专利法实施细则（英文版）Rules for The Implementation of The Patent Law of The People's Republic of China
Decree [2001] No.306 of the State Council
Rules for the Implementation of the Patent Law of the People''s Republic of China is hereby promulgated, and enter into force as of July 1, 2001.
Premier of the State Council: Zhu Rongji
June 15, 2001
Chapter I General Provisions
Article 1 These Rules are formulated in accordance with the Patent Law of the People''s Republic of China (hereinafter referred to as "the Patent Law").
Article 2 "Invention" as mentioned in the Patent Law means any new technical solution relating to a product, a process or an improvement thereof.
"Utility model" as mentioned in the Patent Law means any new technical solution relating to a product''s shape, structure, or a combination thereof, which is fit for practical use.
"Design" as mentioned in the Patent Law means any new design of a product''s shape, pattern or a combination thereof, as well as its combination with the color and the shape or pattern of a product, which creates an aesthetic feeling and is fit for industrial application.
Article 3 All formalities provided in the Patent Law or these Rules shall be fulfilled in a written form or another form provided by the administrative department for patents under the State Council.
Article 4 Any document to be submitted under the Patent Law or these Rules shall be in Chinese. A standard technical terminology shall be used if it is uniformly provided by the State. Where there is no uniform Chinese translation for the name of a foreigner, a foreign locality or a foreign technical terminology, the term in the original language shall be indicated.
Where any certificate or certified document which is to be submitted in accordance with the Patent Law or these Rules is in a foreign language, the administrative department for patent under the State Council may, when considered necessary, request the party concerned to submit a Chinese translation within a specified time limit; where the translation has not been submitted at the expiry of the time limit, the certificate or certified document shall be deemed to have not been submitted.
Article 5 For any document sent by mail to the administrative department for patent under the State Council, the date of mailing indicated by the postmark shall be regarded as the application date.
If the date of mailing indicated by the postmark is illegible, the date on which the administrative department for patent under the State Council receives the document shall be regarded as the application date unless otherwise proven by the party concerned. Any document of the administrative department for patent under the State Council may be served by mail, by personal delivery or by other means. Where any party concerned has entrusted a patent agency, the document shall be sent to the patent agency; where no patent agency has been entrusted, the document shall be sent to the contact designated in the written request.
For any document mailed by the administrative department for patent under the State Council, the 15th day from the date when the document was sent shall be presumed to be the date of the reception of the document.
For any document to be served by personal delivery as required by the provisions of the administrative department for patent under the State Council, the date of delivery shall be regarded as the date of service.
Where the address to which a document is to be served is not clear for the purpose of mailing, the document may be served by announcement, and shall be deemed to have been served at the expiry of 1 month as of the date of announcement.
Article 6 The first day of any time limit provided in the Patent Law or these Rules shall not be counted. Where a time limit is counted by years or by months, it shall expire on the corresponding day of the last month; where there is no corresponding day in that month, the time limit shall expire on the last day of that month; and where a time limit expires on a statutory holiday, it shall expire on the first working day following that statutory holiday.
Article 7 Where a party concerned has delayed past the time limit provided in the Patent Law or these Rules or that specified by the administrative department for patent under the State Council due to force majeure, thus resulting the loss of his/its rights, he/it may, within 2 months as of the removal of the impediment, or at the latest within 2 years as of the expiry of that time limit, request the administrative department for patent under the State Council to recover his/its rights by stating the reasons and affixing relevant supporting documents.
Where a party concerned has delayed past the time limit provided in the Patent Law or these Rules or that specified by the administrative department for patent under the State Council due to a justified reason, thus resulting in the loss of his/its rights, he/it may, within 2 months as of the receipt of the notice from the administrative department for patent under the State Council, request the administrative department for patent under the State Council to recover his/its rights by stating the reason.
Where a party concerned requests extension of the time limit specified by the administrative department for patent under the State Council, he/it shall, before the expiry of the said time limit, state the reason to the administrative department for patent under the State Council and fulfill relevant formalities.
The provisions in Paragraph 1 and 2 of thisArticle shall not apply to the time limit provided inArticle 24,Article 29,Article 42, orArticle 62 of the Patent Law.
Article 8 Where an application for a patent for invention involves any State secret in respect to national defense that needs to be maintained confidential, it shall be accepted by the institution for patent of national defense. Where an application for a patent for invention which involves any State secret in respect to national defense that needs to be maintained confidential has been accepted by the administrative department for patent under the State Council, it shall be transferred to the institution for patent of national defense for examination, and the administrative department for patent under the State Council shall make its decision upon the opinions from the examination by the institution for patent of national defense.
In addition to the preceding paragraph, the administrative department for patent under the State Council shall, after accepting a patent application for invention, transmit it to the relevant competent department of the State Council for examination if such invention needs to be examined for its confidential nature. The said department shall, within 4 months as of the receipt of the application, notify the administrative department for patent under the State Council of the examination result. Where the invention needs to be maintained confidential, the administrative department for patent under the State Council shall deal with the application as one of confidential patent and notify the applicant accordingly.
Article 9 "Invention-creation that violates the laws of the State" mentioned inArticle 5 of the Patent Law shall not include the invention-creations the use of which is prohibited by the laws of the State.
Article 10 Except for the circumstances provided inArticle 28 andArticle 42 of the Patent Law, the application date mentioned in the Patent Law means the priority date if there is a right of priority concerned.
Unless otherwise provided, the application date mentioned in these Rules means the one provided inArticle 28 of the Patent Law.
Article 11 "Service invention-creation made by a person in execution of the tasks of the entity to which he belongs" mentioned inArticle 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 delivered to him by the entity to which he belongs;
(3) within 1 year from his resignation, retirement or change of work, provided that the invention-creation relates to his own duty or to the other task distributed to him by the entity to which he previously belonged.
"The entity to which he belongs" mentioned inArticle 6 of the Patent Law may also be a temporary entity for which the person works; "material resources of the entity" mentioned inArticle 6 of the Patent Law shall include the entity''s money, equipment, spare parts, raw materials, or technical data which are not to be disclosed to the public.
Article 12 "Inventor" or "designer" as mentioned in the Patent Law means any person who has made creative contributions to the substantive features of the invention-creation. Any person who, in the process of accomplishing the invention-creation, is responsible only for organizational work, or who offers facilities for the use of material resources, or who takes part in other auxiliary functions, shall not be an inventor or designer.
Article 13 For any identical invention-creations, only one patent right shall be granted.
In accordance withArticle 9 of the Patent Law, two or more applicants who, on the same day, file applications for patent regarding identical invention-creations, shall, after receiving the notification from the administrative department for patent under the State Council, negotiate between themselves at their own discretion to determine who shall be entitled to file the application.
Article 14 Where a Chinese entity or individual is to assign the right of patent application or a patent right to a foreigner, he/it shall obtain a joint approval from the competent department for foreign trade and economic cooperation under the State Council and the administrative department for science and technology under the State Council.
Article 15 Unless a patent right is assigned in accordance withArticle 10 of the Patent Law, the party concerned shall, if the patent right is devolved due to other reasons, fulfill the formalities for the change of the patent holder in the administrative department for patent under the State Council with relevant certified documents or legal instruments.
Any contract on the license for use of a patent concluded between the patent holder and another party shall, within 3 months as of the date when the contract entered into force, be submitted to the administrative department for patent under the State Council for record.
Chapter II Application for Patent
Article 16 Anyone who applies for a patent in written form shall submit the application documents to the administrative department for patent under the State Council in duplicate.
Anyone who applies for a patent in any other form provided by the administrative department for patent under the State Council shall comply with the provided requirements.
Where an applicant entrusts a patent agency to file an application for a patent or to handle other patent matters in the administrative department for patent under the State Council, he/it shall meanwhile submit a power of attorney indicating the scope of the power entrusted.
Where there are two or more applicants and none of them has entrusted a patent agency, the first applicant designated in the written request shall be regarded as the representative unless otherwise declared in the written request.
Article 17 Other related matters in the written request mentioned in Paragraph 2 ofArticle 26 of the Patent Law mean:
(1) the nationality of the applicant;
(2) where the applicant is an enterprise or other organization, the name of the country in which the applicant has its principal business office;
(3) where the applicant has entrusted a patent agency, the relevant matters to be indicated; where the applicant has not entrusted a patent agency, the name, address, postal code and telephone number of the contact;
(4) where the right of priority is claimed, the relevant matters to be indicated;
(5) the signature or seal of the applicant or the patent agency;
(6) a list of the application documents;
(7) a list of the documents appended to the application;
(8) other related matters which need to be indicated.
