|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Laws of the People's Republic of China |
[Database Search] [Name Search] [Noteup] [Help]
| Category | INTELLECTUAL PROPERTY RIGHT | Organ of Promulgation | The State Council | Status of Effect | With An Amendment Existing |
| Date of Promulgation | 1985-01-19 | Effective Date | 1985-04-01 |
|
Rules for Implementation of the Patent Law of the People's Republic of China |
|---|
Article 1 These Rules are formulated in accordance with the provisions
of Article 68 of the Patent Law of the People's Republic of China (hereinafter
referred to as "the Patent Law").
Article 2 "Invention" in the Patent Law means any new technical solution
relating to a product, a process or an improvement thereof.
"Utility model" in the Patent Law means any new technical solution
relating to the shape, the structure, or their combination, of a product,
which is fit for practical use.
"Design" in the Patent Law means any new design of the shape, pattern,
colour, or their combination, of a product, which creates an aesthetic feeling
and is fit for industrial application.
Article 3 All the procedures provided for by the Patent Law and these
Rules shall be conducted in a written form.
Article 4 Any document submitted under the Patent Law and these Rules
shall be in Chinese. The standard scientific and technical terms shall be used
whenever there are such standard terms as prescribed by the State. Where no
generally accepted translation in Chinese can be found for the name of a
foreigner or a foreign locality or a foreign scientific or technical term, the
one in the original language shall be also indicated.
Where any certificate or certifying document which is submitted in
accordance with the Patent Law or these Rules is in a foreign language, the
Patent Office may require that a Chinese translation be also submitted within
a specified time limit.
Article 5 For any document mailed by the Patent Office to the addressee
residing in any of the municipalities directly under the people's governments
of provinces, autonomous regions or above, the 8th day from the date of
mailing, shall be presumed to be the receiving date, and for that mailed to
the addressee residing in any of the other places, the 16th day from the date
of mailing shall be so presumed.
For any document sent to the Patent Office by the applicant by mail, the
date of mailing indicated by the postmark shall be the date of filing. If the
date of mailing indicated by the postmark on the envelope is not readable, the
date on which the Patent Office receives the document shall be presumed to be
the date of filing, except where the date of mailing is proved by the
applicant.
Article 6 The first day of any time limit prescribed in the Patent Law or
these Rules shall not be counted. Where a time limit is counted by year or by
month, it shall expire on the corresponding day of the last month; if there is
no corresponding day in that month, the time limit shall expire on the last
day of that month. If a time limit expires on an official holiday, the time limit shall
expire on the first working day after that official holiday.
Article 7 Where a time limit prescribed in the Patent Law or these Rules
or specified by the Patent Office is not met because of force majeure or any
other justifiable reason, the applicant, the patentee or any other interested
party may, within one month from the day on which the impediment is removed,
state the reasons and request for an extension of the time limit, with the
exception of the time limits prescribed in Article 24, Article 29, the first
sentence of Article 41, Article 45 and Article 61 of the Patent Law.
Before the expiration of any time limit specified by the Patent Office, an
applicant who, on the basis of a justified reason, wishes to have the time
limit extended may make a request, accompanied with relevant proof, to the
Patent Office.
Article 8 Where the invention-creation for which a patent is applied by a
unit of the national defense system relates to the security of the State and
is required to be kept secret, the application for patent shall be filed with
the patent organization set up by the competent department of science and
technology of national defense. The Patent Office shall make a decision on the
basis of the observations on the examination of the application presented by
the said patent organization.
Article 9 Subject to the preceding Article, the Patent Office, after
receiving an application for patent which is required to be examined for the
purpose of security, shall send it to the competent department concerned of
the State Council for examination. The said department shall, within 4 months
from the receipt of the application, send a report on the results of the
examination to the Patent Office. Where the invention-creation for which a
patent is applied is required to be kept secret, the Patent Office shall
handle it as a secret application for patent and notify the applicant
accordingly.
Article 10 A job-related invention-creation made by any person in
execution of the tasks of the unit to which he belongs as mentioned in Article
6 of the Patent Law, refers to invention-creation made
(1) in the course of performing his own duty;
(2) in the execution of any task, other than his own duty, which was
entrusted to him by the unit to which he belongs;
(3) within 1 year from his resignation, retirement or change of work,
where the invention-creation relates to his own duty or the other task
entrusted to him by the unit to which he previously belonged.
Material resources of the unit, as mentioned in Article 6 of the Patent
Law, refer to the unit's money, equipment, spare parts, raw materials, or
technical data which are not to be disclosed to the public.
Article 11 An inventor or designer as mentioned in the Patent Law refers
to any person who has made creative contributions to the substantive features
of the invention-creation. Any person who, in the course of accomplishing the
invention-creation, is responsible only for organizational work, or who offers
facilities for making use of material resources, or who takes part in other
auxiliary services, shall not be regarded as inventors or designers.
