Implementing
Regulations of the Patent Law of
the People's Republic of China
(Promulgated by Decree No. 306 of the State Council of
the People's Republic of China on June 15,
Amended for the 1st time in accordance with the Decision of the State Council on
Amending the Implementing Regulation of the Patent Law of
the People's Republic of China on December 28, 2002,
Amended for the 2nd time in accordance with the Decision of the State Council on
Amending the Implementing Regulation of the Patent Law of
the People's Republic of China on January 9, 2010,
and effective as of February 1, 2010)
Chapter I General Provisions
Rule 1.
These Implementing Regulations are formulated in accordance with the Patent Law
of the People's Republic of China (hereinafter referred to as the Patent Law).
Rule 2.
Any formalities prescribed by the Patent Law and these Implementing Regulations
shall be complied with in a written form or in any other form prescribed by the
Patent Administration Department under the State Council.
Rule 3.
Any document submitted in accordance with the provisions of the Patent Law and
these Implementing Regulations shall be in Chinese; the standard scientific and
technical terms shall be used if there is a prescribed one set forth by the
State; where no generally accepted translation in Chinese can be found for a
foreign name or scientific or technical term, the one in the original language
shall be also indicated.
Where any certificate or certifying document submitted in accordance with the
provisions of the Patent Law and these Implementing Regulations is in a foreign
language, the Patent Administration Department under the State Council may, when
it deems necessary, request a Chinese translation of the certificate or the
certifying document be submitted within a specified time limit; where the
translation is not submitted within the specified time limit, the certificate or
certifying document shall be deemed not to have been submitted.
Rule 4.
Where any document is sent by mail to the Patent Administration Department under
the State Council, the date of mailing indicated by the postmark on the envelope
shall be deemed to be the date of filing; where the date of mailing indicated by
the postmark on the envelope is illegible, the date on which the Patent
Administration Department under the State Council receives the document shall be
the date of filing, except where the date of mailing is proved by the party
concerned.
Any document of the Patent Administration Department under the State Council may
be served by mail, by personal delivery or by other forms. Where any party
concerned appoints a patent agency, the document shall be sent to the patent
agency; where no patent agency is appointed, the document shall be sent to the
liaison person named in the request.
Where any document is sent by mail by the Patent Administration Department under
the State Council, the 16th day from the date of mailing shall be presumed to be
the date on which the party concerned receives the document.
Where any document is delivered personally in accordance with the provisions of
the Patent Administration Department under the State Council, the date of
delivery is the date on which the party concerned receives the document.
Where the address of any document is not clear and it cannot be sent by mail,
the document may be served by making an announcement. At the expiration of one
month from the date of the announcement, the document shall be deemed to be
served.
Rule 5.
The first day of any time limit prescribed in the Patent Law and these
Implementing Regulations shall not be counted in the time limit. Where the time
limit is counted by year or by month, it shall expire on the corresponding day
of the last month; if there is no corresponding day in that month, the time
limit shall expire on the last day of that month; if a time limit expires on an
official holiday, it shall expire on the first working day following that
official holiday.
Rule 6.
Where a time limit prescribed in the Patent Law or these Implementing
Regulations or specified by the Patent Administration Department under the State
Council is not observed by a party concerned because of force majeure, resulting
in loss of his or its rights, he or it may, within two months from the date on
which the impediment is removed, at the latest within two years immediately
following the expiration of that time limit, request the Patent Administration
Department under the State Council to restore his or its rights.
In addition to the circumstance as prescribed in the preceding paragraph, where
a time limit prescribed in the Patent Law or these Implementing Regulations or
specified by the Patent Administration Department under the State Council is not
observed by a party concerned because of any other justified reason, resulting
in loss of his or its rights, he or it may, within two months from the date of
receipt of a notification from the Patent Administration Department under the
State Council, request the Patent Administration Department under the State
Council to restore his or its rights.
Where the party concerned requests restoration of his or its right in accordance
with the provisions of paragraph one or two of this Rule, he or it shall submit
a request to restore his or its right, state the reasons, together with relevant
supporting documents where necessary and go through the relevant formalities
that should have been gone through before the loss of his or its right; where
the party concerned requests to restore his or its right in accordance with
paragraph two of this Rule, he or it shall further pay the fee for requesting
restoration of his or its right.
Where the party concerned makes a request for an extension of a time limit
specified by the Patent Administration Department under the State Council, he or
it shall, before the time limit expires, state the reasons to the Patent
Administration Department under the State Council and go through the relevant
formalities.
The provisions of paragraphs one and two of this Rule shall not be applicable to
the time limit referred to in Articles 24, 29, 42 and 68 of the Patent Law.
Rule 7.
Where an application for a patent relates to the interests of national defense
and requires to be kept secret, the application for patent shall be filed with
and examined by the patent department of national defense. Where any application
for patent relating to the interests of national defense and requiring to be
kept secret is received by the Patent Administration Department under the State
Council, the application for patent shall be forwarded in time to the patent
department of national defense for examination. Where the patent department of
national defense, after examination, does not find any reason for rejection, the
Patent Administration Department under the State Council shall make a decision
to grant the application a national defense patent right.
Where the Patent Administration Department under the State Council finds that an
application for a patent for invention or utility model that is filed therewith
relates to the national security or vital interests apart from the national
defense interests and requires to be kept secret, the Patent Administration
Department under the State Council shall make a decision in time to handle it as
an application for secret patent and notify the applicant accordingly. The
special procedures for examination and reexamination of an application for a
secret patent and the special procedure for invalidating a secret patent right
shall be prescribed by the Patent Administration Department under the State
Council.
Rule 8.
An invention or utility model made in China referred to in Article 20 of the
Patent Law means any invention or utility model with a technical solution, the
substantive contents of which are accomplished within the Chinese territory.
Where any entity or individual intends to file an application in a foreign
country for a patent for invention or utility model accomplished in China, it or
he shall make a request to the Patent Administration Department under the State
Council for examination of secrecy by one of the following means:
(1) Where any entity or individual wishes to file an application for patent in a
foreign country or to file an international application for patent with any
relevant foreign institution directly, it or he shall make a request to the
Patent Administration Department under the State Council in advance and explain
the technical solution thereof in detail;
(2) Where any entity or individual, after filing an application for patent with
the Patent Administration Department under the State Council, wishes to file an
application for patent in a foreign country or to file an international
application for a patent with the relevant foreign institution, it or he shall
make a request to the Patent Administration Department under the State Council
before filing the application for patent in a foreign country or to file the
international application for a patent with the relevant foreign institution;
Where any entity or individual files an international application for patent
with the Patent Administration Department under the State Council, the request
for examination of secrecy shall be deemed to have been made at the same time.
Rule 9.
