate the
administrative authority for patent affairs to exercise the jurisdiction.
¡¡¡¡Article 82 Where, in the course of
handling a patent infringement dispute, the defendant
requests invalidation of the patent right and his request is accepted by the
Patent Reexamination
Board, he may request the administrative authority for patent affairs to
suspend from handling the
matter.
¡¡¡¡If the administrative authority for patent affairs considers that the
reasons set forth by the
defendant for the suspension are obviously untenable, it may not suspend
from handling the matter.
¡¡¡¡Article 83 Where any patentee affixes
a patent marking on the patented product or on the package of that product
in accordance with the provisions of Article 15 of the Patent Law, he or it
shall make the affixation in the manner as prescribed by the patent
administration department under the State Council.
¡¡¡¡Article 84 Any of the following acts
is an act of passing off the patent of another person as
one's own:
¡¡¡¡£¨1£© without authorization, indicating the patent number of another person
on the product made or sold by oneself or on the package of the said
product;
¡¡¡¡£¨2£© without authorization, using the patent number of another person in
the advertisement or in any other promotional materials, so as to mislead
other persons to regard the technology
concerned as the patented technology of another person;
¡¡¡¡£¨3£© without authorization, using the patent number of another person in
the contract, so as to mislead other persons to regard the technology
referred to in the contract as the patented
technology of another person;
¡¡¡¡£¨4£© counterfeiting or transforming any patent certificate, patent document
or patent
application document of another person.
¡¡¡¡Article 85 Any of the following acts
is an act of passing a non-patented product off as patented product or
passing a non-patented process off as patented process:
¡¡¡¡£¨1£© making or selling non-patented products which are affixed with patent
marking;
¡¡¡¡£¨2£© continuing to affix patent marking on the products that are made or
sold after the patent
right concerned has been declared invalid;
¡¡¡¡£¨3£© addressing any non-patented technology as patented technology in the
advertisements or in any other promotional materials;
¡¡¡¡£¨4£© stating any non-patented technology as patented technology in any
contract;
¡¡¡¡£¨5£© counterfeiting or transforming any patent certificate, patent document
or patent
application document.
¡¡¡¡Article 86 Any party concerned to a
dispute over the ownership of the right to apply for a
patent or the patent right which is pending before the administrative
authority for patent affairs
or the people's court, may request the patent administration department
under the State Council to
suspend the relevant procedures.
¡¡¡¡The party requesting the suspension of the relevant procedures in
accordance with the preceding paragraph, shall submit a written request to
the patent administration department under the State Council, and attach a
copy of the document acknowledging the receipt of the relevant request by
the administrative authority for patent affairs or the people's court.
¡¡¡¡After the decision made by the administrative authority for patent affairs
or the judgment
rendered by the people's court has entered into force, the parties concerned
shall request the
patent administration department under the State Council to resume the
suspended procedure. If,
within one year from the date when the request for suspension is filed, no
decision is made on the
dispute relating to the ownership of the right to apply for a patent or the
patent right, and it is
necessary to continue the suspension, the party making the request shall,
within the said time
limit, request to extend the suspension. If, at the expiration of the said
time limit, no such
request for extension is filed, the patent administration department under
the State Council shall
resume the procedure on its own initiative.
¡¡¡¡Article 87 Where, in hearing civil
cases, the people's court has ordered the adoption of
measures for a patent right preservation, the patent administration
department under the State
Council, for the purpose of assisting the execution of the order, shall
suspend the relevant
procedure concerning the preserved patent right. At the expiration of the
time limit for
preservation, if there is no order of the people's court to continue the
preservation, the patent
administration department under the State Council shall resume the relevant
procedure on its own
initiative.
