(Promulgated on June 15, 2001 by the State Council of the People's Republic of China)
Contents
Chapter I General Provisions
Chapter II Making of Patent Applications
Chapter III Examination and Approval of Patent Applications
Chapter IV Reexamination of Patent Applications and Avoidance of Patent Rights
Chapter V Compulsory Patent Licenses
Chapter VI Reward and Compensation to Inventors and Designers of Employees' Inventions
Chapter VII Protection of Patent Rights
Chapter VIII Patent Registration and Gazette
Chapter IX Fees
Chapter X Special Provisions on International Applications
Chapter XI Supplementary Provisions
Chapter I General Provisions
Article 1
These Rules are formulated under the Patent Law of the People's Republic of China (hereinafter cited as the Patent Law).
Article 2
In the Patent Law, invention means a new technical solution to a product, process or its improvement.
In the Patent Law, utility model means a new technical solution to the shape or configuration or their combination of a product, which is industrially applicable.
In the Patent Law, design means a new design to the shape or pattern of a product, their combination or combination of color therewith, which is aesthetic and industrially applicable.
Article 3
Procedures laid down in the Patent Law and these Rules shall be accomplished in writing or in other forms prescribed by the administrative department of patent under the State Council.
Article 4
All documents furnished under the Patent Law and these Rules shall be in the Chinese language. In these documents, standard scientific and technological terms shall be employed as provided by the State; the names of foreign persons and places or scientific and technological terms shall be accompanied with the original language if they have no official Chinese translations.
If the documents and documentary evidences furnished under the Patent Law and these Rules are in the languages other than the Chinese language, the administrative department of patent under State Council may require the parties concerned to furnish the Chinese translations within the prescribed time limit when it considers necessary. Failing which the said documents and documentary evidences shall be considered as having not been furnished.
Article 5
If a document is furnished through mail to the administrative department of patent under the State Council, the date shown on the postmark of the place of mailing shall be the date on which that document is furnished. If the date shown on the postmark is unknown, the date of receipt by the administrative department of patent under the State Council shall be the date on which that document is furnished, unless the party concerned furnishes an evidence.
The administrative department of patent under the State Council may send its documents to the parties concerned through mail, direct delivery or other manners. If the party concerned appoints a patent agency, that department shall send its documents to that patent agency; otherwise, to the person for contact named in the request.
When the administrative department of patent under the State Council sends a document to the party concerned through mail, the expiration of 15 days after the document is delivered in the place of mailing shall be presumed as the date of receipt by the party concerned.
If a document should be sent directly as required by the administrative department of patent under the State Council, the date of delivery shall be the date on which that document is sent.
The document that cannot be mailed due to the unknown address of the party concerned may be sent to that party through a public notice. At the expiration of one month from the date of the public notice, that document shall be considered as having been sent.
Article 6
In the Patent Law and these Rules, any time limit shall not include its first day. If a time limit is by year or month, it shall expire on the corresponding day of its last month; in case of no such day, on the last day of that month. If the day of expiration of a time limit is an official holiday, it shall expire on the first working day following that official holiday.
Article 7
The party concerned who, due to an irresistible ground, delays a time limit prescribed in the Patent Law or these Rules or fixed by the administrative department of patent under the State Council, thus suffering a loss to his right, may furnish, within two months from the elimination of the irresistibility or at longest, within two years after the expiration of that time limit, his ground and related evidences to the administrative department of patent under the State Council in order to apply for restoring his right.
The party concerned who, due to a justified ground, delays a time limit prescribed in the Patent Law or these Rules or fixed by the administrative department of patent under the State Council, thus suffering a loss to his right, may furnish, within two months after receipt of the notice of the administrative department of patent under the State Council, his ground to the administrative department of patent under the State Council in order to apply for restoring his right.
The party concerned who applies for extending a time limit fixed by the administrative department of patent under the State Council shall furnish his ground to that department and accomplish the relevant procedure before the expiration of that time limit.
The provisions of paragraphs 1 and 2 of this Article shall not apply to any time limit prescribed in Articles 24, 29, 42 and 62 of the Patent Law.
Article 8
A patent application for an invention that contains the State defense secrets and requires to be kept confidential shall be dealt with by the patent organization in the national defense system. The administrative department of patent under the State Council shall transmit that application to the patent organization in the national defense system for examination, and make the decision based on the examination of the latter.
In addition to the provisions of the paragraph above, the administrative department of patent under the State Council shall transmit the patent application for an invention that should be subject to a confidential examination to a relevant competent department under the State Council for examination. The latter shall communicate the result of its examination with the former within four months after receipt of that application. If that application requires to be kept confidential, the administrative department of patent under the State Council shall deal with it as a confidential patent application and notify the applicant.
Article 9
In Article 5 of the Patent Law, invention against the State law shall not include any invention only the use of which is forbidden by the State law.
Article 10
In the Patent Law, the filing date means the priority date when a priority is claimed, with the exception of the circumstances listed in Articles 28 and 42 of the Patent Law.
In these Rules, the filing date means the filing date as prescribed in Article 28 of the Patent Law, unless other provisions have been made.
Article 11
In Article 6 of the Patent Law, employee's invention made by an employee in the execution of the task of his unit means:
1. The invention made in the course of his normal duties;
2. The invention made in the course of a task falling outside his normal duties, but specifically assigned to him by his unit; or
3. The invention made within one year after his resignation, retirement or job change, but is related to his normal duties of his unit or a task assigned to him by his unit.
In Article 6 of the Patent Law, his unit shall include any unit in which the employee works temporarily; material and technical facilities of his unit mean the fund, equipment, parts, materials or technical data not disclosed to the public of his unit.
Article 12
In the Patent Law, inventor or designer means the person who has made creative contributions to the substantive features of the invention. A person responsible only for organizing the work, for providing convenience to the use of materials and technical facilities or for other auxiliary services in the course of making the invention shall not be the inventor or designer.
Article 13
One invention may be granted one patent only.
If two or more persons file their respective patent applications for one invention on the same day in accordance with the provisions of Article 9 of the Patent Law, they shall appoint one applicant through consultation after receipt of the notice of the administrative department of patent under the State Council.
Article 14
The assignment of the patent application right or patent right by a Chinese unit or person to a foreigner shall be in possession of approval of the competent department of foreign trade and economic cooperation under the State Council and the administrative department of science and technology under the State Council.