Where, after receipt of the request submitted in accordance with the provisions
of Rule 8 of these Implementing Regulations, the Patent Administration
Department under the State Council, after examination, finds that the invention
or utility model may relate to the national security or vital interests and
require to be kept secret, it shall issue a notification of security examination
to the applicant in time; where the applicant does not receive the notification
of secrecy examination within four months from the date on which the request is
submitted, he or it may file an application for patent in a foreign country or
file an international application for patent with the relevant foreign
institution for the invention or utility model.
Where the Patent Administration Department under the State Council issues a
notification of secrecy examination in accordance with the provisions of the
preceding paragraph, it shall make a decision in time on whether or not to
require the invention or utility model to be kept secret and notify the
applicant accordingly; where the applicant does not receive the decision to
require the invention or utility model to be kept secret within six months from
the date on which the request is submitted, he or it may file an application for
patent in a foreign country or file an international application for patent with
the relevant foreign institution for the invention or utility model.
Rule 10.
Any invention-creation that is contrary to the laws of the State referred to in
Article 5 of the Patent Law shall not include the invention-creation merely
because the exploitation of which is prohibited by the laws of the State.
Rule 11.
The date of filing referred to in the Patent Law, except for those referred to
in Articles 28 and 42 means the priority date where priority is claimed. The
date of filing referred to in these Implementing Regulations, except as
otherwise prescribed, means the date of filing prescribed in Article 28 of the
Patent Law.
Rule 12.
"A service invention-creation made by a person in execution of the tasks of the
entity to which he belongs" referred to in Article 6 of the Patent Law means any
invention-creation made:
(1) in the course of performing his own duty;
(2) in execution of any task, other than his own duty, which was entrusted to
him by the entity to which he belongs;
(3) within one year from his retirement, his transfer to another entity, or
termination of his employment relations and personnel relations, where the
invention-creation relates to his own duty or the other task entrusted to him by
the entity to which he previously belonged.
"The entity to which he belongs" referred to in Article 6 of the Patent Law
includes the entity in which the person concerned is a temporary staff member.
"Material and technical means of the entity" referred to in Article 6 of the
Patent Law mean the entity's money, equipment, spare parts, raw materials or
technical materials which are not disclosed to the public.
Rule 13.
"Inventor" or "creator" referred to in the Patent Law means any person who makes
creative contributions to the substantive features of an invention-creation. Any
person who, during the course of accomplishing the invention-creation, is
responsible only for organizational work, or who offers facilities for making
use of material and technical means, or who takes part in other auxiliary
functions, shall not be considered as inventor or creator.
Rule 14.
Except for the assignment of the patent right in accordance with Article 10 of
the Patent Law, where the patent right is transferred because of any other
reason, the person or persons concerned shall, accompanied by relevant certified
documents or legal papers, request the Patent Administration Department under
the State Council to make a registration of transfer of the patent right.
Any license contract for exploitation of the patent which has been concluded by
the patentee with an entity or individual shall, within three months from the
date of entry into force of the contract, be submitted to the Patent
Administration Department under the State Council for the record.
Where a patent right is pledged, both the pledgor and the pledgee shall request
the Patent Administration Department under the State Council to make a
registration of pledge of the patent right.
Chapter II Application for Patent
Rule 15.
Anyone who applies for a patent in written form shall file with the Patent
Administration Department under the State Council application documents in two
copies.
Anyone who applies for a patent in other forms as provided by the Patent
Administration Department under the State Council shall comply with the relevant
provisions.
Any applicant who appoints a patent agency for applying for a patent, or for
having other patent matters to attend to before the Patent Administration
Department under the State Council, shall submit at the same time a power of
attorney indicating the scope of the power entrusted.
Where there are two or more applicants and no patent agency is appointed, unless
otherwise stated in the request, the applicant named first in the request shall
be the representative.
Rule 16.
The request for filing an application for a patent for invention, utility model
or design shall include the following items:
(1) the title of the invention, utility model or design;
(2) where the applicant is a Chinese entity or individual, the name, address,
post code, institution code or resident identity card number of the applicant;
where the applicant is a foreigner, an foreign enterprise or other foreign
organization, the name, nationality of the applicant or the country or region in
which the applicant is registered;
(3) the name of the inventor or creator;
(4) where the applicant has appointed a patent agency, the name and institution
code of the appointed agency, and the name, practicing certificate number and
telephone number of the patent attorney designated by the agency;
(5) where the priority is claimed, the date and the number of the application
which was first filed (hereinafter referred to as the earlier application), and
the name of the competent authority of the foreign county in which the
application was filed;
(6) the signature or seal of the applicant or the patent agency;
(7) a list of the documents constituting the application;
(8) a list of the documents appending the application; and
(9) any other related matter which needs to be indicated.
Rule 17.
The description of an application for a patent for invention or utility model
shall state the title of the invention or utility model, which shall be the same
as it appears in the request. The description shall include the following:
(1) technical field: specifying the technical field to which the technical
solution for which protection is sought pertains;
(2) background art: indicating the background art which can be regarded as
useful for the understanding, searching and examination of the invention or
utility model, and when possible, citing the documents reflecting such art;
(3) contents of the invention: disclosing the technical problem the invention or
utility model aims to settle and the technical solution adopted to resolve the
problem; and stating, with reference to the prior art, the advantageous effects
of the invention or utility model;
(4) description of figures: briefly describing each figure in the drawings, if
any;
(5) mode of carrying out the invention or utility model: describing in detail
the optimally selected mode contemplated by the applicant for carrying out the
invention or utility model; where appropriate, this shall be done in terms of
examples, and with reference to the drawings, if any;
The manner and order referred to in the preceding paragraph shall be followed by
the applicant for a patent for invention or for utility model, and each of the
parts shall be preceded by a heading, unless, because of the nature of the
invention or utility model, a different manner or order would result in a better
understanding and a more economical presentation.
The description of the invention or utility model shall use standard terms and
be in clear wording, and shall not contain such references to the claims as: "as
described in claim X", nor shall it contain commercial advertising.
Where an application for a patent for invention contains disclosure of one or
more nucleotide and/or amino acid sequences, the description shall contain a
sequence listing in compliance with the standard prescribed by the Patent
Administration Department under the State Council. The sequence listing shall be
submitted as a separate part of the description, and a copy of the said sequence
listing in machine-readable form shall also be submitted in accordance with the
provisions of the Patent Administration Department under the State Council.
The description of the application for a patent for utility model shall contain
the drawings that represent the shape, configuration or their combination of the
product incorporating the utility model for which protection is sought.
Rule 18.
Several figures of the invention or utility model shall be numbered and arranged
in numerical order consecutively as "Figure l, Figure 2, …".
Reference signs not mentioned in the text of the description of the invention or
utility model shall not appear in the drawings. Reference signs not mentioned in
the drawings shall not appear in the text of the description. Reference signs
for the same composite part shall be used consistently throughout the
application document.
The drawings shall not contain any other explanatory notes, except words which
are indispensable.
Rule 19.
The claims shall state the technical features of the invention or utility model.
If there are several claims, they shall be numbered consecutively in Arabic
numerals.