Article 18 The specification of an application for a patent for invention or utility model shall indicate the title of the invention or utility model as it appears in the written request. The specification shall include:
(1) the field of technology: indicating the field of technology to which the technical solution under the request for protection belongs;
(2) the background technologies: indicating the background technologies useful to the understanding, retrieval and examination of the invention or utility model; and if possible, citing the documents which reflect these background technologies;
(3) the contents of invention: indicating the technical problems to be solved for the invention or utility model and the technical solution adopted for solving the technical problems, and indicating the beneficial effects of the invention or utility model by comparison with the technology currently available;
(4) the statement of the appended drawings: if the specification is appended with drawings, briefly stating each appended drawing;
(5) the specific method of use: indicating in details the best method considered by the applicant to use the invention or utility model; when necessary, illustrating with examples; and comparing with the appended drawings, if any.
An applicant for a patent for invention or utility model shall present the specification in accordance with the manner and order provided in the preceding paragraph, and shall indicate the heading in front of each portion of the specification, unless a different manner or order would afford a more economical presentation and a more accurate understanding due to the nature of the invention or utility model.
The specification of the invention or utility model shall be written in standard terminologies and clear sentences, and shall not contain such phrases as: "as described in Part ... of the claim," or any commercial advertising diction.
Where an application for a patent for invention contains one or more sequences of nucleotide or amino acid, the specification shall include a sequence table in conformity with the provisions of the administrative department for patent under the State Council. The applicant shall submit the sequence table as an independent portion of the specification, and submit a copy of the sequence table which can be read by the computer in accordance with the provisions of the administrative department for patent under the State Council.
Article 19 The same sheet of appended 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 1, Figure 2...".
The scale and the distinctness of the appended drawings shall be such that a reproduction with a linear reduction in size to two-thirds would still enable all details to be clearly distinguished.
Appended drawing reference signs not mentioned in the text of the specification of the invention or utility model shall not appear in the appended drawings. Appended drawing reference signs not appearing in the appended drawings shall not be mentioned in the text of the specification. The appended drawing reference signs for the same composite part used in the application documents shall be consistent throughout.
The appended drawings shall not contain any other explanatory notes, except for words that are indispensable.
Article 20 The patent claim shall state the technical features of the invention or utility model, and define clearly and concisely the scope of the requested protection.
Where there are several claims in the patent claim, they shall be numbered consecutively in Arabic numerals.
The technical terminology used in the patent claim shall be consistent with that used in the specification. The patent claim may contain chemical or mathematical formulas but no drawings, and shall not contain such dictions as: "as described in Part ... of the specification" or "as illustrated in Figure ..." unless such dictions are absolutely necessary.
The technical features mentioned in the claim may quote the corresponding reference signs in the appended drawings of the specification, and such reference signs shall follow the corresponding technical features and be placed between parentheses, so that the claim can be easily understood. The appended drawing reference signs shall not be construed as limiting the claim.
Article 21 The patent claim shall have an independent claim, and may also contain subordinate claims.
An independent claim shall outline the technical solution of an invention or utility model and record the technical features necessary for solving technical problems.
Subordinate claims shall further define the quoted claim with additional technical features.
Article 22 An independent claim of an invention or utility model shall contain a preamble portion and a characterizing portion, and be presented in the following forms:
(1) the preamble portion: indicating the subject title of the technical solution to the invention or utility model which is claimed to be protected and those essential technical features that are common to the subject of the invention or utility model and the closest technology currently available;
(2) the characterizing portion: stating, in such diction as "characterized in that ..." or in similar diction, the technical features of the invention or utility model, which distinguish it from the closest technology currently available; these features, in combination with the features indicated in the preamble portion, serve to define the scope of protection of the invention or utility model.
An independent claim may be presented in any other form if the nature of the invention or utility model is not appropriate to be expressed in the form provided in the preceding paragraph.
Each invention or utility model shall have only one independent claim, which shall precede all the subordinate claims of the same invention or utility model.
Article 23 A subordinate claim of an invention or utility model shall contain a quoting portion and a defining portion, and be presented in the following form:
(1) the quoting portion: indicating the serial number(s) of the quoted claim(s), and the title of the subject;
(2) the defining portion: stating the additional technical features of the invention or utility model.
A subordinate claim may only quote the preceding claim or claims. A multiple subordinate claim which quotes two or more claims may only apply to the preceding claim or claim in a selected form, and shall not be regarded as the basis for another multiple subordinate claim.
Article 24 The abstract of the specification shall indicate the outline of the contents made public by the application for a patent for invention or utility model, that is, to indicate the name of the invention or utility model and the field of technology to which it belongs, and shall clearly reflect the technical problem to be solved, the essentials and main uses of the technical solution to this problem.
The abstract of the specification may contain the chemical formula which best characterizes the invention. For an application for a patent which contains appended drawings, an appended drawing which best characterizes the invention or utility model shall also be provided. The scale and the distinctness of the appended drawing shall be such that a reproduction with a linear reduction in size to 4cm*6cm would still enable all details to be clearly distinguished. The whole text of the abstract shall contain not more than 300 Chinese characters. There shall be no commercial advertising diction in the abstract.
Article 25 Where an application for a patent for invention involves a new biomaterial which is not available to the public, and the specification on this biomaterial is not enough to make the technicians who belong to this field to exploit the invention, the applicant shall, in addition to complying with the relevant provisions in the Patent Law and these Rules, fulfill the following formalities:
(1) submit a sample of the biomaterial to a depository institution admitted by the administrative department for patent under the State Council before the application date, or, at the latest, on the application date (or the priority date if there is a right of priority concerned) for deposit, and submit, at the time of application, or, at the latest, within 4 months as of the application date, a receipt of deposit and the viability proof from the depository institution; where they have not been submitted at the expiry of the time limit, the sample shall be deemed to have not been deposited;
(2) in the application, submit relevant information on the characteristics of the biomaterial;
(3) indicate, where the application involves the deposit of the sample of biomaterial, in the written request and the specification the name of its classification (with its Latin name), the name and address of the depository institution, the date on which the sample was deposited and the accession number of the deposit; where, at the time of application, they are not indicated, a rectification shall be made within 4 months as of the date of application; where no rectification has been made at the expiry of the time limit, the sample shall be deemed to have not been deposited.
Article 26 Where an applicant for a patent for invention has a sample of biomaterial deposited in accordance withArticle 25 of these Rules, any entity or individual that intends to make use of the biomaterial for the purpose of experiment shall, after the application for a patent for invention has been published, make a request to the administrative department for patent under the State Council containing the following:
(1) the name and address of the entity or individual making the request;
(2) a guarantee not to make the biomaterial available to any other person;
(3) a guarantee to use the biomaterial for experimental purpose only before the grant of the patent right.
Article 27 The size of drawings or photographs of a design submitted in accordance withArticle 27 of the Patent Law shall not be smaller than 3cm * 8cm, nor larger than 15cm * 22cm.
Where an application for a patent for design seeking concurrent protection of colors is filed, the drawing or photograph in color shall be submitted in duplicate.
The applicant shall submit, with respect to the contents of each design product which is in need of protection, relevant views or photographs, so as to clearly show the object for which protection is sought.
Article 28 Where an application for a patent for design is filed, a brief explanation of the design shall, when necessary, be indicated.
The brief explanation of the design shall include the design essentials for the use 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 diction or be used to indicate the functions of the product.
Article 29 The administrative department for patent under the State Council may, when considering it necessary, 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*30cm*30cm, and its weight shall not surpass15 kilograms. Articles that are easy to rot or become broken, or articles that are dangerous, may not be submitted as sample or model.
Article 30 The existing technology mentioned in Paragraph 3 ofArticle 22 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 application date (or the priority date if there is a right of priority concerned); that is, the technology currently available.
Article 31 The academic or technical conference mentioned in Item (2) ofArticle 24 of the Patent Law means any academic or technical conference organized and convened by a relevant department of the State Council or by a national academic association.
Where the invention-creation in an application for a patent falls under any of the circumstances enumerated in Item (1) or Item (2) ofArticle 24 of the Patent Law, the applicant shall, when filing the application, make a declaration and, within a time limit of 2 months as of the application date, submit a certificate issued by the entity which organized the international exhibition or academic or technical conference, stating that the invention-creation has been exhibited or published and also submit the certified documents on the date of its exhibition or publication.
Where any invention-creation in an application for a patent falls under the circumstance enumerated in Item (3) ofArticle 24 of the Patent Law, the administrative department for patent under the State Council may, when considered necessary, require the applicant to submit a certified document within a specified time limit.
