-
IMPLEMENTING REGULATIONS
OF THE
PATENT LAW OF THE PEOPLE'S REPUBLIC OF CHINA
(Promulgated
by
Decree
No.
306
of
the
State
Council
of
the
People's
Republic
of
China
on
June
15,2001,
amended the first time on December
28,2002 according to the Decision of the State
Council on Amending the
Implementing
Regulations of the Patent Law of the People's
Republic of China, and amended the second time on
January 9,2010 according to the
Decision of the State Council on Amending the
Implementing Regulations of the
Patent
Law of the People's Republic of China)
Translated by the State
Intellectual Property office of the People's
Republic of China. In case of discrepancy, the
original version in Chinese shall
prevail.
Chapter I General Provisions
Rule
1.
These
Implementing
Regulations
are
formulated
in
accordance
with
the
Patent
Law
of
the
People's
Republic of China (hereinafter referred
to as the Patent Law).
Rule 2. Any formalities prescribed by
the Patent Law and these Implementing Regulations
shall be complied with
in a written
form or in any other form prescribed by the patent
administration department under the State Council.
Rule 3. Any
document submitted in accordance with the
provisions of the Patent Law and these
Implementing
Regulations shall be in
Chinese; the standard scientific and technical
terms shall be used if there is a prescribed
one set forth by the State; where no
generally accepted translation in Chinese can be
found for a foreign name or
scientific
or technical term, the one in the original
language shall be also indicated.
Where any certificate or
certifying document submitted in accordance with
the provisions of the Patent Law and
these
Implementing
Regulations
is
in
a
foreign
language,
the
patent
administration
department
under
the
State
Council
may, when it deems necessary, request a Chinese
translation of the certificate or the certifying
document
be submitted within a
specified time limit; where the translation is not
submitted within the specified time limit,
the certificate or certifying document
shall be deemed not to have been submitted.
Rule 4. Where
any document is sent by mail to the patent
administration department under the State Council,
the
date of mailing indicated by the
postmark on the envelope shall be deemed to be the
date of filing; where the date
of
mailing
indicated
by
the
postmark
on
the
envelope
is
illegible,
the
date
on
which
the
patent
administration
department
under the State Council receives the document
shall be the date of filing, except where the date
of
mailing is proved by the party
concerned.
Any
document
of
the
patent
administration
department
under
the
State
Council
may
be
served
by
mail,
by
personal delivery or by other forms.
Where any party concerned appoints a patent
agency, the document shall be
sent
to
the
patent
agency;
where
no
patent
agency
is
appointed,
the
document
shall
be
sent
to
the
contacting
person named in
the request.
Where any document is sent by mail by
the patent administration department under the
State Council, the 16th day
from the
date of mailing shall be presumed to be the date
on which the party concerned receives the
document.
Where
any
document
is
delivered
personally
in
accordance
with
the
provisions
of
the
patent
administration
1
department
under the State
Council, the date of
delivery is the date on which the party concerned
receives the
document.
Where the address of any
document is not clear and it cannot be sent by
mail, the document may be served by
making an announcement. At the
expiration of one month from the date of the
announcement, the document shall
be
deemed to have been served.
Rule 5. The first day of
any time limit prescribed in the Patent Law and
these Implementing Regulations shall not
be
counted
in
the
time
limit.
Where
the
time
limit
is
counted
by
year
or
by
month,
it
shall
expire
on
the
corresponding day of the
last month; if there is no corresponding day in
that month, the time limit shall expire on
the last day of that month; if a time
limit expires on an official holiday, it shall
expire on the first working day
following that official holiday.
Rule 6. Where a
time limit prescribed in the Patent Law or these
Implementing Regulations or specified by the
patent administration department under
the State Council is not observed by a party
concerned because of force
majeure,
resulting
in
loss
of
his
or
its
rights,
he
or
it
may,
within
two
months
from
the
date
on
which
the
impediment
is
removed,
at
the
latest
within
two
years
immediately
following
the
expiration
of
that
time
limit
request the patent administration
department under the State Council to restore his
or its rights.
