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Rules for the Implementation of the Patent Law of the People's Republic of China (Revised in 2010)

Chapter I General Provisions

Article 1 The Rules are formulated in accordance with the Patent Law of the People’s Republic of China (hereinafter referred to as the Patent Law).

Article 2 All formalities provided in the Patent Law or the Rules shall be fulfilled in a written form or another form provided by the administrative department for patents under the State Council.

Article 3 Any document to be submitted under the Patent Law or the Rules shall be in Chinese. A standard technical terminology shall be used if it is uniformly provided by the State. Where there is no uniform Chinese translation for the name of a foreigner, a foreign locality or a foreign technical terminology, the term in the original language shall be indicated.

Where any certificate or certified document which is to be submitted in accordance with the Patent Law or the Rules is in a foreign language, the administrative department for patent under the State Council may, when considered necessary, request the party concerned to submit a Chinese translation within a specified time limit; where the translation has not been submitted at the expiry of the time limit, the certificate or certified document shall be deemed to have not been submitted.

Article 4 For any document sent by mail to the administrative department for patent under the State Council, the date of mailing indicated by the postmark shall be regarded as the application date. If the date of mailing indicated by the postmark is illegible, the date on which the administrative department for patent under the State Council receives the document shall be regarded as the application date unless otherwise proven by the party concerned.

Any document of the administrative department for patent under the State Council may be served by mail, by personal delivery or by other means. Where any party concerned has entrusted a patent agency, the document shall be sent to the patent agency; where no patent agency has been entrusted, the document shall be sent to the contact designated in the written request.

For any document mailed by the administrative department for patent under the State Council, the 15th day from the date when the document was sent shall be presumed to be the date of the reception of the document.

For any document to be served by personal delivery as required by the provisions of the administrative department for patent under the State Council, the date of delivery shall be regarded as the date of service.

Where the address to which a document is to be served is not clear for the purpose of mailing, the document may be served by announcement, and shall be deemed to have been served at the expiry of 1 month as of the date of announcement.

Article 5 The first day of any time limit provided in the Patent Law or these Rules shall not be counted. Where a time limit is counted by years or by months, it shall expire on the corresponding day of the last month; where there is no corresponding day in that month, the time limit shall expire on the last day of that month; and where a time limit expires on a statutory holiday, it shall expire on the first working day following that statutory holiday.

Article 6 Where a party concerned has delayed past the time limit provided in the Patent Law or these Rules or that specified by the administrative department for patent under the State Council due to force majeure, thus resulting the loss of his/its rights, he/it may, within 2 months as of the removal of the impediment, or at the latest within 2 years as of the expiry of that time limit, request the administrative department for patent under the State Council to recover his/its rights by stating the reasons and affixing relevant supporting documents.

Where a party concerned has delayed past the time limit provided in the Patent Law or these Rules or that specified by the administrative department for patent under the State Council due to a justified reason, thus resulting in the loss of his/its rights, he/it may, within 2 months as of the receipt of the notice from the administrative department for patent under the State Council, request the administrative department for patent under the State Council to recover his/its rights by stating the reason, unless otherwise prescribed by the aforesaid articles.

Where requesting the administrative department for patent under the State Council to recover his/its rights in accordance with Paragraph 1 or 2 herein, a party concerned should submit the letter of request for the recovery of rights by stating the reason, attach related supporting documents, when necessary and handle corresponding formalities that should be done before the loss of rights; where requesting the administrative department for patent under the State Council to recover his/its rights in accordance with Paragraph 2, a party concerned should also pay the charges of requesting the recovery of rights.

Where a party concerned requests extension of the time limit specified by the administrative department for patent under the State Council, he/it shall, before the expiry of the said time limit, state the reason to the administrative department for patent under the State Council and fulfill relevant formalities.

The provisions in Paragraph 1 and 2 of this Article shall not apply to the time limit provided in Article 24, Article 29, Article 42, or Article 62 of the Patent Law.

Article 7 Where an application for a patent involves any State secret in respect to the interest of national defense that needs to be maintained confidential, it shall be accepted and inspected by the institution for patent of national defense. Where an application for a patent which involves any State secret in respect to the interest of national defense that needs to be maintained confidential has been accepted by the administrative department for patent under the State Council, it shall be promptly transferred to the institution for patent of national defense for examination. Where no reason for refusal is found upon the examination of the institution for patent of national defense, the administrative department for patent under the State Council shall make its decision upon granting the patent of national defense.

Where the administrative department for patent under the State Council deems that the application for patent for invention or utility model it has accepted is involved in the national security or material interests beyond the interests of national defense that need to be maintained confidential, it shall promptly deal with the application as one of confidential patent and notify the applicant accordingly. The special procedures of the application as one of confidential patent involving examination, reexamination and the announcement of ineffectiveness of confidential patent shall be subject to the provisions as prescribed by the administrative department for patent under the State Council.

Article 8 The invention or utility model made within China as prescribed in Article 20 of the Patent Law refers to the invention or utility model that the substantive contents of technical solution are completed within China.

Where any entity or individual applies for the patent for the invention or utility model made within China to a foreign institution, he/it shall request the administrative department for patent under the State Council for confidential examination in one of the following forms:

(1)    Where any entity or individual directly applies to a foreign institution for patent or files an application for international patent to related foreign institution, he/it shall firstly file a request to the administrative department for patent under the State Council and spell out his/its technical solution;

(2)    Where to file an application for patent to a foreign institution or file an application for international patent to related foreign institution after applying to the administrative department for patent under the State Council for patent, any unit or individual shall file a request to the administrative department for patent under the State Council when applying for patent to a foreign institution or for international patent to related foreign institution.

Where any entity or individual files an application to the administrative department for patent under the State Council for international patent, it shall be deemed to have raised a request of confidential examination.

Article 9 Where the administrative department for patent under the State Council deems that the invention or utility model may be involved in the national security or material interests that need to be maintained confidential through examination upon receiving the application in accordance with Article 8 herein, it shall issue to the applicant a notice on confidential examination; where the applicant fails to receive the notice on confidential examination within 4 months as of the day when the application is filed, he/it may file an application for patent for the invention or utility model to a foreign institution or for international application for the invention or utility model to related foreign institution.

Where the administrative department for patent under the State Council issues a notice on confidential examination to the applicant according to the aforesaid article, it shall promptly make a decision on whether or not to keep secret and notify the applicant. Where the applicant fails to receive the notice on confidential examination within 6 months as of the day when the application is filed, he/it may file an application for patent for the invention or utility model to a foreign institution or for international application for the invention or utility model to related foreign institution.

Article 10 Invention-creation that violates the laws of the State mentioned in Article 5 of the Patent Law shall not include the invention-creations the use of which is prohibited by the laws of the State.

Article 11 Except for the circumstances provided in Article 28 and Article 42 of the Patent Law, the application date mentioned in the Patent Law means the priority date if there is a right of priority concerned.

Unless otherwise provided, the application date mentioned in these Rules means the one provided in Article 28 of the Patent Law.

Article 12 Service invention-creation made by a person in execution of the tasks of the entity to which he belongs mentioned 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 delivered to him by the entity to which he belongs;

(3) within 1 year from his resignation, retirement or change of work, provided that the invention-creation relates to his own duty or to the other task distributed to him by the entity to which he previously belonged.

The entity to which he belongs" mentioned inArticle 6 of the Patent Law may also be a temporary entity for which the person works; "material resources of the entity" mentioned inArticle 6 of the Patent Law shall include the entity''s money, equipment, spare parts, raw materials, or technical data which are not to be disclosed to the public.

Article 13 Inventor or designer as mentioned in the Patent Law means any person who has made creative contributions to the substantive features of the invention-creation. Any person who, in the process of accomplishing the invention-creation, is responsible only for organizational work, or who offers facilities for the use of material resources, or who takes part in other auxiliary functions, shall not be an inventor or designer.

Article 14 Unless a patent right is assigned in accordance withArticle 10 of the Patent Law, the party concerned shall, if the patent right is devolved due to other reasons, fulfill the formalities for the change of the patent holder in the administrative department for patent under the State Council with relevant certified documents or legal instruments.

Any contract on the license for use of a patent concluded between the patent holder and another party shall, within 3 months as of the date when the contract entered into force, be submitted to the administrative department for patent under the State Council for record.

Where the patent is pledged, the pledger and the pledgee shall handle pledge registration in the administrative department for patent under the State Council together.

 

Chapter II Application for Patent

Article 15 Anyone who applies for a patent in written form shall submit the application documents to the administrative department for patent under the State Council in duplicate.

Anyone who applies for a patent in any other form provided by the administrative department for patent under the State Council shall comply with the provided requirements.

Where an applicant entrusts a patent agency to file an application for a patent or to handle other patent matters in the administrative department for patent under the State Council, he/it shall meanwhile submit a power of attorney indicating the scope of the power entrusted.