Where the applicant fails to make a declaration and submit the certified document in accordance with Paragraph 2 of this Article, or fails to submit the certified document within a specified time limit in accordance with Paragraph 3 of this Article, the application may not be subject toArticle 24 of the Patent Law.
Article 32 Where an applicant is to fulfill the formalities for claiming the right of priority in accordance withArticle 30 of the Patent Law, he/it shall, in his/its written declaration, indicate the date and the number of the application which was first filed (hereinafter referred to as the earlier application) as well as the country in which that application was accepted. Where the written declaration does not contain the application date of the earlier application or the name of the said country, the declaration shall be deemed to have not been made.
Where the right of foreign priority is claimed, the copies of the earlier application documents submitted by the applicant shall be certified by the original acceptance authority. Where, among the submitted certified documents, the name of the earlier applicant is inconsistent with that of the later applicant, the certified documents on the assignment of the right of property shall be submitted. Where the domestic right of priority is claimed, the copies of the earlier application documents shall be prepared by the administrative department for patent under the State Council.
Article 33 Any applicant may claim one or more rights of priority for an application for a patent; where more than one right of priority 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, and the earlier application is one for a patent for invention, he/it may file an application for a patent for invention or utility model for the same subject; if the earlier application is one for a patent for utility model, he/it may file an application for a patent for utility model or invention for the same subject. However, if, when the later application is filed, the earlier application is in any of the following circumstances, it may not be the basis of the right of domestic priority:
(1) where the right of foreign or domestic priority has already been claimed;
(2) where a patent right has been granted;
(3) where it belongs to divisional application filed as provided.
Where the applicant claims the right of domestic priority, the earlier application shall be deemed to be withdrawn as of the date on which the later application is filed.
Article 34 Where an application for a patent is filed or the right of foreign priority is claimed by any applicant having no regular residence or business office in China, the administrative department for patent under the State Council may, when considering it necessary, require the applicant to submit the following documents:
(1) a certificate concerning the nationality of the applicant;
(2) a certificate concerning the locality of the business office or the headquarters, if the applicant is an enterprise or other organization;
(3) a certified document showing that the country, to which the applicant belongs, recognizes that Chinese entities and individuals are, under the same conditions applied to its nationals, entitled to patent right, right of priority and other related rights in that country.
Article 35 Two or more inventions or utility models belonging to a single general inventive concept which may be filed as one application in accordance with Paragraph 1 ofArticle 31 the Patent Law shall be technically interrelated and contain one or more same or corresponding special technical features. The expression "special technical features" means those technical features that define a contribution which each of those inventions, considered as a whole, makes over the technology currently available.
Article 36 The expression "the same category" mentioned in Paragraph 2 ofArticle 31 of the Patent Law means that the products incorporating the designs belong to the same subclass in the classification of products for designs. The expression "be sold or used in sets" means that the products incorporating the designs have the same designing concept and are customarily sold or used at the same time.
Where two or more designs are filed as one application in accordance with the Paragraph 2 ofArticle 31 of the Patent Law, they shall be numbered consecutively and each number shall be placed before the corresponding title of the view of the product incorporating the design.
Article 37 When withdrawing an application for a patent, the applicant shall make a declaration to the administrative department for patent under the State Council stating the title of the invention-creation, the number and date of the application.
Where a declaration to withdraw an application for a patent is made after the printing preparation has been done by the administrative department for patent under the State Council for publishing the application documents, the application documents shall still be published as scheduled. However, the declaration to withdraw an application for a patent shall be announced on the subsequently published Patent Gazette.
Chapter III Examination and Approval of Application for Patent
Article 38 Any person who is to examine or hear a case in the procedures of preliminary examination, substantial examination, re-examination, or invalidation shall, at his own discretion or upon the request of the party concerned or any other interested person, avoid being present in any of the following circumstances:
(1) where he is a close relative of the party concerned or the latter''s agent;
(2) where he has an interest in the application for patent or the patent right;
(3) where he has such other kinds of relations with the party concerned or the latter''s agent that might affect impartial examination and hearing;
(4) where a member of the Patent Re-examination Board has taken part in the examination of the application.
Article 39 Upon the receipt of an application for a patent for invention or utility model consisting of a written request, a specification (an appended drawing being indispensable for utility model) and one or more patent claims, or an application for a patent for design consisting of a written request and one or more drawings or photographs showing the design, the administrative department for patent under the State Council shall clarify the application date, grant an application number and notify the applicant.
Article 40 Where a patent application document falls under any of the following circumstances, the administrative department for patent under the State Council shall not accept the application and shall notify the applicant accordingly:
(1) where the application for a patent for invention or utility model does not contain a written request, a specification (or a specification of utility model without appended drawings) or a patent claim, or the application for a patent for design does not contain a written request, drawings or photographs;
(2) where the application is not written in Chinese;
(3) where the application is not in conformity with Paragraph 1 ofArticle 120 of these Rules;
(4) where the written request does not contain the name or address of the applicant;
(5) where the application is obviously not in conformity withArticle 18 or Paragraph 1 ofArticle 19 of the Patent Law;
(6) where the category (for invention, utility model or design) of the application for a patent is not clear or is difficult to discern.
Article 41 Where the specification contains explanatory notes to the appended drawings is submitted but the appended drawings or part of them are missing, the applicant shall, within the time limit specified by the administrative department for patent under the State Council, either re-submit the appended drawings or make a declaration for the deletion of the explanatory notes to the appended drawings. Where the appended drawings are re-submitted later, the date of their delivery at, or mailing to, the administrative department for patent under the State Council, shall be regarded as the application date; where the explanatory notes to the appended drawings are deleted, the original application date shall be reserved.
Article 42 Where an application for a patent contains two or more inventions, utility models or designs, the applicant may, prior to the expiry of the time limit provided in Paragraph 1 ofArticle 54 of these Rules, submit to the administrative department for patent under the State Council a request for division of application. However, if an application for a patent has been rejected, withdrawn or deemed to have been withdrawn, the request for division of application may not be submitted.
Where the administrative department for patent under the State Council considers that the application for one patent as not in conformity withArticle 31 of the Patent Law andArticle 35 orArticle 36 of these Rules, it shall notify the applicant to amend the application within a specified time limit; where the applicant has not given any response at the expiry of the time limit, the application shall be deemed to have been withdrawn.
The division of application may not change the category of the original application.
Article 43 For a division of application filed in accordance withArticle 42 of these Rules, the original application date may be reserved and, if the right of priority is enjoyed, the priority date may also be reserved, provided that the division of application do not go beyond the scope of the original application already made public.
When a division of application is filed, relevant formalities shall be fulfilled in accordance with the Patent Law and these Rules. The application number and the application date of the original application shall be indicated in the written request for the division of application.
When submitting the division of application, the applicant shall submit a copy of the original application document; if the right of priority is enjoyed regarding the original application, the applicant shall submit a copy of the priority document of the original application as well.
Article 44 "Preliminary examination" mentioned inArticle 34 andArticle 40 of the Patent Law means the examination of an application for a patent to see whether or not it contains the documents provided inArticle 26 orArticle 27 of the Patent Law and other necessary documents, and whether or not these documents are in conformity with the provided format, which also includes an examination of the following:
(1) whether an application for a patent for invention obviously falls underArticle 5 orArticle 25 of the Patent Law, or is not in conformity withArticle 18 or Paragraph 1 ofArticle 19 of the Patent Law, or is obviously not in conformity with Paragraph 1 ofArticle 31,Article 33 of the Patent Law, or Paragraph 1 ofArticle 2,Article 18,Article 20 of these Rules;
(2) whether an application for a patent for utility model obviously falls underArticle 5 orArticle 25 of the Patent Law, or is not in conformity with the provisions ofArticle 18 or Paragraph 1 ofArticle 19 of the Patent Law, or is obviously not in conformity with Paragraphs 3 and 4 ofArticle 26, Paragraph 1 ofArticle 31,Article 33 of the Patent Law, or Paragraph 2 ofArticle 2, Paragraph 1 ofArticle 13, Articles 18 to 23, Paragraph 1 ofArticle 43 of these Rules, or is not entitled to a patent right in accordance withArticle 9 of the Patent Law;
(3) whether an application for a patent for design obviously falls underArticle 5 of the Patent Law, or is not in conformity withArticle 18 or Paragraph 1 ofArticle 19 of the Patent Law, or is obviously not in conformity with Paragraph 2 ofArticle 31,Article 33 of the Patent Law, or Paragraph 3 ofArticle 2, Paragraph 1 ofArticle 13 or Paragraph 1 ofArticle 43 of these Rules, or is not entitled to a patent rights in accordance withArticle 9 of the Patent Law.