Article 12 Two or more applicants who file, on the same day, applications
for patent on the same invention-creation, as provided for in Article 9 of the
Patent Law, shall, after receiving a notification from the Patent Office, hold
consultation among themselves so as to decide who shall be the applicant.
Article 13 The patentee who has concluded any licensing contract for
exploitation of the patent with another party shall, within 3 months from the
entry into force of the contract, submit the contract to the Patent Office for
the record.
Article 14 The patent agencies as mentioned in Paragraph 1, Article 19,
and Article 20, of the Patent Law refer to the China Council for the Promotion
of international Trade, the Shanghai Patent Agency, the China Patent Ltd. and
other patent agencies designated by the State Council.
Article 15 Any applicant who entrusts a patent agency to file an Article 16 Anyone who applies for a patent shall submit application Article 17 Other related matters to be stated in a written request as (1) the nationality of the applicant; (2) where the applicant is an enterprise or other organization, the name (3) where the applicant has entrusted a patent agency, the name and (4) where the applicant is a unit, the name of its representative; (5) where the priority is claimed, the relevant matters which shall be (6) the signature or the seal of the applicant; (7) a list of the documents constituting the application; (8) a list of the documents appending the application. Where there are two or more applicants and where they have not entrusted a Where an application for a patent on a design is filed, a brief Article 18 Except where the nature of the invention or utility model (1) state the title of the invention or utility model as appearing in (2) specify the technical field to which the invention or utility model (3) indicate the existing technology which, as far as known to the (4) specify the objective which the invention or utility model is (5) disclose the invention or utility model in a manner sufficiently (6) state the merits or effective results of the invention or utility (7) briefly describe the figures in the drawings, if any; (8) describe in detail the best mode contemplated by the applicant for The description of the invention or utility model may contain chemical or Article 19 The same sheet of drawings may contain several figures of the The scale and the distinctness of the drawings shall be such that a Reference signs used in the drawings of an application shall be consistent The drawings shall not contain any other explanatory notes, except words Article 20 The claims shall define clearly and concisely the matter for If there are several claims, they shall be numbered consecutively in The technical terminology used in the claims shall be consistent with that Article 21 Claims may be independent or dependent. An independent claim shall outline the essential technical contents of an A dependent claim relying on the reference to one or more other claims Article 22 Except where the nature of the invention or utility model (1) a preamble indicating the technical field to which the invention or (2) a characterizing portion, stating, in such words as "the invention (or Each invention or utility model shall have only one independent claim, Article 23 Except where the nature of the invention or utility model (1) a reference portion, indicating the serial number(s) of the claim(s) (2) a characterizing portion, which by stating the additional technical Dependent claims referring to more than two other claims shall not serve Article 24 The abstract shall indicate the technical field to which the Article 25 Where an application for a patent for invention concerns a (1) deposit a sample of the micro-organism with a depositary institution (2) give in the application document relevant information of the (3) indicate in the request the scientific name (with its Latin name) and Article 26 After the publication of an application for a patent for (1) the name and address of the unit or individual making the request; (2) an undertaking by the unit or individual making the request not to (3) an undertaking to use the micro-organism for experimental purpose only Article 27 The size of drawings or photographs of a design submitted in The applicant may submit for each design drawings or photographs of Article 28 Where an application for a patent for design seeking Article 29 Where the Patent Office finds it necessary, it may require the Article 30 Academic or technical conferences mentioned in Item (2) of Article 31 Where any application for a patent fails under the provisions Where any application for a patent falls under the provisions of item (3) Article 32 Where the applicant for a patent on invention claims priority, Article 33 Where two or more priorities are claimed for an application Article 34 Where an application for a patent is filed by any foreigner, (1) a certificate concerning the nationality of the applicant; (2) a certificate concerning the seat of the headquarters of a foreign (3) a testimonial showing that the country, to which the foreigner, Article 35 According to the provisions in Paragraph 1, Article 31 of the (1) two or more independent claims of the same category of product or (2) an independent claim for a product as well as for the process (3) an independent claim for a product as well as for the use of that (4) an independent claim for a product, the process specially adopted for (5) an independent claim for a product, the process specially adopted for (6) an independent claim for a process as well as for the equipment (7) an independent claim for a process as well as for the product directly Article 36 Where a patent application for a design contains two or more Article 37 When withdrawing a patent application, the applicant shall Where a declaration to withdraw the patent application is submitted after Article 38 In any of the following cases, an examiner or a member of the (1) where he is a close relative of the applicant or the patent agent; (2) where he has an interest in the patent application; (3) where he has such other kinds of relations with the applicant or the Where a member of the Patent Reexamination Board has taken part in the Article 39 Upon the receipt of a written request, a description (a Article 40 If the application documents submitted do not contain a Article 41 Where the description of an invention mentions that it Article 42 Where an application for a patent contains two or more If the Patent Office finds that the application for a patent is not in Article 43 For divisional applications filed in accordance with Article 44 Where, upon preliminary examination, the Patent Office finds Where, after the applicant has made the observations, the Patent Office Article 45 Where a patent application belongs to any of the following (1) the written request is not presented in the prescribed form or the (3) the patent application for an invention or utility model does not (4) the drawings or photographs contained in the patent application for a (5) a patent agency is entrusted, but no power of attorney is submitted; (6) any other deficiencies