Article 15
Except for the patent right assignment under the provisions of Article 10 of the Patent Law, the party concerned who transfers the patent right by other grounds shall fulfil the procedure for changing the patentee at the administrative department of patent under the State Council on strength of the relevant document or legal instruments.
Every licensing patent contract concluded by the patentee with another person shall be filed with the administrative department of patent under the State Council within three months from the date of its entry into effect.
Chapter II Making of Patent Applications
Article 16
The applicant who makes his patent application in writing shall furnish the application documents in two copies to the administrative department of patent under the State Council.
The applicant who makes his patent application in any other form prescribed by the administrative department of patent under the State Council shall comply with the prescribed requirements.
The applicant who appoints a patent agency for his patent application to the administrative department of patent under the State Council or for his other patent-related matters shall furnish a letter of authorization in which the power so authorized shall be indicated.
If two or more joint applicants fail to appoint a patent agency, the first applicant named in the request shall be their representative, unless the request named otherwise.
Article 17
In paragraph 2 of Article 26 of the Patent Law, other matters in the request mean:
1. The applicant's nationality;
2. If the applicant is an enterprise or any other organization, the country in which the headquarter is located;
3. If the applicant appoints a patent agency, the matters that should be indicated; otherwise, the name, address, postal code and telephone number of the person for contact;
4. Matters that should be indicated when a priority is claimed;
5. The signature or seal of the applicant or patent agency;
6. A list of the application documents;
7. A list of the additional documents; and
8. Other matters that should be indicated.
Article 18
In a patent application for an invention or utility model, the description shall indicate the title of the invention or utility model, which shall be same with that in the request. The description shall contain the followings:
1. The field of technology: the field of technology to which the technical solution for which the protection is sought belongs shall be indicated;
2. Background technologies: the background technologies for understanding, searching and examining the invention or utility model shall be indicated; if possible, the documents for these background technologies shall be cited;
3. Inventive details: the technical problem to be solved by the invention or utility model and the technical solution therewith shall be indicated, and in comparison with the available techniques, the useful effects of the invention or utility model shall be indicated;
4. References to drawings: the drawings in the description, if any, shall be briefly explained; and
5. Specific mode for use: the best mode considered by the applicant for realizing the invention or utility model shall be indicated in detail; when necessary, examples shall be given; and drawings, if any, shall be compared.
The patent applicant for an invention or utility model shall write the description in the form and order prescribed in the paragraph above with the heading putting before each part of the description, except where, due to the nature of the invention or utility model, other forms or orders would help shorten the description and make other persons to understand the invention or utility model more accurate.
The description for an invention or utility model shall use standard terms and clear expressions and may not contain such sentences as "as described in ... of the claim" or any commercial advertising words.
If a patent application for an invention contains one or more sequences of nucleotide or amino acid, the description shall contain the sequence table as provided by the administrative department of patent under the State Council. The applicant shall furnish the sequence table as an independent part of the description and, as required by the administrative department of patent under the State Council, furnish the copy of that table to be read by the computer.
Article 19
Some drawings for an invention or utility model may be placed on one piece of sheet and shall be numbered as "Figure 1, 2, ...".
The size and distinctness of every drawing shall guarantee that all its details can be clearly resolved when it is reduced to two-thirds.
Any drawing mark not contained in the text of the description for an invention or utility model may not appear in the drawings, and any drawing mark not appeared in the drawings may not be contained in the text of the description. The drawing marks for the same part used in the application documents shall be consistent.
Except for the necessary words and phrases, drawings shall not contain other references.
Article 20
The statement of claim shall indicate the technical features of the invention or utility model and the matter for which the protection is sought clearly and concisely.
More claims in a statement of claim shall be numbered in Arabic numerals, if any.
Scientific and technological terms used in the statement of claim shall be consistent with those used in the description. The statement of claim may contain chemical or mathematical formulas but may not contain any illustrations. Except for those absolutely and genuinely necessary, such sentences as "as described in Part ... of the description" or "as illustrated in figure..." may not be used.
The corresponding marks in the drawings to the description may be cited for the technical features of the claim, and such marks shall be placed in parentheses after the corresponding technical features so as to help the understanding of the claim. No drawing mark may be interpreted as the restriction on the claim.
Article 21
The statement of claim shall have an independent claim and may have several subordinate claims.
The independent claim shall reflect the whole of the technical solution of the invention or utility model and indicate the necessary technical features for solving technical problems.
A subordinate claim shall, by the additional technical features, make a further restriction on the claim cited.
Article 22
The independent claim for invention or utility model shall contain an introductory part and a features part in compliance with the following provisions:
1. The introductory part: to indicate the subject of the technical solution of the invention or utility model for which protection is sought and the essential technical features that are common to the subject of the invention or utility model and the closest available technique;
2. The features part: to indicate, by "its features are..." or similar words, the technical features of the invention or utility model differentiating them from the closest available technique. These features, together with the features indicated in the introductory part, shall define the matter for which the protection is sought for the invention or utility model.
The independent claim may be stated in other forms if the form prescribed in the paragraph above is not appropriate due to the nature of the invention or utility model.
One invention or utility model shall have only one independent claim. The independent claim shall be placed before all subordinate claims for that invention or utility model.
Article 23
A subordinate claim for an invention or utility model shall contain a citing part and a defining part in compliance with the following provisions:
1. The citing part: to indicate the serial number of the claim cited and its subject; and
2. The defining part: to indicate the additional technical features of the invention or utility model.
A subordinate claim may only cite the preceding claim. A multiple subordinate claim citing two or more claims may only cite the preceding claim in a selected form, and may not serve as the basis for other multiple subordinate claims.
Article 24
The abstract of the description shall indicate the outline of the contents disclosed in the patent application for an invention or utility model, that is, the title of the invention or utility model, the field of technology to which it belongs, the technical problem to be solved, key points of the technical solution to the problem and main use.
The abstract may contain the chemical formula that best explains the invention and shall have a drawing that best explains the technical features of the invention or utility model if the patent application contains drawings. The size and distinctness of that drawing shall guarantee that all its details can be resolved when it is reduced to 4cm?ив6cm. No abstract may exceed 300 Chinese characters or contain any commercial advertising words.