The technical terminology used in the claims shall be consistent with that used
in the description. The claims may contain chemical or mathematical formulae but
no drawings. They shall not, except where absolutely necessary, contain such
references to the description or drawings as: "as described in part…of the
description", or "as illustrated in Figure…of the drawings".
Rule 20.
The claims shall have an independent claim, and may also contain dependent
claims.
The independent claim shall outline the technical solution of an invention or
utility model and state the essential technical features necessary for the
solution of its technical problem.
The dependent claim shall, by additional technical features, further define the
claim which it refers to.
Rule 21.
An independent claim of an invention or utility model shall contain a preamble
portion and a characterizing portion, and be presented in the following form:
(1) a preamble portion: indicating the title of the claimed subject matter of
the technical solution of the invention or utility model, and those technical
features which are necessary for the definition of the claimed subject matter
but which, in combination, are part of the most related prior art;
(2) a characterizing portion: stating, in such words as "characterized in
that..." or in similar expressions, the technical features of the invention or
utility model, which distinguish it from the most related prior art. Those
features, in combination with the features stated in the preamble portion, serve
to define the scope of protection of the invention or utility model.
Where the manner specified in the preceding paragraphs is not appropriate to be
followed because of the nature of the invention or utility model, an independent
claim may be presented in a different manner.
An invention or utility model shall have only one independent claim, which shall
precede all the dependent claims relating to the same invention or utility
model.
Rule 22.
Any dependent claim of an invention or utility model shall contain a reference
portion and a characterizing portion, and be presented in the following manner:
(1) a reference portion: indicating the serial number(s) of the claim(s)
referred to, and the title of the subject matter;
(2) a characterizing portion: stating the additional technical features of the
invention or utility model.
Any dependent claim shall only refer to the preceding claim or claims. Any
multiple dependent claims, which refer to two or more claims, shall refer to the
preceding one in the alternative only, and shall not serve as a basis for any
other multiple dependent claims.
Rule 23.
The abstract shall consist of a summary of the disclosure as contained in the
application for patent for invention or utility model. The summary shall
indicate the title of the invention or utility model, and the technical field to
which the invention or utility model pertains, and shall be drafted in a way
which allows the clear understanding of the technical problem, the gist of the
technical solution of that problem, and the principal use or uses of the
invention or utility model.
The abstract may contain the chemical formula which best characterizes the
invention. In an application for a patent which contains drawings, the applicant
shall provide a figure which best characterizes the technical features of the
invention or utility model. The scale and the distinctness of the figure shall
be as such that a reproduction with a linear reduction in size to 4cm x 6cm
would still enable all details to be clearly distinguished. The whole text of
the abstract shall contain no more than 300 words. There shall be no commercial
advertising in the abstract.
Rule 24.
Where an invention for which a patent is applied for concerns a new biological
material which is not available to the public and which cannot be described in
the application in such a manner as to enable the invention to be carried out by
a person skilled in the art, the applicant shall, in addition to the other
requirements provided for in the Patent Law and these Implementing Regulations,
go through the following formalities:
(1) depositing a sample of the biological material with a depositary institution
designated by the Patent Administration Department under the State Council
before, or at the latest, on the date of filing (or the priority date where
priority is claimed), and submit at the time of filing or at the latest, within
four months from the filing date, a receipt of deposit and the viability proof
from the depository institution; where they are not submitted within the
specified time limit, the sample of the biological material shall be deemed not
to have been deposited;
(2) giving in the application document relevant information of the
characteristics of the biological material;
(3) indicating, where the application relates to the deposit of the biological
material, in the request and the description the scientific name (with its Latin
name) and the title and address of the depositary institution, the date on which
the sample of the biological material was deposited and the accession number of
the deposit; where, at the time of filing, they are not indicated, they shall be
supplied within four months from the date of filing; where after the expiration
of the time limit they are not supplied, the sample of the biological material
shall be deemed not to have been deposited.
Rule 25.
Where the applicant for a patent for invention has deposited a sample of the
biological material in accordance with the provisions of Rule 24 of these
Implementing Regulations, and after the application for patent for invention is
published, any entity or individual that intends to make use of the biological
material to which the application relates, for the purpose of experiment, shall
make a request to the Patent Administration Department under the State Council,
containing the following items:
(1) the name and address of the requesting person;
(2) an undertaking not to make the biological material available to any other
person;
(3) an undertaking to use the biological material for experimental purpose only
before the grant of the patent right.
Rule 26.
The genetic resource referred to in the Patent Law means human, animal, plant or
microorganism-derived material etc. containing genetic functional units and
having actual or potential value; the invention-creation that is accomplished
depending on the genetic resource referred to in the Patent Law means an
invention-creation that is accomplished by using the genetic function of the
genetic resource.
Where an application for a patent for the invention-creation that is
accomplished depending on the genetic resource is filed, the applicant shall
indicate it in the application request and fill in a form formulated by the
Patent Administration Department under the State Council.
Rule 27.
Where the applicant seeks protection of colors, the drawings or photographs in
color shall be submitted.
The applicant shall, in respect of the subject matter of the product
incorporating the design which is in need of protection, submit the relevant
drawings or photographs.
Rule 28.
A brief explanation of a design shall include the title and usage of the product
incorporating the design, the essential portion of the design, and designate a
drawing or photograph which best represents the essential portion of the design.
Where the views are omitted or the colors for which protection are sought, it
shall be indicated in the brief explanation.
Where one application for a patent for similar designs incorporated by the same
product is filed, one of the designs shall be designated as the basic design in
the brief explanation.
The brief explanation shall not contain any commercial advertising and shall not
be used to indicate the function of the product.
Rule 29.
Where the Patent Administration Department under the State Council deems
necessary, it may require the applicant for a patent for design to submit a
sample or model of the product incorporating the design. The volume of the
sample or model submitted shall not exceed 30cm x 30cm x 30cm, and its weight
shall not surpass l5 kilograms. Articles that are easy to get rotten or broken
or articles that are dangerous shall not be submitted as sample or model.
Rule 30.
The international exhibition recognized by the Chinese government referred to in
Article 24, subparagraph (1) of the Patent Law means any international
exhibition registered in or recognized by the International Exhibitions Bureau
as prescribed in the International Exhibition Convention.
The academic or technological meeting referred to in Article 24, subparagraph
(2) of the Patent Law means any academic or technological meeting organized by a
competent department concerned of the State Council or by a national academic or
technological association.
Where any invention-creation for which a patent is applied falls under the
provisions of Article 24, subparagraph (l) or (2) of the Patent Law, the
applicant shall, when filing the application, make a declaration and, within a
time limit of two months from the date of filing, submit certifying documents
issued by the entity which organized the international exhibition or academic or
technological meeting, stating the fact that the invention-creation was
exhibited or published and with the date of its exhibition or publication.
Where any invention-creation for which a patent is applied falls under the
provisions of Article 24, subparagraph (3) of the Patent Law, the Patent
Administration Department under the State Council may, when it deems necessary,
require the applicant to submit the relevant certifying documents within the
specified time limit.
