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(Promulgated by Decree No. 306 of the State Council of the People's
Republic of China on June 15, 2001, and effective as of July 1,
2001)
(Translated by the Patent Administration Department under the State
Council of the People's Republic of China. In case of discrepancy,
the original version shall prevail.)
Chapter I General Provisions
Rule 1. These Implementing Regulations are formulated in accordance
with the Patent Law of the People's Republic of China (hereinafter
referred to as the Patent Law).
Rule 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, the 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.
Rule 3 Any formalities prescribed by the Patent Law and these
Implementing Regulations shall be complied with in a written form
or in any other form prescribed by the Patent Administration Department
under the State Council .
Rule 4 Any document submitted in accordance with the provisions
of the Patent Law and these Implementing Regulations 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 or certifying document submitted in accordance
with the provisions of the Patent Law and these Implementing Regulations
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 or the certifying document be submitted
within a specified time limit; where the translation is not submitted
within the specified time limit, the certificate or certifying document
shall be deemed not to have been submitted.
Rule 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.
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.
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.
Rule 6 The first day of any time limit prescribed in the Patent
Law and these Implementing Regulations 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.
Rule 7 Where a time limit prescribed in the Patent Law or these
Implementing Regulations 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 Implementing
Regulations 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 Rule shall not
be applicable to the time limit referred to in Articles 24, 29,
42 and 62 of the Patent Law.
Rule 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 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.
Rule 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 because the exploitation of which
is prohibited by the laws of the State.
Rule 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 priority is claimed.
The date of filing referred to in these Implementing Regulations,
except as otherwise prescribed, means the date of filing prescribed
in Article 28 of the Patent Law.
Rule 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 of the Patent Law mean
the entity's money, equipment, spare parts, raw materials or technical
materials which are not disclosed to the public.
Rule 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.
Rule 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.
Rule 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.
Rule 15 Except for the assignment of the patent right in accordance
with Article 10 of the Patent Law, where the patent right is transferred
because of any other reason, the person or persons concerned shall,
accompanied by relevant certified 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
Rule 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.
Rule l7 "Other related matters" in the request referred
to in Article 26, paragraph two of the Patent Law means:
(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 appending the application; and
(8) any other related matter which needs to be indicated.
Rule 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 for which protection is sought 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 .
Rule 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 mentioned 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.
Rule 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.
Rule 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 which it refers to.
Rule 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.
Rule 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 refers 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.
Rule 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.
Rule 25 Where an invention for which a patent is applied for
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 Implementing
Regulations, 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 of
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 title 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.
Rule 26 Where the applicant for a patent for invention has deposited
a sample of the biological material in accordance with the provisions
of Rule 25 of these Implementing Regulations, 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 and address of the requesting person;
(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.
Rule 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.
Rule 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.
Rule 29 Where the Patent Administration Department under the
State Council deems 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.
Rule 30 The existing technology referred to in Article 22, paragraph
three 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 (or the priority date where
priority is claimed), that is, prior art.
Rule 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 competent department concerned
of the State Council or by a national academic or technological
association.
Where any invention-creation for which a patent is applied 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 and with the date of its exhibition or publication.
Where any invention-creation for which a patent is applied 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 Rule, or fails to
submit certifying documents within the specified time limit as required
in paragraph three of this Rule, the provisions of Article 24 of
the Patent Law shall not apply to the application.
Rule 32 Where any applicant goes through the formalities of 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 was first filed
(hereinafter referred to as the earlier application) and the country
in which the application was 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 was 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
was filed. Where in the certifying material submitted, the name
of the earlier applicant is not the same as that of the later 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 .
Rule 33 An applicant may claim one or more priorities for an
application for a 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, it
may not be taken as the basis for claiming domestic priority:
(1) where the applicant has claimed foreign or domestic priority;
(2) where it has been granted a patent right;
(3) where it is the subject matter of 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.
Rule 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 concerning the nationality of the applicant;
(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 right of priority and other related rights in that country.
Rule 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 provision of 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.