Where there are two or more applicants and none of them has entrusted a patent agency, the first applicant designated in the written request shall be regarded as the representative unless otherwise declared in the written request.

Article 16 The written request of the application for the patent for invention, utility model or design shall state the following matters:

(1)    Title of invention, utility model or design;

(2)    Title or name, address, postal code, code of organization or number of the resident ID card if the applicant is an entity or individual of China; name or title, nationality or the country or region where it is registered if the applicant is a foreigner, a foreign enterprise or other foreign organization;

(3)    Name of inventor or designer;

(4)    Title and code of patent agency entrusted by the applicant and name, number of license and contact number patent agent designated by the agency;

(5)    Application day, application number and title of the former acceptance institution when the applicant requests for priority and files an application for patent for the first time (hereinafter referred to prior application);

(6)    The signature or seal of the applicant or the patent agency;

(7)    A list of the application documents;

(8)    A list of the documents appended to the application; and

(9)    Other related matters which need to be indicated.

Article 17 The specification of an application for a patent for invention or utility model shall indicate the title of the invention or utility model as it appears in the written request. The specification shall include:

(1)    The field of technology: indicating the field of technology to which the technical solution under the request for protection belongs;

(2)    The background technologies: indicating the background technologies useful to the understanding, retrieval and examination of the invention or utility model; and if possible, citing the documents which reflect these background technologies;

(3)    The contents of invention: indicating the technical problems to be solved for the invention or utility model and the technical solution adopted for solving the technical problems, and indicating the beneficial effects of the invention or utility model by comparison with the technology currently available;

(4)    The statement of the appended drawings: if the specification is appended with drawings, briefly stating each appended drawing;

(5)    The specific method of use: indicating in details the best method considered by the applicant to use the invention or utility model; when necessary, illustrating with examples; and comparing with the appended drawings, if any.

An applicant for a patent for invention or utility model shall present the specification in accordance with the manner and order provided in the preceding paragraph, and shall indicate the heading in front of each portion of the specification, unless a different manner or order would afford a more economical presentation and a more accurate understanding due to the nature of the invention or utility model.

The specification of the invention or utility model shall be written in standard terminologies and clear sentences, and shall not contain such phrases as: “as described in Part ... of the claim,” or any commercial advertising diction.

Where an application for a patent for invention contains one or more sequences of nucleotide or amino acid, the specification shall include a sequence table in conformity with the provisions of the administrative department for patent under the State Council. The applicant shall submit the sequence table as an independent portion of the specification, and submit a copy of the sequence table which can be read by the computer in accordance with the provisions of the administrative department for patent under the State Council.

The specification of utility model patent application shall have the appended drawings of shape, structure or the combination of products for protection use.

Article 18 The same sheet of appended drawings may contain several figures of the invention or utility model, and the figures shall be numbered and arranged in numerical order consecutively as "Figure 1, Figure 2...".

Appended drawing reference signs not mentioned in the text of the specification of the invention or utility model shall not appear in the appended drawings. Appended drawing reference signs not appearing in the appended drawings shall not be mentioned in the text of the specification. The appended drawing reference signs for the same composite part used in the application documents shall be consistent throughout.

The appended drawings shall not contain any other explanatory notes, except for words that are indispensable.

Article 19 The patent claim shall state the technical features of the invention or utility model.

Where there are several claims in the patent claim, they shall be numbered consecutively in Arabic numerals.

The technical terminology used in the patent claim shall be consistent with that used in the specification. The patent claim may contain chemical or mathematical formulas but no drawings, and shall not contain such dictions as: "as described in Part ... of the specification" or "as illustrated in Figure ..." unless such dictions are absolutely necessary.

The technical features mentioned in the claim may quote the corresponding reference signs in the appended drawings of the specification, and such reference signs shall follow the corresponding technical features and be placed between parentheses, so that the claim can be easily understood. The appended drawing reference signs shall not be construed as limiting the claim.

Article 20 The patent claim shall have an independent claim, and may also contain subordinate claims.

An independent claim shall outline the technical solution of an invention or utility model and record the technical features necessary for solving technical problems.

Subordinate claims shall further define the quoted claim with additional technical features.

Article 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 forms:

(1)    The preamble portion: indicating the subject title of the technical solution to the invention or utility model which is claimed to be protected and those essential technical features that are common to the subject of the invention or utility model and the closest technology currently available;

(2)    The characterizing portion: stating, in such diction as "characterized in that ..." or in similar diction, the technical features of the invention or utility model, which distinguish it from the closest technology currently available; these features, in combination with the features indicated in the preamble portion, serve to define the scope of protection of the invention or utility model.

An independent claim may be presented in any other form if the nature of the invention or utility model is not appropriate to be expressed in the form provided in the preceding paragraph.

Each invention or utility model shall have only one independent claim, which shall precede all the subordinate claims of the same invention or utility model.

Article 22 A subordinate claim of an invention or utility model shall contain a quoting portion and a defining portion, and be presented in the following form:

(1)  The quoting portion: indicating the serial number(s) of the quoted claim(s), and the title of the subject;

(2)  The defining portion: stating the additional technical features of the invention or utility model.

A subordinate claim may only quote the preceding claim or claims. A multiple subordinate claim which quotes two or more claims may only apply to the preceding claim or claim in a selected form, and shall not be regarded as the basis for another multiple subordinate claim.

Article 23 The abstract of the specification shall indicate the outline of the contents made public by the application for a patent for invention or utility model, that is, to indicate the name of the invention or utility model and the field of technology to which it belongs, and shall clearly reflect the technical problem to be solved, the essentials and main uses of the technical solution to this problem.

The abstract of the specification may contain the chemical formula which best characterizes the invention. For an application for a patent which contains appended drawings, an appended drawing which best characterizes the invention or utility model shall also be provided. The scale and the distinctness of the appended drawing shall be such that a reproduction with a linear reduction in size to 4cm*6cm would still enable all details to be clearly distinguished. The whole text of the abstract shall contain not more than 300 Chinese characters. There shall be no commercial advertising diction in the abstract.

Article 24 Where an application for a patent for invention involves a new biomaterial which is not available to the public, and the specification on this biomaterial is not enough to make the technicians who belong to this field to exploit the invention, the applicant shall, in addition to complying with the relevant provisions in the Patent Law and these Rules, fulfill the following formalities:

(1)    Submit a sample of the biomaterial to a depository institution admitted by the administrative department for patent under the State Council before the application date, or, at the latest, on the application date (or the priority date if there is a right of priority concerned) for deposit, and submit, at the time of application, or, at the latest, within 4 months as of the application date, a receipt of deposit and the viability proof from the depository institution; where they have not been submitted at the expiry of the time limit, the sample shall be deemed to have not been deposited;

(2)    In the application, submit relevant information on the characteristics of the biomaterial;

(3)    Indicate, where the application involves the deposit of the sample of biomaterial, in the written request and the specification the name of its classification (with its Latin name), the name and address of the depository institution, the date on which the sample was deposited and the accession number of the deposit; where, at the time of application, they are not indicated, a rectification shall be made within 4 months as of the date of application; where no rectification has been made at the expiry of the time limit, the sample shall be deemed to have not been deposited.

Article 25 Where an applicant for a patent for invention has a sample of biomaterial deposited in accordance with Article 24 of these Rules, any entity or individual that intends to make use of the biomaterial for the purpose of experiment shall, after the application for a patent for invention has been published, make a request to the administrative department for patent under the State Council containing the following:

(1)    The name and address of the entity or individual making the request;

(2)    A guarantee not to make the biomaterial available to any other person;

(3)    A guarantee to use the biomaterial for experimental purpose only before the grant of the patent right.

Article 26 The genetic resources as mentioned in the Patent Law refers to the materials containing the genetic unit of function and actual or potential value from human body, animal, plant or microform; invention and creation made on the basis of genetic resources as mentioned in the Patent Law refers to the invention and creation made by utilizing the genetic function in the genetic resources.

Where applying for the patent for the invention and creation made on the basis of genetic resources, the applicant shall in the written request make the statements and fill in the form prepared by the administrative department for patent under the State Council.

Article 27 Where an application for a patent for protection of colors is filed, the drawing or photograph in color shall be submitted.

The applicant shall submit, with respect to the contents of each design product which is in need of protection, relevant views or photographs.

Article 28 The brief explanation of the design shall specifically state the name, use and design essentials and designate a drawing or photo that mostly indicates the design essentials. Where the omission of the view is made or application for protection of colors is filed, statements shall be made in the brief explanation.

Where an application for patent of design of the same product with numerous designs is filed with only one kind, the designated design shall be stated as the basic design in the brief explanation.

The brief explanation shall not contain any commercial advertising diction or be used to indicate the functions of the product.