Article 25
If an invention for which a patent application is filed contains a new biological material but no member of the public can obtain that material and the references to that material are insufficient to help a person skilled in the art to perform the invention, that application shall comply with the relevant provisions of the Patent Law and these Rules. In addition, the applicant shall also fulfil the following procedures:
1. Before the filing date or at longest, on the filing date (the priority date when a priority is claimed), to send a sample of that biological material to a depository unit recognized by the administrative department of patent under the State Council for deposit and, at the time of filing the application or at longest, within four months after the filing date, to furnish a proof of deposit and a proof of viability issued by the depository unit. Failing which the sample shall be considered as having not been sent for deposit;
2. In the application documents, to indicate the relevant data on the features of that biological material; and
3. In the request and description in the patent application which involves the deposit of the sample of that biological material, to indicate the title of the classification (and its Latin name) of that material, the name and address of the depository unit, the depository date and the serial number of the deposit. If no indication is made at the time of filing the application, the applicant shall supplement the indication within four months from the filing date. Failing which the sample shall be considered as having not been sent for deposit.
Article 26
After the patent application for an invention of the applicant who has deposited a sample of a biological material according to the provisions of Article 25 of these Rules is published, any unit or person that needs to use that material for experiment shall file an application with the administrative department of patent under the State Council and indicate the followings:
1. The name or designation and address of the applicant;
2. A promise that that material has not been provided to others; and
3. A promise that that material is only for experiment before the patent is granted.
Article 27
The size of every picture or photograph of a design furnished under the provisions of Article 27 of the Patent Law may not be smaller than 3cm ?ив 8cm and larger than 15cm ?ив 22cm.
The patent applicant for a design who seeks the concurrent protection of color shall furnish two copies of the picture or photograph in color.
The applicant shall furnish relevant views or photographs in respect to the contents of each design product for which the protection is sought, clearly showing the matter for which the protection is sought.
Article 28
When necessary, the patent applicant for a design shall furnish a brief and clear explanation of the design.
The brief explanation of a design shall indicate such information as the key points of the design of the product, the colors for which the protection is sought and the omitted views. No brief explanation may contain any commercial advertising words and may be used to indicate the functions of the product.
Article 29
The administrative department of patent under the State Council, if it considers necessary, may require the patent applicant for a design to furnish a sample or model of the product using that design. The size of the sample or model may not exceed 30cm ?ив30cm ?ив 30cm, and its weight may not exceed 15 kilograms. Perishable, fragile or dangerous articles may not be furnished as the sample or model.
Article 30
In paragraph 3 of Article 22 of the Patent Law, available technique means a technology which was disclosed in a domestic or foreign publication, used in the country or known to the public by any other means prior to the filing date (the priority date when a priority is claimed), i.e. the exiting technology.
Article 31
In sub-paragraph 2 of Article 24 of the Patent Law, academic or technical conference means the academic or technical conference organized by the relevant competent department under the State Council or by the national academic organization.
If an invention for which a patent application is filed has any of the circumstances listed in sub-paragraph 1 or 2 of Article 24 of the Patent Law, the applicant shall, at the time of filing that application, make a statement and, within two months from the filing date, furnish a proof issued by the unit organizing the international exhibition or academic or technical conference for the exhibition or publication of that invention and the date of exhibition or publication.
If an invention for which a patent application is filed has any of the circumstances listed in sub-paragraph 3 of Article 24 of the Patent Law, the administrative department of patent under the State Council, if it considers necessary, may require the applicant to furnish a proof within the prescribed time limit.
If the applicant fails both to make a statement and to furnish a proof as required by paragraph 2 of this Article or fails to furnish a proof within the prescribed time limit as required by paragraph 3 of this Article, the provisions of Article 24 of the Patent Law shall not apply to his application.
Article 32
The applicant who fulfils the procedure for claiming a priority under the provisions of Article 30 of the Patent Law shall indicate the filing date and number of the first application (hereinafter cited as the earlier application) and the country receiving that application in his statement. Failing which that statement shall be considered as having not been made.
The applicant who claims a foreign priority shall furnish copies of the documents of earlier application that should be certified by the authority originally receiving that application. In case of inconsistency of the name or designation of the earlier applicant with that of the later applicant in the certifying documents, he shall furnish a proof for the assignment of the priority. The applicant who claims a domestic priority shall furnish copies of the documents of earlier application that shall be produced by the administrative department of patent under the State Council.
Article 33
In one patent application, the applicant may make one or more priority claims. In case of more priority claims, the priority date for that application shall be computed from the earliest priority date.
The applicant who claims the domestic priority may file the patent application for an invention or utility model on the same subject if his earlier application is made for an invention patent, or a patent application for an utility model or invention on the same subject if his earlier application is made for an utility model patent. However, if his earlier application has any of the following circumstances when he files the later application, it may not be used as the basis of claiming the domestic priority:
1. A foreign or domestic priority has been already claimed;
2. A patent has been granted; or
3. Being a divisional application filed under the provisions.
If the applicant claims the domestic priority, his earlier application shall be considered as having been withdrawn from the date of filing the later application.
Article 34
The administrative department of patent under the State Council, if it considers necessary, may require the applicant for a patent or for a foreign priority who has no habitual residence or business office in China to furnish the following documents:
1. A proof for his nationality;
2. A proof for the locality of the business office or headquarter if the applicant is an enterprise or any other organization; and
3. A proof of the country in which the applicant belongs for recognizing that Chinese units and citizens may, under the same conditions applied to its nationals, enjoy the patent right, priority right and other patent-related rights in that country.
Article 35
Two or more inventions or utility models under one general inventive concept for which one patent application may be filed under the provisions of paragraph 1 of Article 31 of the Patent Law shall be technically interrelated and have one or more same or corresponding technical features. Of which, specific technical feature means a technical feature that contributes to the available technique by each invention or utility model as a whole.
Article 36
In paragraph 2 of Article 31 of the Patent Law, same category means that the product lies in the same sub-class in the classification; sale or use in a complete set means that the products have the same design concept and are sold or used at the same time in practice.
The serial numbers of two or more designs for which one patent application is filed under the provisions of paragraph 2 of Article 31 of the Patent Law shall be placed before the title of the view of each product using the design.
Article 37
The applicant who desires to withdraw his patent application shall file a statement with the administrative department of patent under the State Council with the title of the invention, the application number and the filing date indicated.