Where the applicant fails to make a declaration and submit certifying documents
as required in paragraph three of this Rule, or fails to submit certifying
documents within the specified time limit as required in paragraph four of this
Rule, the provisions of Article 24 of the Patent Law shall not apply to the
application.
Rule 31.
Where an applicant claims a foreign priority in accordance with the provisions
of Article 30 of the Patent Law, the copy of the earlier application documents
submitted by the applicant shall be certified by the competent authority of the
foreign country in which the application was filed. In accordance with the
agreement concluded by the Patent Administration Department under the State
Council and the competent authority, where the copy of the earlier application
documents is obtained by the Patent Administration Department under the State
Council by means of electronic exchange, etc., the copy of the earlier
application documents certified by the competent authority shall be deemed to
have been submitted by the applicant. Where a domestic priority is claimed and
the filing date and the application number of the earlier application are
provided by the applicant in the request, the copy of the earlier application
documents shall be deemed to have been submitted.
Where the priority is claimed but one or two items among the filing date, the
application number of the earlier application and the name of the competent
authority of the foreign country in which the application was filed is/are not
or wrongly provided in the request, the Patent Administration Department under
the State Council shall notify the applicant to make correction within a
specified time limit; where the correction is not made within the specified time
limit, the priority shall be deemed not to have been claimed.
Where the name of the applicant claiming the priority is not the same as that
recorded in the copy of the earlier application documents, the applicant shall
submit a document certifying the assignment of priority; where the certifying
document is not submitted, the priority shall be deemed not to have been
claimed.
Where a foreign priority is claimed by the applicant of a patent application for
design, the earlier application does not contain the brief explanation of the
design, and the brief explanation submitted by the applicant in accordance with
Rule 28 of these Implementing Regulations does not go beyond the scope
illustrated in the drawings or photographs of the earlier application documents,
the applicant shall not be affected in enjoying his or its priority.
Rule 32.
An applicant may claim one or more priorities for an application for a patent;
where multiple priorities are claimed, the priority period for the application
shall be calculated from the earliest priority date.
Where an applicant claims the right of domestic priority, if the earlier
application is one for a patent for invention, he or it may file an application
for a patent for invention or utility model for the same subject matter; if the
earlier application is one for a patent for utility model, he or it may file an
application for a patent for utility model or invention for the same subject
matter. However, when the later application is filed, if the subject matter of
the earlier application falls under any of the following, it may not be taken as
the basis for claiming domestic priority:
(1) where the applicant has claimed foreign or domestic priority;
(2) where it has been granted a patent right;
(3) where it is the subject matter of a divisional application filed as
prescribed.
Where the domestic priority is claimed, the earlier application shall be deemed
to be withdrawn from the date on which the later application is filed.
Rule 33.
Where an application for a patent is filed or the right of foreign priority is
claimed by an applicant having no habitual residence or business office in
China, the Patent Administration Department under the State Council may, when it
deems necessary, require the applicant to submit the following documents:
(1) a certificate concerning the nationality of the applicant, if the applicant
is an individual;
(2) a document certifying the country or region where the applicant was
registered, if the applicant is an enterprise or other organization;
(3) a document certifying that the country, to which the foreigner, foreign
enterprise or other foreign organization belongs, recognizes that Chinese
entities and individuals are, under the same conditions as those applied to its
nationals, entitled to the patent right, the right of priority and other related
rights in that country.
Rule 34.
Two or more inventions or utility models belonging to a single general inventive
concept which may be filed as one application in accordance with the provision
of Article 3l, paragraph one of the Patent Law shall be technically
inter-related and contain one or more of the same or corresponding special
technical features. The expression "special technical features" shall mean those
technical features that define a contribution which each of those inventions or
utility models, considered as a whole, makes over the prior art.
Rule 35.
Where similar designs incorporated by one product are filed as one application
in accordance with the provisions of Article 31, paragraph two of the Patent
Law, other designs of the product shall be similar to the basic design
designated in the brief explanation. The number of similar designs in one
application for a patent for design shall be no more than ten.
The expression "two or more designs which are incorporated in products belonging
to the same class and are sold or used in sets" referred to in Article 3l,
paragraph two of the Patent Law means that the respective products incorporating
the designs belong to the same class in the classification of products for
designs, the products incorporating the designs are customarily sold or used at
the same time, and the designs incorporated in respective products have the same
designing concept.
Where two or more designs are filed as one application, they shall be numbered
consecutively and the numbers shall precede the titles of respective drawings or
photographs of the product incorporating the design.
Rule 36.
When withdrawing an application for a patent, the applicant shall submit to the
Patent Administration Department under the State Council a declaration to that
effect stating the title of the invention-creation, the filing number and the
date of filing.
Where a declaration to withdraw an application for a patent is submitted after
the preparations for the publication of the application document has been
completed by the Patent Administration Department under the State Council, the
application document shall be published as scheduled. However, the declaration
withdrawing the application for patent shall be published in the next issue of
the Patent Gazette.
Chapter III Examination and Approval of Application for Patent
Rule 37.
Where any of the following events occurs, a person who makes examination or
hears a case in the procedures of preliminary examination, examination as to
substance, reexamination or invalidation shall, on his own initiative or upon
the request of the parties concerned or any other interested person, be excluded
from excising his function:
(1) where he is a near relative of the party concerned or the agent of the party
concerned;
(2) where he has an interest in the application for patent or the patent right;
(3) where he has any other kinds of relations with the party concerned or with
the agent of the party concerned that may influence impartial examination and
hearing.
(4) where a member of the Patent Reexamination Board who has taken part in the
examination of the same application.
Rule 38.
Upon the receipt of an application for a patent for invention or utility model
consisting of a request, a description (drawings must be included in an
application for utility model) and one or more claims, or an application for a
patent for design consisting of a request and one or more drawings or
photographs showing the design and a brief explanation of the design, the Patent
Administration Department under the State Council shall accord the date of
filing, issue a filing number, and notify the applicant.
Rule 39.
In any of the following circumstances, the Patent Administration Department
under the State Council shall refuse to accept the application and notify the
applicant accordingly:
(1) where the application for a patent for invention or utility model does not
contain a request, a description (the description of utility model does not
contain drawings) or claims, or the application for a patent for design does not
contain a request, drawings, photographs, or a brief explanation;
(2) where the application is not written in Chinese;
(3) where the application is not in conformity with the provisions of Rule 121,
paragraph one of these Implementing Regulations;
(4) where the request does not contain the name or address of the applicant;
(5) where the application is obviously not in conformity with the provisions of
Article 18, or of Article l9, paragraph one of the Patent Law;
(6) where the kind of protection (patent for invention, utility model or design)
of the application for a patent is not clear and definite or cannot be
ascertained.
Rule 40.
