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RULES FOR THE IMPLEMENTATION OF THE PATENTLAW OF THE PEOPLE'S
REPUBLIC OF CHINA
(Approved and amended by the State Council on December 12,
1992 and promulgated by Decree No. 3 of the Patent Office of China
on December 21, 1992)
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 relation to a product, a process or an 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, couour,
or their combination, of a product, which creates an aesthetic
feeling and is fit for industrial application.
Article 3
Any proceeding provided for by the Patent Law and these Rules shall
be conducted in a written form.
Article 4
Any document submitted under 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 locality or scientific or technical term, the one in the
original language shall be also indicated.
Where any
certificate or certified document submitted in accordance with the
Patend Law and these Rules is in foreign language, and where the
Patent Office deems it necessary, it may request a Chinese
translation of the certificate or the certifing document to be
submitted within a specified time limit; where the translation is
not submitted within the specified time limit, the certificate or
certifing document shall be deemed not to have been submitted.
Article 5
For any document sent by mail to the Patent Office, the date of
mailing indicated by the postmark on the envelope shall be presumed
to be the date of filing. If the date of mailing indicated by the
postmark on the envelope is illegible, the date on which the Patent
Office receives the document shall be the date of filing, except
where the date of mailing is proved by the addressor.
Any document of
the Patent Office may be served by mail, by personal delivery or by
public announcement. 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 person first
named in the request or to the representative. If such person
refuses to accept the document, it shall be presumed to have been
served.
For any document
sent by mail by the Patent Office, the 16th day from the date of
mailing shall be presumed to be the date on which the addressee
receives the document.
For any document
which shall be delivered personally in accordance with the
prescription of the Patent Office, the date of delivery is the date
on which the addressee receives the document.
Where the
address of a document is not clear and it cannot be sent by mail,
the document may be served by making an announcement in the Patent
Gazette. At the expiration of one month from the date of the
announcement, the document shall be presumed to have been served.
Article 6
The first day of any time limit prescribed in the Patent Law and
these Rules shall not be counted. Where a 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, the time limit shall expire on the
first working day after that official holiday.
Article 7
Where a time limit prescribed in the Patent Law or these Rules or
specified by the Patent Office is not observed because of force
majeure, resulting the loss of rights on the part of a party
concerned, he or it shall, 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 Office to restore his or its rights.
Where a time
limit prescribed in the Patent Law or these Rules or specified by
the Patend Office is not observed because of any justified reason,
resulting the loss of rights on the part of a party concerned, he or
it shall, within two months from the date of receipt of a
notification from the Patent Office, state the reasons and request
the Patent Office to restore his or its rights.
Where the party
concerned makes a request for an extension of a time limit specified
by the Patent Office, he or it shall, before the time limit expires,
state the reasons to the Patent Office and complete the relevant
procedures.
The provisions
of paragraphs 1 and 2 of this Article shall not be applicable to the
time limits referred to in article 24, 29, 41, 45 and 61 of the
Patent law.
The provisions
of paragraph 2 of this Article shall not be applicable to the time
limit referred to in Article 88 of these Rules.
Article 8
Where the invention for which a patent is applied for by an unit of
the national defense system relates to the secrets of the State
concerning national defense and is required to be kept secret, the
application for patent shall be filed with the patent organization
set up by the competent department of science and technology of
national defense under the State Council. Where any appllication 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 Office, the Patent Office shall transfer the application to
the afore-mentioned patent organization for examination. The Patent
Office shall make a decision on the basis of the opinions of the
said patent organization for examination. In addition to the
preceding paragraph, the Patent Office, after receiving a patent
application for aninvention which is required to be examined for its
confidential nature shall send it to the department concerned of the
State Council for examination. The said department shall, within
four months from receipt of the application, send a report on the
results of the examnation to the Patent Office. Where the inventions
required to be kept secret, the Patent Office shall handle the
application as one for secret patent and notify the applicant
accordingly.
Article 9
The date of filing referred to in the Patent Law, except that
mentioned in Articles 28 and 45, means the priority date where a
right of priority is claimed.
The date of
filling referred to in these Rules means the date on which the
application for patent is filed with the Patent Office.
Article 10
¡°Service invertion-creation made by a person in execution of the
tasks of the unit to which he belongs¡± mentioned in Article 6 of
the Patent Law refers to 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 unit 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 unit to which he previously belonged.
¡°Material
means of the unit¡± mentioned in Article 6 of the Patent Law
refers to the unit's money, equipment, spare parts, raw materials,
or technical data which are not to be disclosed to the public.
Article 11
¡°Inventor¡±or ¡°creator¡±mentioned in the Patent Law refers
to any person who has made creative contributions to the substantive
features of the invention-creation. Any person who, during the
course of accomplishing the invention-creation, is reponsible only
for organization work, or who offers facilities for making use of
materials means, or who takes part in other auxiliary functioins,
shall not be considered as inventor or creator.
Article 12
For any identical invention-creation, only one patent right shall be
granted.
Two or more
applicants who 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 Office, hold consultation among themselves to decide the
person or persons who shall entitled to file the application.
Article 13
Any license contract for exploitation of the patent which has been
concluded by the patentee with an unit or induvidual shall, within
three months from the date of entry into force of the contrace, be
submitted to the Patent Office for record.
Article 14
"The patent agency" as stipulated in Article 19 Paragraph
1 and Article 20 of the Patene Law shall, on the authorization of
the State Council, be designated by the Patent Office.