¡¡¡¡Chapter VIII Patent Registration and
Patent Gazette
¡¡¡¡Article 88 The patent administration
department under the State Council shall keep a Patent
Register in which the registration of the following matters relating to
patent application or patent
right shall be made:
¡¡¡¡£¨1£© any grant of the patent right;
¡¡¡¡£¨2£© any transfer of the patent application right or the patent right;
¡¡¡¡£¨3£© any pledge and preservation of the patent right and their discharge;
¡¡¡¡£¨4£© any patent license contract for exploitation submitted for the record;
¡¡¡¡£¨5£© any invalidation of the patent right;
¡¡¡¡£¨6£© any cessation of the patent right;
¡¡¡¡£¨7£© any restoration of the patent right;
¡¡¡¡£¨8£© any compulsory license for exploitation of the patent;
¡¡¡¡£¨9£© any change in the name, nationality and address of the patentee.
¡¡¡¡Article 89 The patent administration
department under the State Council shall publish the Patent Gazette at
regular intervals, publicizing or announcing the following:
¡¡¡¡£¨1£© the bibliographic data contained in patent applications;
¡¡¡¡£¨2£© the abstract of the description of an invention or utility model, the
drawings or
photographs of a design and its brief explanation;
¡¡¡¡£¨3£© any request for examination as to substance of an application for a
patent for invention
and any decision made by the patent administration department under the
State Council to proceed on its own initiative to examine as to substance an
application for a patent for invention;
¡¡¡¡£¨4£© any declassification of secret patents;
¡¡¡¡£¨5£© any rejection, withdrawal and deemed withdrawal of an application for
a patent for
invention after its publication;
¡¡¡¡£¨6£© any grant of the patent right;
¡¡¡¡£¨7£© any invalidation of the patent right;
¡¡¡¡£¨8£© any cessation of the patent right;
¡¡¡¡£¨9£© any transfer of the patent application right or the patent right;
¡¡¡¡£¨10£© any patent license contract for exploitation submitted for the
record;
¡¡¡¡£¨11£© any pledge and preservation of the patent right and their discharge;
¡¡¡¡£¨12£© any grant of compulsory license for exploitation of the patent;
¡¡¡¡£¨13£© any restoration of a patent application or patent right;
¡¡¡¡£¨14£© any change in the name or address of the patentee;
¡¡¡¡£¨15£© any notification to a party whose address is not known;
¡¡¡¡£¨16£© any correction made by the patent administration department under the
State Council; and
¡¡¡¡£¨17£© any other related matters.
¡¡¡¡The description and its drawings, and the claims of an application for a
patent for invention or
utility model shall be separately published in full text by the patent
administration department
under the State Council.
Chapter
IX Fees
¡¡¡¡Article 90 When any person files an
application for a patent with, or goes through other
formalities at, the patent administration department under the State
Council, he or it shall pay the
following fees:
¡¡¡¡£¨1£© filing fee, additional fee for patent application, and printing fee
for publicizing the
application;
¡¡¡¡£¨2£© substantive examination fee for an application for patent for
invention, and reexamination fee;
¡¡¡¡£¨3£© registration fee for the grant of patent right, printing fee for the
announcement of grant
of patent right, maintenance fee for application, and annual fee;
¡¡¡¡£¨4£© fee for a change in the bibliographic data, fee for claiming priority,
fee for requesting
restoration of rights, fee for requesting extension of a time limit, and fee
for establishing a
search report on a utility model patent;
¡¡¡¡£¨5£© fee for requesting invalidation, fee for requesting suspension of the
patent procedure,
fee for requesting a compulsory license, fee for requesting adjudication on
exploitation fee of a
compulsory license.
¡¡¡¡The amount of the fees referred to in the preceding paragraph shall be
prescribed by the price
administration department under the State Council in conjunction with the
patent administration
department under the State Council.
¡¡¡¡Article 91 The fees provided for in
the Patent Law and in these Rules may be paid directly to
the patent administration department under the State Council or paid by way
of bank or postal
remittance, or by way of any other means as prescribed by the patent
administration department under the State Council.