If a statement for withdrawal of the patent application is filed after the printing preparation for publishing the application documents has been completed by the administrative department of patent under the State Council, the application documents shall be published also; and that statement shall be published in the subsequent Patent Gazette.
Chapter III Examination and Approval of Patent Applications
Article 38
Under any of the following circumstances, an examiner or a re-examiner shall, on his own initiate, withdraw from the process of preliminary examination, substantial examination, reexamination or avoidance, and the parties concerned or other interested persons may require his withdrawal:
1. Being a near relative of the party concerned or his agent;
2. Having an interest with the patent application or the patent right;
3. Having any other relation with the party concerned or his agent that might affect the impartial examination or reexamination; or
4. Being a member of the Patent Reexamination Board who participated in the examination of the original application.
Article 39
After receipt of the request, description (drawings for utility model must be furnished) and statement of claim in a patent application for an invention or utility model, or the request in a patent application for a design and the pictures or photographs of the design, the administrative department of patent under the State Council shall fix the filing date, issue an application number and notify the applicant.
Article 40
Under any of the following circumstances, the administrative department of patent under the State Council shall refuse to accept any patent application documents and notify the applicant:
1. The patent application for an invention or utility model does not contain the request, description (no drawings for utility model) or statement of claim, or the patent application for a design does not contain the request, picture or photograph;
2. The application is not in the Chinese language;
3. The application does not comply with the provisions of paragraph 1 of Article 120 of these Rules;
4. The request does not contain the name or designation or address of the applicant;
5. The application does not comply with the provisions of Article 18 or paragraph 1 of Article 19 of the Patent Law obviously; or
6. The category in the patent application (for an invention, utility model or a design) is unclear or difficult to determine.
Article 41
If the description contains the explanations to the drawings but has none or some of the drawings, the applicant shall furnish the drawings or the statement for deleting the explanations within the time limit fixed by the administrative department of patent under the State Council. If the applicant furnishes the drawings, the date of delivering or mailing the drawings to the administrative department of patent under the State Council shall be the filing date; if he furnishes the statement for deleting the explanations to the drawings, the original filing date shall be reserved.
Article 42
If one patent application contains two or more inventions, utility models or designs, the applicant may file the divisional application with the administrative department of patent under the State Council before the expiration of the time limit prescribed in paragraph 1 of Article 54 of these Rules. However, if the patent application was denied, withdrawn or considered withdrawn, no divisional application may be allowed.
The administrative department of patent under the State Council, if it considers that a patent application does not comply with the provisions of Article 31 of the Patent Law or Article 35 or 36 of these Rules, shall notify the applicant to amend his application within the prescribed time limit. Failing which his application shall be considered as having been withdrawn.
No divisional application may change the category of the original application.
Article 43
If a divisional application is filed under the provisions of Article 42 of these Rules, the original filing date may be reserved, if the priority right is enjoyed, the priority date may also be reserved, however, the divisional application may not go beyond the matter disclosed by the original application.
Every divisional application shall be subject to the relevant procedures under the provisions of the Patent Law and these Rules.
The request in the divisional application shall indicate the number and filing date of the original application. At the time of filing the divisional application, the applicant shall furnish the copies of the documents of original application, and if the original application has the priority right, also a copy of the document of priority in the original application.
Article 44
In Articles 34 and 40 of the Patent Law, preliminary examination means the examination on whether a patent application contains the documents as required in Article 26 or 27 of the Patent Law and other required documents, whether these documents comply with the prescribed form, and ---
1. Whether a patent application for an invention obviously complies with the provisions of Article 5 or 25 of the Patent Law, or fails to comply with the provisions of Article 18 or paragraph 1 of Article 19 of the Patent Law, or obviously fails to comply with the provisions of paragraph 1 of Article 31 or Article 33 of the Patent Law or paragraph 1 of Article 2, Article 18 or Article 20 of these Rules;
2. Whether a patent application for an utility model obviously complies with the provisions of Article 5 or 25 of the Patent Law, or fails to comply with the provisions of Article 18 or paragraph 1 of Article 19 of the Patent Law, or obviously fails to comply with the provisions of paragraph 3 or 4 of Article 26, paragraph 1 of Article 31, Article 33 of the Patent Law or paragraph 2 of Article 2, paragraph 1 of Article 13, Articles 18 to Article 23 or paragraph 1 of Article 43 of these Rules, or cannot been granted a patent according to the provisions of Article 9 of the Patent Law; or
3. Whether a patent application for a design obviously complies with the provisions of Article 5 of the Patent Law, or fails to comply with the provisions of Article 18 or paragraph 1 of Article 19 of the Patent Law, or obviously fails to comply with the provisions of paragraph 2 of Article 31 or Article 33 of the Patent Law or paragraph 3 of Article 2, paragraph 1 of Article 13 or paragraph 1 of Article 43 of these Rules, or cannot been granted a patent according to the provisions of Article 9 of the Patent Law.
The administrative department of patent under the State Council shall send its comments to the applicant and require him to furnish his statement or supplement and correction within the prescribed time limit. Failing which his application shall be considered as having been withdrawn. After the applicant has furnished his statement or supplement and correction, the administrative department of patent under the State Council, if it still considers that that application does not comply with the relevant provisions of the paragraph above, shall deny it.
Article 45
Under any of the following circumstances, the documents furnished by the applicant other than the application documents for patent to the administrative department of patent under the State Council shall be considered as having not been furnished:
1. Failing to use the prescribed form or to fill out according to the relevant provisions; or
2. Failing to furnish proofs as required.
The administrative department of patent under the State Council shall notify the applicant of its comment on his documents considered as having not been furnished.
Article 46
The applicant who applies for an earlier publication of his patent application for an invention shall furnish a statement to the administrative department of patent under the State Council. The latter shall publish his application immediately after its preliminary examination over that application, unless it denies his application.
Article 47
In indicating a product using a design and its category in accordance with the provisions of Article 27 of the Patent Law, the applicant shall use the classification of products of designs published by the administrative department of patent under the State Council. If the applicant fails to indicate or indicates incorrectly the category of the product using the design, the administrative department of patent under the State Council may add or amend it.
Article 48
From the date of publication of a patent application for an invention to the date of announcing the grant of the patent, any person may furnish his observations and grounds on that patent application that does not comply with the provisions of the Patent Law to the administrative department of patent under the State Council.