Article 29 The administrative department for patent under the State Council may, when considering it necessary, require the applicant for a patent for design to submit a sample or model of the product incorporating the design. The volume of the sample or model submitted shall not exceed 30cm*30cm*30cm, and its weight shall not surpass15 kilograms. Articles that are easy to rot or become broken, or articles that are dangerous, may not be submitted as sample or model.

Article 30 International exhibition admitted by the Chinese government as mentioned in Item (1) of Article 24 of the Patent Law refers to the international exhibition registered or acknowledged by the International Bureau of Exhibitions in compliance with the international exhibition convention.

The academic or technical conference mentioned in Item (2) of Article 24 of the Patent Law means any academic or technical conference organized and convened by a relevant department of the State Council or by a national academic association.

Where the invention-creation in an application for a patent falls under any of the circumstances enumerated in Item (1) or Item (2) of Article 24 of the Patent Law, the applicant shall, when filing the application, make a declaration and, within a time limit of 2 months as of the application date, submit a certificate issued by the entity which organized the international exhibition or academic or technical conference, stating that the invention-creation has been exhibited or published and also submit the certified documents on the date of its exhibition or publication.

Where any invention-creation in an application for a patent falls under the circumstance enumerated in Item (3) of Article 24 of the Patent Law, the administrative department for patent under the State Council may, when considered necessary, require the applicant to submit a certified document within a specified time limit.

Where the applicant fails to make a declaration and submit the certified document in accordance with Paragraph 3 of this Article, or fails to submit the certified document within a specified time limit in accordance with Paragraph 4 of this Article, the application may not be subject to Article 24 of the Patent Law.

Article 31 Where an applicant claims for the rights of foreign priority in accordance with Article 30 of the Patent Law, the copies of prior application documents submitted by the applicant shall be proven by the former acceptance institution. Where the administrative department for patent under the State Council, in accordance with the agreement signed by the administrative department and the acceptance institution, gains the copies of prior application documents via electron exchange and other forms, it shall be deemed that the applicant has submitted the copies of prior application documents proven by the acceptance institution. Where the applicant who claims for domestic priority rights has stated the application date and application number in the written request, it shall be deemed that he/it has submitted the copies of prior application documents.

Where the applicant who claims for priority rights fails to or mistakenly state one or two of the contents including the application date, application number of the prior application and the title of the former acceptance institution in the written request, the administrative department for patent under the State Council shall notify the applicant to make corrections within the designated time limit; where no corrections are made within the designated time limit, it shall be deemed that no priority rights is claimed for.

Where the name or title of the applicant who claims for priority rights is inconsistent with that of the applicant recorded in the copies of the prior application documents, the applicant shall submit the materials to prove the transfer of priority rights. Where no evidence materials are submitted, it shall be deemed that no priority rights are claimed for.

Where an applicant of design patent claims for foreign priority rights, whose prior application fails to include the brief explanation for design and the brief explanation submitted by the applicant in accordance with Article 28 herein does not exceed the scope indicated by the drawing or photo in the prior application documents, it shall not affect him/it to enjoy the priority rights.

Article 32 Any applicant may claim one or more rights of priority for an application for a patent; where more than one right of priority are claimed, the priority period for the application shall be calculated from the earliest priority date.

Where an applicant claims the right of domestic priority, and the earlier application is one for a patent for invention, he/it may file an application for a patent for invention or utility model for the same subject; if the earlier application is one for a patent for utility model, he/it may file an application for a patent for utility model or invention for the same subject. However, if, when the later application is filed, the earlier application is in any of the following circumstances, it may not be the basis of the right of domestic priority:

(1)    Where the right of foreign or domestic priority has already been claimed;

(2)    Where a patent right has been granted;

(3)    Where it belongs to divisional application filed as provided.

Where the applicant claims the right of domestic priority, the earlier application shall be deemed to be withdrawn as of the date on which the later application is filed.

Article 33 Where an application for a patent is filed or the right of foreign priority is claimed by any applicant having no regular residence or business office in China, the administrative department for patent under the State Council may, when considering it necessary, require the applicant to submit the following documents:

(1)    A certificate concerning the nationality of the applicant if the applicant is individual;

(2)    A certificate concerning the country or region where it is registered if the applicant is an enterprise or other organization;

(3)    A certified document showing that the country, to which the applicant belongs, recognizes that Chinese entities and individuals are, under the same conditions applied to its nationals, entitled to patent right, right of priority and other related rights in that country.

Article 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 Paragraph 1 of Article 31 the Patent Law shall be technically interrelated and contain one or more same or corresponding special technical features. The expression "special technical features" means those technical features that define a contribution which each of those inventions, considered as a whole, makes over the technology currently available.

Article 35 Where an application for patent for the same product with multiple similar designs is filed in accordance with Paragraph of Article 31 of the Patent Law, other designs of the product shall be basically similar to those designated in the brief explanation. Similar designs in the application for patent for design shall be no more than 10 items.

Two or more designs of the same kink and sold or utilized in set on products in Paragraph 2 of Article 31 of the Patent Law refer to that all products belong to the same catalogue in the clarification sheet, which is habitually sold or utilized at the same time and designs of products have the same design concept.

Where two or more designs are served as one to apply for patent, serial code of each design shall be marked before the names of drawings or photographs of each design product.

Article 36 When withdrawing an application for a patent, the applicant shall make a declaration to the administrative department for patent under the State Council stating the title of the invention-creation, the number and date of the application.

Where a declaration to withdraw an application for a patent is made after the printing preparation has been done by the administrative department for patent under the State Council for publishing the application documents, the application documents shall still be published as scheduled. However, the declaration to withdraw an application for a patent shall be announced on the subsequently published Patent Gazette.

 

Chapter III Examination and Approval of Application for Patent

Article 37 Any person who is to examine or hear a case in the procedures of preliminary examination, substantial examination, re-examination, or invalidation shall, at his own discretion or upon the request of the party concerned or any other interested person, avoid being present in any of the following circumstances:

(1)    Where he is a close relative of the party concerned or the latter’s agent;

(2)    Where he has an interest in the application for patent or the patent right;

(3)    Where he has such other kinds of relations with the party concerned or the latter''s agent that might affect impartial examination and hearing;

(4)    Where a member of the Patent Re-examination Board has taken part in the examination of the application.

Article 38 Upon the receipt of an application for a patent for invention or utility model consisting of a written request, a specification (an appended drawing being indispensable for utility model) and one or more patent claims, or an application for a patent for design consisting of a written request and one or more drawings or photographs showing the design, the administrative department for patent under the State Council shall clarify the application date, grant an application number and notify the applicant.

Article 39 Where a patent application document falls under any of the following circumstances, the administrative department for patent under the State Council shall not accept the application and shall notify the applicant accordingly:

(1)    Where the application for a patent for invention or utility model does not contain a written request, a specification (or a specification of utility model without appended drawings) or a patent claim, or the application for a patent for design does not contain a written request, drawings or photographs, the brief explanation;

(2)    Where the application is not written in Chinese;

(3)    Where the application is not in conformity with Paragraph 1 of Article 121 of these Rules;

(4)    Where the written request does not contain the name or address of the applicant;

(5)    Where the application is obviously not in conformity with Article 18 or Paragraph 1 of Article 19 of the Patent Law;

(6)    Where the category (for invention, utility model or design) of the application for a patent is not clear or is difficult to discern.

Article 40 Where the specification contains explanatory notes to the appended drawings is submitted but the appended drawings or part of them are missing, the applicant shall, within the time limit specified by the administrative department for patent under the State Council, either re-submit the appended drawings or make a declaration for the deletion of the explanatory notes to the appended drawings. Where the appended drawings are re-submitted later, the date of their delivery at, or mailing to, the administrative department for patent under the State Council, shall be regarded as the application date; where the explanatory notes to the appended drawings are deleted, the original application date shall be reserved.

Article 41 Where two or more applicants file applications for patent for the same invention and creation on the same day (refers to application date; priority date if there is priority), they shall negotiate to confirm the applicant at their own discretion upon receiving the notice of the administrative department for patent under the State Council.

Where the same applicant on the same day (refers to application date) files an application for patent for utility model and invention for the same invention and creation, he/it shall respectively state that he/it has filed another application for another patent for the same invention and creation while applying; where no statement is made, it shall be treated in accordance with the provisions for only one patent right for the same invention and creation as prescribed in Paragraph 1 of Article 9 of the Patent Law.

The administrative department for patent under the State Council shall publish the statement on the application for patent for invention simultaneously filed by the applicant in accordance with Paragraph 2 of the Article while publishing the granting of patent for utility model.

The administrative department for patent under the State Council shall, after examining the application for patent for invention and no reason for rejection is found, notify the applicant to declare to give up the patent for utility model within the prescribed time limit. Where the applicant declares to give up, the administrative department for patent under the State Council should make a decision on granting the patent for invention and publish the announcement of the applicant on giving up the patent for utility model while publishing the granting of the patent for invention. Where the applicant disagrees to give up, the administrative department for patent under the State Council shall reject the application for patent for invention; where no reply is made by the applicant upon expiration, it shall be deemed that the application for patent for invention has been withdrawn.