¡¡¡¡Where any fee is paid by way of bank or postal remittance, the applicant
or the patentee shall
indicate on the money order at least the correct filing number or the patent
number and the name of
the fee paid. If the requirements as prescribed in this paragraph are not
complied with, the payment
of the fee shall be deemed not to have been made.
¡¡¡¡Where any fee is paid directly to the patent administration department
under the State Council,
the date on which the fee is paid shall be the date of payment; where any
fee is paid by way of
postal remittance, the date of remittance indicated by the postmark shall be
the date of payment;
where any fee is paid by way of bank transfer, the date on which the
transfer of the fee is done
shall be the date of payment. Where the time between such a date and the
date of receipt of the
order by the patent administration department under the State Council lasts
more than fifteen days,
unless the date of remittance or transfer is proved by the bank or the post
office, the date of
receipt by the patent administration department under the State Council
shall be the date of
payment.
¡¡¡¡Where any patent fee is paid in excess of the amount as prescribed, paid
repeatedly or wrongly, the party concerned may, within one year from the
date of payment, request a refund from the patent administration department
under the State Council.
¡¡¡¡Article 92 The applicant shall, after
receipt of the notification of acceptance of the
application from the patent administration department under the State
Council, pay the filing fee,
the printing fee for publicizing the application and the necessary
additional fees at the latest
within two months from the filing date. If the fees are not paid or not paid
in full within the time
limit, the application shall be deemed to be withdrawn.
¡¡¡¡Where the applicant claims priority, he or it shall pay the fee for
claiming priority at the
same time with the payment of the filing fee. If the fee is not paid or not
paid in full within the
time limit, the claim for the priority shall be deemed not to have been
made.
¡¡¡¡Article 93 Where the party concerned
makes a request for an examination as to substance, a
restoration of right or a reexamination, the relevant fee shall be paid
within the time limit as
prescribed respectively for such requests by the Patent Law. If the fee is
not paid or not paid in
full within the time limit, the request is deemed not to have been made.
¡¡¡¡Article 94 Where the applicant for a
patent for invention has not been granted a patent right
within two years from the date of filing, it or he shall pay a fee for the
maintenance of the
application from the third year.
¡¡¡¡Article 95 When the applicant goes
through the formalities of registration of the grant of
patent right, it or he shall pay a registration fee for the grant of patent
right, printing fee for
the announcement of grant of patent right and the annual fee of the year in
which the patent right
is granted. The applicant for a patent for invention shall, in the lump, pay
the application
maintenance fee for all the years, not including the year in which the
patent right is granted. If
such fees are not paid within the prescribed time limit, the registration of
the grant of patent
right shall be deemed not to have been made. The subsequent annual fees
shall be paid in advance
within the month before the expiration of the preceding year.
¡¡¡¡Article 96 Where the annual fee of the
patent right after the year in which the patent is
granted is not paid in due time by the patentee, or the fee is not paid in
full, the patent
administration department under the State Council shall notify the patentee
to pay the fee or to
make up the insufficiency within six months from the expiration of the time
limit within which the
annual fee is due to be paid, and at the same time pay a surcharge. The
amount of the surcharge
shall be, for each month of late payment, 5% of the whole amount of the
annual fee of the year
within which the annual fee is due to be paid. Where the fee and the
surcharge are not paid within
the time limit, the patent right shall lapse from the expiration of the time
limit within which the
annual fee should be paid.
¡¡¡¡Article 97 The fee for a change in the
bibliographic data, fee for establishing a search report
on a utility model patent, fee for requesting suspension of the patent
procedure, fee for requesting
a compulsory license, fee for requesting adjudication on exploitation fee of
a compulsory license
and fee for requesting invalidation shall be paid as prescribed within one
month from the date on
which such request is filed. The fee for requesting extension of a time
limit shall be paid before
the expiration of the said time limit. If the fee is not paid or not paid in
full within the time
limit, the request shall be deemed not to have been made.