Article 15
Where any dispute arises concerning the right to apply for a patent
for an invention- creation or the right to own a patent right which
has been granted, any of the parties concerned may reauest an
administrative authority for patent affairs to handle the matter or
may institute legal proceedings in a people's court.
Any party to a
dispute conerning the right to apply for a patent or the right to
own a patent right which has been brought to an administrative
authority for patent affairs or to a people's court for a settlement,
may request the Patent Office to suspend the relevant procedures.
Any party
requesting the suspension of the relevant procedures by the Patent
Office in accordance with the preceding paragraph, shall submit a
written request to the Patent Office, together with the relevant
document certifying the acceptance of the case by an administrative
authority for patent affairs by a people's court.
Chapter II
Application for Patent
Article 16
Anyone who applies for a patent shall submit application documents
in duplicate.
Any applicant
who appoints a patent agency for filing an application for a patent
with, or for dealing with other patent matters before, the Patent
Office, shall submit a power of attorney indicating the scone of the
hower entrusted.
Article 17
Other related matters mentioned in article 26, Paragraph 2 of the
Patent law refer to:
(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 to be
indicated;
(4) Where the
priority of an earlier application is claimed, the relevant matters
to 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 appending the application;
(8) Any other
related matter which needs to be indicated.
Where there are
two or more applicants and where they have not appointed a patent
agency, they shall designate a representative.
Article 18
The description of an application for a patent for invention or
utility model shall be presented in the following manner and order:
(1) State the
title of the invention or utility model as appearing in the request;
(2) Specify the
technical field to which the invention or utility model relates;
(3) Indicate the
background art which, as far as known to the applicant, can be
regarded as useful for the understanding, searching and examination
of the invention or utility model, and cite the documents reflecting
such art;
(4) Specify the
purpose which the invention or utility model is designed to fulfil;
(5) Disclose the
technical solution of the invention or utility model, as claimed, in
such a manner that a person having ordinary skill in the field can
understand it and fulfil the purpose of the invention or utility
model;
(6) State the
advantageous effects of the invention or utility model, with
reference to the background art;
(7) Briefly
describe the figures in the drawings, if any;
(8) Describe in
detail the best mode contemplated by the applicant for carrying out
the invention or utility model; this shall be done in terms of
examples, where appropriate, and with reference to the drawings, if
any.
The manner and
order mentioned in the preceding paragraph shall be observed by the
applicant of a patent for invention or a patent for utility model,
unless, because of the nature of the invention or utility model, a
different manner or order would afford a better understanding and
more economical presentation.
The description
of the invention or utility model shall not contatin such references
to the claims as:¡°as described in part¡of the claim¡±, nor
shall it contain commerical advertising.
Article 19
The same sheet of drawings may contain several figures of the
invention or utility model, and the drawings shall be numbered and
arranged in numerical order consecutively as ¡°Figure 1, Figure 2¡¡±
The scale and
the distinctness of the drawings shall be such that a reproduction
with a linear reduction in size to two-thirds would still enable all
details to be clearly distinguished.
Drawing
reference signs not appearing in the text of the description of the
invention or utility model shall not appear in the drawings. Drawing
reference signs not appearing in the drawings shall not appear in
the text of the description. Drawing reference signs for the same
composite part used in an application document shall be consistent
throughout. The drawings shall not contain any other explanatory
notes, except words which are indispensable.
Article 20
The chaims 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 tecknical
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 absoltrely 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 sings in the drawings of description. Such reference signs
shall follow the corresponding technical features and be placed
between parentheses. They shall not by construed as limiting the
claims.
Article 21
The claims shall have an independent claim, and may also contain
dependent alaims.
An independent
claim shall outline the technical solution of an invention or
utility model and describe the indispensable technical features
necessary for fulfilling the purpose of the invention or utility
model.
A dependent
claim shall further define the claim which it refers to by
additional features that are claimed for protection.
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
invention or utility model, and those essential technical features
that are common to the invention or utility model and the prior art;
(2) A
characterizing portion, stating, in such wording as¡°characterized
in that¡¡±or in simliar expressions, the technical features of
the invention or utility model, which distinguish it from the prior
art. These features, in combination with the features stated in the
preamble portion, serve to define the scope of protection of the
invention or utility model.
Independent
claims may be presented in any other form, where it is not
appropriate, according to the nature of the invention or utility
model, to present them in the form prescribed in the preceding
paragraph.
Each 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
A dependent claim of an invention or utility model shall contain a
reference portion and a characterizing portion, and be presented in
the following form.
(1) 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. A dependent claim referring to one
or more other claims shall refer only to the preceding claim or
claims. A multiple dependent claim which refers to more than one
other claim shall not serve as a basis for any other multiple
dependent claim.
Article 24
The abstract shall indicate the technical field to which the
invention or utility model pertains, the technical problems to be
solved, the essential technical features and the use (s) 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 indicate
and provide a drawing which best characterizes the invention or
utility model. The scale and the distinctness of the drawing shall
be such that a reproduction with a liner reduction in size to 4cm¡Á6cm
would still enable all details to be clearly dsitinguished. The
whole text of the abstract shall contain not more than 200 Chinese
characters. There shall be no commercial advertising in the abstract.