The patent for utility model shall be terminated as of the day when the announcement on granting the patent for invention is made.

Article 42 Where an application for a patent contains two or more inventions, utility models or designs, the applicant may, prior to the expiry of the time limit provided in Paragraph 1 of Article 54 of these Rules, submit to the administrative department for patent under the State Council a request for division of application. However, if an application for a patent has been rejected, withdrawn or deemed to have been withdrawn, the request for division of application may not be submitted.

Where the administrative department for patent under the State Council considers that the application for one patent as not in conformity with Article 31 of the Patent Law and Article 34 or Article 35 of these Rules, it shall notify the applicant to amend the application within a specified time limit; where the applicant has not given any response at the expiry of the time limit, the application shall be deemed to have been withdrawn.

The division of application may not change the category of the original application.

Article 43 For a division of application filed in accordance withArticle 42 of these Rules, the original application date may be reserved and, if the right of priority is enjoyed, the priority date may also be reserved, provided that the division of application do not go beyond the scope of the original application already made public.

When a division of application is filed, relevant formalities shall be fulfilled in accordance with the Patent Law and these Rules.

The application number and the application date of the original application shall be indicated in the written request for the division of application. When submitting the division of application, the applicant shall submit a copy of the original application document; if the right of priority is enjoyed regarding the original application, the applicant shall submit a copy of the priority document of the original application as well.

Article 44 Preliminary examination mentioned in Article 34 and Article 40 of the Patent Law means the examination of an application for a patent to see whether or not it contains the documents provided in Article 26 or Article 27 of the Patent Law and other necessary documents, and whether or not these documents are in conformity with the provided format, which also includes an examination of the following:

(1)    Whether the application for the patent for invention is obviously in compliance with Article 5 and Article 25 of the Patent Law, not in compliance with Article 18, Paragraph 1 of Article 19, Paragraph 1 of Article 20 of the Patent Law or Article 16 and Paragraph 2 of Article 26 of the Rules herein, or obviously not in compliance with Paragraph 2 of Article 2, Paragraph 5 of Article 26, Paragraph 1 of Article 31 and Article 33 of the Patent Law or Article 17-21 of the Rules herein;

(2)    Whether the application for the patent for utility model is obvious in compliance with Article 5 and Article 25 of the Patent Law, not in compliance with Article 18, Paragraph 1 of Article 19 and Paragraph 1 of Article 20 of the Patent Law or Article 16-19 and Article 21-23 of the Rules herein, or obviously not in compliance with Paragraph 3 of Article 2, Paragraph 2 of Article 22, Article 4, Paragraph 3 and 4 of Article 26, Paragraph 1 of Article 31 and Article 33 of the Patent Law or Article 20 and Paragraph 1 of Article 43 of the Rules herein, and whether the patent is not gained in accordance with Article 9 of the Patent Law;

(3)    Whether the application for patent for design is obviously in line with Article 5 and Item (6) of Paragraph 1 of Article 25 of the Patent Law, not in compliance with Article 18 and Paragraph 1 of Article 19 of the Patent Law or Article 16, 27 and 28 of the Rules herein, or not obviously in compliance with Paragraph 4 of Article 2, Paragraph 1 of Article 23, Paragraph 2 of Article 27, Paragraph 2 of Article 31 and Article 33 or Paragraph 1 of Article 43 of the Rules herein, and whether the patent is not gained in accordance with Article 9 of the Patent Law;

(4)    Whether the application documents is in compliance with Article 2 and Paragraph 1 of Article 3 of the Rules herein.

The administrative department for patent under the State Council shall notify the applicant of its opinions from the examination of the application and require him/it to state his/its opinions or to rectify his/its application within a specified time limit.

Article 45 Any document relating to a patent application, not including the patent application documents, which is submitted to the administrative department for patent under the State Council, shall be deemed to have not been submitted in any of the following circumstances:

(1)    Where the document is not presented in the provided format or the indications therein are not in conformity with relevant provisions;

(2)    Where no supporting document is submitted in accordance with relevant provisions.

The administrative department for patent under the State Council shall notify the applicant of its opinions from examination if a document is deemed to have not been submitted.

Article 46 Where the applicant requests an earlier publication of his/its application for a patent for invention, a declaration shall be made to the administrative department for patent under the State Council. The administrative department for patent under the State Council shall, after its preliminary examination of the application, publish it immediately unless it is to be rejected.

Article 47 The applicant shall, when indicating the product incorporating the design and the category to which that product belongs, refer to the classification of products for designs published by the administrative department for patent under the State Council. Where no indication, or an incorrect indication, of the category to which the product incorporating the design belongs is made, the administrative department for patent under the State Council may supply the indication or correct it.

Article 48 Any person may, from the date of publishing an application for a patent for invention until the date of announcing the grant of the patent right, submit his opinions to the administrative department for patent under the State Council, with the reasons thereof, on the application which is not in conformity with the Patent Law.

Article 49 Where an applicant for a patent for invention cannot submit, for justified reasons, the documents concerning any retrieval or the results of any examination underArticle 36 of the Patent Law, he/it shall make a declaration to the administrative department for patent under the State Council to that effect and submit those documents when obtained.

 

Article 50 The administrative department for patent under the State Council shall, when examining an application for a patent at its own discretion in accordance with Paragraph 2 of Article 35 of the Patent Law, notify the applicant accordingly.

Article 51 An applicant for a patent for invention may, when making a request for substantial examination, or within 3 months into the stage of substantial examination as of the receipt of the notification sent by the administrative department for patent under the State Council regarding the entry of the application for a patent for invention, amend the application for a patent for invention at his/its own discretion.

Within 2 months as of the application date, the applicant for a patent for utility model or design may amend the application for a patent for utility model or design on his/its own initiative.

Where the applicant amends his/its patent application documents upon his/its receipt of the notification of the opinions from the examination which is sent out by the administrative department for patent under the State Council, he/it shall make the amendment of the defects as mentioned in the notification.

The administrative department for patent under the State Council may amend the obvious diction and symbol errors in the patent application documents at its own discretion. Where the administrative department for patent under the State Council has made such amendment at its own discretion, it shall notify the applicant.

Article 52 Where an amendment to the specification or the patent claim in an application for a patent for invention or utility model is made, a replacement sheet in the provided format shall be submitted, unless the amendment concerns only the alteration, insertion or deletion of a few words. Where an amendment to the drawings or photographs of an application for a patent for design is made, a replacement sheet in the provided form shall be submitted.

Article 53 In accordance with Article 38 of the Patent Law, the circumstances under which an application for a patent for invention shall, after substantial examination, be rejected include:

(1)    Where the application is subject to Article 5 and 25 of the Patent Law or no patent shall be gained in accordance with Article 9 of the Patent Law;

(2)    Where the application is not in compliance with Paragraph 2 of Article 2, Paragraph 2 of Article 20, Paragraph 3 of Article 26, Article 4 and 5 and Paragraph 1 of Article 31 of the Patent Law or Paragraph 2 of Article 20 of the Rules herein;

(3)    Where the amendment to the application is not in compliance with Article 33 of the Patent Law or the divisional application is not in compliance with Paragraph 1 of Article 43 of the Rules herein.

Article 54 After the administrative department for patent under the State Council issues the notification to grant the patent right, the applicant shall fulfill the formalities of registration within 2 months as of the date of receipt of the notification. If the applicant has fulfilled the formalities of registration within the stated time limit, the administrative department for patent under the State Council shall grant the patent right, issue the patent certificate, and announce it.

Where the formalities of registration have not been fulfilled at the expiry of the time limit, the applicant shall be deemed to have abandoned his/its right to obtain the patent right.

Article 55 Where no reason for rejection of the application for confidential patent is found through examination, the administrative department for patent under the State Council shall make a decision on granting a confidential patent right, issuing the certificate of confidential patent and registering related matters of the confidential patent right.

Article 56 After the public notice on deciding to grant the patent for utility model or design is issued, the patentee or the party concerned as prescribed in Article 60 of the Patent Law may request the administrative department for patent under the State Council to make the assessment report of patent right.

Where the patent assessment report is requested to be made, the request for the patent assessment report shall be submitted with patent number stated. Each request should be limited to one patent.

Where the request for the patent assessment report is unqualified for the appropriable provisions, the administrative department for patent under the State Council shall notify the requester to make corrections within the designated time limit; where no corrections are made upon expiration, it shall be deemed not to have filed a request.

Article 57 The administrative department for patent under the State Council shall make the patent assessment report within 2 months upon receiving the request for patent assessment report. Where there are many requesters for the patent assessment report on the same patent for utility model or design, the administrative department for patent under the State Council shall only make a patent assessment report. Any entity or individual may consult or copy the patent assessment report.