¡¡¡¡Article 98 Where any applicant or
patentee has difficulties in paying the various fees
prescribed in these Rules, he may, in accordance with the prescriptions,
submit a request to the
patent administration department under the State Council, for a reduction or
postponement of the
payment. Measures for the reduction and postponement of the payment shall be
prescribed by the
patent administration department under the State Council in consultation
with the finance
administration department and the price administration department under the
State Council.
¡¡¡¡Chapter X Special Provisions Concerning
International Application
¡¡¡¡Article 99 The patent administration
department under the State Council receives international
patent applications filed under the Patent Cooperation Treaty in accordance
with the provisions of
Article 20 of the Patent Law.
¡¡¡¡Where any international application filed under the Patent Cooperation
Treaty designating China enters the Chinese national phase £¨hereinafter
referred to as the international application£©, the requirements and
procedures prescribed in this Chapter shall apply. Where no provisions are
made in this Chapter, the relevant provisions in the Patent Law and in any
other chapters of these Rules shall apply.
¡¡¡¡Article 100 Any international
application which has been accorded an international filing date
and which has designated China shall, in accordance with the Patent
Cooperation Treaty, be deemed as an application for patent filed with the
patent administration department under the State Council, and the said
filing date shall be deemed as the filing date referred to in Article 28 of
the Patent Law.
¡¡¡¡Where, in the international phase, an international application or its
designation of China is
withdrawn or deemed to be withdrawn, the effect of the said international
application in China shall
cease.
¡¡¡¡Article 101 Any applicant for an
international application entering the Chinese national phase
shall, within 30 months from the priority date as referred to in Article 2
of the Patent Cooperation
Treaty £¨referred to in this chapter as "the priority date"£©, go through the
following formalities
with the patent administration department under the State Council:
¡¡¡¡£¨1£© submitting a written statement concerning the entry of his or its
international
application into the Chinese national phase. The statement shall indicate
the international
application number, and also indicate in Chinese the kind of patent
protection sought, the title of
the invention-creation, the name or title of the applicant, the address of
the applicant and the
name of the inventor. Such indications shall be the same as those recorded
by the International
Bureau;
¡¡¡¡£¨2£© paying the filing fee, the additional fee for patent application and
the printing fee for
publicizing the application as provided in Article 90, paragraph one of
these Rules;
¡¡¡¡£¨3£© where an international application is filed in a language other than
Chinese, the Chinese
translation of the description, the claims, the text matter of the drawings,
and the abstract of the
initial international application shall be furnished; where an international
application is filed in
Chinese, a copy of the abstract published in the international publication
shall be furnished;
¡¡¡¡£¨4£© where an international application contains drawings, a copy of the
drawings shall be
furnished. Where an international application is filed in Chinese, a copy of
the figure of the
drawings in the abstract as published in the international publication shall
be furnished.
¡¡¡¡If the applicant fails to go through the relevant formalities for entering
the Chinese national
phase within the time limit prescribed in the preceding paragraph, he or it
may, after paying a
surcharge for the late entry, go through these formalities before the
expiration of the time limit
of 32 months from the priority date.
¡¡¡¡Article 102 Where the applicant fails
to go through the formalities for entering the Chinese
national phase, within the time limit prescribed in Article 101, paragraph
two of these Rules or any
of the following circumstance occurs at the expiration of the said time
limit, the effect of his or
its international application shall cease in China:
¡¡¡¡£¨1£© where the international application number is not indicated in the
statement concerning
entry into the Chinese national phase;
¡¡¡¡£¨2£© where the filing fee, the printing fee for publicizing the application
prescribed in
Article 90, paragraph one of these Rules, or the surcharge for the late
entry as prescribed in
Article 101, paragraph two of these Rules is not paid;
¡¡¡¡£¨3£© where the international application is filed in a language other than
Chinese, the Chinese
translation of the description and the claims of the initial international
application are not furnished.