which call for rectifications. If the applicant, without any justified reason, fails to meet the time Article 46 Where the applicant requests for an earlier publication of its Article 47 The applicant shall, when indicating, in accordance with Article 48 Any person may, from the date of the publication of a patent Article 49 Where the applicant for an invention patent cannot furnish, Article 50 The Patent Office shall, when carrying out, of its own accord, Article 51 Within a period of 15 months from the date of filing or at the When an amendment of the description or the claims in a patent application Article 52 The applicant for a patent for utility model or design may, Article 53 The circumstances under which an application for patent shall (1) where the application does not comply with the provisions of Article 3 (2) where the application falls under the provisions of Article 5 or (3) where the applicant has no right to apply for a patent according to (4) where the application does not comply with the provisions in Paragraph (5) where the amendments to the application or the divisional applications Article 54 The circumstances under which an opposition may be filed under (1) where the invention for which a patent is applied does not comply with (2) where the application falls under the provisions of Article 5 or (3) where the applicant has no right to apply for a patent according to (4) where the application does not comply with the provisions of Paragraph (5) where the amendments to the application or the divisional applications Article 55 The circumstances under which challenge may be filed under (1) where the design for which a patent is applied does not comply with (2) where the design for which a patent is applied falls under the (3) where the applicant has no right to apply for a patent according to (4) where the amendments to the application have changed the essential Article 56 Anyone who files challenge in accordance with the provisions Article 57 After the receipt of the challenge, the Patent Office shall Where the reasons for opposition are not stated, or the reasons for Article 58 The Patent Reexamination Board shall consist of experienced Article 59 Where an applicant requests the Patent Reexamination Board to The applicant may amend its or his application for a patent at the time Article 60 Where a request for reexamination does not comply with the Article 61 The Patent Reexamination Board shall transmit the accepted Article 62 Where the Patent Reexamination Board finds after reexamination Article 63 At any time before the Patent Reexamination Board makes a Article 64 The Patent Office shall, after making a decision to grant the Article 65 Anyone making a request for invalidation or partial Article 66 Where the request for invalidation of the patent right does The provisions of Article 54 or Article 55 of these Rules shall be applied Where no reasons have been stated in the request for invalidation or where Article 67 The Patent Reexamination Board shall send a copy of the Article 68 Any unit requesting, in accordance with the provisions of Any unit requesting, in accordance with the provisions of Article 52 of The Patent Office shall, after the receipt of the request for a compulsory The Patent Office shall, after having examined the request for compulsory Article 69 For any request, put forward in accordance with the provisions Article 70 "Rewards" mentioned in Article 16 of the Patent Law includes Article 71 Any unit holding a patent right shall, after the grant of the Where an invention-creation was made on the basis of an inventor's or Any enterprise holding the patent right may include the said money reward Article 72 Any unit holding a patent right shall, after exploiting the Article 73 Where any unit holding a patent right for invention-creation Article 74 The remunerations provided for in these Rules shall all be Article 75 The units under collective ownership and other enterprises Article 76 The patent administrative authorities mentioned in Article 60 Article 77 Where, after the publication of a patent application for The provisions of the preceding paragraph shall apply mutatis mutandis in Article 78 Where any dispute arises between any inventor or designer, and Article 79 Where parties to any transdepartmental or transregional Article 80 The Patent Office shall maintain a Patent Register in which (1) grant of a patent right; (2) assignment of a patent right; (3) renewal of the term of a patent right; (4) termination and invalidation of a patent right; (5) compulsory license for exploitation of a patent; (6) changes in the name, nationality and address of a patentee. Article 81 The Patent Office shall publish the Patent Gazette at regular (1) bibliographic data contained in a written request for a patent (2) abstract of the description of an invention or utility model; (3) request for substantive examination of an application for invention (4) approval after examination of a patent application for invention and (5) rejection of a patent application; (6) decision concerning an opposition and amendment made in a patent (7) grant of a patent right; (8) termination of a patent right; (9) invalidation of a patent right; (10) assignment of a patent right; (11) grant of compulsory license for exploitation of a patent; (12) renewal of the term of a patent; (13) withdrawal of a patent application, or an application deemed to have (14) changes in the name or address of a patentee; (15) notification to an applicant whose address is not known; (16) any other related matters. The description, its drawings and the claims of a patent application for Article 82 The fees which shall be paid when a patent application is (1) application fee and application maintenance fee; (2) examination fee, reexamination fee and opposition fee; (3) annual fee; (4) fees for handling other patent matters: fee for renewal of the term of The amount of the fees listed above shall be prescribed by the Patent Article 83 Fees provided for in the Patent Law and in these Rules may be Where fees are paid through a bank or by postal remittance, the date on Article 84 Where the patent application fee is not paid on time, or only Article 85 Where the prescribed fees are not paid when an applicant Article 86 Where the applicant for an invention patent has not been Article 87 The first annual fee shall be paid when the patent certificate Article 88 Where the maintenance fee of the application or the annual fee Article 89 Where in accordance with the provisions of Paragraph 2, Article 90 When filing an application for a patent and going through all The measures for the reduction or postponement of payment shall be Article 91 Anyone may, after approval by the Patent Office, look up or Article 92 Documents submitted to the Patent Office shall be prepared in Article 93 Where documents or objects relating to an application for Article 94 Any sheets constituting the application for patent shall be Drawings shall be made in black ink with the aid of drafting instrument. Article 95 The Patent Office shall be responsible for interpreting these Article 96 These Rules shall enter into force as of April 1, 1985.
AsianLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
application for a patent or deal with other patent matters with the Patent
Office, shall submit at the same time a power of attorney which shall indicate
the scope of the power entrusted.
Chapter II Application for Patent
documents in duplicate.
mentioned in Paragraph 2, Article 26, of the Patent Law refer to:
of the country in which the applicant has its head office;
address of the patent agency and the name of the patent agent;
indicated;
patent agency, they shall designate a representative; if no representative is
designated, the applicant first signed shall be considered as the
representative.
description of the design shall, when necessary, be included.
calls for a different mode and order of presentation, the description of an
application for a patent for invention or utility model shall, in the
following order:
the request;
relates;
applicant, can be regarded as useful for the understanding, searching and
examination of the invention or utility model, and cite the documents
reflecting such technology;
designed to achieve;
clear and complete so that an ordinary technician in the relevant field of
technology can carry it out;
model as compared with the prior art;
carrying out the invention or utility model, with reference to the drawing, if
any.
mathematical formulae but no commercial advertising.
invention or utility model. The figures shall be numbered consecutively in
Arabic numerals and arranged in numerical order.
reproduction with a linear reduction in size to two-thirds will still enable
all details to be clearly distinguished.
throughout. Reference signs not appearing in the description of the invention
or utility model shall not appear in the drawings.
which are indispensable.
which protection is sought in terms of the technical features of the invention
or utility model.
Arabic numerals.
used in the description. The claims may contain chemical or mathematical
formulae but no drawings. They shall not, except where absolutely necessary,
contain such references to the description or drawing "as described in part...
of the description", or "as illustrated in figure... of the drawings".
invention or utility model and describe the indispensable technical features
constituting the invention or utility model.
shall refer only to the preceding claim or claims.
calls for other forms of expression, an independent claim shall be presented in
the following form:
utility model pertains and the technical features of the prior art which
relate closely to the subject matter of the invention or utility model;
utility model) is characterized in that..." or in similarly concise
expressions, the technical features of the invention or utility model, which,
in combination with the features stated in the preamble, constitute those to
be protected.
which shall precede all the dependent claims relating to the same invention or
utility model.
calls for other forms expression, a dependent claim shall be presented in the
following form:
referred to. Where possible, the reference to the serial number shall be
placed at the beginning of the claim(s);
features of the invention or utility model, further defines the technical
features cited in the reference portion.
as reference to each other.
invention or utility model pertains, the technical problems to be solved, the
essential technical features and the use or uses of the invention or utility model. The abstract may, where applicable, contain the
chemical formula or the
figure which best characterizes the invention or utility model. The whole text
of the abstract shall contain preferably not more than 200 words.
micro-biological process or a product thereof and involves the use of a
micro-organism which is not available to the public, the applicant shall, in
addition to the other requirements provided for in the Patent Law and these
Rules,
designated by the Patent Office before the date of filing, or, at the latest,
on the date of filing;
characteristics of the micro-organism;
the name of the depositary institution, the date on which the sample of the
micro-organism was deposited and the file number of the deposit, and submit a
receipt of deposit from that institution.
invention relating to a micro-organism, any unit or individual which or who
intends to make use of the micro-organism mentioned in the application for the
purpose of experiment shall make a request to the Patent Office containing the
following:
make the micro-organism available to any other person;
before the grant of the patent right.
accordance with the provisions of Article 27 of the Patent Law shall not be
smaller than 3 cm x 8 cm, nor larger than 19 cm x 27 cm.
difierent angles, sides or positions so as to clearly show the object for
which protection is sought. The applicant shall indicate on each drawing or
photograph the angle, side or position, and mark on the top left and right of
the back of drawing or photograph its consecutive number and the name of the
applicant.
protection of colours is filed, a drawing or photograph in colour, and a
drawing or photograph in white and black, shall be submitted, and a statement
of the colours for which protection is sought shall be made on the drawing or
photograph in white and black.
applicant for a patent on design to submit a sample or model of the product
incorporating the design. The volume of the sample or model submitted shall
not exceed 30 cm x 30 cm x 30 cm, and its weight shall not surpass 15 kilos.