The administrative department for patent under the State Council shall notify the applicant of its opinions from the examination of the application and require him/it to state his/its opinions or to rectify his/its application within a specified time limit. Where the applicant has not given any response at the expiry of the time limit, the application shall be deemed to have been withdrawn. Where, after the applicant has stated opinions or made rectifications, the administrative department for patent under the State Council still considers the application not in conformity with any item in the preceding paragraph, the application shall be rejected.
Article 45 In any of the following circumstances, any document relating to a patent application, not including the patent application documents, which is submitted to the administrative department for patent under the State Council, shall be deemed to have not been submitted:
(1) where the document is not presented in the provided format or the indications therein are not in conformity with relevant provisions;
(2) where no supporting document is submitted in accordance with relevant provisions.
The administrative department for patent under the State Council shall notify the applicant of its opinions from examination if a document is deemed to have not been submitted.
Article 46 Where the applicant requests an earlier publication of his/its application for a patent for invention, a declaration shall be made to the administrative department for patent under the State Council. The administrative department for patent under the State Council shall, after its preliminary examination of the application, publish it immediately unless it is to be rejected.
Article 47 The applicant shall, when indicating in accordance withArticle 27 of the Patent Law the product incorporating the design and the category to which that product belongs, refer to the classification of products for designs published by the administrative department for patent under the State Council. Where no indication, or an incorrect indication, of the category to which the product incorporating the design belongs is made, the administrative department for patent under the State Council may supply the indication or correct it.
Article 48 Any person may, from the date of publishing an application for a patent for invention until the date of announcing the grant of the patent right, submit his opinions to the administrative department for patent under the State Council, with the reasons thereof, on the application which is not in conformity with the Patent Law.
Article 49 Where an applicant for a patent for invention cannot submit, for justified reasons, the documents concerning any retrieval or the results of any examination underArticle 36 of the Patent Law, he/it shall make a declaration to the administrative department for patent under the State Council to that effect and submit those documents when obtained.
Article 50 The administrative department for patent under the State Council shall, when examining an application for a patent at its own discretion in accordance with Paragraph 2 ofArticle 35 of the Patent Law, notify the applicant accordingly.
Article 51 An applicant for a patent for invention may, when making a request for substantial examination, or within 3 months into the stage of substantial examination as of the receipt of the notification sent by the administrative department for patent under the State Council regarding the entry of the application for a patent for invention, amend the application for a patent for invention at his/its own discretion.
Within 2 months as of the application date, the applicant for a patent for utility model or design may amend the application for a patent for utility model or design on his/its own initiative.
Where the applicant amends his/its patent application documents upon his/its receipt of the notification of the opinions from the examination which is sent out by the administrative department for patent under the State Council, he/it shall make the amendment in accordance with the requirements of the notification.
The administrative department for patent under the State Council may amend the obvious diction and symbol errors in the patent application documents at its own discretion. Where the administrative department for patent under the State Council has made such amendment at its own discretion, it shall notify the applicant.
Article 52 Where an amendment to the specification or the patent claim in an application for a patent for invention or utility model is made, a replacement sheet in the provided format 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 in the provided form shall be submitted.
Article 53 In accordance withArticle 38 of the Patent Law, the circumstances under which an application for a patent for invention shall, after substantial examination, be rejected include:
(1) the application is not in conformity with Paragraph 1 ofArticle 2 of these Rules;
(2) the application falls underArticle 5,Article 25 of the Patent Law; or it is not in conformity withArticle 22 of the Patent Law, Paragraph 1 ofArticle 13, Paragraph 1 ofArticle 20, Paragraph 2 ofArticle 21 of these Rules; or the applicant is not entitled to a patent right in accordance withArticle 9 of the Patent Law;
(3) the application is not in conformity with Paragraph 3 and Paragraph 4 ofArticle 26, or Paragraph 1 ofArticle 31 of the Patent Law;
(4) the amendment to the application is not in conformity withArticle 33 of the Patent Law, or the divisional application is not in conformity with Paragraph 1 ofArticle 43 of these Rules.
Article 54 After the administrative department for patent under the State Council issues the notification to grant the patent right, the applicant shall fulfill the formalities of registration within 2 months as of the date of receipt of the notification. If the applicant has fulfilled the formalities of registration within the stated time limit, the administrative department for patent under the State Council shall grant the patent right, issue the patent certificate, and announce it.
Where the formalities of registration have not been fulfilled at the expiry of the time limit, the applicant shall be deemed to have abandoned his/its right to obtain the patent right.
Article 55 After a decision on the grant of the patent for utility model has been announced, the patent holder of the utility model may request the administrative department for patent under the State Council to make a retrieval report on the patent for utility model.
Anyone who makes a request for the retrieval report on the patent for utility model shall submit the written request, and designate the patent number of the patent for utility model. Such requests shall be limited to one for each patent for utility model.
The administrative department for patent under the State Council shall, upon receipt of the request for the retrieval report on the patent for utility model, carry out the examination, and shall notify the entity or individual who makes the request to make a rectification within the specified time limit if the request is not in conformity with the provided requirements.
Article 56 Where, upon examination, the written request for the retrieval report on the patent for utility model is in conformity with the provisions, the administrative department for patent under the State Council shall make the retrieval report on the patent for utility model in the relevant time.
Where, upon retrieval, the administrative department for patent under the State Council considers the patent for utility model as not in conformity with the provisions inArticle 22 of the Patent Law on novelty or inventiveness, it shall cite the comparative documents, state the reasons therefor, and affix the copies of the cited comparative documents.
Article 57 The administrative department for patent under the State Council shall, upon discovery of any error in the patent announcement or patent document, correct it in time, and announce such a correction.
Chapter IV Reexamination of Patent Applications and Invalidation of Patent Rights
Article 58 The Patent Re-examination Board shall consist of technical and legal experts designated by the administrative department for patent under the State Council. The person in charge of the administrative department for patent under the State Council shall be the Chairman of the Board.
Article 59 Where the applicant requests the Patent Re-examination Board to make a re-examination in accordance withArticle 41 of the Patent Law, he/it shall file a written request for re-examination and state the reasons therefor, and shall, when necessary, affix relevant supporting documents.
Where the written request for re-examination is not in conformity with the provided format, the person making the request shall rectify it within the time limit specified by the Patent Re-examination Board. Where no rectification has been made at the expiry of the time limit, the request for re-examination shall be deemed to have not been filed.
Article 60 The entity or individual who makes the request may, when requesting the re-examination on or a response to the notification from the Patent Re-examination Board for re-examination, amend the patent application documents; however, such amendment shall be only limited to the elimination of the defects pointed out in the decision on rejection or the notification on re-examination.
Each of the amended patent application documents shall be in duplicate.
Article 61 The Patent Re-examination Board shall transfer the written request for re-examination which it has accepted to the original examination department of the administrative department for patent under the State Council for examination. Where the original examination department agrees to revoke its former decision upon the request of the applicant requesting re-examination, the Patent Re-examination Board shall make a re-examination decision accordingly and notify the applicant.
Article 62 Where the Patent Re-examination Board considers after re-examination that the request is not in conformity with the Patent Law or these Rules, it shall require the person requesting re-examination to state his opinions within a specified time limit. Where no response has been made at the expiry of the time limit, the request for re-examination shall be deemed to have been withdrawn. Where, after the opinions have been stated or the rectifications have been made, the Patent Re-examination Board still considers the request as not in conformity with the Patent Law or these Rules, it shall make a re-examination decision sustaining the original decision of rejection.
Where the Patent Re-examination Board considers after re-examination that the original decision on rejection is not in conformity with relevant provisions in the Patent Law or these Rules, or considers that the defects pointed out in the original decision on rejection have been eliminated from the amended patent application documents, it shall revoke the original decision on rejection, and the original examination department shall continue the examination procedures.
Article 63 Before the Patent Re-examination Board makes a decision on the request for re-examination, the person making the request may withdraw his request for re-examination.
Where the person making the request withdraws his request for re-examination before the Patent Re-examination Board makes a decision on the request, the re-examination procedures shall be terminated.
Article 64 Anyone requesting invalidation or partial invalidation of a patent right in accordance withArticle 45 of the Patent Law shall submit a written request and necessary supporting documents in dup, , licate to the Patent Re-examination Board. The said written request shall, in combination of all the submitted supporting documents, specifically state the reasons for the request for invalidation and designate the evidence on which each reason is based.