Article 25
Where an application for a patent for invention concerns a new
micro-organism, a micro-biological process or a product thereof and
involves the use of a micro-organism which is not available to the
public, the applicant shall, in addition to the other requirements
provided for in the Patent Law and these Rules, complete the
following procedures:
(1) Deposit a
sample of the micro-organism with a depositary institution
designated by the Patent Office before the date of filing, or, at
the latest, on the date of filing, and submit, at the time of filing,
or, at the latest, within three 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 micro-organism shall be deemed not to have
been deposited;
(2) Give in the
application document relevant information of the characteristics of
the micro-organism;
(3) Indicate,
where the application relates to the deposit of the micro-organism,
in the request and the description the scientific name (with it's
Latin name), the name and address of the depositary institution, the
date on which the sample of the micro-organsim, was deposited and
the accession number of the depsoit; where, at the time of filing,
they are not indecated, they shall be supplied within three months
from the date of filing; where after the expiation of the time limit
they are not supplied, the sample of the micro-organism shall be
deemed not to have been deposited.
Article 26 After
the publication of an application for a patent for invention
relating to a micro-organism, any unit or individual that intends to
make use of the micro-organism mentioned in the application for the
purpose of experiment shall make a request to the Patent Office
containing the following:
(1) The name and
address of the unit or individual making the request;
(2) An
undertaking not to make the micro-organism available to any other
person;
(3) An
undertaking to use the micro-organism 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-8cm, nor larger than 15cm-22cm.
Where an
application for a patent for design seeking concurrent protection of
colors is filed, a drawing or photograph in color, and a drawing or
photograph in white and black, shall be submited.
The applicant
shall submit, in respect of the subject matter of the product
incorporating the design which is in need of protection, 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 indicated.
The bried
explanation of the design shall include the main creative 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 and the uses of the
product.
Article 29
Where the Patent Office finds it necessary, it may require the
applicant for 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¡Á30cm¡Á30cm, and its weight
shall not surpass 15 kilos. Articles easy to ges rotten or broken,
or articles that are dangerous may not be submitted as sample or
model.
Article 30
The existing technology mentioned in Article 22, paragraph 3 of the
Patent Law means any technology which has been publicly disclosed in
publications in the country or abroad, or has been publicly used or
made known to the public by any other means in the country, before
the date of filing, that is prior, art.
Article 31
The academic or technological meeting mentioned in Item 2 of Article
24 the Patent Law means any academic or technological meeting
organized by a department concerned of the State Council or by a
national academic association.
Where any
application for a patent falls under the provisions of Item 1 or
Item 2 of Article 24 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 a certificate issued
by the unit which organized the international exhibited or academic
or technological meeting, stating that the invention-cretion was in
fact exhibition or published and also the date of its exhibition or
publication. Where any application for a patene flaas under the
provisions of Item 3 of Article 24 of the Patent Law, the Patent
Office may, when necessary, require the applicant to submit a
certifying document.
Article 32
Where an applicant is to comply with the requirements for claiming
the right of priority in accordance with Article 30 of the Patent
Law, he or it shall, in his or its written declaration, indicate the
date of filing and the filing number of the application which was
first filed ( hereinafter referred to as the earlier application)
and the country in which that application was filed. If the written
declaration does not contain the date of filing of the earlier
application and the name of that country, the declaration shall be
deemed not to have been made.
Where the
foreign priority is claimed, the copy of the earlier application
document submitted by the applicant shall be certified by the
competent authority of the foreign country concerned; where the
domestic priority is claimed, the copy of the eariler application
document shall be prepared by the Patent Office.
Article 33
Any applicant may claim one or more priorities for an application
for a patent; where the priorities of several earlier applications
are claimed, the priority period for the application shall be
calculated from the earliest priority date.
Where any
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. But when the
later application is filed, if the earlier application falls under
any of the following circumstances, it may not be the basis of
domestic priority:
(1) When foreign
or domestic priority has already been claimed;
(2) Where a
patent right has been granted;
(3) Where it
belongs to 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 any applicant having no habitual residence or
business office in China, the Patent Office may, when necessary,
require the applicant to submit the following documents;
(1) A
certificate concerning the nationality of the applicant;
(2) A
certificate concerning the seat of the business office or the
headquarters, if the applicant is an enterprise or other
organization;
(3) A
testimonial showing that the country, to which the foreigner,
foreign enterprise or other foreign organization belongs, recognizes
that Chinese citizens and entities are, under the same conditions
applied to its nationals, entitled to patent right, right of
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 of article 31, paragraph 1 of the
Patent Law shall be technically inter-related and contain one or
more 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, considered as a whole, makes over the prior art.
The claims in
one application for a patent for two or more inventions which are in
conformity with the provisions of the preceding paragraph may be any
of the following;
(1) Independent
claims of the same category for two or more products or processes
which cannot be included in one claim;
(2) An
independent claim for a product and an independent claim for a
process specially adapted for the manufacture of the product;
(3) An
independent claim for a product and an independent claim for a use
of the product;
(4) An
independent claim for a product, an independent claim for a process
speically adapted for the manufacture of the product, and an
independent claim for a use of the product;
(5) An
independent claim for a product, an independent claim for a process
specially adapted for the manufacture of the product, an independent
claim for an apparatus specially designed for carrying out the
process;
(6) An
independent claim for a process and an independ claim for an
apparatus specially designed for carrying out the process.
The claims in
one application for a patent for two or more utility models which
are in conformity with the provisions of the first paragraph of this
Article may be independent claims for two or more products which
connot be included in one claim.