¡¡¡¡Where the effect of an international application has ceased in China, the
provisions of Article
7, paragraph two of these Rules shall not apply.
¡¡¡¡Article 103 Where any of the following
circumstance occurs at the time when the applicant goes through the
formalities for entering the Chinese national phase, the patent
administration
department under the State Council shall notify the applicant to make
corrections within the
specified time limit:
¡¡¡¡£¨1£© where the Chinese translation of the abstract or a copy of the
abstract is not furnished;
¡¡¡¡£¨2£© where a copy of the drawings or a copy of a figure of the drawings in
the abstract is not furnished;
¡¡¡¡£¨3£© where the title of the invention-creation, the name or title of the
applicant, the address
of the applicant and the name of the inventor are not indicated in Chinese
in the statement
concerning entry into the Chinese national phase;
¡¡¡¡£¨4£© where the content or the form of the statement concerning entry into
the Chinese national phase is not in conformity with the provisions.
¡¡¡¡If, at the expiration of the time limit, the applicant fails to make up
the corrections, his or
its application shall be deemed to be withdrawn.
¡¡¡¡Article 104 Where an international
application is amended in the international phase and the
applicant requests that the examination be based on the amended application,
the Chinese translation
of the amendments shall be furnished by the applicant before completion of
the technical
preparations for national publication of the application by the patent
administration department
under the State Council. Where the Chinese translation is not furnished
within the time limit, the
amendments made in the international phase shall not be taken into
consideration by the patent
administration department under the State Council.
¡¡¡¡Article 105 When the applicant goes
through the formalities for entering the Chinese national
phase, he or it shall also fulfill the following requirements:
¡¡¡¡£¨1£© where the inventor is not indicated in the international application,
the name of the
inventor shall be indicated in the statement concerning entry into the
Chinese national phase;
¡¡¡¡£¨2£© where any change in the applicant is made before the International
Bureau in the
international phase, the document certifying the right of the new applicant
to the international
application shall be furnished;
¡¡¡¡£¨3£© where the applicant is not the same person as the applicant having
filed the earlier
application which is the basis of the priority claimed, or where the
applicant has changed his or
its name after filing the earlier application, the document certifying the
right of the applicant to
claim priority shall be furnished when necessary;
¡¡¡¡£¨4£© Where any invention-creation to which the international application
relates has one of the events referred to in Article 24, subparagraph £¨1£© or
£¨2£© of the Patent Law and where statements have been made in this respect
when the international application was filed, the applicant shall indicate
it in the statement concerning entry into the Chinese national phase, and
furnish the
relevant certificates prescribed in Article 31, paragraph two of these Rules
within two months from
the date of going through the formalities for entering the Chinese national
phase.
¡¡¡¡Where the applicant fails to satisfy the requirements provided for in
subparagraph £¨1£©, £¨2£© or £¨3£© of the preceding paragraph, the patent
administration department under the State Council shall notify the applicant
to make corrections within the specified time limit. Where, within the time
limit, no correction is made in respect of the requirement provided for in
subparagraph £¨1£© or £¨2£©, the application shall be deemed to be withdrawn;
Where, within the time limit, no
correction is made in respect of the requirement provided for in
subparagraph £¨3£©, the claim for
priority shall be deemed not to have been made.
¡¡¡¡Where the applicant fails to fulfill the requirement provided for in
subparagraph £¨4£© of
paragraph one of this Article, the provisions of Article 24 of the Patent
Law shall not apply to his
or its international application.
¡¡¡¡Article 106 Where the applicant has
made indications concerning deposited biological materials in accordance
with the provisions of the Patent Cooperation Treaty, the requirements
provided for in Article 25, subparagraph £¨3£© of these Rules shall be deemed
to have been fulfilled. In the statement concerning entry into the Chinese
national phase, the applicant shall indicate the documents recording the
particulars of the deposit of the biological materials, and the exact
location of the record in the documents.