Where the description states that it contains explanatory notes to the drawings
but the drawings or part of them are missing, the applicant shall, within the
time limit specified by the Patent Administration Department under the State
Council, either furnish the drawings or make a declaration for the deletion of
the explanatory notes to the drawings. If the drawings are submitted later, the
date of their delivery at, or mailing to, the Patent Administration Department
under the State Council shall be the date of filing of the application; if the
explanatory notes to the drawings are to be deleted, the initial date of filing
shall be retained.
Rule 41.
Where two or more applicants respectively file, on the same day (i.e., the
filing date, or the priority date where the priority is claimed), applications
for patent for the identical invention-creation, they shall, after receipt of a
notification from the Patent Administration Department under the State Council,
hold consultations among themselves to decide the person or persons who shall be
entitled to file the application.
Where the same applicant files, on the same day (i.e., the filing date),
applications for both a patent for utility model and a patent for invention for
the identical invention-creation, he or it shall declare, when filing the
applications, that an application for an additional patent for the identical
invention-creation has been filed respectively; where the declaration is not
made, the applications shall be handled in accordance with Article 9, paragraph
1 of the Patent Law, which stipulates that for any identical invention-creation,
only one patent right shall be granted.
Where the Patent Administration Department under the State Council announces the
grant of a patent right for utility model, it shall announce that the applicant
has filed an application for a patent for invention in accordance with paragraph
2 of this Rule.
Where it is found after examination that there is no reason for rejection of the
application for a patent for invention, the Patent Administration Department
under the State Council shall notify the applicant to abandon his or its patent
right for utility model within a specified time limit by a declaration. Where
the applicant abandons his or its patent right for utility model, the decision
to grant a patent right for invention shall be made by the Patent Administration
Department under the State Council and the applicant’s declaration to abandon
his or its patent right for utility model shall be announced when the grant of
his or its patent right for invention is announced; Where the applicant
disagrees with the abandonment of his or its patent right for utility model, the
application for a patent for invention shall be rejected by the Patent
Administration Department under the State Council; where the applicant fails to
make any response within the specified time limit, the application for a patent
for invention shall be deemed to have been withdrawn.
Starting from the date of the announcement of the grant of the patent right for
invention, the patent right for utility model shall be terminated.
Rule 42.
Where an application for a patent contains two or more inventions, utility
models or designs, the applicant may, before the expiration of the time limit
provided for in Rule 54, paragraph one of these Implementing Regulations, submit
to the Patent Administration Department under the State Council a divisional
application. However, where an application for patent has been rejected,
withdrawn or is deemed to have been withdrawn, no divisional application may be
filed.
If the Patent Administration Department under the State Council finds that an
application for a patent is not in conformity with the provisions of Article 3l
of the Patent Law or of Rule 34 or 35 of these Implementing Regulations, it
shall invite the applicant to amend the application within a specified time
limit; if the applicant fails to make any response after the expiration of the
specified time limit, the application shall be deemed to have been withdrawn.
The divisional application may not change the kind of protection of the initial
application.
Rule 43.
A divisional application filed in accordance with the provisions of Rule 42 of
these Implementing Regulations shall be entitled to the filing date and, if
priority is claimed, the priority date of the initial application, provided that
the divisional application does not go beyond the scope of disclosure contained
in the initial application.
The divisional application shall go through all the formalities in accordance
with the provisions of the Patent Law and these Implementing Regulations.
The filing number and the date of filing of the initial application shall be
indicated in the request of the divisional application. When the divisional
application is filed, it shall be accompanied by a copy of the initial
application; if priority is claimed for the initial application, a copy of the
priority document of the initial application shall also be submitted.
Rule 44.
"Preliminary examination" referred to in Articles 34 and 40 of the Patent Law
means the check of an application for a patent to see whether or not it contains
the documents as provided for in Articles 26 or 27 of the Patent Law and other
necessary documents, and whether or not those documents are in the prescribed
form; such check shall also include the following:
(1) whether or not any application for a patent for invention obviously falls
under the circumstances as prescribed in Article 5 or 25 of the Patent Law,
whether or not the application is in conformity with the provisions of Article
l8, or of Article l9, paragraph one or of Article 20, paragraph one of the
Patent Law, or of Rule 16 or of Rule 26, paragraph two of these Implementing
Regulations, whether the application is obviously not in conformity with the
provisions of Article 2, paragraph 2, or of Article 26, paragraph five, or of
Article 3l, paragraph one, or Article 33 of the Patent Law, or of Rules 17 to 21
of these Implementing Regulations;
(2) whether or not any application for a patent for utility model obviously
falls under the circumstance as prescribed in Article 5 or 25 of the Patent Law,
whether or not the application is in conformity with the provisions of Article
l8, or of Article l9, paragraph one or of Article 20, paragraph one of the
Patent Law or of Rules 16 to 19, or of Rules 21 to 23 of these Implementing
Regulations, whether the application is obviously not in conformity with the
provisions of Article 2, paragraph three, or of Article 22, paragraph two or
four, or of Article 26, paragraph three or four, or of Article 3l , paragraph
one, or of Article 33 of the Patent Law, or of Rule 20, or of Rule 43, paragraph
one of these Implementing Regulations, whether or not the applicant is not
entitled to a patent right in accordance with the provisions of Article 9 of the
Patent Law;
(3) whether or not any application for a patent for design obviously falls under
the circumstances as prescribed in Article 5, or Article 25, paragraph one,
subparagraph (6) of the Patent Law, whether or not the application is in
conformity with the provisions of Article l8 or of Article l9, paragraph one of
the Patent Law, or of Rule 16, or of Rule 27, or of Rule 28 of these
Implementing Regulations, whether the application is obviously not in conformity
with the provisions of Article 2, paragraph four, or of Article 23, paragraph
one, or of Article 27, paragraph 2, or of Article 3l , paragraph two, or of
Article 33 of the Patent Law, or of Rule 43, paragraph one of these Implementing
Regulations, whether or not the applicant is not entitled to a patent right in
accordance with the provisions of Article 9 of the Patent Law;
(4) whether or not the application documents are in conformity with the
provisions of Rule 2, or of Rule 3, paragraph one of these Implementing
Regulations.
The Patent Administration Department under the State Council shall notify the
applicant of its opinions after checking his or its application and invite him
or it to state his or its observations or to correct his or its application
within the specified time limit. If the applicant fails to make any response
within the specified time limit, the application shall be deemed to have been
withdrawn. Where, after the applicant has made his or its observations or the
corrections, the Patent Administration Department under the State Council still
finds that the application is not in conformity with the provisions of the
Articles and the Rules cited in the preceding subparagraphs, the application
shall be rejected.
Rule 45.
Apart from the application for patent, any document relating to the patent
application which is submitted to the Patent Administration Department under the
State Council, shall, in any of the following circumstances, be deemed not to
have been submitted:
(1) where the document is not presented in the prescribed form or the
indications therein are not in conformity with the prescriptions;
(2) where no certifying document is submitted as prescribed. The Patent
Administration Department under the State Council shall notify the applicant of
its opinion after checking that the document is deemed not to have been
submitted.