Article 36
The expression¡°the same class¡±mentioned in of Article 31,
paragraph 2 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 or used at the same time.
Where two or
more designs are filed as one application in accordance with the
provisions of Article 31, paragraph 2 of the Patent Law, they shall
be numbered consecutively and the numbers shall be placed in front
of 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 Office 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 printing preparation has been done by the Patent Office
for publishing of the application documents, the application shall
be published as scheduled.
Chapter III
Examination and Approval of Application for Patent
¡¡Article
38 Any person who is to examine or hear a case in the procedures
of preliminary examination, substantial examination reexamination,
revocation or invalidation shall, on his own initiative or upon the
request of the party concerned or any other interested person, avoid
being present in any of the following situations;
(1) Where he is
a close relative of the party concerned or the latter's agent;
(2) Where he has
an interest in the application for patent or the patent right;
(3) Where he has
such other kinds of relations with the party concerned or the
latter's agent that might influence impartial examination and
hearing;
Where a member
of the Patent Reexamination Board has taken part in the examination
of the application, the provisions of the preceding paragraph shall
apply.
The avoidance of
a person in examining and hearing a case shall be decided by the
Patent Office.
Article 39
Upon the receipt of an application for a patent for invention or
utility model consisting of a request, a description (a drawing
being indispensable 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
Office shall accord the date of filing and a filing number and
notify the applicant.
Article 40
In any of the following situations, the Patent Office shall not
accept and shall notify the applicant accordingly:
(1) Where the
application for a patent for invention or utility model does not
contain a reauest, a description (or a description of utility model
without drawings) or claims, or the application for a patent for
design does not contatin a request, drawings or photographs;
(2) Where the
application is not written in Chinese;
(3) Where the
application is not in conformity with the provisions of paragraph
one of Article 94 of these Rules;
(4) Where the
request does not contain the name and address of the applicant;
(5) Where the
application is obviously not in conformity with the provisions of
Article 18, or paragraph one of Article 19 of the Patent Law;
(6) Where the
classification (patent for invention, utility model or design) of
the application for a patent is not clear or cannot be discerned.
Article 41
Where the description 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 Office, 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 delivering at, or mailing to, the Patent
Office, shall be the date of filing of the application; if the
explanatory notes to the drawings are deleted, the initial date of
filing shall be the date of filing of the application.
Article 42
Where an application for a patent contains two or more inventions,
utility models or designs, the applicant may, at may time before the
Patent Office sends out the notification to grant the patent right,
submit to the Patent Office a request for divisional applications.
If the Patent
Office finds that the application for one patent is not in
conformity with the provisions of Article 31 of the Patent Law and
Article 35 of these Rules, it shall require the applicant to amend
the application within the specified time limit; if the applicant
does not give any response within the time limit, the application
shall be deemed to have been withdrawn.
The divisional
applications may not change the classification of the initial
application.
Article 43
Where a divesional application filed in accordance with Article 42
of these Rules, the original date of filing may be retained and, if
priority is validly claimed, the priority date may also be retained,
provided that the divesional application do not go beyond the scope
of the initial application already made public.
The divisional
applications shall be subject to the procedures 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 divisional applications. When submitting
the divisional application, the applicant shall submit a copy of the
initial application document; if priority is claimed for the initial
application, the applicant shall submit copy of the priority
document of the initial application as well.
Article 44
¡°Preliminary examination¡±mentioned in Articles 34 and 40 of
the Patent Law means examining an application for a patent to see
whether or not it contains the documents as provided for in Article
26 or Article 27 of the Patent Law and other necessary documents,
and whether or not these documents are in the prescribed form,
including also an examination of the following:
(1) Whether or
not an application for a patent for invention obviously falls under
Article 5 or Article 25 of the Patent Law, or is not in conformity
with the provisions of Article 18 or paragraph one of Article 19 of
the Patent Law, or is obviously not in conformity with the
provisions of paragraph one of, Article 31 or Article 33 of the
Patent Law, or paragraph one of Article 2 of these Rules.
(2) Whether or
not an application for a patent for utility model obviously falls
under Article 5 or Article 25 of the Patent Law, or is not in
conformity with the provisions of Article 18 of paragraph one of
Article 19 of the Patent Law or is obviously not in conformity with
the provisions of paragraph one, Article 31 or Article 33 of the
Patent Law, or paragraph two of Article 2 or paragraph one of
Article 12, or Articles 18 to 23 of these Rules, or is not entitled
to a patent right according to the provisions of Article 9 of the
Patent Law.
(3) Whether or
not an 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 18 or paragraph one of Article 19 of the
Patent Law, or is oboviously not in conformity with the provisions
of paragraph two of Article 31 or Article 33 of the Patent Law, or
paragraph three of Article 2 or paragraph one of Article 12 of these
Rules, or is not entitled to a patent right according to the
provisions of Article 9 of the Patent Law.
The Patent
Office shall communicate its observations after examination of the
application to the applicant and require him or it to state his or
its opinions or to rectify his or its application within a time
limit. If the applicant give no response within the time limit, the
application shall be deemed to have been withdrawn. Where, after the
applicant has stated opinions or made rectifications, the Patent
Office still finds the application not in conformity with the
provisions respectively cited in the preceding paragraphs, the
applications shall be rejected.