Except for circumstances prescribed in
preceding paragraph, where a time limit prescribed
in the Patent Law or
these Implementing
Regulations or specified by the patent
administration department under the State Council
is
not observed by a party concerned
because of any other justified reason, resulting
in loss of his or its rights, he or
it
may, within two
months from
the date of receipt of a notification
from
the patent administration
department
under the State Council,
request the patent administration department under
the State Council to restore his or its
rights.
Where any party concerned requests to
restore his or its right according to paragraph
one or paragraph two of this
Rule, he
or it shall submit a request for restoration of
his or its right, stating the reasons, attaching,
if necessary,
the relevant certifying
documents, and go through the relevant formalities
which should have been complied with
before the loss of his or its right.
Where the party concerned requests for restoration
of his or its right according to
paragraph two of this Rule, he or it
shall pay the fee for request for restoration of
right.
Where
the party concerned makes a request for an
extension of a time limit specified by the patent
administration
department under the
State Council, he or it shall, before the time
limit expires, state the reasons to the patent
administration department under the
State Council and go through the relevant
formalities.
The
provisions
of
paragraphs
one
and
two
of
this
Rule
shall
not
be
applicable
to
the
time
limit
referred
to
in
Articles 24,29,42 and 68
of the Patent Law.
Rule 7. Where an application for a
patent relates to the interests of national
defense and is required to be kept
secret, the application for patent
shall be filed with and examined by the patent
department of national defense.
Where
an application for patent received by the patent
administration department under the State Council
relates
to the interests of national
defense and is required to be kept secret, the
application shall be promptly forwarded to
the patent department of national
defence to carry out the examination. Where it is
found after examination by the
patent
department of national defence there is no cause
for rejection of the application, the patent
administration
department under the
State Council shall make a decision to grant the
patent right concerning national defense.
2
Where
the
patent
administration
department
under
the
State
Council
finds
that
an
application
for
patent
for
invention
or
patent
for
utility
model
filed
with
it
relates
to
national
security
or
other
vital
interests
other
than
interests
concerning
national
defense
and
is
required
to
be
kept
secret,
it
shall
promptly
make
a
decision
on
handling it as an
application for secret patent and notify the
applicant accordingly. The special procedures for
the
examination and reexamination of
application for secret patent as well as the
invalidation of secret patent shall be
provided for by the patent
administration department under the State Council.
Rule 8. The
invention or utility model developed in China as
mentioned in Article 20 of the Patent Law refers
to
an
invention
or
utility
model
of
which
the
substantive
contents
of
the
technical
solution
were
made
within
the
territory of China.
Where any entity or
individual intends to file an application for
patent abroad for the invention or utility model
developed in China, it or he shall
request, by one of the following manner, the
patent administration department
under
the State Council to conduct confidentiality
examination:
(1)
where
any
entity
or
individual
intends
to
file
an
application
for
patent
directly
in
a
foreign
country
or
an
international patent application with a
relevant foreign organization, it or he shall file
a request for confidentiality
examination in advance with the patent
administration department under the State Council
and describe the related
technical
solution in detail;
(2) where after having filed an
application for patent with the patent
administration department under the State
Council,
the
applicant
intends
to
file
an
application
for
patent
in
a
foreign
country
or
an
international
patent
application with a relevant foreign
organization, it or he shall file the request for
confidentiality examination with
the
patent administration department under the State
Council before filing of the application for
patent in a foreign
country or the
international patent application with the relevant
foreign organization.
Where the applicant files an
international patent application with the patent
administration department under the
State Council, it or he shall be deemed
to have simultaneously filed the request for
confidentiality examination.
Rule 9. Where the patent
administration department under the State Council
receives a request filed under Rule 8
of these Implementing Regulations and
finds, upon examination, that the invention or
utility model may relate to
the
security or vital interest of the State and is
required to be kept secret, it shall promptly
issue a notification of
confidentiality
examination
to
the
applicant.
If
the
applicant
fails
to
receive
the
notification
of
confidentiality
examination
within
four
months
from
the
date
of
filing
its
or
his
request,
it
or
he
may
file,
in
respect
of
the
invention
or utility model, an application for patent in a
foreign country or an international patent
application with
the relevant foreign
organization.