Article 58 The administrative department for patent under the State Council shall, upon discovery of any error in the patent announcement or patent document, correct it in time, and announce such a correction.

 

Chapter IV Reexamination of Patent Applications and Invalidation of Patent Rights

Article 59 The Patent Re-examination Board shall consist of technical experts and legal experts designated by the administrative department for patent under the State Council, with chairman of the Board concurrently held by the responsible person of the administrative department for patent under the State Council.

Article 60 Where the applicant requests the Patent Re-examination Board to make a re-examination in accordance with Article 41 of the Patent Law, he/it shall file a written request for re-examination and state the reasons thereof, and shall, when necessary, affix relevant supporting documents.

Where the re-examination request is not in line with Paragraph of Article 19 or Paragraph 1 of Article 41 of the Patent Law, the Patent Re-examination Board shall reject it, notify the requester of re-examination in writing and state the reasons thereof.

Where the written request for re-examination is not in conformity with the provided format, the person making the request shall rectify it within the time limit specified by the Patent Re-examination Board. Where no rectification has been made at the expiry of the time limit, the request for re-examination shall be deemed to have not been filed.

Article 61 The entity or individual who makes the request may, when requesting the re-examination on or a response to the notification from the Patent Re-examination Board for re-examination, amend the patent application documents; however, such amendment shall be only limited to the elimination of the defects pointed out in the decision on rejection or the notification on re-examination.

Each of the amended patent application documents shall be in duplicate.

Article 62 The Patent Re-examination Board shall transfer the written request for re-examination which it has accepted to the original examination department of the administrative department for patent under the State Council for examination. Where the original examination department agrees to revoke its former decision upon the request of the applicant requesting re-examination, the Patent Re-examination Board shall make a re-examination decision accordingly and notify the applicant.

Article 63 Where the Patent Re-examination Board considers after re-examination that the request is not in conformity with the Patent Law or the Rules herein, it shall require the person requesting re-examination to state his opinions within a specified time limit. Where no response has been made at the expiry of the time limit, the request for re-examination shall be deemed to have been withdrawn. Where, after the opinions have been stated or the rectifications have been made, the Patent Re-examination Board still considers the request as not in conformity with the Patent Law or the Rules herein, it shall make a re-examination decision sustaining the original decision of rejection.

Where the Patent Re-examination Board considers after re-examination that the original decision on rejection is not in conformity with relevant provisions in the Patent Law or these Rules, or considers that the defects pointed out in the original decision on rejection have been eliminated from the amended patent application documents, it shall revoke the original decision on rejection, and the original examination department shall continue the examination procedures.

Article 64 Before the Patent Re-examination Board makes a decision on the request for re-examination, the person making the request may withdraw his request for re-examination.

Where the person making the request withdraws his request for re-examination before the Patent Re-examination Board makes a decision on the request, the re-examination procedures shall be terminated.

Article 65 Anyone requesting invalidation or partial invalidation of a patent right in accordance with Article 45 of the Patent Law shall submit a written request and necessary supporting documents in duplicate to the Patent Re-examination Board. The said written request shall, in combination of all the submitted supporting documents, specifically state the reasons for the request for invalidation and designate the evidence on which each reason is based.

The reasons for the request for invalidation mentioned in the preceding paragraph refers to when the invention-creation on which the patent right is granted is not inconformity with Article 2, Paragraph 1 of Article 20, Article 22 and 23, Paragraph 3 and 4 of Article 26, Paragraph 2 of Article 27 and Article 27 of the Patent Law or Paragraph 2 of Article 20 and Paragraph 1 of Article 43 of the Rules herein, or falls under Article 5 and 25 of the Patent Law, or the applicant is not entitled to a patent right in accordance with Article 9 of the Patent Law.

Article 66 Where the written request for the invalidation of a patent right is not in conformity with Paragraph 1 of Article 19 of the Patent Law or Article 65 of the Rules herein, the Patent Re-examination Board shall not accept it.

Where, after the Patent Re-examination Board has made a decision on the request for invalidation, the person making the request again requests invalidation with the same reason and evidence, the Patent Re-examination Board shall not accept it.

Where the request for the invalidation of design patent with the reason that Paragraph 3 of Article 23 of the Patent Law is not abided by is filed but no supporting documents for patent conflict, the Patent Re-examination Board shall not accept it.

Where a written request for invalidation of a patent right is not conformity with the provided format, the person making the request shall rectify it within the time limit specified by the Patent Re-examination Board. Where no rectification has been made at the expiry of the time limit, the request for invalidation shall be deemed to have not been filed.

Article 67 After the Patent Re-examination Board has accepted the request for invalidation, the person making the request may, within 1 month as of the day when he filed the request for invalidation, increase the reasons or supplement the evidence. Where the reasons are increased or the evidence is supplemented after the expiry of the time limit, the Patent Re-examination Board need not take the request into account.

Article 68 The Patent Re-examination Board shall deliver the written request for the invalidation of a patent right and the copies of relevant documents to the patent holder, requiring him/it to state opinions within a specified time limit.

The patent holder and the person making the request for invalidation shall, within a specified time limit, make a response to the notification on transmitting the documents sent by the Patent Re-examination Board or the notification on examining the request for invalidation; where no response has been made at the expiry of the time limit, the hearing of the Patent Re-examination Board shall not be affected.

Article 69 The patent holder of a patent for invention or utility model may, in the process of the examination on the request for invalidation, amend his/its patent claim, provided that the protection scope of the original patent shall not be extended.

The patent holder of a patent for invention or utility model shall not amend the specification or the appended drawings of a patent, and the patent holder of patent for design shall not amend the drawings, photographs or brief explanation.

Article 70 The Patent Re-examination Board may, upon the request of the party concerned or the needs of the case, decide to hear the request for invalidation orally.

Where the Patent Re-examination Board decides to hear the request for invalidation orally, it shall send a notification on the oral hearing to the party concerned, informing the date and place for holding the oral hearing. The party concerned shall make a response within the time limit specified in the notification.

Where the person making the request for invalidation has not made any response within the time limit specified in the notification on oral hearing sent by the Patent Re-examination Board, and does not participate in the oral hearing, the request for invalidation shall be deemed to have been withdrawn; where the patent holder does not participate in the oral hearing, the case may be heard by default.

Article 71 During the procedures for examination of the request for invalidation, the time limit specified by the Patent Re-examination Board shall not be extended.

Article 72 Before the Patent Re-examination Board makes a decision on the request for invalidation, the person making the request may withdraw such a request.

Where the person making the request for invalidation withdraws his request or the request for invalidation is deemed to have been withdrawn before the Patent Re-examination Board makes the decision, the procedures for examining the request for invalidation shall be terminated. However, where the Patent Re-examination Board deems that it shall make the decision on the invalidation or part of invalidation of the patent based on the examination being conducted, the procedures for examining the request for invalidation shall not be terminated.

 

Chapter V Compulsory License for Exploitation of Patent

Article 73 Insufficiently implementing patent as mentioned in Item (1) of Article 48 of the Patent Law refers to that the patentee and its licensee can’t meet the demand of China for patent products or patent methods in the means or scale of implementing the patent.

The drugs with patent right as mentioned in Article 50 of the Patent Law refers to any patent product that can solve public health in the medicine area or products are directly gained in accordance with patent methods, including active ingredients with patent right that are needed to manufacture the product or the diagnostic aid that are needed to use the product.

Article 74 Anyone who requests a compulsory license shall submit to the administrative department for patent under the State Council a written request for compulsory license and state the reasons thereof, together with relevant supporting documents. The written request and the supporting documents shall all be prepared.

The administrative department for patent under the State Council shall send a copy of the written request for compulsory license to the patent holder. The patent holder shall state his/its opinions within the time limit specified by the administrative department for patent under the State Council. Where no response has been made at the expiry of the time limit, the administrative department for patent under the State Council shall not be affected in making a decision to grant a compulsory license.

The administrative department for the patent under the State Council shall notify the requester and the patentee its decision to be made and the reason before deciding to reject the request of a compulsory license or grant a compulsory license.

The administrative department for the patent under the State Council shall make a decision on granting a compulsory license in accordance with Article 50 of the Patent Law, which shall be simultaneously in compliance with related international treaties signed or participated in by China on the provisions for granting a compulsory license for the purpose of solving public health, unless otherwise reserved by China.

Article 75 In accordance with Article 57 of the Patent Law, if anyone requests the administrative department for patent under the State Council to rule the amount of the exploitation fee, the party concerned shall submit the written request for a ruling, and affix the certified documents on both parties'' failure to reach the agreement. The administrative department for patent under the State Council shall, within 3 months as of its receipt of the written request, make the ruling, and notify the party concerned.

 

Chapter VI Rewards and Remuneration to Inventor or Designer of Service Invention and creation

Article 76 The entity granted the patent right may agree on rewards and methods and amount of remuneration as prescribed in Article 16 of the Patent Law with the inventor or designer in the regulations and rules prepared by law.