Article 49
The patent applicant for an invention who, due to a just reason, is incapable of furnishing the search or examination results materials prescribed in Article 36 of the Patent Law, shall furnish a statement to the administrative department of patent under the State Council, once he obtains, he shall furnish these materials.
Article 50
The administrative department of patent under the State Council shall notify the applicant when it examines the patent application on its own initiative under the provisions of paragraph 2 of Article 35 of the Patent Law.
Article 51
At the time of filing an application for a substantial examination or within three months from the date of receiving the notice of substantial examination issued by the administrative department of patent under the State Council, the patent applicant for an invention may amend his application on his own initiative.
Within two months from the filing date, the patent applicant for an utility model or a design may amend his application on his own initiative.
The applicant shall amend the patent application documents according to the requirements of the notice if he desires to do so after receipt of the notice of comments issued by the administrative department of patent under the State Council.
The administrative department of patent under the State Council may correct the obvious word and symbol errors in the patent application documents on its own initiative. If so doing, it shall notify the applicant.
Article 52
If the description or statement of claim in a patent application for an invention or utility model is amended, a new page for the amended parts in compliance with the prescribed form shall be furnished, except for a few of words amended, inserted or deleted. If the picture or photograph in a patent application for a design is amended, a new page for the amended picture or photograph shall be furnished according to the provisions.
Article 53
The circumstances under which a patent application for an invention shall be refused after a substantial examination according to the provisions of Article 38 of the Patent Law mean:
1. The application does not comply with the provisions of paragraph 1 of Article 2 of these Rules;
2. The application falls under the provisions of Article 5 or 25 of the Patent Law or does not comply with the provisions of Article 22 of the Patent Law or paragraph 1 of Article 13, paragraph 1 of Article 20 or paragraph 2 of Article 21 of these Rules, or cannot been granted a patent according to the provisions of Article 9 of the Patent Law;
3. The application does not comply with the provisions of paragraph 3 or 4 of Article 26 or paragraph 1 of Article 31 of the Patent Law; or
4. The amendment to the application doe not comply with the provisions of Article 33 of the Patent Law, or the divisional application does not comply with the provisions of paragraph 1 of Article 43 of these Rules.
Article 54
The applicant shall accomplish the registration procedure within two months from the date of receipt of the notice issued by the administrative department of patent under the State Council for granting the patent. If the applicant has responded as scheduled, the administrative department of patent under the State Council shall grant the patent, issue the patent certificate and announce it.
The failure of the registration procedure as scheduled shall be considered as having waived the right to obtain the patent.
Article 55
After the decision of grant of a utility model patent is announced, the patentee of utility model may apply to the administrative department of patent under the State Council for a patent search report on that utility model.
The patentee for a patent search report on the utility model shall file an application and indicate the patent number of utility model. One application shall be only for one utility model patent.
After receipt of the application for a patent search report on the utility model, the administrative department of patent under the State Council shall examine it. If that application does not comply with the prescribed requirements, that department shall notify the applicant to supplement or correct it within the prescribed time limit.
Article 56
If the application for a patent search report on the utility model complies with the provisions after examination, the administrative department of patent under the State Council shall produce such report immediately.
The administrative department of patent under the State Council, if it considers that a utility model patent concerned does not comply with the provisions of Article 22 of the Patent Law on the novelty or inventive step after its search, shall cite the comparative documents and give the grounds with the copies of the cited comparative documents accompanied.
Article 57
The administrative department of patent under the State Council shall immediately correct the error in the patent announcements and patent documents whenever discovered and announce the correction.
Chapter IV Reexamination of Patent Applications and Avoidance of Patent Rights
Article 58
The Patent Reexamination Board shall consist of the technical and legal experts named by the administrative department of patent under the State Council, and its head shall be the person responsible for the administrative department of patent under the State Council.
Article 59
The applicant for reexamination under the provisions of Article 41 of the Patent Law shall file his application for reexamination with the Patent Reexamination Board, indicate the grounds and, when necessary, furnish the relevant evidences.
If his application for reexamination does not comply with the prescribed form, the applicant shall supplement and correct it within the time limit fixed by the Patent Reexamination Board. Failing which his application for re-examination shall be considered as having not been filed.
Article 60
At the time of filing his application for reexamination or of replying the notice of reexamination of the Patent Reexamination Board, the applicant may amend his patent application documents. However, such amendment shall be restricted only to the elimination of the defects pointed out by the decision of refusal or the notice of reexamination.
The patent application documents so amended shall be furnished in two copies.
Article 61
The Patent Reexamination Board shall transmit the application for reexamination it received to the original examining division of the administrative department of patent under the State Council for examination. If the original examining division, on the request of the applicant, approves the revocation of its original decision, the Patent Reexamination Board shall make a reexamination decision based on it and notify the applicant.
Article 62
The Patent Reexamination Board, if, after reexamination, considers that the application for reexamination does not comply with the relevant provisions of the Patent Law and these Rules, shall notify the applicant and require him to give his opinion within the prescribed time limit. Failing which his application for reexamination shall be considered as having been withdrawn. The Patent Reexamination Board, if it, after such statement or amendment, still considers that that application for reexamination does not comply with the provisions of the Patent Law and these Rules, shall make a reexamination decision that maintains the original decision of refusal.
If the Patent Reexamination Board, after reexamination, considers that the original decision of refusal does not comply with the relevant provisions of the Patent Law and these Rules or that all defects pointed out in the original decision of refusal have been eliminated from the patent application documents after amendment, it shall revoke the original decision of refusal, and the original examining division shall continue the process of examination.
Article 63
Before the decision of the Patent Reexamination Board, the applicant for reexamination may withdraw his application.
If the applicant for reexamination withdraws his application before the decision of the Patent Reexamination Board, the process of reexamination shall cease.
Article 64
The applicant for avoidance of a patent right or part of it under the provisions of Article 45 of the Patent Law shall file his application for avoidance of the patent right with and furnish necessary evidences in two copies to the Patent Reexamination Board. That application, together with all evidences furnished, shall indicate the grounds for that application in detail and the evidence on which each ground is based.