Rule 46.
Where the applicant requests an earlier publication of its or his application
for a patent for invention, a statement shall be made to the Patent
Administration Department under the State Council. The Patent Administration
Department under the State Council shall, after preliminary examination of the
application, publish it immediately, unless it is to be rejected.
Rule 47.
The applicant shall, when indicating the product incorporating the design and
the class to which that product belongs, refer to the classification of products
for designs published by the Patent Administration Department under the State
Council. Where no indication, or an incorrect indication, of the class to which
the product incorporating the design belongs is made, the Patent Administration
Department under the State Council shall supply the indication or correct it.
Rule 48.
Any person may, from the date of publication of an application for a patent for
invention till the date of announcing the grant of the patent right, submit to
the Patent Administration Department under the State Council his observations,
with reasons therefor, on the application which is not in conformity with the
provisions of the Patent Law.
Rule 49.
Where the applicant for a patent for invention cannot furnish, for justified
reasons, the documents concerning any search or results of any examination
specified in Article 36 of the Patent Law, he or it shall make a statement to
the Patent Administration Department under the State Council and submit them
when the said documents are available.
Rule 50.
The Patent Administration Department under the State Council shall, when
proceeding on its own initiative to examine an application for a patent in
accordance with the provisions of Article 35, paragraph two of the Patent Law,
notify the applicant accordingly.
Rule 51.
When a request for examination as to substance is made, and when, within the
time limit of three months after the receipt of the notification of the Patent
Administration Department under the State Council, that the application has
entered into examination as to substance, the applicant for a patent for
invention may amend the application for a patent for invention on its or his own
initiative.
Within two months from the date of filing, the applicant for a patent for
utility model or design may amend the application for a patent for utility model
or design on its or his own initiative.
Where the applicant amends the application after receiving the notification of
opinions of the examination as to substance of the Patent Administration
Department under the State Council, he or it shall make the amendment with
respect to the defects as pointed out in the notification.
The Patent Administration Department under the State Council may, on its own
initiative, correct the obvious clerical mistakes and symbol mistakes in the
documents of application for a patent. Where the Patent Administration
Department under the State Council corrects mistakes on its own initiative, it
shall notify the applicant.
Rule 52.
When an amendment to the description or the claims in an application for a
patent for invention or utility model is made, a replacement sheet in prescribed
form shall be submitted, unless the amendment concerns only the alteration,
insertion or deletion of a few words. Where an amendment to the drawings or
photographs of an application for a patent for design is made, a replacement
sheet shall be submitted as prescribed.
Rule 53.
In accordance with the provisions of Article 38 of the Patent Law, the
circumstances where an application for a patent for invention shall be rejected
by the Patent Administration Department under the State Council after
examination as to substance are as follows:
(1) where the application falls under the circumstances as prescribed in the
provisions of Article 5 or 25 of the Patent Law, or the applicant is not
entitled to a patent right in accordance with the provisions of Article 9 of the
Patent Law;
(2) where the application does not comply with the provisions of Article 2,
paragraph two, or of Article 20, paragraph one, or of Article 22, or of Article
26, paragraph three, four or five, or of Article 31, paragraph one of the Patent
Law or of Rule 20, paragraph two of these Implementing Regulations;
(3) where the amendment to the application does not comply with the provisions
of Article 33 of the Patent Law, or the divisional application does not comply
with the provisions of Rule 43, paragraph one of these Implementing Regulations.
Rule 54.
After the Patent Administration Department under the State Council issues the
notification to grant the patent right, the applicant shall go through the
formalities of registration within two months from the date of receipt of the
notification. If the applicant completes the formalities of registration within
the said time limit, the Patent Administration Department under the State
Council shall grant the patent right, issue the patent certificate and announce
it.
If the applicant does not go through the formalities of registration within the
time limit, he or it shall be deemed to have abandoned its or his right to
obtain the patent right.
Rule 55.
Where no reasons for rejecting an application for a secret patent are found
after examination, the Patent Administration Department under the State Council
shall make a decision to grant a secret patent right, issue the secret patent
certificate, and register related matters of the secret patent right.
Rule 56.
After the announcement of the decision to grant a patent for utility model or
design, the patentee or the interested person referred to in Article 60 of the
Patent Law may request the Patent Administration Department under the State
Council to make a patent right evaluation report.
Where such person requests for a patent right evaluation report, he shall submit
a request for the patent right evaluation report and indicate the patent number.
Each request shall be limited for one patent right.
Where the request for a patent right evaluation report does not comply with
provisions as prescribed, the Patent Administration Department under the State
Council shall notify the requesting person to amend the request within a
specified time limit; where the amendment is not made within the specified time
limit, the request shall be deemed not to have been filed.
Rule 57.
The Patent Administration Department under the State Council shall make a patent
right evaluation report within two months from the date of receipt of the
request for the patent right evaluation report. Where more than one requesting
person request a patent right evaluation report regarding the same patent right
for utility model or design, the Patent Administration Department under the
State Council makes only one evaluation report. Any entity or individual can
consult or make copies of the patent right evaluation report.
Rule 58.
The Patent Administration Department under the State Council shall correct
promptly the mistakes in the patent announcements and pamphlets issued by it
once they are discovered, and the corrections shall be announced.
Chapter IV Reexamination of Patent Application and
Invalidation of Patent Right
Rule 59.
The Patent Reexamination Board shall consist of technical and legal experts
appointed by the Patent Administration Department under the State Council. The
person responsible for the Patent Administration Department under the State
Council shall be the Director of the Board.
Rule 60.
Where the applicant requests the Patent Reexamination Board to make a
reexamination in accordance with the provisions of Article 41 of the Patent Law,
it or he shall file a request for reexamination, state the reasons and, when
necessary, attach the relevant supporting documents.
Where the request for reexamination does not comply with the provisions of
Article 19, paragraph one or of Article 41, paragraph one of the Patent Law, the
Patent Reexamination Board shall refuse to accept it, but shall notify the
requesting person in a written form and state the reasons.
Where the request for reexamination does not comply with the prescribed form,
the person making the request shall rectify it within the time limit fixed by
the Patent Reexamination Board. If the requesting person fails to meet the time
limit for making rectification, the request for reexamination shall be deemed
not to have been filed.
Rule 61.
The person making the request may amend its or his application at the time when
it or he requests reexamination or makes responses to the notification of
reexamination of the Patent Reexamination Board. However, the amendments shall
be limited only to remove the defects pointed out in the decision of rejection
of the application, or in the notification of reexamination. The amendments to
the application for patent shall be in two copies.
Rule 62.
The Patent Reexamination Board shall remit the request for reexamination which
the Board has received to the examination department of the Patent
Administration Department under the State Council which has made the examination
of the application concerned to make an examination. Where that examination
department agrees to revoke its former decision upon the request of the person
requesting reexamination, the Patent Reexamination Board shall make a decision
accordingly and notify the requesting person.