Rule 36 The expression "the same class" referred to
in Article 3l, paragraph two of the Patent Law means that the product
incorporating the designs belongs 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 provision of 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.
Rule 37 When withdrawing an application for a patent, the applicant
shall submit to the Patent Administration Department under the State
Council a declaration to that effect 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 preparations for the publication of the application document
has been completed by the Patent Administration Department under
the State Council , the application document shall be published
as scheduled. However, the declaration withdrawing the application
for patent shall be published in the next issue of the Patent Gazette.
Chapter III Examination and Approval of Application
for Patent
Rule 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 excising
his function:
(1) where he is a near relative of the party concerned or the
agent of the party concerned;
(2) where he has an interest in the application for patent or
the patent right;
(3) where he has any other kinds of relations with the party concerned
or with the agent of the party concerned that may influence impartial
examination and hearing.
(4) where a member of the Patent Reexamination Board who has taken
part in the examination of the same application.
Rule 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.
Rule 40 In any of the following circumstances, the Patent Administration
Department under the State Council shall refuse to accept the application
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 is not written in Chinese;
(3) where the application is not in conformity with the provisions
of Rule120, paragraph one of these Implementing Regulations;
(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 of Article l9, paragraph one of
the Patent Law;
(6) where the kind of protection (patent for invention, utility
model or design) of the application for a patent is not clear and
definite or cannot be ascertained.
Rule 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.
Rule 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 Rule 54, paragraph
one of these Implementing Regulations, submit to the Patent Administration
Department under the State Council a divisional application. However,
where an application for patent has been rejected, 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 Rule 35 or
36 of these Implementing Regulations, 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 kind of protection
of the initial application.
Rule 43 A divisional application filed in accordance with the
provisions of Rule 42 of these Implementing Regulations shall be
entitled to the filing date and, if priority is claimed, the priority
date of the initial application, 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 Implementing
Regulations.
The filing number and the date of filing of the initial application
shall be indicated in the request of the divisional application.
When the divisional application is filed, it shall be accompanied
by a copy of the initial application; if priority is claimed for
the initial application, a copy of the priority document of the
initial application shall also be submitted.
Rule 44 "Preliminary examination" referred to in Articles
34 and 40 of the Patent Law means the check of an application for
a patent to see whether or not it contains the documents as provided
for in Articles 26 or 27 of the Patent Law and other necessary documents,
and whether or not those documents are in the prescribed form; such
check shall also include the following:
(1) whether or not any application for a patent for invention
obviously falls under Articles 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 3l, paragraph one, or Article 33
of the Patent Law, or of Rule 2, paragraph one, or Rule 18, or Rule
20 of these Implementing Regulations;
(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 of Article 33 of the Patent Law, or
of Rule 2, paragraph two, or of Rule l3, paragraph one, or of Rule
l8 to 23, or of Rule 43, paragraph one of these Implementing Regulations,
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 Rule 2, paragraph three, or of Rule l3, paragraph one, or
of Rule 43, paragraph one of these Implementing Regulations, 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 checking 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
of the Articles and the Rules cited in the preceding subparagraphs,
the application shall be rejected.
Rule 45 Apart from the application for patent, any document relating
to the patent application which is submitted to the Patent Administration
Department under the State Council , shall, in any of the following
circumstances, be deemed not to have been submitted:
(1) where the document is not presented in the prescribed form
or the indications therein are not in conformity with the prescriptions;
(2) where no certifying document is submitted as prescribed.
The Patent Administration Department under the State Council shall
notify the applicant of its opinion after checking that the document
is deemed not to have been submitted.
Rule 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, publish
it immediately, unless it is to be rejected.
Rule 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 belongs, refer to the classification
of products for designs published 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.
Rule 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 reasons therefor,
on the application which is not in conformity with the provisions
of the Patent Law.
Rule 49 Where the applicant for a patent for invention cannot
furnish, for justified reasons, the documents concerning any search
or results 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.
Rule 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.
Rule 5l When a request for examination as to substance is made,
and that, within the time limit of three months after the receipt
of the notification of the Patent Administration Department under
the State Council, 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.