Where the patent administration
department under the State Council carries out a
confidentiality examination in
accordance
with
the
notification
prescribed
in
the
preceding
paragraph,
it
shall
promptly
make
a
decision
on
whether
the
invention
or
utility
mode
is
required
to
be
kept
secret
and
notify
the
applicant
accordingly.
If
the
applicant
fails to receive such a decision within six months
from the date of filing its or his request, it or
he may
file, in respect of the
invention or utility model, an application for
patent in a foreign country or an international
patent application with the relevant
foreign organization.
Rule 10. Any invention-creation that is
contrary to the laws referred to in Article 5 of
the Patent Law shall not
3
include the invention-creation merely
because the exploitation of which is prohibited by
the laws.
Rule
11. The date of filing referred to in the Patent
Law, except for those referred to in Articles 28
and 42, means
the priority date where
priority is claimed.
The date of filing referred to in these
Implementing Regulations, except as otherwise
prescribed, means the date
of filing
prescribed in Article 28 of the Patent Law.
Rule
12.
service
invention-creation
made
by
a
person
in
execution
of
the
tasks
of
the
entity
to
which
he
belongs
(l) in the course of performing his own
duty;
(2)
in
execution
of
any
task,
other
than
his
own
duty,
which
was
entrusted
to
him
by
the
entity
to
which
he
belongs;
(3)
within
one
year
from
his
retirement,
resignation
or
from
termination
of
his
employment
or
personnel
relationship with
the entity to which he previously belonged, where
the invention-creation relates to his own duty
or the other task entrusted to him by
the entity to which he previously belonged.
concerned is a temporary
staff member.
Patent Law mean the
entity's money, equipment, spare parts, raw
materials or technical materials which are not
disclosed to the public, etc.
Rule 13.
to
the
substantive
features
of
an
invention-
creation.
Any
person
who,
during
the
course
of
accomplishing
the
invention-creation,
is
responsible
only
for
organizational
work,
or
who
only
offers
facilities
for
making
use
of
material
and
technical
means,
or
who
only
takes
part
in
other
auxiliary
functions,
shall
not
be
considered
as
inventor or creator.
Rule 14. Except
for the assignment of the patent right in
accordance with Article 10 of the Patent Law,
where the
patent right is
transferred because of any other
reason, the person or persons concerned shall,
accompanied by
relevant certified
documents or legal papers, request the patent
administration department under the State Council
to register the change in the owner of
the patent right.
Any
license
contract
for
exploitation
of
a
patent
which
has
been
concluded
by
the
patentee
with
an
entity
or
individual shall, within three months
from the date of entry into force of the contract,
be submitted to the patent
administration department under the
State Council for the record.
Where any patent right is
pledged, both the pledger and the pledgee shall
jointly register the contract of pledge
with the patent administration
department under the State Council.
Chapter 11 Application for
Patent
Rule
15.
Anyone
who
applies
for
a
patent
in
written
form
shall
file
with
the
patent
administration
department
4
under the
State Council application documents in two copies.
Anyone who
applies for a patent in other forms as provided by
the patent administration department under the
State Council shall comply with the
relevant provisions.
Any applicant who appoints a patent
agency for applying for a patent, or for having
other patent matters to attend
to
before the patent administration department under
the State Council, shall submit at the same time a
power of
attorney indicating the scope
of the power entrusted.
Where there are two or more applicants
and no patent agency is appointed, unless
otherwise stated in the request,
the
applicant named first in the request shall be the
representative.