Article 45
In any of the following situations, any document relating to a
patent application, not including the patent application itself,
which is submitted to the Patent Office, shall be deemed not to have
been submitted:
(1) Where the
document is not presented in the prescribed form or the indications
there in are not in conformity with the prescriptions;
(2) Where no
supporting document is submitted as prescribed;
The Patent
Office shall notify the applicant of its observations where a
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 declaration shall be made
to the Patent Office. The Patent Office shall, after preliminary
examination of the application, publish it immediately unless it is
to be rejected.
Article 47 The
applicant Shall, when indicating in accordance with Article 27 of
the Patent Law the product incorporating the design and the class to
which that product belong, refer to the classification of products
for designs published by the Patent Office. Where no indication, or
an incorrect indication, of the class to which the product
incorporating the design belong is made, the Patent Office 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 date of announcing the grant of the patent
right, submit to the Patent Office 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 the
results of any examination under Article 36 of the Patent Law, it or
he shall make a statement to that effect and submit them when the
said documents are available.
Article 50
The Patent Office shall, when proceeding in its own initiative to
examine an application for a patent in accordance with the
provisions of paragraph two of Article 35 of the Patent Law, notify
the applicant accordingly.
Article 51
When a request for substantial examination is made, or when a
response is made in rega communication of the observations of the
Patent Office after substantial examination, the applicant may amend
the application for a patent for invention on its or his own
initiative.
Within three
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.
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 alterfation, insertion or deletion of a few words.
Where an amendment to the drawings or photoguraphs of an application
for a patent for design is made, a replacement sheet in prescribed
from shall be submitted.
Article 53
According to the provisions of the Patent Law and these Rules, the
situation where, an application for a patent for invention shall
after substantial examination, be rejected by the Patent Office
shall be as follows:
(1) The
application does not comply with the provisions of paragraph one of
Article 2 of these Rules;
(2) The
application falls under the provisions of Article 5 or Article 25 of
the Patent Law; or it does not comply with the provisions of Article
22 of the Patent Law and paragraph one of Article 12 of these Rules
or the applicant is not entitled to a patent right according to the
provisions of Article 9 of the Patent Law;
(3) The
application does not comply with the provisions of paragraph three
or four of Article 26 or paragraph one of Article 31 of the Patent
Law;
(4) The
amendment to the application or the divisional applications go
beyond the scope of disclosure contained in the initial description
and the claims.
Article 54
After the Patent Office 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
goes through the formalities of registration within the said time
limit, the Patent Office shall grant the patent right, issue the
patent certificate, and announce it. The patent right shall come
into force upon the date of issue of the patent certificate.
If the
formalities of registration are not completed on expiry of the time
limit, the applicant shall be deemed to have abandoned its or his
right to obtain the patent right.
Article 55
The reasons for which a revocation may be requested under Article 41
of the Patent Law of a patent right, which is announced and granted
by the Patend Office, shall be as follows:
(1) The
invention or utility model for which the patent right is granted
does not comply with the provisions of Article 22 of the Patent Law;
(2) The design
for which the patent right is granted does not comply with the
provisions of Article 23 of the Patent Law.
Article 56
Anyone requesting revocation of a patent right in accordance with
provisions of Article 41 of the Patent Law shall submit to the
Patent Office a request and the relevant documents in duplicate,
stating the facts and reasons on which the request is based.
The person
requesting revocation may withdraw his request before the Patent
Office makes a decision on it.
Article 57
After the receipt of the request for revocation of a patent right,
the Patent Office shall make an examination. Where the request does
not conform to the prescribed requirements, the Patent Office shall
notify the person making the request to rectify it within a
specified time limit. If the time limit for making rectification is
not met, the request for revocation shall be deemed not to have been
filed.
Where, in the
request for revocation of the patent right, no facts and reasons
have been given to support the request or the reasons given do not
conform to the provisions of Article 55 of these rules, the request
shall not be accepted.
The Patent
Office shall send a copy of the request for revocation of the patent
right and copies of the relevant documents to the patentee and
require it or him to present its or his observations within a
specified time limit. The patentee may amend its or his patent
documents but may not broaden the scope of patent protection. If no
respose is made within the time limit, the examination of the Patent
Office shall not be affected.
Article 58
The Patent Reexamination Board shall consist of experienced
technical and legal experts designated by the Patent Office. The
Director General of the Patent Office shall be the chairman of the
Board.
Article 59
Where the applicant requests the Patent Reexamination Board to make
a reexamination in accordance with the provisions of Article 43,
paragraph 1 of the Patent Law, it or he shall file a request for
reexamination and state the reasons therefor, together with the
relevant supporting documents. The request and the supporting
documents shall be in duplicate. The application or the patentee may
amend its or his application, which has been rejected, or its or his
patent spectfication, which has been revoked, at the time when it or
he requests reexamination, but the amendments shall be limited only
to the part to which the decision of the application or the decision
of revocation of the patent right relates.
Article 60 Where
the request for reexamination does not comply with the prescribed
form, the person making the request shall, rectify it within the
time limit fixed by the Patent Reexamination Board. If the time
limit for making rectification is not met, the request for
reexamination shall be deemed not to have been filed.
Article 61
The Patent Reexamination Board shall send the request for
reexamination which the Board has accepted to the original
examination department of the Patent Office for examination. Where
the original examination department agrees to cancel its former
decision upon the request of the applicant requesting reexamination,
the Patent Reexamination Board shall make a decision accordingly and
notify the applicant.