The rewards and remuneration granted by enterprises and public institutions to inventor or designer shall be subject to the provisions of the state for related finance and accounting system.

Article 77 Where the entity granted the patent right fails to agree on rewards and methods and amount of remuneration as prescribed in Article 16 of the Patent Law with the inventor or designer in the regulations and rules prepared by law, it shall grant rewards to inventor or designer within 3 months as of the day when patent right is published. The rewards for a patent for invention shall be no less than RMB3000; and the rewards for a patent for utility model or design shall be no less than RMB1000.

The invention and creation is completed by the entity of inventor or designer for his suggestions, the entity granted patent right shall grant rewards to the inventor or designer as generously as possible.

Article 78 Where the entity granted patent right fails to agree on or prescribe the method and amount of remuneration as prescribed in Article 16 of the Patent Law in the regulations and rules by law with inventor or designer, the entity shall, within the duration of the patent right, draw each year from any increase in profits after taxation a percentage of no less than 2% due to the exploitation of the patent for invention or utility model, or a percentage of no less than 0.2% due to the exploitation of the patent for design, and award it to the inventor or designer as remuneration. The entity may, otherwise, by making reference to the above said percentage, award a lump sum of money to the inventor or designer as remuneration; where the entity granted patent right allows other entities or individuals to use its patent, it should draw no less than 10% access fees charged as remuneration to inventor or designer.

 

Chapter VII Protection of Patent Rights

Article 79 The department for the administration of patent work mentioned in the Patent Law and these Rules means the department established by the people’s government of a province, autonomous region or municipality directly under the Central Government, or the people’s government of a city divided into districts with a large amount of patent administrative work and actual ability to conduct the administration of patent work.

Article 80 The administrative department for patent under the State Council shall provide professional guidance to the department for the administration of patent work for disposing, investigating and punishing the acts of counterfeiting the patent of others and conciliating patent disputes.

Article 81 Where a party concerned requests disposal or conciliation of a patent dispute, such a request shall be under the jurisdiction of the department for the administration of patent work in the place where the respondent is located or where the infringement took place.

For a patent dispute over which two or more departments for the administration of patent work have jurisdiction, the party concerned may make a request to one of them; where the party concerned requests two or more of departments for the administration of patent work with the jurisdiction, the dispute shall be handled under the jurisdiction of the department for the administration of patent work that first accepts it.

In case of a jurisdictional dispute between the departments for the administration of patent work, it shall be designated by the department for the administration of patent work under the people’s government at a higher level over both jurisdictions; where there is no such department for the administration of patent work under the people’s government at a higher level over both, jurisdiction shall be designated by the administrative department for patent under the State Council.

Article 82 Where, in the process of disposing a dispute on patent infringement, the respondent has made the request for invalidation and has been accepted by the Patent Re-examination Board, he/it may request the department for the administration of patent work to suspend the disposal.

Where the department for the administration of patent work considers that the reason for suspension given by the respondent is obviously untenable, it may refuse to suspend the disposal.

Article 83 Where the patent holder indicates a patent mark on the patented product or on the package of that product in accordance with Article 17 of the Patent Law, he/it shall do so in accordance with the method provided by the administrative department for patent under the State Council.

Where a patent mark is in line with the above-mentioned provisions, the administrative department for patent shall order it to make corrections.

Article 84 Any of the following acts shall be the ones that counterfeiting the patent of others as prescribed in Article 63 of the Patent Law:

(1) Mark patent identification on products or packages that are not granted patent right, continuously market identification on products or packages whose patent has been announced invalid or terminated or mark other patent number on products or packages without permission;

(2) Sell the products as mentioned in Item (1);

(3) Take the technology or design that is not granted patent in the specification and other materials as patent technology or design, take patent application as patent or use other patent number without permission, or misguide the public to take technology or design involved as patent technology or design;

(4) Forging or altering the patent certificate, patent documents or patent application documents of another person;

(5) Other acts that confuse the public to render them to mistake the technology or design that is not granted patent as patent technology or design.

 

Where prior to the termination of patent, patent identification is marked on patent products, products directly gained in accordance with patent method or the packages by law and the products have been promised to be sold or sold after the termination of patent, it shall not be the act of counterfeiting the patent of others.

Where any entity or individual don’t know to sell the products that counterfeiting the patent of others and can prove the legal source of the products, the administrative department for patent shall order it to suspend sales but no fine is imposed.

Article 85 Unless otherwise prescribed by Article 60 of the Patent Law, the administrative department for patent may at the request of the party concerned conduct mediation on the following patent disputes:

(1)    dispute over ownership of patent application right and patent right;

(2)    dispute over the qualification of inventor or designer;

(3)    dispute over rewards and remuneration to inventor or designer for the professional invention and creation;

(4)    dispute over unpaid proper access fee for invention prior to the granting of patent right but after the announcement of invention patent application;

(5)    other patent disputes.

Where the party concerned shall request the administrative department for patent to make mediation on the dispute as mentioned in the previous Item (4), it should be put forward after the granting of patent right.

Article 86 Where a party concerned, in case of a dispute due to the ownership of a right of patent application or a patent right, has requested the department for the administration of patent work for disposal or has initiated a lawsuit to the people’s court, he may request the administrative department for patent under the State Council to suspend relevant procedures.

Anyone who requests suspension of relevant procedures in accordance with the preceding paragraph shall submit the written request to the administrative department for patent under the State Council, and affix the copies of relevant acceptance documents by the department for the administration of patent work or the people’s court.

After the mediation decision made by the department for the administration of patent work or the judgment made by the people’s court has been enforced, the party concerned shall fulfill the formalities for recovering relevant procedures in the administrative department for patent under the State Council. Where, within 1 year as of the date of requesting suspension, a dispute relating to the ownership of the right of patent application or the patent right has still not been settled, and it is necessary to continue to suspend relevant procedures, the person making the request shall request an extension of the suspension within this time limit. Where he has not requested the extension at the expiry of the time limit, the administrative department for patent under the State Council shall recover relevant procedures at its own discretion.

Article 87 Where the people’s court has ordered to adopt preservative measures over a patent right in the trial of a civil case, the administrative department for patent under the State Council shall suspend relevant procedures for the preserved patent right when assisting in its enforcement. Where, at the expiry of the preservation period, the people’s court has not ordered to continue to adopt the preservative measures, the administrative department for patent under the State Council shall recover relevant procedures at its own discretion.

Article 88 That the administrative department for patent under the State Council suspends related procedures in accordance with Article 86 and 87 of the Rules herein refers to suspend the preliminary examination, substantive examination, and re-examination procedures for patent application procedures of granting patent right and procedures of invalidation of patent right; and suspend handling the procedures for giving up, altering, transferring patent right or patent application right, procedures for the pledge of patent right as well as termination procedures for patent right before expiration.

Chapter VIII Patent Registration and Patent Gazette

Article 89 The administrative department for patent under the State Council shall maintain a Patent Register in which the following matters relating to a patent application and patent right shall be registered:

(1)    Grant of the patent of right;

(2)    Devolution of the right of patent application or the patent right;

(3)    Pledge, preservation and cancellation of the patent right;

(4)    Record of contracts on the license for exploitation of a patent;

(5)    Invalidation of the patent right;

(6)    Termination of the patent right;

(7)    Recovery of the patent right;

(8)    Compulsory license for exploitation of the patent;

(9)    Changes on the name, nationality or address of the patent holder.

Article 90 The administrative department for patent under the State Council shall publish the Patent Gazette at regular intervals, publishing or announcing the following:

(1)    The bibliographic data contained in patent applications and abstract of description;

(2)    The request for substantial examination of an application for a patent for invention and any decision made by the administrative department for patent under the State Council to proceed at its own discretion to examine as to substance an application for a patent for invention;

(3)    Rejection and withdrawal of an application or an application deemed to be withdrawn or given up, recovered or transferred for a patent for invention after its publication;

(4)    The granting and the bibliographic data of patent right;

(5)    The abstract of the specification of an invention or utility model, a drawing or photograph of a design;

(6)    Declassification of secret patents or national defense patents;

(7)    Invalidation of the patent right;

(8)    Termination and recovery of patent right;

(9)    Transfer of patent right;

(10) Record of contracts on the license for exploitation of a patent;

(11) Pledge, preservation and cancellation of the patent right;

(12)Grant of compulsory license for exploitation of the patent;

(13) Changes on the name or address of the patent holder;

(14) Delivery of the public notice;

(15) Rectification made by the administrative department for patent under the State Council;

(16) Other relevant matters.

Article 91 The administrative department for patent under the State Council shall provide patent gazette, invention patent application offprint and invention patent, patent for utility model and design patent offprint for the public to consult free of charge.

Article 92 The administrative department for patent under the State Council shall be responsible to exchange patent documents with patent authorities of other countries and regions or regional patent organizations in the principle of reciprocity.