The reasons for the request for invalidation mentioned in the preceding paragraph refers to when the invention-creation on which the patent right is granted is not inconformity withArticle 22,Article 23, Paragraph 3 and Paragraph 4 ofArticle 26,Article 33 of the Patent Law orArticle 2, Paragraph 1 ofArticle 13, Paragraph 1 ofArticle 20, Paragraph 2 ofArticle 21 of these Rules, or falls underArticle 5,Article 25 of the Patent Law, or the applicant is not entitled to a patent right in accordance withArticle 9 of the Patent Law.
Article 65 Where the written request for the invalidation of a patent right is not in conformity withArticle 64 of these Rules, the Patent Re-examination Board shall not accept it.
Where, after the Patent Re-examination Board has made a decision on the request for invalidation, the person making the request again requests invalidation with the same reason and evidence, the Patent Re-examination Board shall not accept it.
Where anyone requests invalidation of a patent right for design with the reason that the design on which the patent right is granted is in conflict with the lawful rights obtained earlier by others, but fails to submit the effective disposal decision or judgment which can prove the conflict of the rights, the Patent Re-examination Board shall not accept it.
Where a written request for invalidation of a patent right is not conformity with the provided format, the person making the request shall rectify it within the time limit specified by the Patent Re-examination Board. Where no rectification has been made at the expiry of the time limit, the request for invalidation shall be deemed to have not been filed.
Article 66 After the Patent Re-examination Board has accepted the request for invalidation, the person making the request may, within 1 month as of the day when he filed the request for invalidation, increase the reasons or supplement the evidence. Where the reasons are increased or the evidence is supplemented after the expiry of the time limit, the Patent Re-examination Board need not take the request into account.
Article 67 The Patent Re-examination Board shall deliver the written request for the invalidation of a patent right and the copies of relevant documents to the patent holder, requiring him/it to state opinions within a specified time limit.
The patent holder and the person making the request for invalidation shall, within a specified time limit, make a response to the notification on transmitting the documents sent by the Patent Re-examination Board or the notification on examining the request for invalidation; where no response has been made at the expiry of the time limit, the hearing of the Patent Re-examination Board shall not be affected.
Article 68 The patent holder of a patent for invention or utility model may, in the process of the examination on the request for invalidation, amend his/its patent claim, provided that the protection scope of the original patent shall not be extended.
The patent holder of a patent for invention or utility model shall not amend the specification or the appended drawings of a patent, and the patent holder of patent for design shall not amend the drawings, photographs or brief explanation.
Article 69 The Patent Re-examination Board may, upon the request of the party concerned or the needs of the case, decide to hear the request for invalidation orally.
Where the Patent Re-examination Board decides to hear the request for invalidation orally, it shall send a notification on the oral hearing to the party concerned, informing the date and place for holding the oral hearing. The party concerned shall make a response within the time limit specified in the notification.
Where the person making the request for invalidation has not made any response within the time limit specified in the notification on oral hearing sent by the Patent Re-examination Board, and does not participate in the oral hearing, the request for invalidation shall be deemed to have been withdrawn; where the patent holder does not participate in the oral hearing, the case may be heard by default.
Article 70 During the procedures for examination of the request for invalidation, the time limit specified by the Patent Re-examination Board shall not be extended.
Article 71 Before the Patent Re-examination Board makes a decision on the request for invalidation, the person making the request may withdraw such a request.
Where the person making the request for invalidation withdraws his request before the Patent Re-examination Board makes the decision, the procedures for examining the request for invalidation shall be terminated.
Chapter V Compulsory License for Exploitation of Patent
Article 72 After the expiry of 3 years from the grant of a patent right, any entity may, in accordance withArticle 48 of the Patent Law, request the administrative department for patent under the State Council to grant a compulsory license.
Anyone who requests a compulsory license shall submit to the administrative department for patent under the State Council a written request for compulsory license and state the reasons therefor, together with relevant supporting documents. The written request and the supporting documents shall all be prepared in duplicate respectively.
The administrative department for patent under the State Council shall send a copy of the written request for compulsory license to the patent holder. The patent holder shall state his/its opinions within the time limit specified by the administrative department for patent under the State Council. Where no response has been made at the expiry of the time limit, the administrative department for patent under the State Council shall not be affected in making a decision to grant a compulsory license.
The decision made by the administrative department for patent under the State Council on granting a compulsory license for exploitation shall define that the compulsory license for exploitation is mainly for supplying the needs in domestic market; where the invention-creation involved in the compulsory license is a semi-conducting technology, the compulsory license for exploitation shall be limited to be used for a public and non-commercial purpose, or to be used for the purpose of remedying the anti-competition acts determined in judicial or administrative procedures.
Article 73 In accordance withArticle 54 of the Patent Law, if anyone requests the administrative department for patent under the State Council to rule the amount of the exploitation fee, the party concerned shall submit the written request for a ruling, and affix the certified documents on both parties'' failure to reach the agreement. The administrative department for patent under the State Council shall, within 3 months as of its receipt of the written request, make the ruling, and notify the party concerned.
Chapter VI Rewards and Remuneration to Inventor or Designer of Service Invention-creation
Article 74 A state-owned enterprise or institution which has been granted a patent right shall, within 3 months as of the announcement of the patent right, award the inventor or designer a money prize. The sum of money prize for a patent for invention shall be no less than 2,000 Yuan; the sum of money prize for a patent for utility model or design shall be no less than 500 Yuan.
Where an invention-creation was made on the basis of an inventor's or designer's proposal adopted by the entity to which he belongs, the state-owned enterprise or institution which has been granted a patent right shall award to him a money higher prize liberally.
Any enterprise holding the patent right may include the said money prize paid to such inventors or designers into its production cost; any institution holding the patent right may disburse the said money prize out of its operating expenses.
Article 75 A state-owned enterprise or institution which has been granted a patent right shall, after exploiting the patent for invention-creation and within the duration of the patent right, draw each year from any increase in profits after taxation a percentage of no less than 2% due to the exploitation of the patent for invention or utility model, or a percentage of no less than 0.2% due to the exploitation of the patent for design, and award it to the inventor or designer as remuneration. The entity may, otherwise, by making reference to the above said percentage, award a lump sum of money to the inventor or designer as remuneration.
Article 76 Where a state-owned enterprise or institution which has been granted a patent right authorizes other entities or individuals to exploit the patent, it shall, after taxation, draw a percentage of no less than 10% from the fee which is charged from the license of exploitation of this patent and award it to the inventor or designer as remuneration.
Article 77 Other Chinese entities may award money prizes and remuneration by making reference to the provisions in this Chapter
Chapter VII Protection of Patent Rights
Article 78 The department for the administration of patent work mentioned in the Patent Law and these Rules means the department established by the people''s government of a province, autonomous region or municipality directly under the Central Government, or the people''s government of a city divided into districts with a large amount of patent administrative work and actual ability to conduct the administration of patent work.
Article 79 In addition to the provisions inArticle 57 of the Patent Law, the department for the administration of patent work may, upon request of the party concerned, conciliate the following patent disputes:
(1) disputes on the ownership of the right of patent application and the patent right;
(2) disputes on the qualification as an inventor or designer;
(3) disputes on the rewards or remuneration to the inventor or designer of a service invention;
(4) disputes on the use of an invention by failing to pay proper fees after the application for a patent for invention has been published but before the patent right is granted.
For the disputes enumerated in Item (4) of the preceding paragraph, the patent holder shall, if requesting the department for the administration of patent work for conciliation, make such a request after the patent right is granted.
Article 80 The administrative department for patent under the State Council shall provide professional guidance to the department for the administration of patent work for disposing and conciliating patent disputes.
Article 81 Where a party concerned requests disposal or conciliation of a patent dispute, such a request shall be under the jurisdiction of the department for the administration of patent work in the place where the respondent is located or where the infringement took place.
For a patent dispute over which two or more departments for the administration of patent work have jurisdiction, the party concerned may make a request to one of them; where the party concerned requests two or more of departments for the administration of patent work with the jurisdiction, the dispute shall be handled under the jurisdiction of the department for the administration of patent work that first accepts it.
In case of a jurisdictional dispute between the departments for the administration of patent work, it shall be designated by the department for the administration of patent work under the people''s government at a higher level over both jurisdictions; where there is no such department for the administration of patent work under the people''s government at a higher level over both, jurisdiction shall be designated by the administrative department for patent under the State Council.
Article 82 Where, in the process of disposing a dispute on patent infringement, the respondent has made the request for invalidation and has been accepted by the Patent Re-examination Board, he/it may request the department for the administration of patent work to suspend the disposal.
Where the department for the administration of patent work considers that the reason for suspension given by the respondent is obviously untenable, it may refuse to suspend the disposal.