Articles easily perishable or fragile, or articles that are dangerous shall
not be submitted as sample or model.
Article 24 of the Patent Law mean any academic or technical conference
organized by a competent department concerned of the State Council or by a
national academic association.
of 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 from the date of filing, submit a certificate issued by the unit which organized the international exhibition or academic or
technical conference,
stating that the invention-creation was in fact exhibited or made public there
and also the date of its exhibition or making public.
of Article 24 of the Patent Law, the Patent Office may, when necessary,
require the applicant to submit the relevant proof.
it or he shall, within 15 months from the date on which it or he first filed
the application in a foreign country, submit the filing number accorded by
that country.
for a patent, the priority period for the application shall be calculated from
the earliest priority date.
foreign enterprise or other foreign organization having no habitual residence
or business office in China, the Patent Office may, when there is any doubt,
require the applicant to submit the following documents:
enterprise or other foreign organization;
foreign enterprise or other foreign organization belongs, recognizes that
Chinese citizens or units are, under the same conditions applied to its
nationals, entitled to patent rights and other related rights in that country.
Patent Law, the claims in a patent application for an invention or utility
model may be any of the following:
process, which cannot be included in one claim;
specially adopted for the manufacture of that product;
product;
the manufacture of that product as well as for the use of that product;
the manufacture of that product, as well as for the equipment specially
designed for carrying out the process;
specially designed for carrying out that process;
manufactured by carrying out that process.
designs in accordance with the provisions in Paragraph 2, Article 31 of the
Patent Law, the designs shall be numbered consecutively and the products
incorporating the designs shall be indicated in the request of the
application. The consecutive numbers shall be marked on the bottom left of the
back of the drawings or photographs of the design.
submit to the Patent Offfice a declaration stating the title of the
invention-creation, the filing number and the date of filing.
the printing preparation has been done by the Patent Office for publication of
the application documents, the application shall be published as scheduled.
Chapter III Examination and Approval of Patent Applications
Patent Reexamination Board shall, on his own initiative or upon the request
of the applicant or any other interested party, withdraw from his office:
patent agent that might influence the impartial examination of the application.
examination of the application, the provisions of the preceding paragraph
shall apply.
drawing being indispensable for utility model) and one or more claims for a
patent for an invention or utility model, or a written request and one or more
drawings or photographs showing the design for a patent application for
design, the Patent Office shall accord the date of filing and a filing number,
and notify them to the applicant.
request or a description or claims, or if they are not in conformity with the
provisions of Article 27 of the Patent Law, the Patent Office shall reject the
application and notify the applicant accordingly.
contains "explanatory notes to the drawings" but the drawings are missing, the
applicant shall, within the time limit specified by the Patent Office, either
furnish the drawings or make a declaration for the deletion of the
"explanatory notes to the drawings". If the drawings are submitted later, the
date of their delivery at, or mailing to, the Patent Office shall be the date
of filing of the application; if the "explanatory notes of the drawings" are
deleted, the original date of filing shall be retained.
inventions, utility models or designs, the applicant may, at any time before
the announcement of the application under Article 39 or Article 40 of the
Patent Law, or after the said announcement at the time when the Patent Office
considers the filing of a divisional application is justified, submit to the
Patent Office a request for the division of the application and divide it on
its or his own initiative into several applications.
conformity with the provisions of Article 31 of the Patent Law and Article 35
of these Rules, it shall require the applicant to divide the application
within a specified time limit. If, without any justified reason, the applicant
does not give any response within the time limit, the application shall be
deemed to have been withdrawn.
Article 42 of these Rules, the original date of filing of the application may
be retained, provided that they do not go beyond the scope as contained in the
original description.
that a patent application obviously fails under Article 3 or Article 25 of the
Patent Law, or is obviously not in conformity with Article 18 or Article 19 of
the Patent Law or Article 2 of these Rules, it shall require the applicant to
present its or his observations within a specified time limit. If the
applicant, without any justified reason, fails to meet the time limit for
presenting observations, the application shall be deemed to have been
withdrawn.
still finds that the application is obviously not in conformity with the
provisions of the articles cited in the preceding paragraph, the application
shall be rejected.
cases, the applicant shall, within a time limit specified by the Patent
Office, make due rectification:
indications therein are not in conformity with the requirements; (2) the description and its drawings or the
claims of the invention or
utility model are not in conformity with the relevant provisions;
contain an abstract;
design are not in conformity with the relevant provisions;
limit for rectifying the deficiencies, the application shall be deemded to
have been withdrawn. If, after the rectification, the patent application is
still not in conformity with the relevant provisions of the Patent Law or
these Rules, it shall be rejected.
or his patent application for an invention, a declaration shall be made to the
Patent Office. The Patent Office shall publish the said application
immediately after a preliminary examination unless it is to be rejected.