¡¡¡¡Where particulars concerning the deposit of biological materials are
contained in the
description of the international application as initially filed, but there
is no such indication in
the statement concerning the entry into the Chinese national phase, the
applicant shall make
correction within four months from the date of going through the formalities
for entering the
Chinese national phase. If the correction is not made at the expiration of
the time limit, the
biological materials shall be deemed not to have been deposited.
¡¡¡¡Where the applicant submits the certificates of the deposit and the
viability of the biological
materials to the patent administration department under the State Council
within four months from
the date of going through the formalities for entering the Chinese national
phase, the deposit of
biological materials shall be deemed to have been made within the time limit
as provided for in
Article 25, subparagraph £¨1£© of these Rules.
¡¡¡¡Article 107 Where the applicant
claims one or multiple priorities in the international phase and
such claims remain valid at the time when the application enters the Chinese
national phase, the
applicant shall be deemed to have submitted the written declaration in
accordance with the
provisions of Article 30 of the Patent Law.
¡¡¡¡Where there are clerical mistakes or the application number of the earlier
application is
missing in the written declaration claiming the priority made in the
international phase, the
applicant may request to make corrections or to fill in the missing
application number of the
earlier application at the time of going through the formalities for
entering the Chinese national
phase. Where a request for making corrections is made, the applicant shall
pay the fee for
correcting the claim for priority.
¡¡¡¡Where the applicant has submitted a copy of the earlier application in the
international phase
in accordance with the provisions of the Patent Cooperation Treaty, he or it
shall be exempted form
submitting a copy of the earlier application to the patent administration
department under the State
Council at the time of going through the formalities for entering the
Chinese national phase. Where
the applicant has not submitted a copy of the earlier application in the
international phase, and if
the patent administration department under the State Council deems it
necessary, it may notify the
applicant to submit a copy of the earlier application within the specified
time limit. If no copy is
submitted at the expiration of the time limit, his or its claim for the
priority shall be deemed not
to have been made.
¡¡¡¡Where the claim for the priority is deemed not to have been made in the
international phase and the information is already published by the
International Bureau, the applicant may, if he has
justified reasons, request the patent administration department under the
State Council to restore
his or its claim for the priority at the time of going through the
formalities for entering the
Chinese national phase.
¡¡¡¡Article 108 Where, before the
expiration of 30 months from the priority date, the applicant
files a request with the patent administration department under the State
Council for early
processing and examination of his or its international application, he or it
shall, in addition to
going through the formalities for entering the Chinese national phase,
submit a request in
accordance with the provisions in Article 23, paragraph two of the Patent
Cooperation Treaty. Where the international application has not been
transmitted by the International Bureau to the patent administration
department under the State Council, the applicant shall submit a confirmed
copy of the international application.
¡¡¡¡Article 109 With regard to an
international application for a patent for utility model, the
applicant may file a request with the patent administration department under
the State Council to
amend the description, the drawings and the claims within one month from the
date of going through
the formalities for entering the Chinese national phase.
¡¡¡¡With regard to an international application for a patent for invention,
the provisions of
Article 51, paragraph one of these Rules shall apply.
¡¡¡¡Article 110 Where the applicant finds
that there are mistakes in the Chinese translation of the
description, the claims or the words of the drawings submitted, he or it may
correct the translation
in accordance with the initial international application as filed within the
following time limits:
¡¡¡¡£¨1£© before the completion of technical preparations of the patent
administration department
under the State Council for national publication;
¡¡¡¡£¨2£© within three months from the date of receipt of the notification sent
by the patent
administration department under the State Council notifying that the
application for a patent for
invention has entered into the substantive examination phase.
¡¡¡¡Where the applicant intends to correct the mistakes in the translation, he
shall file a written
request, furnish a replace sheet of the translation and pay the prescribed
fee for correction of the
translation.