Article 83 Where the patent holder indicates a patent mark on the patented product or on the package of that product in accordance withArticle 15 of the Patent Law, he/it shall do so in accordance with the method provided by the administrative department for patent under the State Council.
Article 84 Any of the following acts shall be the act of passing the patent to another person:
(1) without permission, marking the patent number of another person on the product produced or sold by himself/itself or on the package of that product;
(2) without permission, using the patent number of another person in the advertisement or other propaganda materials, thus causing people to mistake the technology involved with the other person''s patented technology;
(3) without permission, using the patent number of another person in the contract, thus causing people to mistake the technology involved in the contract with the other person''s patented technology;
(4) forging or altering the patent certificate, patent documents or patent application documents of another person.
Article 85 Any of the following acts shall be the act of passing an unpatented product off as patented product or passing an unpatented process off as patented process:
(1) producing or selling an unpatented product marked with a patent mark;
(2) after a patent right has been declared invalid, continuing to mark a patent mark on the product produced or sold by himself;
(3) declaring an unpatented technology in the advertisement or other propaganda materials to be a patented technology;
(4) declaring an unpatented technology in the contract to be a patented technology;
(5) forging or altering the patent certificate, patent documents or patent application documents.
Article 86 Where a party concerned, in case of a dispute due to the ownership of a right of patent application or a patent right, has requested the department for the administration of patent work for disposal or has initiated a lawsuit to the people''s court, he may request the administrative department for patent under the State Council to suspend relevant procedures.
Anyone who requests suspension of relevant procedures in accordance with the preceding paragraph shall submit the written request to the administrative department for patent under the State Council, and affix the copies of relevant acceptance documents by the department for the administration of patent work or the people''s court.
After the disposal decision made by the department for the administration of patent work or the judgment made by the people''s court has been enforced, the party concerned shall fulfill the formalities for recovering relevant procedures in the administrative department for patent under the State Council. Where, within 1 year as of the date of requesting suspension, a dispute relating to the ownership of the right of patent application or the patent right has still not been settled, and it is necessary to continue to suspend relevant procedures, the person making the request shall request an extension of the suspension within this time limit. Where he has not requested the extension at the expiry of the time limit, the administrative department for patent under the State Council shall recover relevant procedures at its own discretion.
Article 87 Where the people''s court has ordered to adopt preservative measures over a patent right in the trial of a civil case, the administrative department for patent under the State Council shall suspend relevant procedures for the preserved patent right when assisting in its enforcement. Where, at the expiry of the preservation period, the people''s court has not ordered to continue to adopt the preservative measures, the administrative department for patent under the State Council shall recover relevant procedures at its own discretion.
Chapter VIII Patent Registration and Patent Gazette
Article 88 The administrative department for patent under the State Council shall maintain a Patent Register in which the following matters relating to a patent application and patent right shall be registered:
(1) grant of the patent right;
(2) devolution of the right of patent application or the patent right;
(3) pledge, preservation and cancellation of the patent right;
(4) record of contracts on the license for exploitation of a patent;
(5) invalidation of the patent right;
(6) termination of the patent right;
(7) recovery of the patent right;
(8) compulsory license for exploitation of the patent;
(9) changes on the name, nationality or address of the patent holder.
Article 89 The administrative department for patent 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 specification of an invention or utility model, the drawings or photographs of a design and its brief explanation;
(3) the request for substantial examination of an application for a patent for invention and any decision made by the administrative department for patent under the State Council to proceed at its own discretion to examine as to substance an application for a patent for invention;
(4) declassification of secret patents;
(5) rejection and withdrawal of an application or an application deemed to be withdrawn for a patent for invention after its publication;
(6) grant of the patent right;
(7) invalidation of the patent right;
(8) termination of the patent right;
(9) devolution of the right of patent application or a patent right;
(10) record of contracts on the license for exploitation of a patent;
(11) pledge, preservation and cancellation of the patent right;
(12) grant of compulsory license for exploitation of the patent;
(13) recovery of a patent application or patent right;
(14) changes on the name or address of the patent holder;
(15) notification to the party concerned whose address is unknown;
(16) rectifications made by the administrative department for patent under the State Council;
(17) other relevant matters.
The specifications, appended drawings and patent claims of inventions or utility models shall be separately published in full by the administrative department for patent under the State Council.
Chapter IX Fees
Article 90 For filing an application for a patent with or fulfilling other related formalities in the administrative department for patent under the State Council, the following fees shall be charged:
(1) application fee, additional fee for application, publishing and printing fee;
(2) fee for substantial examination of an application for a patent for invention and re-examination fee;
(3) patent registration fee, fee for announcement and printing, fee for maintaining the application and annual fee;
(4) fee for a change in the bibliographic data, fee for claiming the right of priority, fee for requesting recovery of rights, fee for requesting extension of time limit, fee for the retrieval report on the patent for utility model;
(5) fee for requesting invalidation, fee for requesting suspension of procedures, fee for requesting compulsory license, fee for requesting a ruling on exploitation fee of a compulsory license.
The standards for the payment of all fees enumerated in the preceding paragraph shall be stipulated by the administrative department for price under the State Council jointly with the administrative department for patent under the State Council.
Article 91 The fees provided in the Patent Law and in these Rules may be paid directly to the administrative department for patent under the State Council or remitted by bank or post, or be paid by other means stipulated by the administrative department for patent under the State Council.
Where a fee is remitted by bank or post, the correct application number or patent number and the names of the paid fees shall be indicated in the remittance slip submitted to the administrative department for patent under the State Council. In case of any inconsistency with the provisions in this Paragraph, it shall be deemed that the payment formalities have not been fulfilled.
Where the fees are directly paid to the administrative department for patent under the State Council, the date when the payment was made shall be regarded as the payment date. Where the fees are remitted by post, the date of mailing indicated by the postmark shall be regarded as the payment date. Where the fees are remitted by bank, the date of actual remittance by the bank shall be regarded as the payment date; however, if the period from the remittance date to the date of receipt by the administrative department for patent under the State Council has exceeded 15 days, the date of receipt by the administrative department for patent under the State Council shall be regarded as the payment date unless the post office or the bank has issued an attestation.
Where any patent fee is over-paid, re-paid or wrongly paid, the party concerned may, within 1 year as of the payment date, claim a refund to the administrative department for patent under the State Council.
Article 92 The applicant shall, after receipt of the notification of acceptance of the application, pay the application fee, publishing and printing fee and necessary additional fee at the latest within 2 months as of the application date. Where the fee has not been paid or fully paid at the expiry of the time limit, the application shall be deemed to have been withdrawn.
The applicant who claims the right of priority shall pay the fee for claiming the right of priority at the same time with the payment of the application fee. Where the fee has not been paid or fully paid at the expiry of the time limit, the right of priority shall be deemed to have not been claimed.
Article 93 Where a party concerned requests substantial examination, recovery of right or re-examination, the relevant fee shall be paid within the time limit for such requests as provided respectively by the Patent Law and these Rules. Where the fee has not been paid or fully paid at the expiry of the time limit, the request shall be deemed to have not been made.
Article 94 Where an applicant for a patent for invention has not been granted a patent right within 2 years as of the application date, he/it shall pay a fee for the maintenance of the application as of the third year.
Article 95 When the applicant fulfills the formalities of patent registration, he/it shall pay a fee for patent registration, a fee for announcement and printing and the annual fee for the year in which the patent right was granted. The applicant for a patent for invention shall pay each year''s fee for maintaining the application in lump sum, excluding the year when the patent right is granted. Where such fees have not been paid at the expiry of the time limit, the formalities of patent registration shall be deemed to have not been fulfilled. The subsequent annual fees shall be paid in advance within a month before the expiry of the preceding year.
Article 96 Where the annual fee of the application or the annual fee for subsequent years after the patent has been granted is not paid in due time by the patent holder, or the fees are not fully paid, the administrative department for patent under the State Council shall notify the patent holder to rectify the insufficiency within 6 months as of the expiry of the time limit within which the annual fee was to be paid, and at the same time pay a surcharge, the amount of which to be calculated by charging an additional 5% of the total amount of the annual fee for that year for each month exceeding the provided payment date. Where the fees have not been paid at the expiry of the time limit, the patent right shall be terminated as of the expiry of the time limit within which the annual fee should be paid.
Article 97 The fee for a change in the bibliographic data, fee for the retrieval report on the patent for utility model, fee for requesting the suspension of procedures, fee for requesting compulsory license, fee for requesting a ruling on exploitation fee of a compulsory license and fee for requesting invalidation shall be paid as stipulated within 1 month as of the date on which such request is made. The fee for requesting the extension of time limit shall be paid prior to the date of expiry of the corresponding time limit. Where the fee has not been paid or fully paid at the expiry of the time limit, the request shall be deemed to have not been made.