Article 27 of the Patent Law, the product incorporating the design and the
category to which that product belongs, refer to the classification of
products for designs published by the Patent Office. Where no indication or an
incorrect indication, of the category to which the product incorporating the
design belongs is made, the Patent Office may provide the indication or
correct it.
application for an invention till the date of the announcement of the approval
after examination, submit, to the Patent Office, observations, with the
reasons therefor, on the application which is not in conformity with the
provisions of the Patent Law.
for justified reason, the documents concerning any retrieval or the results of
any examination under Article 36 of the Patent Law, it or he shall make a
statement to that effect and submit them when the said documents and results
are available.
examination of an application for an invention patent in accordance with the
provisions in Paragraph 2, Article 35 of the Patent Law, notify the applicant
accordingly.
time when a request for a substantive examination is made, or when a response
is made in regard to a challenge, the applicant for an invention patent may
amend the description or the claims of the application for invention patent on
its or his own initiative.
for invention or utility model is made, a replacement sheet in prescribed form
shall be submitted, unless the amendment concerns only the alteration,
insertion or deletion of a few words.
from the date of filing till the date of announcement of the patent
application, or at the time when a response is made in regard to challenge,
amend its or his application on its or his own initiative. Where an amendment
to an application for design patent is made, it shall not change the essential
elements of the design.
be rejected by the Patent Office are as follows:
of the Patent Law and Article 2 of these Rules;
Article 25 of the Patent Law, or it does not comply with the provisions of
Article 22 or Article 23 of the Patent Law;
the provisions of Article 6, Article 8 or Article 18 of the Patent Law, or
cannot obtain a patent right according to the provisions of Article 9 of the
Patent Law;
3 or Paragraph 4, of Article 26, or Article 31 of the Patent Law;
go beyond the scope as contained in the original description.
Article 41 of the Patent Law with regard to a patent application for invention
or utility model, which has been publicly announced by the Patent Oficice,
shall comprise the following:
the provisions of Article 3 of the Patent Law and of Paragraph 1, Article 2,
of these Rules, or the utility model for which a patent is applied does not
comply with the provision of Article 3 of the Patent Law and of Paragraph 2,
Article 2, of these Rules;
Article 25 of the Patent Law, or it does not comply with the provisions of
Article 22 of the Patent Law;
Article 6, Article 8 or Article 18 of the Patent Law, or the essential
elements of the application have been taken from the descriptions, drawings,
models, equipment, etc., of another person, or from a process used by another
person, without his consent;
3 or Paragraph 4 of Article 26, of the Patent Law;
go beyond the scope as contained in the original description.
Article 41 of the Patent Law with regard to an application for a design
patent, which has been publicly announced by the Patent Office, shall comprise
the following:
the provisions of Article 3 of the Patent Law and of Paragraph 3, Article 2,
of these Rules;
provisions of Article 5 of the Patent Law, or does not comply with the
provisions of Article 23 of the Patent Law;
Article 6, Article 8 or Article 18 of the Patent Law, or cannot obtain a
patent right according to Article 9 of the Patent Law, or the essential
elements of the design have been taken from the designs, drawings,
photographs, articles or models of another person without his consent;
elements of the design.
of Article 41 of the Patent Law shall submit same, with the reasons therefor,
in duplicate to the Patent Office.
make an examination of it. Where the challenge does not conform to the
prescribed requirements, the Patent Office shall notify the opponent for a
rectification within a specified time limit. If the opponent fails to rectify
the opposition within the specified time limit, the challenge shall be deemed
not to have been filed.
opposition do not conform to the provisions of Article 54 or Article 55 of
these Rules, the challenge shall not be accepted.
technical and legal experts designated by the Patent Office. The
Director-General of the Patent Office shall be the Chairman of the Board
concurrently.
make a reexamination in accordance with the provisions of Paragraph 1, Article
43, of the Patent Law, it or he shall file a request for reexamination
and state the reasons therefor, together with the relevant supporting
documents. The request and the supporting documents shall be in duplicate.
when it or he requests reexamination, but the amendments shall be limited only
to the part to which the decision of rejection of the application relates.
prescribed form, the person who made the request shall rectify it within a
time limit fixed by the Patent Reexamination Board. If the rectification fails
to be made within the time limit, the request for reexamination shall be
deemed to have been withdrawn.
request for reexamination to the original examining department for
observation. The Patent Reexamination Board shall make a decision on the
request and notify the applicant accordingly.
that the request does not comply with the provisions of the Patent Law, it
shall ask the person who has made the request for reexamination to submit his
observations within a specified time limit. If, without any justified reason,
the time limit for making response is not met, the request for reexamination
shall be deemed to have been withdrawn.
decision on a request for reexamination, the person who has made the request
for reexamination may withdraw his request.
patent right, notify the applicant to pay a fee for a patent certificate
within 2 months and receive the certificate. Where the applicant fails to pay
the fee within the time limit, it or he shall be deemed to have abandoned its
or his right to obtain the patent right.