Rule 16. The request of application for
patent for invention, utility model or design,
shall state the following:
(1) the title of the invention, utility
model or design;
(2) where the applicant is a Chinese
entity or individual, its or his title or name,
address, postal code, the code of
the
organization or the citizen identification card
number; where the applicant is a foreigner, a
foreign enterprise
or other foreign
organization, his or its name or title, the
nationality or the country or region in which the
applicant
is registered;
(3) the name of the
inventor or creator;
(4)
where
the
applicant
has
appointed
a
patent
agency,
the
name
of
the
appointed
agency,
the
agency's
organizational
code
and
the
name,
the
professional
certificate
number
and
the
telephone
number
of
the
patent
agent assigned by the agency;
(5) where the
right of priority is claimed, the filing date on
which the applicant filed the application the
first time
(hereinafter referred to as
the earlier application), the filing number of the
application and the title of the authority
with which the application was first
filed;
(6)
the
signature
or
seal
of
the
applicant
or
the
patent
agency;
(7)
a
list
of
the
documents
constituting
the
application;
(8)
a
list
of
the
documents
appending
the
application;
and
(9)
any
other
related
matters
which
needs
to
be
indicated.
Rule 17. The description of
an application for a patent for invention or a
patent for utility model shall state the title
of the invention or utility model,
which shall be the same as it appears in the
request. The description shall include
the following:
(1) technical field: specifying the
technical field to
which the technical
solution for which protection is sought
pertains;
(2)
background
art:
indicating
the
background
art
which
can
be
regarded
as
useful
for
the
understanding,
searching and
examination of the invention or utility model, and
when possible, citing the documents reflecting
5
such art;
(3) contents of
the invention: disclosing the technical problem
the invention or utility model aims to settle and
the
technical solution adopted to
resolve the problem; and stating, with reference
to the prior art, the advantageous
effects of the invention or utility
model; (4) description of figures: briefly
describing each figure in the drawings,
if any;
(5)
mode
of
carrying
out
the
invention
or
utility
model:
describing
in
detail
the
optimally
selected
mode
contemplated by the
applicant for carrying out the invention or
utility model; where appropriate, this shall be
done
in terms of examples, and with
reference to the drawings, if any;
The manner and order
referred to in the preceding paragraph shall be
followed by the applicant for a patent for
invention or a patent for utility
model, and each of the parts shall be preceded by
a heading, unless, because of the
nature of the invention or utility
model, a different manner or order would result in
a better understanding and a
more
economical presentation.
The description of the invention or
utility model shall use standard terms and be in
clear wording, and shall not
contain
such references to the claims as:
Where an application for a
patent for invention contains disclosure of one or
more nucleotide and/or amino acid
sequences,
the
description
shall
contain
a
sequence
listing
in
compliance
with
the
standard
prescribed
by
the
patent administration department under
the State Council. The sequence listing shall be
submitted as a separate
part of the
description, and a copy of the said sequence
listing in machine-readable form shall also be
submitted in
accordance with the
provisions of the patent administration department
under the State Council.
The
description
of
an
application
for
patent
for
utility
model
shall
include
the
drawings
showing
the
shape,
structure or their combination of the
product for which protection is sought.
Rule 18. The
figures of drawings of the invention or utility
model shall be numbered and arranged in numerical
order consecutively as
Reference signs not
mentioned in the text of the description of the
invention or utility model shall not appear in
the
drawings.
Reference
signs
not
mentioned
in
the
drawings
shall
not
appear
in
the
text
of
the
description.
Reference signs
for the same composite part shall be used
consistently throughout the application document.
The drawings
shall not contain any other explanatory notes,
except words which are indispensable.
Rule 19. The claims shall
specify the technical features of the invention or
utility model.
If there are several claims, they shall
be numbered consecutively in Arabic numerals. The
scientific and technical
terms used in
the claims shall be consistent with that used in
the description. The claims may contain chemical
or
mathematical
formulae
but
no
drawings.
They
shall
not,
except
where
absolutely
necessary,
contain
such
references
to
the
description
or
drawings
as:
described
in
part...
of
the
description
or
illustrated
in
Figure ... of the drawings
The technical features
mentioned in the claims may, in order to
facilitate quicker understanding of the claim,
make
6
reference
to
the
corresponding
reference
signs
in
the
drawings.
Such
reference
signs
shall
follow
the
corresponding
technical
features
and
be
placed
in
parentheses.
The
reference
signs
shall
not
be
construed
as
limiting the claims.
Rule 20. The claims shall
have an independent claim, and may also contain
dependent claims.
The independent claim shall outline the
technical solution of an invention or utility
model and state the essential
technical
features necessary for the solution of its
technical problem.