Article 98 Where an applicant or patent holder has difficulties in paying the various fees provided in these Rules, he/it may, in accordance with relevant provisions, submit a request to the administrative department for patent under the State Council, asking for a reduction or postponement of the payment. The measures for the reduction and postponement of the payment shall be stipulated by the administrative department for patent under the State Council through discussion with the financial department under the State Council and the administrative department for price under the State Council.
Chapter X Special Provisions on International Application
Article 99 The administrative department for patent under the State Council shall, in accordance withArticle 20 of the Patent Law, accept the international applications for patent filed in accordance with Patent Cooperation Treaty.
The conditions and procedures for international applications for patent which are filed in accordance with Patent Cooperation Treaty and designated as China (hereinafter referred to as "international application"), to enter the National Phase in China, shall be subject to the provisions in thisChapter ; where there are no relevant provisions in thisChapter , they shall be subject to the relevant provisions in the Patent Law and otherChapter s of these Rules.
Article 100 An international application on which the international application date has been determined in accordance with the Patent Cooperation Treaty and which has designated China shall be deemed to be an application filed to the administrative department for patent under the State Council, and the international application date shall be deemed to be the application date mentioned inArticle 28 of the Patent Law.
Where, in the International Phase, an international application or the designation of China in the international application is withdrawn or is deemed to have been withdrawn, the effectiveness of the international application shall be terminated in China.
Article 101 The applicant of an international application shall, within 20 months as of the priority date mentioned inArticle 2 of the Patent Cooperation Treaty (which is referred to as "priority date" in thisChapter ), fulfill the following formalities for the international application to enter the National Phase in China to the administrative department for patent under the State Council; where the international application has selected China within 19 months as of the priority date and the selection continues to be effective, the applicant of the international application shall, within 30 months as of the priority date, fulfill the following formalities for the international application to enter the National Phase in China to the administrative department for patent under the State Council:
(1) submit the written declaration of the international application to enter the National Phase in China; the international application number shall be indicated in the declaration, and the type of patent right which is required to be obtained, the name of the invention-creation, the name of the applicant, the address of the applicant and the name of the inventor shall be indicated in Chinese; the above-mentioned contents shall be consistent with the records in the International Bureau;
(2) pay the application fee, additional fee for application and publishing and printing fee provided in Paragraph 1 ofArticle 90 of these Rules;
(3) submit the Chinese translation of the words in the specification, the patent claim, and the appended drawings and of the abstract of the international application which is filed in a language other than Chinese; or submit a copy of the abstract in the international publishing document if the international application is filed in Chinese;
(4) submit a copy of the appended drawing if there is any in the international application; and submitting copies of the drawings appended to the abstract in the international publishing document if the international application is filed in Chinese.
Where the applicant fails to fulfill the formalities for the entry of the National Phase in China within the time limit provided in the preceding paragraph, he/it may, after paying the fee for extending the time limit, fulfill the formalities prior to the expiry of a corresponding period of 22 or 32 months commencing from the priority date.
Article 102 Where the applicant fails to fulfill the formalities for the entry of the National Phase in China within the time limit provided in Paragraph 2 ofArticle 101 of these Rules, or in case of any of the following circumstances at the expiry of this time limit, the effectiveness of his/its international application in China shall be terminated:
(1) the international application number is not indicated in the declaration for the entry of the National Phase in China;
(2) the application fee or the publishing and printing fee provided in Paragraph 1 ofArticle 90 of these Rules or the fee for extending the time limit provided in Paragraph 2 ofArticle 101 of these Rules has not been paid;
(3) the international application is filed in a language other than Chinese but the Chinese translation of the specification and the patent claim of the original international application is not submitted.
Where the effectiveness of an international application in China has been terminated, the provisions in Paragraph 2 ofArticle 7 of these Rules shall not be applied.
Article 103 Where the applicant falls under any of the following circumstances when fulfilling the formalities for the entry of the National Phase in China, the administrative department for patent under the State Council shall notify the applicant to rectify his/its application within a specified time limit:
(1) the Chinese translation or the copies of the abstract have not been submitted;
(2) the copies of the appended drawings or of the drawings appended to the abstract have not been submitted;
(3) the name of the invention-creation, the name of the applicant, the address of the applicant or the name of the inventor is not indicated in Chinese in the declaration for the entry of the National Phase in China;
4) the content or format of the declaration for the entry of the National Phase in China is not in conformity with relevant provisions.
Where the applicant has not rectified his/its application at the expiry of the time limit, the application shall be deemed to have been withdrawn.
Article 104 Where an international application has been amended in the International Phase, and the applicant requests examination on the basis of the amended application documents, the applicant shall submit the amended Chinese translation before the administrative department for patent under the State Council has completed the preparation of national publication. Where the Chinese translation is not submitted within this period, the administrative department for patent under the State Council shall not take the amendment requested by the applicant in the International Phase into account.
Article 105 The applicant shall also, when fulfilling the formalities for the entry of the National Phase in China, meet the following requirements:
(1) he/it shall designate the name of the inventor in the declaration for the entry of the National Phase in China if the inventor has not been designated in the international application;
(2) he/it shall, if, in the International Phase, having fulfilled the formalities on the change of the applicant in the International Bureau, provide the certified documents proving that the applicant after the change enjoys the right of application;
(3) he shall, when necessary, provide the certified documents proving that the applicant enjoys the right of priority if he is not the same person as the applicant of the earlier application (which is regarded as the basis of the right of priority), or if he changes his name after filing the earlier application;
(4) he/it shall make a statement in the declaration for the entry of the National Phase in China, and shall, within 2 months as of the date when he/it fulfills the formalities for the entry of the National Phase in China, submit relevant certified documents provided in Paragraph 2 ofArticle 31 of these Rules if the invention-creation involved in the international application is under any of the circumstances enumerated in Item (1) or Item (2) ofArticle 24 of the Patent Law, and a declaration was made when the international application was filed.
Where the applicant fails to meet the requirements in Item (1), Item (2) and Item (3) of the preceding paragraph, the administrative department for patent under the State Council shall notify the applicant to make a rectification within the specified time limit. Where the contents in Item (1) or (2) have not been rectified at the expiry of the time limit, the application shall be deemed to have been withdrawn; where the contents in Item (3) have not been rectified at the expiry of the time limit, the right of priority shall be deemed to have not been claimed.
Where the applicant fails to meet the requirements in Item (4) of Paragraph 1 of this Article, his/its application shall not be subject toArticle 24 of the Patent Law.
Article 106 Where the applicant has made a statement on deposit of the sample of biomaterial in accordance with the Patent Cooperation Treaty, he/it shall be deemed to have met the requirements in Item (3) ofArticle 25 of these Rules. The applicant shall state in the declaration for the entry of the National Phase in China the documents recording the matters on the deposit of the sample of the biomaterial and the specific location of the record in the documents.
Where the matters on the deposit of the sample of the biomaterial have been recorded in the specification of the international application originally filed by the applicant, but have not been stated in the declaration for the entry of the National Phase in China, he/it shall make a rectification within 4 months as of the date when he/it fulfills the formalities for the entry of the National Phase in China. Where no rectification has been made at the expiry of the time limit, the biomaterial shall be deemed to have not been submitted for deposit.
Where the applicant submits the receipt of deposit and the viability proof on the sample of the biomaterial to the administrative department for patent under the State Council within 4 months as of the date when he/it fulfilled the formalities for the entry of the National Phase in China, he/it shall be deemed to have submitted them within the time limit provided in Item (1) ofArticle 25 of these Rules.
Article 107 Where the applicant has claimed one or more rights of priority in the International Phase, and claimed the right(s) of priority to continue to be effective at the time of entering into the National Phase in China, the written declaration shall be deemed to have been made in accordance withArticle 30 of the Patent Law.
Where the applicant has any written errors in the written declaration for the right of priority made in the International Phase or does not indicate the application number of the earlier application, he/it may, when fulfilling the formalities for the entry of the National Phase in China, make a request for a correction or indicate the application number of the earlier application. Where the applicant has made a request for a correction, he/it shall pay a fee for requesting the correction of the right of priority.
Where the applicant has submitted the copies of the earlier application documents in the International Phase in accordance with the Patent Cooperation Treaty, he/it needs not to submit the copies of the earlier application documents to the administrative department for patent under the State Council when fulfilling the formalities for the entry of the National Phase in China. Where the applicant fails to submit the copies of the earlier application documents in the International Phase, the administrative department for patent under the State Council may, when considering it necessary, notify the applicant to supplement them within a specified time limit. Where the applicant has not supplemented them at the expiry of the time limit, his/its right of priority shall be deemed to have not been claimed.