Article 62
Where the Patent Reexamination Board finds after reexamination that
the request does not comply with the provisions of the Patent Law,
if shall require 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.
Article 63
Before the Patent Reexamination Board makes a decision on the
request for reexamination, the person making the request may
withdraw his request for reexamination.
Article 64
The Patent Office may amend the obvious mistakes which it finds in
the title of the invention-creation, the abstract or the request of
the application, and notify the applicant.
The Patent
Office shall correct promptly the mistakes in the Patent Gazettes
and documents issued by it once they are discovered.
¡¡Chapter IV
Invalidation of Patent Right
Article 65
Anyone requesting invalidation or partial invalidation of a patent
right according to the provisions of Article 48 of the Patent Law
shall submit a written request and relevant documents in duplucate
stating the facts and reasons on which the request is based, to the
patent Reexamination Board.
The person
requesting invalidation may withdraw his request before the Patent
Reexamination Board makes a decision on it.
Article 66
Where a request for invalidation of a patent right does not comply
with the prescribed form, the person making the request shall
rectify it within the time limit fixed 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.
The reasons for
a request for invalidation may be as follows:
The
invention-creation for which the patent right is granted does not
comply with the provisions of Article 22, Article 23, paragraph
three of four of Article 26 or Article 33 of the Patent Law, or
Article 2, or paragraph one of Article 12 of these Rules; or it
falls under the provisions of Article 5 or Article 25 of the Patent
Law, or the patent right is not entitled to be granted according to
the provisions of Article 9 of the Patent Law.
The Patent
Reexamination Board shall not accept an invalidation request, where,
in the written request for invalidation, no facts and reasons are
given to support the request or the reasons given do not conform to
the provisions of the proceeding paragraph, or where the
invalidation is requested when no decision has yet been made on a
request for the revocation of the same patent right, or where, after
decision has already been made on a request for revocation or
invalidation of a patent right, an invalidation request beset on the
same facts and reasons is submitted.
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 require it or him to present its or
his observations within a specified time limit. The patentee may
amend its or his patent specification, but may not broaden the scope
of patent protection. Where no response is made within the time
limit, the hearing procedure of the Patent Reexamination Board shall
not be affected.
Chapter V
Compulsory License for Exploitation of Patent
¡¡Article
68 After the expiration of three years from the grant of a
patent right, any unit may, in accordance with the provisions of
Article 51 of the Patent Law, request the Patent Office to grant a
compulsory license.
Any unit or
individual requesting a compulsory license shall submit to the
Patent Office a request for compulsory license and state the reasons
therefor, together with relevant supporting documents. The request
and the supporting documents shall all be prepared in duplicate
respectively.
The Patent
Office shall send a copy or the request for compulsory license to
the patentee. He or it shall make his or its observations within the
time limit specified by the Patent Office. Where no response is made
within the time limit, the Patent Office shall not be affected in
making a decision to grant a compulsory license.
In the event of
a national emergency or any extraordinary state of affairs for the
purpose of any public use of a non-commercial mature, the Patent
Office may grant a compulsory license.
The decision of
the Patent Office granting a compulsory license for exploitation
shall limit the scope and duration of the exploitation on the basis
of the reasons justifying the grant, and confine the exploitation
predominatly to the supply of the domestic market.
The decision of
the Patent Office granting a compulsory license shall be notified to
the pantee as soon as parcticalbe, and shall be registered and
announced by the Patent Office. If and when the reasons leading to
such cmpulsory license cease to exit and are unlikely to recur, the
Patent Office may, upon the request of the patentee, review the
circumstances, and terminate the compulsory license.
Article 69
Any parrty requesting, in accordance with the provisions of Article
57 of the Patent Office to adjudicate the fees for exploition, shall
submit a request for adjudication and furish documents showing that
the parrties have not been able to conclude an agreement in respect
of the amount of the fees. The Patent Office shall make an
adjudication within three months from the date of receipt of the
request and notify the parties accordingly.
Chapter VI
Rewards to Inventor or Creator of Service Invention-Creation
¡¡Article
70 ¡°Rewards¡±mentioned in Article 16 of the Patent Law
includes money prizes and remunerations which are to be awarded to
inventors and creators.
Article 71
Any unit holding a patent right shall, after the grant of the patent
right, award to inventors or creators of a service
invention-creation a sum of money as prize. The sum of money prize
for a patent for invention shall not be less than 200 yuan (RMB);
the sum of money prize for a patent for utility model or design
shall not be less than 50 yuan (RMB).
When an
invention-creation was made on the basis of an inventor's or
designer's proposal adopted by the unit to which he belongs, after
the grant of the patent right, the unit holding it shall award to
him a money higher prize liberally.
Any enterprise
holding the patent right may include the said money prize paid to
such inventors or creators into its production cost; any institution
holding the patent right may disburse the said money prize out of
its operating expenses.
Article 72
Any unit holding a patent right shall, after exploiting the patent
for invention-creation within the duration of the patent right, draw
each year from any increase in profits after taxation a percentage
of 0.5%¡ª2%due to the exploitation of the invention or the utility
model, or a percentage 0.05%¡ª0.2% due to the exploitation of the
design, and award it to the inventor or creator as remuneration. The
unit shall, otherwise, by making reference to the said percentage,
award a lump sum of money to the inventor or creator as remuneration.