Rule 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.
Rule 53 In accordance with the provisions of Article 38 of the
Patent Law, the circumstances where an application for a 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 Rule 2, paragraph one of these Implementing Regulations;
(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 Rule l3, paragraph one, or
of Rule 20, paragraph one, or of Rule 21, paragraph two of these
Implementing Regulations, 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 Rule 43, paragraph
one of these Implementing Regulations.
Rule 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 announce it.
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.
Rule 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 requesting person to amend the request within a
specified time limit.
Rule 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 the Patent Administration Department under the State Council
finds, after search, 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 send the
copies of the cited relevant documents together with the report.
Rule 57 The Patent Administration Department under the State
Council shall correct promptly the mistakes in the patent announcements
and documents issued by it once they are discovered, and the corrections
shall be announced.
Chapter IV Reexamination of Patent Application and
Invalidation of Patent Right
Rule 58 The Patent Reexamination Board shall consist of technical
and legal experts appointed by the Patent Administration Department
under the State Council . The person responsible for the Patent
Administration Department under the State Council shall be the Director
of the Board.
Rule 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 fixed by the Patent Reexamination Board. If the requesting
person fails to meet the time limit for making rectification, the
request for reexamination shall be deemed not to have been filed.
Rule 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 notification of reexamination 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 notification of reexamination.
The amendments to the application for patent shall be in two copies.
Rule 61 The Patent Reexamination Board shall remit the request
for reexamination which the Board has received to the examination
department of the Patent Administration Department under the State
Council which has made the examination of the application concerned
to make an examination. Where that examination department agrees
to revoke its former decision upon the request of the person requesting
reexamination, the Patent Reexamination Board shall make a decision
accordingly and notify the requesting person.
Rule 62 Where, after reexamination, the Patent Reexamination
Board finds that the request does not comply with the provisions
of the Patent Law and these Implementing Regulations, it shall invite
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 requesting person 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 Implementing Regulations, it shall make a decision of
reexamination to maintain the earlier decision rejecting the application.
Where, after reexamination, the Patent Reexamination Board finds
that the decision rejecting the application does not comply with
the provisions of the Patent Law and these Implementing Regulations,
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, and ask the examination
department which has made the examination to continue the examination
procedure.
Rule 63 At any time before the Patent Reexamination Board makes
its decision on the request for reexamination, the requesting person
may withdraw his request for reexamination.
Where the requesting person withdraws his request for reexamination
before the Patent Reexamination Board makes its decision, the procedure
of reexamination is terminated.
Rule 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 the necessary evidence
in two copies. The request for invalidation shall state in detail
the grounds for filing the request, 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, Article 23, or of Article 26, paragraph three or
four, or of Article 33 of the Patent Law, or of Rule 2, or of Rule
l3, paragraph one, or of Rule 20, paragraph one, or of Rule 21,
paragraph two of these Implementing Regulations; or the invention-creation
falls under the provisions of Articles 5 or 25 of the Patent Law;
or the applicant is not entitled to be granted the patent right
in accordance with the provisions of Article 9 of the Patent Law.
Rule 65 Where the request for invalidation does not comply with
the provisions of Rule 64 of these Implementing Regulations, 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, but no effective ruling or judgement is
submitted to prove such conflict of rights , 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 made.
Rule 66 After a request for invalidation is accepted by the Patent
Reexamination Board, the person making the request may add reasons
or supplement evidence within one month from the date when the request
for invalidation is filed. Additional reasons or evidence which
are submitted after the specified time limit may be disregarded
by the Patent Reexamination Board.
Rule 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 invite it or him to present its or
his observations within a specified time limit.
The patentee and the person making 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.
Rule 68 In the course of the examination of the request for invalidation,
the patentee for the patent for invention or utility model concerned
may amend its or his claims, but may not broaden the scope of patent
protection.
The patentee for the patent for invention or utility model concerned
may not amend its or his description or drawings. The patentee for
the patent for design concerned may not amend its or his drawings,
photographs or the brief explanation of the design.