Chapter IV Invalidation of Patent Right
invalidation of a patent right according to the provisions of Article 48 of
the Patent Law shall submit a request, with the reasons therefor, to the
Patent Reexamination Board. Where necessary, relevant documents shall be
submitted. The request and the relevant documents shall be in duplicate.
not comply with the prescribed form, the person who made the request shall
rectify it within a time limit fixed by the Patent Reexamination Board. If the
rectification fails to be made within the time limit, the request for
invalidation shall be deemed to have been withdrawn.
so far as the reasons for the request for invalidation of the patent right are
concerned.
the reasons stated do not comply with the provisions of Article 54 or Article
55 of these Rules, the request shall not be accepted.
request for invalidation of the patent right and a copy of the relevant
documents to the patentee and ask it or him to present its or his observations
within a specified time limit. Where, without any justified reasons, no
response is made within the time limit, the patentee shall be deemed to have
no objection.
Chapter V Compulsory License for Exploitation of a Patent
Article 52 of the Patent Law, or any patentee requesting, under Article 53 of
the Patent Law, a compulsory license for exploitation of a patent for
invention or utility model, shall submit to the Patent Office a request for
compulsory license, and supporting documents to show that it or he has not
been able to conclude with the patentee a license contract for exploitation on
resonable terms. The request and the supporting documents shall be in
duplicate.
the Patent Law, a compulsory license for exploitation of a patent for
invention or utility model, shall at the same time furnish documents in
duplicate to show that it is in a position to exploit the patent.
license, ask the patentee concerned to present its or his observations within
a specified time limit; where, without any justified reason, no response is
made within the time limit, the patentee shall be deemed to have no objection.
license and the observations of the patentee, make a decision and notify the
party which made the request and the patentee concerned.
of Article 57 of the Patent Law for a ruling by the Patent Office on the fees
for exploitation, the party concerned shall submit a request in writing and
furnish documents showing that the parties have not been able to conclude an
agreement in respect of the amount of the fees. The Patent Office shall, after
the receipt of the request, make a ruling within 3 months and notify the
interested parties accordingly.
Chapter VI Rewards to Inventor or Designer of Job-Related
Invention-creation
pecuniary rewards and remunerations which are to be awarded to inventors and
designers.
patent right, award inventors or designer of a job-related invention-creation
with a sum of money as reward. The sum of pecuniary reward for a patent for
invention shall not be less than 200 yuan; the sum of pecuniary reward for a
patent for utility model or design shall not be less than 50 yuan.
designer's proposal adopted by the unit to which he belongs, after the grant
of the patent right, the unit holding it shall award him with a more liberal
pecuniary reward.
into its production cost; any institution holding the patent right may
disburse the said money reward out of its operating expenses.
patent for invention-creation within the term of the patent right, draw each
year from any increase in profits after taxation a percentage of 0.5%-2% due
to the exploitation of an invention or utility model, or a percentage of
0.05%-0.2% due to the exploitation of a design, and award it to the
inventor or designer as remuneration. The unit may, otherwise, by making
reference to the said percentages, award the inventor or designer in a lump
sum.
authorizes other units or indviduals to exploit the patent, it shall, after
taxation, draw a percentage of 5%-10% from the fees for exploitation it
received and award it to the inventor or designer as remuneration.
disbursed out of the profits derived from the making of patented products or
the use of patented process and out of the fees obtained for the exploitation
of the patents. The remunerations shall not be included in the normal bonus
fund of the unit, nor subject to the bonus tax. But the inventor or designer
shall pay tax on his income.
may handle rewards and remunerations for their invenors and designers with
reference to the provisions in this Chapter.