¡¡¡¡Where the applicant makes correction of the translation in accordance with
the notification of
the patent administration department under the State Council, he or it
shall, within the specified
time limit, go through the formalities prescribed in paragraph two of this
Article. If the
prescribed formalities are not gone through at the expiration of the time
limit, the international
application shall be deemed to be withdrawn.
¡¡¡¡Article 111 With regard to any
international application for a patent for invention, if the
patent administration department under the State Council, after preliminary
examination, considers
it is in compliance with the provisions of the Patent Law and these Rules,
it shall publish it in
the Patent Gazette; where the international application is filed in a
language other than Chinese,
the Chinese translation of the international application shall be published.
¡¡¡¡Where the international publication of an international application for a
patent for invention
by the International Bureau is in Chinese, the provisions of Article 13 of
the Patent Law shall
apply from the date of the international publication. If the international
publication by the
International Bureau is in a language other than Chinese, the provisions of
Article 13 of the Patent
Law shall apply from the date of the publication of the Chinese translation
by the patent
administration department under the State Council.
¡¡¡¡With regard to an international application, the publication referred to
in Articles 21 and 22
of the Patent Law means the publication referred to in paragraph one of this
Article.
¡¡¡¡Article 112 Where two or more
inventions or utility models are contained in an international
application, the applicant may, after going through the formalities for
entering the Chinese
national phase, submit a divisional application in accordance with the
provisions in Article 42,
paragraph one of these Rules.
¡¡¡¡Where, in the international phase, some parts of the international
application are not the
subject of international search or international preliminary examination
because the International
Searching Authority or the International Preliminary Examination Authority
considers that the
international application does not comply with the requirement of unity of
invention prescribed in
the Patent Cooperation Treaty, or because the applicant fails to pay the
additional fee, and at the
time of going through the formalities for entering the Chinese national
phase, the applicant
requests that the said parts be the basis of examination, the patent
administration department under
the State Council, finding that the decision concerning unity of invention
made by the International
Searching Authority or the International Preliminary Examination Authority
is justified, shall
notify the applicant to pay the restoration fee for unity of invention
within the specified time
limit. Where the fee is not paid or not paid in full at the expiration of
the prescribed time limit,
those parts of the international application which have not been searched or
have not been the
subject of international preliminary examination shall be deemed to be
withdrawn.
¡¡¡¡Article 113 Where the applicant
furnishes the documents and pays the fees in accordance with the provisions
of Article 101 of these Rules, the date on which the patent administration
department
under the State Council receives the documents shall be the date of
submitting, and the date on
which it receives the fees shall be the date of payment.
¡¡¡¡Where there is delay in the mailing of the documents and the applicant
proves, within one month from the date on which he finds the delay, that the
documents have been mailed five days prior to the expiration of the time
limit prescribed in Article 101 of these Rules, the documents shall be
deemed to have been received on the date on which the time limit expires.
However, the time period for the applicant to furnish evidence may not be
later than six months after the expiration of the time limit prescribed in
Article 101 of these Rules.
¡¡¡¡Where documents are to be submitted to the patent administration
department under the State
Council in accordance with the provisions of Article 101 of these Rules, the
applicant may send them by fax. Where the applicant submits the documents by
fax, the date on which the patent
administration department under the State Council receives the fax shall be
the date of submitting.
The applicant shall submit to the patent administration department under the
State Council the
original copy within 14 days from the date of the transmission by fax. Where
the original copy is
not submitted within the time limit, the documents shall be deemed not to
have been submitted.
¡¡¡¡Article 114 Where an international
application claims the priority, the applicant shall, at the
time of going through the formalities for entering the Chinese national
phase, pay the fee for
claiming the priority; if the fee is not paid or not paid in full, the
patent administration
department under the State Council shall notify the applicant to pay it
within the specified time
limit; if the fee is still not paid or not paid in full at the expiration of
the time limit, the
claim for priority shall be deemed not to have been made.