In the paragraph above, the grounds for that application for avoidance mean that the invention for which the patent is granted does not comply with the provisions of Article 22 or 23, paragraph 3 or 4 of Article 26 or Article 33 of the Patent Law or Article 2, paragraph 1 of Article 13, paragraph 1 of Article 20, paragraph 2 of Article 21 of these Rules, or falls under the provisions of Article 5 or 25 of the Patent Law, or cannot be granted the patent according to the provisions of Article 9 of the Patent Law.
Article 65
The Patent Reexamination Board shall refuse any application for avoidance of a patent right that does not comply with the provisions of Article 64 of these Rules.
The Patent Reexamination Board shall refuse any new application for avoidance made by the same grounds and evidences after the Patent Reexamination Board has made a decision on the application.
The Patent Reexamination Board shall refuse any application for avoidance of a patent right of design made by the ground that the patented design infringes the earlier legitimate right of another but without furnishing an effective disposal decision or judgment proving the conflict of that right.
If the application for avoidance of a patent right does not comply with the prescribed form, the applicant for avoidance shall supplement and correct it within the time limit fixed by the Patent Reexamination Board. Failing which his application shall be considered as having not been filed.
Article 66
After the Patent Reexamination Board has received the application for avoidance, the applicant may add grounds or supplement evidences within one month from the date of filing that application. The Patent Reexamination Board shall refuse any grounds added or evidences supplemented after the expiration of that time limit.
Article 67
The Patent Reexamination Board shall transmit the copies of the application for avoidance of a patent right and relevant documents to the patentee and require him to give his opinion within the prescribed time limit.
The patentee and the applicant for avoidance shall respond to the notice on transmitting the documents or the reexamination notice of the application for avoidance issued by the Patent Reexamination Board within the prescribed time limit. Failing which the reexamination of the Patent Reexamination Board shall not be affected.
Article 68
In the course of reexamination of the application for avoidance, the patentee of invention or utility model may amend his statement of claim but may not expand the protection scope of the original patent.
The patentee of invention or utility model may not amend the description and drawings. The patentee of design may not amend pictures, photographs and brief explanations.
Article 69
On the request of the party concerned or as required by the case, the Patent Reexamination Board may decide to carry out an oral reexamination on the application for avoidance.
In the case above, the Patent Reexamination Board shall issue a notice of oral reexamination to the party concerned and give the date and place of the oral reexamination. The party concerned shall respond within the time limit fixed in the notice.
If the applicant for avoidance fails to respond to the notice of oral reexamination issued by the Patent Reexamination Board as scheduled and does not present at the oral reexamination, his application for avoidance shall be considered as having been withdrawn. In the absence of the patentee, the oral reexamination may be carried out.
Article 70
In the process of examination of the application for avoidance, the time limit fixed by the Patent Reexamination Board may not be extended.
Article 71
Before the decision of the Patent Reexamination Board on the application for avoidance, the applicant may withdraw his application.
If the applicant withdraws his application for avoidance before the decision of the Patent Reexamination Board, the process of examination for the application for avoidance shall cease.
Chapter V Compulsory Patent Licenses
Article 72
After the expiration of three years from the date on which a patent is granted, any unit may, under the provisions of Article 48 of the Patent Law, apply to the administrative department of patent under the State Council for a compulsory license.
The applicant for a compulsory license shall file his application with the administrative department of patent under the State Council, indicate the grounds and furnish two copies of supporting documents.
The administrative department of patent under the State Council shall transmit the copy of the application for a compulsory license to the patentee. The patentee shall furnish his opinion within the time limit fixed by the administrative department of patent under the State Council. His failure to respond as scheduled does not affect the administrative department of patent under the State Council to make a decision on the compulsory license.
The decision of the administrative department of patent under the State Council for a compulsory license shall define that the compulsory license is mainly for meeting the needs in the domestic market. If the invention involved in a compulsory license is a semi-conductor technology, the compulsory license shall be only for the public and non-commercial purpose or for the purpose of remedying the anti-competition acts determined in the judicial or administrative process.
Article 73
The party concerned who applies to the administrative department of patent under the State Council for judging the use fee under Article 54 of the Patent Law shall file his application for the judge and furnish a proof on the failure to reach an agreement by both the parties. Within three months from the date of receipt of that application, the administrative department of patent under the State Council shall make a judge and notify the party concerned.
Chapter VI Reward and Compensation to Inventors and Designers of Employees' Inventions
Article 74
A state-owned enterprise or an institution to which a patent is granted shall award the inventor or designer with a bonus within three months from the date of announcing the patent. The bonus for an invention patent may not be less than 2,000 yuan; the bonus for an utility model or a design patent may not be less than 500 yuan.
If an invention was made on the basis of a proposal of the inventor or designer adopted by his unit, the state-owned enterprise or institution to which a patent is granted shall award him with a higher bonus.
The bonus paid to the inventor or designer may be entered into the cost of the enterprise or into the operating expenses of the institution.
Article 75
Within the duration of a patent, the state-owned enterprise or institution to which a patent is granted shall, if it uses the invention patent, draw a percentage of not less than 2% each year from the after-tax profits realized from the use of that invention or utility model or a percentage of not less than 0.2% from the after-tax profits each year from the use of that design as the compensation to the inventor or designer; or by reference to the percentage above, pay the compensation in lump sum to the inventor or designer.
Article 76
A state-owned enterprise or an institution to which a patent is granted, if it licenses another unit or person to use its patent, shall draw a percentage of not less than 10% from the after-tax license fee as the compensation to the inventor or designer.
Article 77
Other Chinese units may implement the provisions of this Chapter on award and compensation in a reference manner.
Chapter VII Protection of Patent Rights
Article 78
In the Patent Law and these Rules, patent administration department means the patent administration department established by the people's government of a province, autonomous region or municipality directly under the Central Government, or by the people's government of a city having districts and a large amount of patent administration work and actual ability to administer the patent work.
Article 79
Subject to the provisions of Article 57 of the Patent Law, a patent administration department may, on the request of the parties concerned, mediate the following patent disputes:
1. Disputes in respect of the ownership of the patent application rights and patent rights;
2. Disputes in respect of the qualifications of inventors or designers;
3. Disputes in respect of the reward or compensation to inventors or designers of employees' inventions; and
4. Disputes in respect of due payment for the use of inventions within the period from the publication of the patent application for an invention to the grant of the patent.
The patentee who applies to a patent administration department for mediating a dispute listed in sub-paragraph 4 of the paragraph above shall file his application after the grant of the patent.