Chapter VII Patent Administrative Authorities
of the Patent Law and in these Rules refer to the patent administrative
authorities set up by the competent departments concerned of the State
Council, and the people's governments of the provinces, autonomous regions,
municipalities directly under the Central Government, open cities and special
economic zones.
invention and before the grant of the patent right, any unit or individual has
exploited the invention without paying appropriate fees, the patentee may,
after the grant of the right, request the relevant patent administrative
authority to intervene in the matter, or may directly file a suit in a
people's court. The patent administrative authority intervening in the matter
shall have the power to decide that the unit or individual shall pay
appropriate fees within a specified time limit. Where any of the parties
concerned is not satisfied with the decision of the said authority, it or he
may file a suit in a people's court.
respect of a patent application for utility model or design.
the unit to which he belongs, as to whether an invention-creation is a
job-related invention-creation, or whether an application for a patent is to
be filed in respect of a job-related invention-creation, the inventor or
designer may request the competent department at the higher level or the
patent administrative authority of the region in which the unit is located to
handle the matter.
infringement dispute request the administrative authority for patent affairs
to handle the matter, the said dispute shall be handled by the administrative
authority for patent affairs of the region in which the infringement has
arisen, or by the administrative authority for patent affairs of the higher
competent department of the infringing entity.
Chapter VIII Patent Register and Patent Gazette
shall be recorded the following matters relating to any patent right:
intervals, publishing or announcing the following:
application;
patent and the decision made by the Patent Office to carry out, of its own
accord, the substantive examination of that application for invention patent;
announcement of the patent application for utility model or design;
application;
been withdrawn or abandonment of an application;
invention or utility model, and drawings or photographs of a patent
application for design shall be published in full.
Chapter IX Fees
filed, or when other procedures are gone through with the Patent Office, are
as follows:
a patent, fee for a change in the bibliographic data, patent certificate fee,
fee for the proof of priority, fee for a request for invalidation, fee for a
request for compulsory license, and fee for a request for a ruling on
exploitation fee of a compulsory license.
Office separately.
paid to the Patent Office through a bank or by postal remittance. They may
also be paid directly to the Patent Office. Where fees are paid through a bank or by postal remittance, the
kind of
fees, the title of the invention-creation, the filing number or the patent
number shall be indicated on the money order. In case where no filing number
or patent number has been accorded, the date of application shall be indicated.
which the transfer of such fees are ordered shall be the date of payment.
a portion of the fee is paid, the applicant may pay the fee or to make up the
balance within one month from the date of filing the application. If the fee
is not paid or the balance is not made up within the time limit, the
application shall be deemed to have been withdrawn.
requests substantive examination, or reexamination, or when any person files
an opposition or requests an invalidation of a patent right, the fees may be
paid within 15 days from the date on which the request is made or the
opposition is filed, but the date of payment may not go beyond the time limit
the Patent Law prescribes for the request for substantive examination or
reexamination or for the opposition to be filed. If the payment is not made
within the time limit, the request is deemed to have not been made or the
opposition is deemed to have not been filed.
granted a patent right within 2 years from the date of filing, it or he shall
pay an annual fee for the maintenance of the application from the third year.
The first annual maintenance fee shall be paid within the first month of the
third year. The subsequent annual maintenance fees shall be paid in advance
within the last month before the expiration of the preceding year.
is issued. Where the maintenance fee of the application for the year has
already been paid at the time of the grant of a patent right, the patentee
shall make up the difference on the basis of the amount of the annual fee of
the same year. The subsequent annual fees shall be paid in advance within the
last month before the expiration of the preceding year.
is not paid on time by the applicant or the patentee, or the maintenance fee
or the annual fee paid is insufficient, the Patent Office shall ask the
applicant or the patentee to pay the fee or to make up the balance within 6
months from the expiration of the time limit within which the maintenance fee
or the annual fee was to be paid. The applicant or the patentee shall at the
same time pay a surcharge which amounts to 25% of the maintenance fee or the
annual fee. Where the fees are not paid within 6 months the application shall
be deemed to have been withdrawn or the patent right shall be deemed
terminated at the expiration of the time limit within which the maintenance
fee or the annual fee was to be paid.
Article 45, of the Patent Law, the patentee requests the renewal of the term
of the patent for utility model or design, it or he shall make the request
within 6 months before the term expires, and at the same time pay the renewal
fee. In case where, at the expiration of the said period, the patentee fails
to pay the renewal fee, the request shall be deemed to have not been made.
the procedures, any individual who has difficulties in paying the various fees
prescribed in Article 82 of these Rules may submit a request according to the
relevant provisions to the Patent Office for a reduction or postponement of
payment.
prescribed by the Patent Office.
Chapter X Supplementary Provisions
reproduce the files of the published or announced applications for patent, the
Patent Register and related supporting documents.
the form prescribed by the Patent Office and signed or sealed by the
applicant or its or his patent agent.
patent or patent right are submitted to the Patent Office, the number of the
application or the patent and the title of the invention-creation shall be
indicated. Where documents or objects are sent to the Patent Office by post,
they must be registered.
typed or printed. The typing or printing shall be neat and clear, and no
alteration is allowed. Only the right side of the paper shall be used.
The lines in the drawings shall be uniformly thick and clear.
Rules.
URL: http://www.asianlii.org/cn/legis/cen/laws/rfiotpl410