Rule 63.
Where, after reexamination, the Patent Reexamination Board finds that the
request does not comply with the provisions of the Patent Law and these
Implementing Regulations, it shall invite the person requesting reexamination to
submit his observations within a specified time limit. If the time limit for
making response is not met, the request for reexamination shall be deemed to
have been withdrawn. Where, after the requesting person has made its
observations and amendments, the Patent Reexamination Board still finds that the
request does not comply with the provisions of the Patent Law and these
Implementing Regulations, it shall make a decision of reexamination to maintain
the earlier decision rejecting the application.
Where, after reexamination, the Patent Reexamination Board finds that the
decision rejecting the application does not comply with the provisions of the
Patent Law and these Implementing Regulations, or that the amended application
has removed the defects as pointed out by the decision rejecting the
application, it shall make a decision to revoke the decision rejecting the
application, and ask the examination department which has made the examination
to continue the examination procedure.
Rule 64.
At any time before the Patent Reexamination Board makes its decision on the
request for reexamination, the requesting person may withdraw his request for
reexamination.
Where the requesting person withdraws his request for reexamination before the
Patent Reexamination Board makes its decision, the procedure of reexamination is
terminated.
Rule 65.
Anyone requesting invalidation or part invalidation of a patent right in
accordance with the provisions of Article 45 of the Patent Law shall submit a
request and the necessary evidence in two copies. The request for invalidation
shall state in detail the grounds for filing the request, making reference to
all the evidence as submitted, and indicate the piece of evidence on which each
ground is based.
The grounds on which the request for invalidation is based, referred to in the
preceding paragraph, mean that the invention-creation for which the patent right
is granted does not comply with the provisions of Article 2, or of Article 20,
paragraph one, Article 22, Article 23, or of Article 26, paragraph three or
four, or of Article 27, paragraph two, or of Article 33 of the Patent Law, or of
Rule 20, paragraph two, or of Rule 43, paragraph one of these Implementing
Regulations; or the invention-creation falls under the provisions of Article 5
or 25 of the Patent Law; or the applicant is not entitled to be granted the
patent right in accordance with the provisions of Article 9 of the Patent Law.
Rule 66.
Where the request for invalidation does not comply with the provisions of
Article 19, paragraph one of the Patent Law or of Rule 65 of these Implementing
Regulations, the Patent Reexamination Board shall not accept it.
Where, after a decision on any request for invalidation of the patent right is
made, invalidation based on the same facts and evidence is requested once again,
the Patent Reexamination Board shall not accept it.
Where a request for invalidation of a patent for design is based on the ground
that the patent for design does not comply with the provisions of Article 23,
paragraph three of the Patent Law, but no evidence is submitted to prove such
conflict of rights, the Patent Reexamination Board shall not accept it.
Where the request for invalidation of the patent right does not comply with the
prescribed form, the person making the request shall rectify it within the time
limit specified by the Patent Reexamination Board. If the rectification fails to
be made within the time limit, the request for invalidation shall be deemed not
to have been made.
Rule 67.
After a request for invalidation is accepted by the Patent Reexamination Board,
the person making the request may add reasons or supplement evidence within one
month from the date when the request for invalidation is filed. Additional
reasons or evidence which are submitted after the specified time limit may be
disregarded by the Patent Reexamination Board.
Rule 68.
The Patent Reexamination Board shall send a copy of the request for invalidation
of the patent right and copies of the relevant documents to the patentee and
invite it or him to present its or his observations within a specified time
limit.
The patentee and the person making request for invalidation shall, within the
specified time limit, make responses to the notification concerning transmitted
documents or the notification concerning the examination of the request for
invalidation sent by the Patent Reexamination Board. Where no response is made
within the specified time limit, the examination of the Patent Reexamination
Board will not be affected.
Rule 69.
In the course of the examination of the request for invalidation, the patentee
for the patent for invention or utility model concerned may amend its or his
claims, but may not broaden the scope of patent protection.
The patentee for the patent for invention or utility model concerned may not
amend its or his description or drawings. The patentee for the patent for design
concerned may not amend its or his drawings, photographs or the brief
explanation of the design.
Rule 70.
The Patent Reexamination Board may, at the request of the parties concerned or
in accordance with the needs of the case, decide to hold an oral procedure in
respect of a request for invalidation.
Where the Patent Reexamination Board decides to hold an oral procedure in
respect of a request for invalidation, it shall send notifications to the
parties concerned, indicating the date and place of the oral procedure to be
held. The parties concerned shall make response to the notification within the
specified time limit.
Where the person requesting invalidation fails to make response to the
notification of the oral procedure sent by the Patent Reexamination Board within
the specified time limit, and fails to take part in the oral procedure, the
request for invalidation shall be deemed to have been withdrawn. Where the
patentee fails to take part in the oral procedure, the Patent Reexamination
Board may proceed to examine by default.
Rule 71.
In the course of the examination of a request for invalidation, the time limit
specified by the Patent Reexamination Board shall not be extended.
Rule 72.
The person requesting invalidation may withdraw his request before the Patent
Reexamination Board makes a decision on it.
Where the person requesting invalidation withdraws his request or his request
for invalidation is deemed to have been withdrawn before the Patent
Reexamination Board makes a decision on it, the examination of the request for
invalidation is terminated. Where, however, the Patent Reexamination Board deems
that, on the basis of the examination process that has already been gone
through, it is able to make a decision to invalidate the patent right or part of
the patent right, the examination procedure shall not be terminated.
Chapter V Compulsory License for Exploitation of Patent
Rule 73.
The insufficient exploitation of the patent referred to in Article 48,
subparagraph (1) of the Patent Law means that the manner or scale in which the
patentee and the licensee exploit the patent fails to meet the domestic demand
for the patented product or the patented process.
The patented drug referred to in Article 50 of the Patent Law means any patented
product in medical field for solving problems involved in public health, or any
product that is directly obtained from a patented process, including active
ingredient(s) for manufacturing the product and diagnostic article(s) for
applying the product, to which the patent right has been granted.
Rule 74.
Any entity requesting the grant of a compulsory license shall submit to the
Patent Administration Department under the State Council a request for
compulsory license, state the reasons therefor, and attach relevant certifying
documents.
The Patent Administration Department under the State Council shall send a copy
of the request for compulsory license to the patentee, who shall make his or its
observations within the time limit specified by the Patent Administration
Department under the State Council. Where no response is made within the time
limit, the Patent Administration Department under the State Council will not be
affected in making a decision concerning a compulsory license.
Before the Patent Administration Department under the State Council makes a
decision to reject the request for a compulsory license or to grant a compulsory
license, it shall notify the requesting entity and the patentee of the decision
to be made and the reasons therefor.
Where the Patent Administration Department under the State Council makes the
decision to grant a compulsory license in accordance with the provisions of
Article 50 of the Patent Law, the decision shall also comply with the provisions
concerning the grant of the compulsory license for solving problems involved in
public health as prescribed in the relevant International treaties China has
concluded or participated in, except those on which China expresses
reservations.