Article 80
The administrative department of patent under the State Council shall render professional guidance to the patent administration departments for handling and mediating patent disputes.
Article 81
The application of a party concerned for handling or mediating a patent dispute shall be under the jurisdiction of the patent administration department in the place of the person to whom the application is to be made or the infringement.
If two or more patent administration departments have the jurisdiction over a patent dispute, the party concerned may file his application with any of the patent administration departments. If the party concerned files his application with two or more patent administration departments having the jurisdiction, it shall be under the jurisdiction of the patent administration department that has first received the application.
If the patent administration departments have a dispute over the jurisdiction, the patent administration department under the people's government at a higher level common to them shall determine the jurisdiction. If there is no such patent administration department under the people's government at a higher level common to them, the administrative department of patent under the State Council shall determine the jurisdiction.
Article 82
In the course of handling a dispute of patent infringement, the person to whom the application is to be made who files his application for avoidance and that application is accepted by the Patent Reexamination Board may apply to the patent administration department for suspending the handling.
The patent administration department, if it considers that the grounds for suspension furnished by the person to whom the application is to be made does not obviously exist, may refuse to suspend the handling.
Article 83
The patentee who, under the provisions of Article 15 of the Patent Law, indicates a patent mark on his patented product or the package of that product, shall make the indication in the form prescribed by the administrative department of patent under the State Council.
Article 84
The following acts shall lie to the acts of counterfeiting the patent of another person:
1. Without licensing, to indicate the patent number of another person on the product manufactured or sold or the package of that product;
2. Without licensing, to use the patent number of another person in the advertisement or other promotional materials, thus causing the technique concerned being understood as another's patented technique;
3. Without licensing, to use the patent number of another person in the contract, thus causing the technique in the contract being understood as another's patented technique; or
4. To forge or alter a patent certificate, patent document or patent application document of another person.
Article 85
The following acts shall lie to the acts of forging a non-patented product as a patented one or a non-patented process as a patented one:
1. To produce or sell a non-patented product but bearing a patent mark;
2. To continue to put a patent mark on the product produced or sold after the patent right is avoided;
3. To call a non-patented technology in the advertisement or other promotional materials as a patented one;
4. To call a non-patented technology in the contract as a patented one; or
5. To forge or alter a patent certificate, patent document or patent application document.
Article 86
The party concerned who applies to the patent administration department for dealing with or initiates an action before the people's court for a dispute due to the ownership of the patent application right or patent right may apply to the administrative department of patent under the State Council for suspending the relevant process.
The party concerned who applies for suspending the relevant process under the provisions of the paragraph above shall file his application with the administrative department of patent under the State Council and furnish the copies of relevant documents accepted by the patent administration department or the people's court.
After the decision of disposal made by the patent administration department or the ruling by the people's court has entered into force, the party concerned shall fulfill the procedure for restoring the relevant process at the administrative department of patent under the State Council. If, within one year from the date of filing the application for suspension, a dispute in respect of the ownership of the patent application right or patent right still could not be settled and it is necessary to continue the suspension of the relevant process, the applicant shall apply for extending the suspension within that time limit. If the applicant fails to do so as scheduled, the administrative department of patent under the State Council shall restore the relevant process on its own initiative.
Article 87
If the people's court has ruled to adopt preservative measures over a patent right in the trial of a civil case, the administrative department of patent under the State Council shall suspend the relevant process for the preserved patent right in order to assist the execution. If, at the expiration of the time limit for preservation, the people's court does not rule to continue the preservative measures, the administrative department of patent under the State Council shall restore the relevant process on its own initiative.
Chapter VIII Patent Registration and Gazette
Article 88
The administrative department of patent under the State Council shall maintain a Patent Register in order to record the following matters relating to patent applications and patent rights:
1. Grant of patents;
2. Transfer of patent application rights or patent rights;
3. Pledge, preservation and revocation of patent rights;
4. Filing of patent licensing contracts;
5. Avoidance of patent rights;
6. Suspension of patent rights;
7. Restoration of patent rights;
8. Compulsory patent licenses; and
9. Change in the name or designation, nationality or address of patentees.
Article 89
The administrative department of patent under the State Council shall publish the Patent Gazette periodically in order to disclose or announce the followings:
1. Relevant items contained in patent applications;
2. Abstracts of the descriptions of inventions or utility models, pictures or photographs of designs and brief explanations;
3. Applications for substantial examination of invention patent applications and decisions made by the administrative department of patent under the State Council to proceed on its own initiative to conduct substantial examination these applications;
4. Declassification of secret patents;
5. Refusal, withdrawal and withdrawal considered of invention patent applications after publication;
6. Grant of patents;
7. Avoidance of patent rights;
8. Suspension of patent rights;
9. Transfer of patent application rights and patent rights;
10. Filing of patent licensing contracts;
11. Pledge, preservation and revocation of patent rights;
12. Grant of compulsory patent licenses;
13. Restoration of patent application rights or patent rights;
14. Change in the name or designation and address of patentees;
15. Notifications to the parties concerned whose address is unknown;
16. Corrections made by the administrative department of patent under the State Council; and
17. Other relevant matters.
Descriptions, drawings and statements of claim for inventions or utility models shall be separately published in full texts by the administrative department of patent under the State Council.
Chapter IX Fees
Article 90
The applicants for patents or fulfillment of procedures to the administrative department of patent under the State Council shall pay the following fees:
1. Application fee, application additional fees and publication and printing fee;
2. Substantial examination fee and reexamination fee for invention patent applications;
3. Patent registration fee, announcement and printing fee, application maintenance fee and annual fee;
4. Fee for changing relevant items, priority claim fee, application fee for restoring a right, application fee for extending a time limit, fee for a patent search report on an utility model; or
5. Application fee for avoidance, application fee for suspending a process, application fee for a compulsory license, and application fee for a rule on the payment for the use of a compulsory license.
The schedules of the fees listed in the paragraph above shall be fixed by the price administration department under the State Council in collaboration with the administrative department of patent under the State Council.
Article 91
All fees prescribed in the Patent Law and these Rules may be paid directly to the administrative department of patent under the State Council or remitted through mail or bank or in other manners prescribed by the administrative department of patent under the State Council.