¡¡¡¡Article 115 Where an international
application in the international phase has been refused to be accorded an
international filing date or has been declared to be deemed withdrawn by an
international authority concerned, the applicant may, within two months from
the date on which he or
it receives the notification, request the International Bureau to send the
copy of any document in
the file of the international application to the patent administration
department under the State
Council, and shall go through the formalities prescribed in Article 101 of
these Rules within the
said time limit with the patent administration department under the State
Council. After receiving
the documents sent by the International Bureau, the patent administration
department under the State
Council shall review the decision made by the international authority
concerned to find whether it
is correct.
¡¡¡¡Article 116 With regard to a patent
right granted on the basis of an international application,
if the scope of protection determined in accordance with the provisions of
Article 56 of the Patent
Law exceeds the scope of the international application in its original
language because of incorrect
translation, the scope of protection granted on the international
application shall be limited
according to the original language of the application; if the scope of
protection granted on the
international application is narrower than the scope of the application in
its original language,
the scope of protection shall be determined according to the patent in the
language when it is
granted.
¡¡¡¡Chapter X Supplementary Provisions
¡¡¡¡Article 117 Any person may, after
approval by the patent administration department under the
State Council, consult or copy the files of the publicized or announced
patent applications and the
Patent Register, and may request the patent administration department under
the State Council to
issue a copy of extracts from the Patent Register.
¡¡¡¡The files of the patent applications which have been withdrawn or deemed
to be withdrawn or
which have been rejected, shall not be preserved after expiration of two
years from the date on
which the applications cease to be valid.
¡¡¡¡Where the patent right has been abandoned, wholly invalidated or ceased,
the files shall not be
preserved after expiration of three years from the date on which the patent
right ceases to be
valid.
¡¡¡¡Article 118 Any patent application
which is filed with, or any formality which is gone through
at, the patent administration department under the State Council, shall be
in the prescribed form of
the patent administration department under the State Council, and signed or
sealed by the applicant,
the patentee, any other interested person or his or its representative.
Where any patent agency is
appointed, it shall be sealed by such agency.
¡¡¡¡Where a change in the name of the inventor, or in the name, nationality
and address of the
applicant or the patentee, or in the name or address of the patent agency or
the name of patent
agent is requested, a request for a change in the bibliographic data shall
be made to the patent
administration department under the State Council, together with the
relevant certifying documents.
¡¡¡¡Article 119 The document relating to a
patent application or patent right which is mailed to the
patent administration department under the State Council shall be mailed by
registered letter, not
by parcel.
¡¡¡¡Except for any patent application filed for the first time, any document
which is submitted to
and any formality which is gone through with the patent administration
department under the State
Council, the filing number or the patent number, the title of the
invention-creation and the name of
the applicant or the patentee shall be indicated.
¡¡¡¡Only documents relating to the same application shall be included in one
letter.
¡¡¡¡Article 120 Various kinds of
application documents shall be typed or printed. All the characters shall be
in black ink, neat and clear. They shall be free from any alterations. The
drawings shall be made in black ink with the aid of drafting instruments.
The lines shall be uniformly thick and
well defined, and free from alterations.
¡¡¡¡The request, description, claims, drawings and abstract shall be numbered
separately in Arabic
numerals and arranged in numerical order.
¡¡¡¡The written language of the application shall run from left to right. Only
one side of each
sheet shall be used.
¡¡¡¡Article 121 The patent administration
department under the State Council shall formulate
Guidelines for Examination in accordance with the Patent Law and these
Rules.
¡¡¡¡Article 122 These Rules shall be
effective as of July 1, 2001. The Rules for the Implementation of the Patent
Law of the People's Republic of China approved by the State Council on
December 12, 1992 and promulgated by the Patent Office of the People's
Republic of China on December 21, 1992 shall be repealed
simultaneously.¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡
¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡¡   |
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