Where the right of priority is deemed to have not been claimed in the International Phase and this information has been announced by the International Bureau, the applicant may, when fulfilling the formalities for the entry of the National Phase in China, request with justified reasons the administrative department for patent under the State Council to recover its claim for the right of priority.
Article 108 Where an applicant requests before the expiry of a period of 20 months as of the priority date the administrative department for patent under the State Council to dispose of and examine the international application in advance, he/it shall, in addition to fulfilling the formalities for the entry of the National Phase in China, make the request in accordance with Paragraph 2 ofArticle 23 of the Patent Cooperation Treaty. Where the International Bureau has not transmitted the international application to the administrative department for patent under the State Council, the applicant shall submit a copy of the confirmed international application.
Article 109 For an international application for the patent right for utility model, the applicant may, within 1 month as of the date when he/it fulfills the formalities for the entry of the National Phase in China, make a request to the administrative department for patent under the State Council for amending the specification, appended drawings and patent claim.
The international application for the patent right for invention shall be subject to Paragraph 1 ofArticle 51 of these Rules.
Article 110 Where the applicant discovers any diction errors in the Chinese translation of the submitted specification, patent claim or appended drawings, he/it may, within the following provided time limit, make a request for a correction in accordance with the original international application:
(1) before the administrative department for patent under the State Council has completed the preparation of national publication;
(2) within 3 months as of the receipt of the notification sent by the administrative department for patent under the State Council on the entry of the application for a patent for invention into the stage of substantial examination.
Where the applicant is to correct errors in the translation, he/it shall make a written request, submit the corrected page of the translation and pay the provided fee for correcting the translation.
Where the applicant is to correct the translation as required in the notification of the administrative department for patent under the State Council, he/it shall, within a specified time limit, fulfill the formalities provided in Paragraph 2 of this Article; where the provided formalities have not been fulfilled at the expiry of the time limit, the application shall be deemed to have been withdrawn.
Article 111 For an international application claiming the patent right for invention, the administrative department for patent under the State Council shall, if considering it to be in conformity with relevant provisions in the Patent Law and these Rules after the preliminary examination, publish it in the Patent Gazette; where the international application is filed in a language other than Chinese, the Chinese translation of the application documents shall be published.
Where an international application claiming for the patent right for invention is internationally published by the International Bureau in Chinese, it shall be subject toArticle 13 of the Patent Law as of the date of international publication; where it is published by the International Bureau in a language other than Chinese, it shall be subject toArticle 13 of the Patent Law as of the date of publication by the administrative department for patent under the State Council.
For an international application, "publication" mentioned in Articles 21 and 22 of the Patent Law means the publication provided in Paragraph 1 of this Article.
Article 112 Where an international application contains two or more inventions or utility models, the applicant may, after fulfilling the formalities for the entry of the National Phase in China, file a division of application in accordance with Paragraph 1 ofArticle 42 of these Rules.
Where, in the International Phase, when the international retrieval entity or international preliminary examination entity considers the international application is not in conformity with the requirement of singularity provided in the Patent Cooperation Treaty, the applicant does not pay the additional fee as provided, thus causing some parts of the international application to not undergo international retrieval or international preliminary examination, or when entering the National Phase in China, the applicant requires the above-mentioned parts to be regarded as the basis of examination, and the administrative department for patent under the State Council considers the singularity of the invention has been well-judged by the international retrieval entity or the international preliminary examination entity, it shall notify the applicant to pay the fee for recovering singularity within a specified time limit. Where the said fee has not been paid or fully paid at the expiry of the time limit, the parts in the international application which have not undergone retrieval or international preliminary examination shall be deemed to have been withdrawn.
Article 113 Where the applicant submit the documents or pay the fees in accordance withArticle 101 of these Rules, the date when the administrative department for patent under the State Council receives the documents shall be regarded as the submission date, and the date when it receives the fees shall be regarded as the payment date.
In case of any delay in the mail delivery of a submitted document, and if the applicant has proven within 1 month as of his/its discovery of the delay that the document to be delivered has been sent by mail 5 days before the expiry of the time limit provided inArticle 101 of these Rules, the document shall be deemed to be received on the date of the expiry of the time limit. However, the time for the applicant to provide the proof shall not be later than 6 months after the expiry of the time limit provided inArticle 101 of these Rules.
The applicant may submit documents to the administrative department for patent under the State Council in accordance withArticle 101 of these Rules by facsimile. Where the applicant submits a document by facsimile, the date when the administrative department for patent under the State Council receives the facsimile shall be regarded as the submission date. The applicant shall, within 14 days as of the date when he/it sent the facsimile, submit the original version of the facsimile to the administrative department for patent under the State Council. Where the original version has not been submitted at the expiry of the time limit, the document shall be deemed to have not been submitted.
Article 114 Where the right of priority is claimed in an international application, the applicant shall, when fulfilling the formalities for the entry of the National Phase in China, pay the fee for claiming the right of priority; if the said fee has not been paid or fully paid, the administrative department for patent under the State Council shall notify the applicant to make the payment within a specified time limit; where it has still not been paid or fully paid at the expiry of the time limit, the right of priority shall be deemed to have not been claimed.
Article 115 Where, in the International Phase, an international application is refused by a relevant international entity to grant an international application date on it or is declared to be deemed to have been withdrawn, the applicant may, within 2 months as of his/its receipt of the notice, request the International Bureau to transfer the copy of any document in the file of the international application to the administrative department for patent under the State Council, and fulfill the formalities provided inArticle 101 of these Rules in the administrative department for patent under the State Council within this period. The administrative department for patent under the State Council shall, after receiving the documents transmitted by the International Bureau, re-examine whether the decision made by the international entity is correct.
Article 116 Where, for the patent right granted upon the international application, the protection scope determined in accordance withArticle 56 of the Patent Law has exceeded the scope expressed in the original text of the international application due to errors in the translation, the protection scope which is limited on the basis of the original text shall prevail; while if the protection scope is narrower than the scope expressed in the original text of the international application due to the same reason, the protection scope at the time of authorization shall prevail.
Chapter XI Supplementary Provisions
Article 117 Any person may, upon approval by the administrative department for patent under the State Council, inspect or copy the files of the published or announced patent applications and the Patent Register, and may request the administrative department for patent under the State Council to issue a copy of the Patent Register.
The files of patent applications which are deemed to have been withdrawn or which have been rejected or actively withdrawn, shall not be preserved after the expiry of 2 years as of the date on which such applications cease to be valid.
The files of patent rights which have been abandoned or invalidated or terminated shall not be preserved after expiry of 3 years as of the date on which such patent rights cease to be valid.
Article 118 Any application document which is submitted to, and any formalities which are fulfilled in the administrative department for patent under the State Council, shall use the unified format prepared by the administrative department for patent under the State Council which shall be signed or sealed by the applicant, the patent holder, any other interested person or his/its representative. Where any patent agency is entrusted, such agency shall affix its stamp.
Where a change of the name of the inventor, the name, nationality or address of the applicant or the patent holder, or the name or address of the patent agency, or the name of the patent agent is requested, a request for a change in the bibliographic data shall be made to the administrative department for patent under the State Council, and the supporting documents with reasons for the change shall be affixed.
Article 119 The documents relating to a patent application or patent right which are mailed to the administrative department for patent under the State Council shall be mailed by registered letter, not by parcel.
For any document (not including any application document submitted for the first time) submitted to and any formalities fulfilled in the administrative department for patent under the State Council, the application number or the patent number, the title of the invention-creation, and the name of the applicant or the patent holder shall be indicated.
One letter may contain documents relating to one application only.
Article 120 Any application document shall be typed or printed. All the characters shall be in black ink, neat and clear, and none of them shall be altered. The appended drawings shall be made in black ink with the aid of drafting instruments. The lines shall be uniformly thick and well-defined, and shall not be altered.
The written request, specification, patent claim, appended drawings and abstract shall be numbered separately in Arabic numerals and arranged in numerical order.
The script of application documents shall run horizontally. Only one side of each sheet shall be used.
Article 121 The administrative department for patent under the State Council shall formulate the guidelines for patent examination in accordance with the , Pa, tent Law and these Rules.
Article 122 These Rules shall enter into force on July 1, 2001.
The Rules for the Implementation of the Patent Law of the People''s Republic of China which was revised on December 12, 1992 upon approval of the State Council and promulgated by the Patent Office of China on December 21, 1992 shall be nullified at the same time.
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