The dependent claim shall, by
additional technical features, further define the
claim which it refers to.
Rule
21.
An
independent
claim
of
an
invention
or
utility
model
shall
contain
a
preamble
portion
and
a
characterizing portion, and be
presented in the following form:
(1) a preamble portion:
indicating the title of the claimed subject matter
of the technical solution of the invention
or utility model, and those technical
features which are necessary for the definition of
the claimed subject matter
but which,
in combination, are part of the most related prior
art;
(2)
a
characterizing
portion:
stating,
in
such
words
as
in
that...
in
similar
expressions,
the
technical
features
of
the
invention
or
utility
model,
which
distinguish
it
from
the
most
related
prior
art.
Those
features, in combination with the
features stated in the preamble portion, serve to
define the extent of protection of
the
invention or utility model.
Where the manner specified
in the preceding paragraphs is not appropriate to
be followed because of the nature of
the invention or utility model, an
independent claim may be presented in a different
manner.
An
invention or utility model shall have only one
independent claim, which shall precede all the
dependent claims
relating to the same
invention or utility model.
Rule
22.
Any
dependent
claim
of
an
invention
or
utility
model
shall
contain
a
reference
portion
and
a
characterizing portion, and be
presented in the following manner:
(1)
a
reference
portion:
indicating
the
serial
number(s)
of
the
claim(s)
referred
to,
and
the
title
of
the
subject
matter;
(2) a characterizing portion: stating
the additional technical features of the invention
or utility model.
Any
dependent claim
shall
only
refer
to
the
preceding
claim
or
claims.
Any
multiple
dependent
claims,
which
refers to two or more
claims, shall refer to the preceding claims in the
alternative only, and shall not serve as a
basis for any other multiple dependent
claims.
Rule
23. The abstract shall consist of a summary of the
disclosure as contained in the application for
patent for
invention or utility model.
The summary shall indicate the title of the
invention or utility model, and the technical
field
to
which
the
invention
or
utility
model
pertains,
and
shall
be
drafted
in
a
way
which
allows
the
clear
understanding of the
technical problem, the gist of the technical
solution to that problem, and the principal use or
uses of the invention or utility model.
7
The abstract may contain the chemical
formula which best characterizes the invention.
In
an
application
for
a
patent
which
contains
drawings,
the
applicant
shall
provide
a
figure
which
best
characterizes the technical features of
the invention or utility model. The scale and the
distinctness of the figure
shall be as
such that a reproduction with a linear reduction
in size to 4cm x 6cm would still enable all
details to be
clearly
distinguished.
The
whole
text
of
the
abstract
shall
contain
not
more
than
300
words. There
shall
be
no
commercial
advertising in the abstract.
Rule 24. Where an invention
for which a patent is applied for concerns a new
biological material which is not
available
to
the
public
and
which
cannot
be
described
in
the
application
in
such
a
manner
as
to
enable
the
invention to be carried
out by a person skilled in the art, the applicant
shall, in addition to the other requirements
provided for in the Patent Law and
these Implementing Regulations, go through the
following formalities:
(1)
depositing
a
sample
of
the
biological
material
with
a
depositary
institution
designated
by
the
patent
administration department under the
State Council before, or at the latest, on the
date of filing (or the priority date
where priority is claimed), and submit
at the time of filing or at the latest, within
four months from the date of
filing, a
receipt of deposit and the viability proof from
the depository institution; where they
are not submitted
within the specified
time limit, the sample of the biological material
shall be deemed not to have been deposited;
(2) giving in
the application document relevant information of
the characteristics of the biological material;
(3) indicating,
where the application relates to the deposit of a
sample of the biological material, in the request
and
the description the scientific name
(with its Latin name) and the title and address of
the depositary institution, the
date on
which the sample of the biological material was
deposited and the accession number of the deposit;
where,
at
the
time
of
filing,
they
are
not
indicated,
they
shall
be
supplied
within
four
months
from
the
date
of
filing;
where after the expiration of the time
limit they are not supplied, the sample of the
biological material shall be
deemed not
to have been deposited.
Rule
25.