Rule 69 The Patent Reexamination Board may, at the request of
the parties concerned or in accordance with the needs of the case,
decide to hold an oral procedure in respect of a request for invalidation.
Where the Patent Reexamination Board decides to hold an oral procedure
in respect of a request for invalidation, it shall send notifications
to the parties concerned, indicating the date and place of the oral
procedure 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 the oral procedure sent by the Patent Reexamination
Board within the specified time limit, and fails to take part in
the oral procedure, the request for invalidation shall be deemed
to have been withdrawn. Where the patentee fails to take part in
the oral procedure, the Patent Reexamination Board may proceed to
examine by default.
Rule 70 In the course of the examination of a request for invalidation,
the time limit specified by the Patent Reexamination Board shall
not be extended.
Rule 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
Rule 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.
Rule 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
Rule 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, award to the
inventor or creator 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 RMB 2000 yuan; the sum of money prize for a patent
for utility model or design shall not be less than RMB 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 award to him a money prize on favorable terms.
For the money prize awarded 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.
Rule 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.
Rule 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 profits 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.
Rule 77 The provisions of this Chapter may be implemented by
any other Chinese entity by making reference thereto.
Chapter VII Protection of Patent Right
Rule 78 The administrative authority for patent affairs referred
to in the Patent Law and these Implementing Regulations 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 which consists of districts,
has a large amount of patent administration work to attend to and
has the ability to deal with the matter.
Rule 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 award 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.
Rule 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.
Rule 81 Where any party concerned requests handling or mediation
of a patent dispute, it shall fall under the jurisdiction of the
administrative authority for patent affairs where the requested
party has his location or where the act of infringement has taken
place.
Where two or more administrative authorities for patent affairs
all have jurisdiction over a patent dispute, any party concerned
may file his or its request with one of them to handle or mediate
the matter. 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.
Rule 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 concerned
to suspend the handling of 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 the handling of the matter..
Rule 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 .
Rule 84 Any of the following 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 or on the package of that product made or
sold by him or it;
(2) without authorization, using the patent number of another
person in the advertisement or in any other promotional materials
of his or its product, 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 entered into by him or it , 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.
Rule 85 Any of the following 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) passing any non-patented technology off as patented technology
in the advertisements or in any other promotional materials;
(4) stating any non-patented technology as patented technology
in any contract entered into by him or it;
(5) counterfeiting or transforming any patent certificate, patent
document or patent application document.
Rule 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.
Any 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 from 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 enters 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 who or that 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.
Rule 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
Rule 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 right of patent application 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.
Rule 89 The Patent Administration Department under the State
Council 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) 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 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 in pamphlet form by the Patent Administration
Department under the State Council .
Chapter IX Fees
Rule 90 When any person files an application for a patent with,
or has other formalities to go through at, the Patent Administration
Department under the State Council , he or it shall pay the following
fees:
(1) filing fee, additional fee for filing application, and printing
fee for publishing 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 .
Rule 91 The fees provided for in the Patent Law and in these
Implementing Regulations 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, however, 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 making the payment may, within
one year from the date of payment, request a refund from the Patent
Administration Department under the State Council .
Rule 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 the publication of 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 priority shall be deemed not to have been made.
Rule 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.
Rule 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.
Rule 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 pay the application maintenance fee for all the years, with
the exception of 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.
Rule 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.
Rule 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.
Rule 98 Where any applicant or patentee has difficulties in paying
the various fees prescribed in these Implementing Regulations, 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
Rule 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 (hereinafter referred to as the international
application) enters the Chinese national phase, 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 Implementing Regulations
shall apply.
Rule 100 Any international application which has been accorded
an international filling date in accordance with the Patent Cooperation
Treaty and which has designated China shall 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.
Rule 101 Any applicant for an international application entering
the Chinese national phase shall, within 20 months from the priority
date as referred to in Article 2 of the Patent Cooperation Treaty
(referred to as "the priority date" in this chapter),
go through the following formalities at the Patent Administration
Department under the State Council ; where an international application
elects China within 19 months from "the priority date",
and where the election remains valid, the applicant of the said
application entering the Chinese national phase shall go through
the following formalities at the Patent Administration Department
under the State Council within 30 months from "the priority
date":
(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 filing application
and the printing fee for publishing the application as provided
in Rule 90, paragraph one of these Implementing Regulations;
(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 respective time limit of 22 months or 32 months respectively
from "the priority date".