If a fee is remitted through mail or bank, the application or patent number and the name of the fee to be paid shall be correctly indicated in the remittance slip to the administrative department of patent under the State Council. The failure to comply with the provisions of this paragraph shall be considered as having not accomplished the paying procedure.
If a fee is paid directly to the administrative department of patent under the State Council, the date on which the payment is made shall be the paying date. If a fee is paid through mail, the date showing on the postmark shall be the paying date. If a fee is paid through bank, the date of actual remittance by the bank shall be the paying date. However, if the period from the remittance date to the date of receipt by the administrative department of patent under the State Council exceeds 15 days, the date of receipt by the administrative department of patent under the State Council shall be the paying date, unless the mail or bank produces a proof.
The party concerned who has any over-payment, re-payment or wrong-payment of a fee may, within one year from the paying date, file his application for a return of the excess amount paid with the administrative department of patent under the State Council.
Article 92
The applicant shall, after receipt of the notice of acceptance or at longest, within two months from the filing date, pay the application fee, publication and printing fee and required application additional fees. If he fails to pay them as scheduled or underpays, his application shall be considered as having been withdrawn.
The applicant who claims a priority shall pay the priority claim fee at the time of paying the application fee. If he fails to pay it as scheduled or underpays, his priority shall be considered as having not been claimed.
Article 93
The party concerned who applies for substantial examination, right restoration or reexamination shall pay the due fee within the time limit prescribed in the Patent Law and these Rules. If he fails to pay it as scheduled or underpays, his application shall be considered as having not been filed.
Article 94
The applicant for an invention patent shall, if he is not granted the patent within two years after the filing date, pay the application maintenance fee beginning from the third year.
Article 95
The applicant who fulfills the registration procedure shall pay the patent registration fee, announcement and printing fee and annual fee for the current year in which the patent is granted. The applicant for an invention patent shall pay in lump sum each year's application maintenance fee, not including the current year in which the patent is granted. Failing which his registration procedure shall be considered as having not been accomplished. The subsequent annual fee shall be pre-paid within one month before the expiration of the preceding year.
Article 96
If the patentee fails to pay as scheduled or underpays the annual fee for subsequent years after his patent is granted, the administrative department of patent under the State Council shall notify him to make up it within six months from the date on which the annual fee should be paid, and at the same time, he shall pay a fine for delayed payment. The amount of the fine for delayed payment shall be calculated by 5% of the total amount of the annual fee for that year for each month after the paying date. If he fails to pay it as scheduled, his patent right shall terminate at the expiration of the time limit within which the annual fee should be paid.
Article 97
The fee for changing relevant items, fee for a patent search report on the utility model, application fee for suspending a process, application fee for a compulsory license, application fee for a rule on payment of the use of a compulsory license and application fee for avoidance shall be paid within one month from the date on which the application is filed according to the provisions. The application fee for extending a time limit shall be paid before the expiration of that time limit. If the fee has not been paid as scheduled or underpaid, the application shall be considered as having not been filed.
Article 98
The applicant or patentee who has a difficulty to pay a fee listed in these Rules may, in accordance with the relevant provisions, file his application for a reduction or postponement of payment with the administrative department of patent under the State Council. The measures therefor shall be provided by the administrative department of patent under the State Council in consultation with the finance department under the State Council and the price administration department under the State Council.
Chapter X Special Provisions on International Applications
Article 99
The administrative department of patent under the State Council shall, under the provisions of Article 20 of the Patent Law, accept the international applications for patents filed under the Patent Cooperation Treaty.
The provisions of this Chapter shall apply to the conditions and processes for the entry into the national stage in China of the international applications for patents filed under the Patent Cooperation Treaty for which China is the designated state (hereinafter cited as the international application). Where this Chapter remains silent, the relevant provisions of other chapters of the Patent Law and these Rules shall be applicable thereto.
Article 100
An international application for which the date of filing is fixed and China is the designated state under the Patent Cooperation Treaty shall be considered as a patent application filed with the administrative department of patent under the State Council. The date of filing that application shall be considered as the filing date prescribed in Article 28 of the Patent Law.
If, in the international stage, an international application or the designation of China for that application is withdrawn or considered withdrawn, the effect of that international application shall cease in China.
Article 101
Within 20 months from the priority date prescribed in Article 2 of the Patent Cooperation Treaty (cited in this Chapter as the priority date), the applicant of an international application shall accomplish the following procedures for the entry of that application into the national stage in China at the administrative department of patent under the State Council. If an international application has selected China within 19 months from the priority date and the selection remains effective, the applicant of that international application shall, within 30 months from the priority date, accomplish the following procedures for the entry of that international application into the national stage in China at the administrative department of patent under the State Council:
1. To furnish a statement for the entry of his international application into the national stage in China, indicating the international application number and, in the Chinese language, the type of patent, the title of the invention, the name or designation of the applicant, his address and the name of the inventor. They shall be consistent with the records of the International Bureau;
2. To pay the application fee, application additional fees and publication and printing fee prescribed in paragraph 1 of Article 90 of these Rules;
3. If the international application is in a language other than the Chinese language, to furnish the Chinese translations of the description, statement of claim, text in the drawings and the abstract of the original international application. If the international application is in the Chinese language, to furnish the copy of the abstract in the document internationally published; and
4. To furnish the copies of drawings, if any, in the international application. If the international application is in the Chinese language, to furnish the copies of the drawings in the abstract in the document internationally published.
The applicant who fails to accomplish the procedures as scheduled under the paragraph above may, after paying the fee for a grace, fulfil the procedures before the expiration of 22 or 32 months from the priority date.
Article 102
If the applicant fails to accomplish the procedures for the entry into the national stage in China within the time limit prescribed in paragraph 2 of Article 101 of these Rules or has any of the following circumstances at the expiration of that time limit, the effect of his international application shall cease in China:
1. Failing to indicate the international application number in his statement for the entry into the national stage in China;
2. Failing to pay the application fee and publication and printing fee prescribed in paragraph 1 of Article 90 of these Rules and the fee for a grace prescribed in paragraph 2 of Article 101 of these Rules; or
3. Failing to furnish the Chinese translations of the description and statement of claim in the original international application if they are in a language other than the Chinese language.
If the effect of an international application has ceased in China, the provisions of paragraph 2 of Article 7 of these Rules shall not apply thereto.
Article 103
If the applicant has any of the f