Article 73
Where any unit holding a patent right for invention-creation
authorizes other units or individuals to exploit the patent, it
shall, after taxation, draw a percentage of 5%¡ª10% from the fees
for exploitation it received and award it to the inventor or creator
as remuneration.
Article 74
The remuneration provided for in these Rules shall be disbursed out
of the profits derived from the making of patented products or the
use of patented process and out of the fees obtained for the
exploitation of the patents. The remuneration shall not be included
in the amount of the normal bonuses of the unit, nor subject to the
bonus tax. But the inventor or creator shall pay tax for his income.
Article 75
The units under collective ownership and other enterprises may award
money prizes and remunerations by making reference to the provisions
in this Chapter.
Chapter VII
Administrative Authorities For Patent Affairs
Article 76
¡°The administrative authorities for patent affairs¡±memtioned
in the Patent Law and these Rules refers to the administrative
authorities for patent affairs set up by the competent departments
concerned of the State Council and the local people's governments.
Article 77 Where,
after the publication of an application for a patent for invention
and before the grant of the patent right, any unitor individual has
exploited the invention without paying appropriate fees, the
patentee, may, after the grant of the patent right, request an
administrative authority for patent affairs to handle the matter, or
may directly institute legal proceedings in a people's court. The
administrative authority handling the matter have the power to
decide that the unit or individual shall pay appropriate fees within
a specified time limit. Where any of the parties concerned is not
satisfied with the decision of the said authority, if or he may
institute legal proceedings in a people's court.
Where any
disptue arises between any inventor or creator and the unit to which
he belongs, as to whether an invention-creation is a service
invention-creation, or whether an application for a patent is to be
filed in respect of a service invention-creation, or where the unit
owning or holding the patent right has not awarded a reward or paid
remuneration according to law to the inventor or creator of service
invention-creation, the inventor or creator may request the
competent department at the higher level or the administrative
authority for patent affairs of the region in which the unit is
located to handle the matter.
The prescribed
time limit for requesting the administrative authority for patent
affairs to handle patent disputes is two years counted from the date
on which the patentee or any interested party is or should be aware
of the affairs.
Article 78
Prusuant to the provisions of Article 63, Paragraph 2 of the Patent
Law, where any person passes any unpatented product off as patented
product or passes any unpatented process off as patented process,
the administrative authority for patent affairs may, according to
the circumstances, order the offender to stop such act to eliminate
its ill effects and, in addition, to pay a fine of 1, 000 to 50, 000
yuan (RMB) or a fine of one to three times the amount of his illegal
income.
Article 79
Where parties to any transdepartmental or transregional infringement
dispute request the administrative authority for patent affairs to
handle the matter, the said dispute shall be handled by the
administrative authority for patent affairs of the region in which
the infringement has taken place, or by the administrative authority
for patent affairs of the higher competent department of the
infringing unit.
Chapter VIII
Patent Register and Patent Gazette
¡¡Article
80 The Patent Office shall maintain a Patent Register in which
it shall record the following matters relating to a patent right;
(1) Grant of the
patent right;
(2) Assignment
and succession of the patent right;
(3) Revocation
and invalidation of the patent right;
(4) Cessation of
the patent right;
(5) Restoration
of the patent right;
(6) Compulsory
license for exploitation of the patent;
(7) Changes in
the name, the nationality and the address of the patentee.
Article 81
The Patent Office shall publish the Patent Gazette at regular
intervals, publishing 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) Request for
substantial examination of an application for a patent for invention
and any decision made by the Patent Office to proceed on its own
initiative to examine as to substance an application for a patent
for invention;
(4)
Declassification of secret patents;
(5) Rejection
and withdrawal of an application or an application deemed to be
withdrawn for a patent for invention after its publication;
(6) Assignment
and succession of an application for a patent for invention after
its publication;
(7) Grant of the
patent right;
(8) Revocation
and invalidation of the patent right;
(9) Cessation of
the patent right;
(10) Assignment
and succession of the patent right;
(11) Grant of
cumpulsory license for exploitaion of the patent;
(12) Restoration
of a patent application or patent right;
(13) Change in
the name or address of the patentee;
(14)
Notification to the applicant whose address is not known;
(15) Other
related matters.
The description,
its drawings and the claims of an application for a patent for
invention or utility model shall be separately published in full.
Chapter IX
Fees
¡¡Article
82 For filing an application for a patent with, or fullfifing
other related formalities in the Patent Office, the following fees
shall be charged:
(1) Application
fee and application maintenance fee;
(2) Examination
fee and reexamination fee;
(3) Annual fee;
(4) Fee for a
change in the bibliographic data, fee for claiming priority, fee for
a request for restoration of rights, fee for a request for
revocation, fee for a request for invalidation, fee for a request
for compulsory license, fee for a request for adjudication on
exploitation fee of a compulsory license, fee for patent
registration, and additional fees as prescribed.
The amount of
the fees mentioned in the preceding paragraph shall be prescribed
separately by the competent departments concerned of the State
Council in conjunction with the Patent Office.
Article 83
The fees provided for in the Patent Law and in these Rules may be
paid directly to the Patent Office or remitted by bank or post but
not by telegraphic remittance.
Where a fee is
remitted by bank or post, the applicant or the patentee shall
indicate of the money order the filing number or the patent number,
the name of the applicant or the patentee, the kind of the fee paid
and the title of the invention-creation.