Rule 75.
Where any entity or individual requests, in accordance with the provisions of
Article 57
of the Patent Law, the Patent Administration Department under the State Council
to adjudicate the fees for exploitation, it or he shall submit a request for
adjudication and furnish documents showing that the parties concerned have not
been able to conclude an agreement in respect of the amount of the exploitation
fee. The Patent Administration Department under the State Council shall make an
adjudication within three months from the date of receipt of the request and
notify the parties concerned accordingly.
Chapter VI Reward and Remuneration of Inventors or
Creators of Service Inventions-Creations
Rule 76.
The entity to which a patent right is granted may conclude an agreement with the
inventor or creator or prescribe in its regulations and rules made according to
the relevant laws about the manner and the amount of the reward and remuneration
as prescribed in Article 16 of the Patent Law.
The reward or remuneration the enterprise or institution awards to the inventor
or creator shall be handled in accordance with the provisions of relevant
financial and accounting systems as prescribed by the State.
Rule 77.
Where the entity to which a patent right is granted neither concludes an
agreement with the inventor or creator nor prescribes in its regulations or
rules made according to the relevant laws about the manner and the amount of the
reward as prescribed in Article 16 of the Patent Law, it shall, within three
months from the date of the announcement of the grant of the patent right, award
to the inventor or creator of a sum of money as prize. The sum of money prize
for a patent for invention shall not be less than RMB 3000 Yuan; the sum of
money prize for a patent for utility model or design shall not be less than RMB
1000 Yuan.
Where an invention-creation is made on the basis of an inventor’s or creator’s
proposal adopted by the entity to which he belongs, the entity to which a patent
right is granted shall award to him a money prize on favorable terms.
Rule 78.
Where the entity to which a patent right is granted neither concludes an
agreement with the inventor or creator nor prescribes in its regulations or
rules made according to the relevant laws about the manner and the amount of the
remuneration as prescribed in Article 16 of the Patent Law, it shall, after
exploiting the patent for invention-creation within the duration of the patent
right, draw each year from the business profits earned from exploitation of the
invention or utility model a percentage of not less than 2%, or from the
business profits earned from exploitation of the design a percentage of not less
than 0.2%, and award it to the inventor or creator as remuneration, or award a
lump sum of money to the inventor or creator as remuneration once and for all,
as an alternative, by making reference to the said percentage; where any entity
to which a patent right is granted authorizes any other entity or individual to
exploit its patent, it shall draw from the royalties it receives for
exploitation of the said patent a percentage of not less than 10% and award it
to the inventor or creator as remuneration.
Chapter VII Protection of Patent Right
Rule 79.
The administrative authority for patent affairs referred to in the Patent Law
and these Implementing Regulations means the department responsible for the
administrative work concerning patent affairs set up by the people's government
of any province, autonomous region, or municipality directly under the Central
Government, or by the people's government of any city which consists of
districts, has a large amount of patent administration work to attend to and has
the ability to deal with the matter.
Rule 80.
The Patent Administration Department under the State Council shall provide
professional guidance to the administrative authorities for patent affairs in
handling patent infringement disputes, investigating and handling acts of
passing off a patent and mediating patent disputes.
Rule 81.
Where any party concerned requests handling of a patent infringement dispute or
mediation of a patent dispute, it shall fall under the jurisdiction of the
administrative authority for patent affairs where the requested party has his
location or where the act of infringement has taken place.
Where two or more administrative authorities for patent affairs all have
jurisdiction over a patent dispute, any party concerned may file his or its
request with one of them to handle or mediate the matter. Where requests are
filed with two or more administrative authorities for patent affairs, the
administrative authority for patent affairs that first accepts the request shall
have jurisdiction.
Where administrative authorities for patent affairs have a dispute over their
jurisdiction, the administrative authority for patent affairs of their common
higher level people's government shall designate the administrative authority
for patent affairs to exercise the jurisdiction; if there is no such
administrative authority for patent affairs of their common higher level
people's government, the Patent Administration Department under the State
Council shall designate the administrative authority for patent affairs to
exercise the jurisdiction.
Rule 82.
Where, in the course of handling a patent infringement dispute, the defendant
requests invalidation of the patent right and his request is accepted by the
Patent Reexamination Board, he may request the administrative authority for
patent affairs concerned to suspend the handling of the matter.
If the administrative authority for patent affairs considers that the reasons
set forth by the defendant for the suspension are obviously untenable, it may
not suspend the handling of the matter.
Rule 83.
Where any patentee affixes a patent marking on the patented product or on the
package of that product in accordance with the provisions of Article 17 of the
Patent Law, he or it shall make the affixation in the manner as prescribed by
the Patent Administration Department under the State Council.
Where the patent marking does not comply with the provisions of the preceding
paragraph, the administrative authority for patent affairs shall order to
correct it.
Rule 84.
Any of the following is an act of passing off a patent as prescribed in Article
63 of the Patent Law:
(1) affixing patent marking on the product that has not been granted a patent
right or on the package of that product, continuing to affix patent marking on
the product or on the package of that product after the patent right has been
declared to be invalid or terminated, or without authorization, indicating the
patent number of another person on the product or on the package of that
product;
(2) selling the product referred to in subparagraph (1) of this Rule;
(3) passing the technology or design that has not been granted a patent right in
a product specification or any other materials off as patented technology or
patented design, passing a patent application off as a patent, or without
authorization, using the patent number of another person, so as to mislead the
public to regard the technology or design concerned as the patented technology
or patented design;
(4) counterfeiting or transforming any patent certificate, patent document or
patent application document;
(5) other acts confusing and misleading the public to regard the technology or
design that has not been granted a patent right as the patented technology or
patented design.
Any of the following is not an act of passing off the patent: affixing patent
marking on the patented product, on the product obtained directly in accordance
with a patented process or on the package of that product , before the
termination of the patent right, and offering to sell or selling that product
after the termination of the patent right.
Any person, who sells a product without knowing that it was made by passing off
patent but is able to prove its legitimate source, shall be ordered to cease the
selling of the product by the administrative authority for patent affairs
concerned, but the fine shall be exempted.
Rule 85.
In addition to the provisions of Article 60 of the Patent Law, the
administrative authority for patent affairs may also mediate in the following
patent disputes at the request of the parties concerned:
(1) any dispute over the ownership of the right to apply for patent and the
patent right;
(2) any dispute over the qualification of the inventor or creator;
(3) any dispute over the award and remuneration of the inventor or creator of a
service invention-creation;
(4) any dispute over the appropriate fee to be paid for the exploitation of an
invention after the publication of the application for patent but before the
grant of patent right.
(5) other patent disputes.
In respect of the dispute referred to in subparagraph (4), where the party
concerned requests the administrative authority for patent affairs to mediate,
the request shall be made after the grant of the patent right.
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