 

Chapter IX Fees

Article 93 For filing an application for a patent with or fulfilling other related formalities in the administrative department for patent under the State Council, the following fees shall be charged:

(1)    Application fee, additional fee for application, publishing, printing fee and fees for claiming for priority right;

(2)    Fee for substantial examination of an application for a patent for invention and re-examination fee;

(3)    Patent registration fee, fee for announcement and printing, and annual fee;

(4)    Fee for requesting recovery of rights and fee for requesting extension of time limit;

(5)    Fee for a change in the bibliographic data, fee for requesting assessment report of patent right and fee for invalidation of patent right.

The standards for the payment of all fees enumerated in the preceding paragraph shall be stipulated by the administrative department for price under the State Council together with the finance department and the administrative department for patent under the State Council.

Article 94 The fees provided in the Patent Law and in these Rules may be paid directly to the administrative department for patent under the State Council or remitted by bank or post, or be paid by other means stipulated by the administrative department for patent under the State Council.

 

Where a fee is remitted by bank or post, the correct application number or patent number and the names of the paid fees shall be indicated in the remittance slip submitted to the administrative department for patent under the State Council. In case of any inconsistency with the provisions in this Paragraph, it shall be deemed that the payment formalities have not been fulfilled.

Where the fees are directly paid to the administrative department for patent under the State Council, the date when the payment was made shall be regarded as the payment date. Where the fees are remitted by post, the date of mailing indicated by the postmark shall be regarded as the payment date. Where the fees are remitted by bank, the date of actual remittance by the bank shall be regarded as the payment date.

Where any patent fee is over-paid, re-paid or wrongly paid, the party concerned may, within 3 year as of the payment date, claim a refund to the administrative department for patent under the State Council, which should give a return.

Article 95 The applicant shall pay application fee, fee for announcement and printing and necessary application additional fee within 2 months as of the application date or within 15 days upon receiving the acceptance notice; where the above-mentioned fees are not paid or fully paid upon expiration, it shall be deemed to have been withdrawn.

Where the applicant requests the priority right, it should pay the fee for claiming for priority right while paying the application fee; where the above-mentioned fees are not paid or fully paid upon expiration, it shall be deemed not to have claimed for priority right.

Article 96 Where a party concerned requests substantial examination or re-examination, the relevant fee shall be paid within the time limit for such requests as provided respectively by the Patent Law and these Rules. Where the fee has not been paid or fully paid at the expiry of the time limit, the request shall be deemed to have not been made.

Article 97 When the applicant fulfills the formalities of patent registration, he/it shall pay a fee for patent registration, a fee for announcement and printing and the annual fee for the year in which the patent right was granted. Where such fees have not been paid at the expiry of the time limit, the formalities of patent registration shall be deemed to have not been fulfilled.

Article 98 The annual fee after the year when patent right is granted shall be paid before the expiration of the previous year. Where the annual fee of the application or the annual fee for subsequent years after the patent has been granted is not paid in due time by the patent holder, or the fees are not fully paid, the administrative department for patent under the State Council shall notify the patent holder to rectify the insufficiency within 6 months as of the expiry of the time limit within which the annual fee was to be paid, and at the same time pay a surcharge, the amount of which to be calculated by charging an additional 5% of the total amount of the annual fee for that year for each month exceeding the provided payment date. Where the fees have not been paid at the expiry of the time limit, the patent right shall be terminated as of the expiry of the time limit within which the annual fee should be paid.

Article 99 The fee for application for recovery of right should be paid within the related time limit as prescribed in the Rules herein; where no payment or no full payment is made upon expiration, it shall be deemed not to have filed a request.

The fee for requesting the extension of time limit shall be paid prior to the date of expiry of the corresponding time limit. Where the fee has not been paid or fully paid at the expiry of the time limit, the request shall be deemed to have not been made.

The fee for a change in the bibliographic data, fee for the request for patent assessment report and fee for requesting invalidation shall be paid as stipulated within 1 month as of the date on which such request is made; where no payment or no full payment is made upon expiration, it shall be deemed not to have filed a request.

Article 100 Where an applicant or patent holder has difficulties in paying the various fees provided in these Rules, he/it may, in accordance with relevant provisions, submit a request to the administrative department for patent under the State Council, asking for a reduction or postponement of the payment. The measures for the reduction and postponement of the payment shall be stipulated by the administrative department for patent under the State Council through discussion with the financial department under the State Council and the administrative department for price and the administrative department for patent under the State Council.

 

Chapter X Special Provisions on International Application

Article 101 The administrative department for patent under the State Council shall, in accordance with Article 20 of the Patent Law, accept the international applications for patent filed in accordance with Patent Cooperation Treaty.

The conditions and procedures for international applications for patent which are filed in accordance with Patent Cooperation Treaty and designated as China (hereinafter referred to as international application), to enter the treatment phase of the administrative department for patent under the State Council, shall be subject to the provisions in this Chapter; where there are no relevant provisions in this Chapter, they shall be subject to the relevant provisions in the Patent Law and other Chapters of the Rules herein.

 

Article 102 An international application on which the international application date has been determined in accordance with the Patent Cooperation Treaty and which has designated China shall be deemed to be an application filed to the administrative department for patent under the State Council, and the international application date shall be deemed to be the application date mentioned in Article 28 of the Patent Law.

Article 103 The applicant of an international application shall, within 30 months as of the priority date mentioned in Article 2 of the Patent Cooperation Treaty (which is referred to as priority date in this Chapter), fulfill the following formalities for the international application to enter the National Phase in China to the administrative department for patent under the State Council; where the applicant fails to handle the formalities within the period, he/it shall handle the formalities to enter the national phase in China within 32 months as of the priority date after paying the extension fee.

Article 104 Where the applicant handles the formalities to enter the national phase in China in according to Article 103 of the Rules herein, it shall abide by the following the requirements:

(1)    A written statement on entering the national phase in China in Chinese shall be submitted with international application number and the type of patent right to be gained marked;

(2)    Application fee and fee for printing announcement shall be paid in according to Paragraph 1 of Article 93 of the Rules herein as well as the extension fee in accordance with the Article 103 of the Rules herein, if necessary;

(3)    Where an international application is submitted in a foreign language, the Chinese text of  the specification and claims of the original international application shall be submitted;

(4)    The written statement on entering the national phase in China shall include the name of invention and creation, name or title and address of the applicant and the name of inventor, the above-mentioned contents shall be consistent with the record by World Intellectual Property Organization (hereinafter referred to WIPO); where the application fails to state the inventor, the name of the inventor shall be stated in the above-mentioned statement;

(5)    Where an international application is submitted in a foreign language, the Chinese translation of the abstract shall be submitted; in case of the appended drawing and appended drawing of abstract, the copies of the appended drawing and those of the appended drawing of abstract shall be submitted; in case of characters in the appended drawing, the characters shall be replaced by the corresponding Chinese characters; where an international application is submitted in Chinese, the copies of the abstract and the appended drawing of the abstract in the documents published internationally shall be submitted;

(6)    Where the formalities of altering the applicant in the WIPO has been handled in the international phase, the supporting materials for the application rights enjoyed by the altered applicant shall be offered;

(7)    The application additional charges shall be paid in accordance with Paragraph of Article 93 of the Rules herein, if necessary.

Where in compliance with Item (1)-(3) of Paragraph 1 of the Article herein, the administrative department for patent under the State Council should grant application number, specify the date when international application enters the national phase in China (hereinafter referred to as entry date) and notify the applicant that his/its international application has entered the national phase in China.

Where an international application has entered the national phase in China but is not in compliance with Item (4)-(7) of Paragraph 1 of the Article herein, the administrative department for patent under the State Council shall notify the applicant to make corrections within the designated time limit; where no corrections are made upon expiration, the application shall be deemed to be withdrawn.

Article 105 The effectiveness of an international application in China shall be terminated in any of the following situations:

(1)    Where an international application shall be withdrawn or deemed to be withdrawn or an international application shall be designated to be withdrawn in China in the international phase;

(2)    Where the applicant fails to handle the formalities to enter the national phase in China in accordance with Article 103 of the Rules herein within 32 months as of the priority date;

(3)    Where the applicant is still not in compliance with Item (1)-(3) of Article 104 of the Rules herein upon the expiration of 32 months as of the priority date though handling the formalities to enter the national phase in China.

Where, in accordance with the Item (1) of the aforesaid Paragraph, the effectiveness of an international application is terminated in China, it shall not be subject to Article 6 of the Rules herein; where, in accordance with Item (2) and (3) of the aforesaid Paragraph, the effectiveness of an international application is terminated in China, is shall not be subject to Paragraph 2 of Article 6 of the Rules herein.

Article 106 Where an international application has been amended in the international phase while the applicant requests to make the amended application documents the basis to conduct examination, Chinese translation of amended part shall be submitted within 2 months as of the entry date. Where no Chinese translation is submitted during this time, the administrative department for patent under the State Council shall not accept the amendment of the applicant in the international phase.