Where a fee is
remitted by bank or post, the date on which the transfer of such fee
is ordered shall be date of payment. where the time between such a
date and the date of the receipt of the order at the Patent Office
lasts more than fifteen days, unless the date of remittance is
proved by the bank or the post office, the date of receipt at the
Patent Office shall be the date of payment.
Any payment not
made in accordance with the provisions of the second paragraph of
this Article shall be deemed not to have been made.
Where any patent
fee is over-paid, re-paid or wrongly paid, the party concerved may
claim a refund, but the request for such refund shall be made within
one year from the date of payment.
Article 84
The applicant shall, after receipt of the notification of acceptance
of the application from the Patent Office, pay the application fee
at the latest within two months from the filing date. If the fee is
not paid or not paid in full within the time limit, the application
shall be deemed to have been withdrawn. The applicant that claims
the right of priority shall pay the fee for claiming priority at the
same time with the payment of the application fee. If the fee is not
paid or not paid in full within the time limit, the claim to the
right of priority shall be deemed not to have been made.
Article 85
Where a party concerned requests substantial examination,
restoiration of right, reexamination or revocation of patent right,
the relevant fee shall be paid within the time as prescribed
respectively for such requests by the Patent Law and these Rules. 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 86
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. The first maintenance fee shall be paid within the first
month of the third year. The subsequent maintenance fees shall be
paid in advance within the month before the expiration of the
preceding year.
Article 87
When the applicant goes through the formalities of patent
registration, it or he shall pay a fee for patent registration, and
the annual fee of the year in which the patent right was grented
where the maintenance fee of the application of the year in which
the patend right was grented has been paid, the annual fee of that
year shall not be paid. If such fees are not paid in the prescribed
time limit, the patent registration 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 88
Where the maintenance fee of the application or the annual fee of
the years after the year in which the patent was granted is not paid
in due time by the applicant or the patentee, or the fees are not
paid in full, the Patent Office shall notify the applicant or 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
maintenance fee or the annual fee was to be paid, and at the same
time pay a surcharge which amounts to 25% of the maintenance fee or
the annual fee. Where the fees are not paid within the time limit,
the application shall be deemed to have been withdrawn or the patent
right shall be deemed lapsed from the expiration of the time limit
within which the maintenance fee or the annual fee should be paid.
Article 89
The fee for a change in the bibliographic date, fee for a request
for compulsory license, fee for a request for adjudication on
exploitation fee of a compulsory license and fee for a request for
invalidation shall be paid as prescribed within one month from the
date on which such request is filed. 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 90
Where any person filing an application for a patent or having other
formalities to go through, has difficulties in paying the various
fees prescribed by Article 82 of these Rules, that person may,
according to prescriptions, submit a request to the Patent Office,
asking for a reduction or postponement of the payment. The measures
for the reducation and postponement of the payment shall be
prescribed separately by the Patent Office.
Chapter X
Supplementary Provisions
Article 91 Any
person may after approval by the Patent Office, inspect or copy the
files of the published or announced patent applications and the
Patent Register. Any person may request the Patent Office to issue a
copy of the Patent Register.
The files of
patent applications which have been deemed withdrawn or have been
rejected or withdrawn shall not be preserved after expiration of two
years from the date on which such applications cease to be valid .
The files of
patent rights that have been revoked, abandoned or invalidated or
have ceased shall not be preserved after expiration of three years
from the date on which such patent rights cease to be valid.
Article 92
Any patent application which is filed with, and any formalities
which are fulfiled in the Patent Office, shall use the unified forms
prepared by the Patent Office which shall be signed or sealed by the
applicant, the patentee, any other interested person or his or its
representative. Where any patent agency is appointed, such agency
shall affix its stamp. Where a change of the name of the inventor,
the name, nationality or address of the applicant or the patentee,
or the name of the patent agency or patent agent is requested, a
request for a change in the bibliographic date shall be made to the
Patent Office, together with the relevant supporting documents.
Article 93
The documents relating to a patent application or patent right which
are mailed to the Patent Office shall be mailed by registered letter,
not by parcel.
For any document
(not including any patent application filed for the first time)
submitted to and any formalities are fulfilled in the Patent Office,
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.
One letter may
contain documents relating to one same application only.
Article 94
Any sheets constituting an application for patent shall be typed or
printed. All the characters shall be in black ink, neat and clear.
They shall be free from any alterations. 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, claim, drawings and abstract shall be numbered
separately in Arabic numerals and arranged in naumrical order.
The script of
application decuments shall run transversely. Only one side of each
sheet shall be used.
Article 95
The Patent Office shall be responsible for interpreting these Rules.
Article 96
These Rules shall enter into force as of January 1, 1993.
The applications
for patent filed before the entry into force of these Rules and the
patent rights granted on the basis of the said applications of the
Patent Law before they were amended by the Decision Regarding the
Revision of the Patent Law of the People's Republic of China,
adopted at the 27th Meeting of the Standing Committee of the Seventh
National People's Congress on September 4, 1992 and the relevant
provisions of the Rules for the Implementation of the Patent Law of
the People's Republic of China, approved by the State Council on
January 19, 1985 and promugated by the Patent Office on the same
day. However, the procedures provided by the amended Articles 39 to
44 and the amended Article 48 of the Patent Law concerning the
approval of applications for patent, and the revocation and
invalidation of the patent right and the relevant provisions of
these Rules shall apply to the said applications which, before the
entry into force of these Rules, are not announced according to the
provisions of Articles 39 and 40 of the Patent Law before they were
amended. |