Rule 102 Where the applicant fails to go through the formalities
for entering the Chinese national phase, within the time limit prescribed
in Rule 101, paragraph two of these Implementing Regulations 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 publishing the
application prescribed in Rule 90, paragraph one of these Implementing
Regulations, or the surcharge for the late entry as prescribed in
Rule 101, paragraph two of these Implementing Regulations 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 Rule 7, paragraph two of these Implementing
Regulations shall not apply.
Rule 103 Where any of the following circumstances occur 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 the figure of the
drawings in the abstract is not furnished;
(3) where the title of the invention-creation, the name 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 the corrections, his or its application shall be deemed to
be withdrawn.
Rule 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 prescribed 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 said
time limit, the amendments made in the international phase shall
not be taken into consideration by the Patent Administration Department
under the State Council .
Rule 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 the applicant has gone through the formalities for the
change in the applicant 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
of 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 Rule 31, paragraph two of these Implementing Regulations
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 Rule, the provisions
of Article 24 of the Patent Law shall not apply to his or its international
application.
Rule 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 Rule 25, subparagraph (3) of these Implementing Regulations 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 the 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 Rule 25, subparagraph
(1) of these Implementing Regulations.
Rule 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 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 priority shall be deemed not to have been made.
Where the claim for 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 priority at the time
of going through the formalities for entering the Chinese national
phase.
Rule 108 Where, before the expiration of 20 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.
Rule 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 Rule 51, paragraph one of these Implementing Regulations
shall apply.
Rule 110 Where the applicant finds that there are mistakes in
the Chinese translation of the description, the claims or the text
matter of the drawings as filed, he or it may correct the translation
in accordance with the international application as filed within
the following time limits:
(1) before the completion of technical preparations for national
publication by the Patent Administration Department under the State
Council ;
(2) within three months from the date of receipt of the notification
sent by the Patent Administration Department under the State Council
, stating 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 or it shall file a written request, furnish a replace sheet of
the translation and pay the prescribed fee for the 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 Rule.
If the prescribed formalities are not gone through at the expiration
of the time limit, the international application shall be deemed
to be withdrawn.
Rule 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 in compliance
with the provisions of the Patent Law and these Implementing Regulations,
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.
Rule 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 Rule 42, paragraph one of these Implementing Regulations.
Where, in the international phase, some parts of the international
application have not been 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, and the applicant fails to pay the
additional fee, whereas 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.
Rule 113 Where the applicant furnishes the documents and pays
the fees in accordance with the provisions of Rule 101 of these
Implementing Regulations, 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 Rule 101 of these Implementing Regulations,
the documents shall be deemed to have been received on the date
on which the time limit expires. However, the time for the applicant
to furnish evidence may not be later than six months after the expiration
of the time limit prescribed in Rule 101 of these Implementing Regulations.
Where documents are to be submitted to the Patent Administration
Department under the State Council in accordance with the provisions
of Rule 101 of these Implementing Regulations, 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.
Rule 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.
Rule 115 Where an international application in the international
phase has been refused to be accorded an international filling 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 Rule
101 of these Implementing Regulations within the said time limit
at 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.
Rule 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
Rule 117 Any person may, after approval by the Patent Administration
Department under the State Council , consult or copy the files of
the published or announced patent applications and the Patent Register.
Any person 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.
Rule 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 comply with the unified form prescribed
by 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 and
address of the patent agency and 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.
Rule 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
at 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.
Rule 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.
Rule 121 The Patent Administration Department under the State
Council shall formulate Guidelines for Examination in accordance
with the Patent Law and these Implementing Regulations.
Rule 122 These Implementing Regulations shall enter into force
on July 1, 2001. The Implementing Regulations 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
at the same time.
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