Article 107 Where invention and creation involved in an international application is subject to one of the situations as prescribed in Item (1) or (2) of Article 24 of the Patent Law and that has been stated while filing the international application, the applicant should give an explanation in the written statement while entering the national phase in China and submit related supporting documents in accordance with Paragraph 3 of Article 30 of the Rules herein within 2 months as of the entry date; where no explanation is made or no supporting documents are submitted upon expiration, the application shall not be subject to Article 24 of the Patent Law.

Article 108 Where the applicant has specified the storage of samples of biological materials in accordance with the treaty of patent cooperation, it shall be deemed to have met the requirements as prescribed in Item (3) of Article 24 of the Rules herein. The applicant shall specify the document marking the issues concerning the storage of biological materials and the specific record location in the document in the statement while entering the national phase in China.

Where the applicant has recorded the matters on the storage of the samples of biological materials in the specification of international application originally submitted but fails to state it in the statement while entering the national phase in China, it shall make corrections within 4 months as of the entry date. Where no corrections are made upon expiration, the biological materials shall be deemed not be submitted for storage.

Where the applicant submits the administrative department for patent under the State Council the certification of preserving samples of biological materials or the certification of survival within 4 months as of the entry date, it shall be deemed to be submitted within the time limit as prescribed in Item (1) of Article 24 of the Rules herein.

Article 109 Where the invention and creation involved in an international application is completed on the basis of genetic resources, the applicant should specify it in the written statement while the international application enters the national phase in China and fill in the form prepared by the administrative department for patent under the State Council.

Article 110 Where the applicant has requires for one or more priority rights in the international phase and the requirements for the priority rights are continuously valid while entering the national phase in China, it shall be deemed to have filed a written statement in accordance with Article 30 of the Patent Law.

The applicant should pay the fee for claiming for priority rights within 2 months as of the entry date; where fee is not paid or fully paid upon expiration, it shall be deemed not to claim for the priority right.

Where the applicant has submitted the copies of prior application documents in accordance with the patent cooperation agreement in the international phase, it is unnecessary to submit the copies of the prior application documents to the administrative department for patent under the State Council while handling the formalities to enter the national phase in China. Where the applicant fails to submit the copies of the prior application documents in the international phase, the administrative department for patent under the State Council may notify the applicant to make up the copies within the designated time limit, if necessary; where no makeup of the copies is made upon expiration, the priority right is deemed not to be claimed for.

Article 111 Where an international application to the administrative department for patent under the State Council for treatment and examination ahead of time before the expiration of 30 months as of priority date is filed, the applicant shall file an application in accordance with Paragraph 2 of Article 23 of the patent cooperation agreement apart from handling the formalities to enter the national phase in China. Where the WIPO has not delivered the international application to the administrative department for patent under the State Council, the applicant should submit the confirmed copies of international application.

Article 112 For the international application for the patent for utility model, the applicant may proactively raise amendment of the patent application documents within 2 months as of the entry date.

For the international application for the patent for invention, it shall be subject to Paragraph of Article 51 of the Rules herein.

Article 113 Where the applicant finds errors in the specification, claims or Chinese translation of characters in the appended drawing, he/it may raise amendments on the basis of the original international application within the following prescribed period:

(1)    before the administrative department for patent under the State Council has prepared to publish the application for patent for invention or the patent for utility model;

(2)    within 3 months upon receiving the notice issued by the administrative department for patent under the State Council that the application for patent for invention has entered the substantive examination.

Where the applicant corrects the errors in the translation, he/it shall file a written request and pay the prescribed fee for translation correction.

Where the applicant corrects the translation in accordance the requirements in the notice of the administrative department for patent under the State Council, he/it shall handle the formalities as prescribed in Paragraph 2 of the Article within the designated period; where prescribed formalities shall not be handled upon expiration, the application shall be deemed to be withdrawn.

Article 114 For an international application claiming the patent right for invention, the administrative department for patent under the State Council shall, if considering it to be in conformity with relevant provisions in the Patent Law and these Rules after the preliminary examination, publish it in the Patent Gazette; where the international application is filed in a language other than Chinese, the Chinese translation of the application documents shall be published.

Where an international application claiming for the patent right for invention is internationally published by the International Bureau in Chinese, it shall be subject to Article 13 of the Patent Law as of the date of international publication; where it is published by the International Bureau in a language other than Chinese, it shall be subject to Article 13 of the Patent Law as of the date of publication by the administrative department for patent under the State Council.

For an international application, publication mentioned in Articles 21 and 22 of the Patent Law means the publication provided in Paragraph 1 of this Article.

Article 115 Where an international application contains two or more inventions or utility models, the applicant may, after fulfilling the formalities for the entry of the National Phase in China, file a division of application in accordance with Paragraph 1 of Article 42 of these Rules.

Where, in the International Phase, when the international retrieval entity or international preliminary examination entity considers the international application is not in conformity with the requirement of singularity provided in the Patent Cooperation Treaty, the applicant does not pay the additional fee as provided, thus causing some parts of the international application to not undergo international retrieval or international preliminary examination, or when entering the National Phase in China, the applicant requires the above-mentioned parts to be regarded as the basis of examination, and the administrative department for patent under the State Council considers the singularity of the invention has been well-judged by the international retrieval entity or the international preliminary examination entity, it shall notify the applicant to pay the fee for recovering singularity within a specified time limit. Where the said fee has not been paid or fully paid at the expiry of the time limit, the parts in the international application which have not undergone retrieval or international preliminary examination shall be deemed to have been withdrawn.

Article 116 Where, in the International Phase, an international application is refused by a relevant international entity to grant an international application date on it or is declared to be deemed to have been withdrawn, the applicant may, within 2 months as of his/its receipt of the notice, request the International Bureau to transfer the copy of any document in the file of the international application to the administrative department for patent under the State Council, and fulfill the formalities provided in Article 103 of these Rules in the administrative department for patent under the State Council within this period. The administrative department for patent under the State Council shall, after receiving the documents transmitted by the International Bureau, re-examine whether the decision made by the international entity is correct.

Article 117 Where, for the patent right granted upon the international application, the protection scope determined in accordance with Article 59 of the Patent Law has exceeded the scope expressed in the original text of the international application due to errors in the translation, the protection scope which is limited on the basis of the original text shall prevail; while if the protection scope is narrower than the scope expressed in the original text of the international application due to the same reason, the protection scope at the time of authorization shall prevail.

 

Chapter XI Supplementary Provisions

Article 118 Any person may, upon approval by the administrative department for patent under the State Council, inspect or copy the files of the published or announced patent applications and the Patent Register, and may request the administrative department for patent under the State Council to issue a copy of the Patent Register.

The files of patent applications which are deemed to have been withdrawn or which have been rejected or actively withdrawn, shall not be preserved after the expiry of 2 years as of the date on which such applications cease to be valid.

The files of patent rights which have been abandoned or invalidated or terminated shall not be preserved after expiry of 3 years as of the date on which such patent rights cease to be valid.

Article 119 Any application document which is submitted to, and any formalities which are fulfilled in the administrative department for patent under the State Council, shall be signed or sealed by the applicant, the patent holder, any other interested person or his/its representative. Where any patent agency is entrusted, such agency shall affix its stamp.

Where a change of the name of the inventor, the name, nationality or address of the applicant or the patent holder, or the name or address of the patent agency, or the name of the patent agent is requested, a request for a change in the bibliographic data shall be made to the administrative department for patent under the State Council, and the supporting documents with reasons for the change shall be affixed.

Article 120 The documents relating to a patent application or patent right which are mailed to the administrative department for patent under the State Council shall be mailed by registered letter, not by parcel.

For any document (not including any application document submitted for the first time) submitted to and any formalities fulfilled in the administrative department for patent under the State Council, the application number or the patent number, the title of the invention-creation, and the name of the applicant or the patent holder shall be indicated.

One letter may contain documents relating to one application only.

Article 121 Any application document shall be typed or printed. All the characters shall be in black ink, neat and clear, and none of them shall be altered. The appended drawings shall be made in black ink with the aid of drafting instruments. The lines shall be uniformly thick and well-defined, and shall not be altered.

The written request, specification, patent claim, appended drawings and abstract shall be numbered separately in Arabic numerals and arranged in numerical order.

The script of application documents shall run horizontally. Only one side of each sheet shall be used.

Article 122 The administrative department for patent under the State Council shall formulate the guidelines for patent examination in accordance with the Patent Law and the Rules herein.

Article 123 The Rules herein shall enter into force on July 1, 2001. The Rules for the Implementation of the Patent Law of the People’s Republic of China which was revised on December 12, 1992 upon approval of the State Council and promulgated by the Patent Office of China on December 21, 1992 shall be nullified at the same time.



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