Where
the
applicant
for
a
patent
for
invention
has
deposited
a
sample
of
the
biological
material
in
accordance with the
provisions of Rule 24 of these Implementing
Regulations, and after the application for patent
for invention is published, any entity
or individual that intends to make use of the
biological material to which the
application relates, for the purpose of
experiment, shall make a request to the patent
administration department
under the
State Council, containing the following items:
(1) the title
or name and address of the requesting person;
(2) an
undertaking not to make the biological material
available to any other person; (3) an undertaking
to use the
biological material for
experimental purpose only before the grant of the
patent right.
Rule 26. The genetic resources referred
to in the Patent Law mean the material obtained
from such as human body,
animal, plant,
or microorganism which contains functional units
of heredity and is of actual or potential value.
The
invention-creation
is
developed
relying
on
the
genetic
resources
referred
to
in
the
Patent
Law
means
that
the
invention-creation is developed relying
on the use of the heredity function of the genetic
resources.
Where an application for patent is
filed for an invention-creation the development of
which relies on the use of
8
genetic
resources,
the applicant
shall
state
that
fact
in
the
request,
and
fill
in
the
forms
provided
by
the
patent
administration
department under the State Council.
Rule 27. Where an
application for a patent for design seeking
concurrent protection of colors is filed, drawings
or
photographs in color shall be
submitted.
The
applicant shall, in respect of the subject matter
of the product incorporating the design which is
in need of
protection, submit the
relevant drawings or photographs.
Rule 28. The brief
explanation of application for patent for design
shall indicate the title and the use of the
product
incorporating the design, the
essential feature of the design, and designate a
drawing or photograph capable of
best
showing the essential feature of the design. Where
a view of the product incorporating the design is
omitted
or where concurrent protection
for color is claimed, it shall be indicated in the
brief explanation.
Where
an
application
for
patent
for
design
is
filed
for
two
or
more
similar
designs
incorporated
in
the
same
product,
one of these designs shall be indicated as the
main design in the brief explanation.
The brief explanation shall
not contain any commercial advertising and shall
not be used to indicate the function
of
the product.
Rule 29. Where the patent
administration department under the State Council
deems necessary, it may require the
applicant for a patent for design to
submit a sample or model of the product
incorporating the design. The volume
of
the
sample
or
model
submitted
shall
not
exceed
30cm
x
30cm
x
30cm,
and
its
weight
shall
not
surpass
15
kilograms. Articles that are easy to
get rotten or broken or articles that are
dangerous shall not be submitted as
sample or model.
Rule
30.
The
international
exhibition
recognized
by
the
Chinese
Government
referred
to
in
Article
24,
subparagraph (1) of the
Patent Law means the international exhibition that
is registered with or recognized by the
International Exhibitions Bureau as
stipulated by the International Exhibitions
Convention.
The
academic or technological meeting referred to in
Article 24, subparagraph (2) of the Patent Law
means any
academic or technological
meeting organized by a competent department
concerned of the State Council or by a
national academic or technological
association.
Where any invention-creation for which
a patent is applied falls under the provisions of
Article 24, subparagraph
(l) or (2) of
the Patent Law, the applicant shall, when filing
the application, make a declaration and, within a
time
limit of two months from the date
of filing, submit certifying documents issued by
the entity which organized the
international
exhibition
or
academic
or
technological
meeting,
stating
the
fact
that
the
invention-creation
was
exhibited or published and with the
date of its exhibition or publication.
Where any invention-
creation for which a patent is applied falls under
the provisions of Article 24, subparagraph
(3) of the Patent Law, the patent
administration department under the State Council
may, when it deems necessary,
require
the applicant to submit the relevant certifying
documents within the specified time limit.
Where the
applicant fails to make a declaration and submit
certifying documents as required in paragraph
three of
this Rule, or fails to submit
certifying documents within the specified time
limit as required in paragraph four of
9
this Rule, the provisions
of Article 24 of the Patent Law shall not apply to
the application.
Rule 31. Where an applicant claims the
right of foreign priority in accordance with the
provisions of Article 30 of
the Patent
Law, the copy of the earlier application documents
submitted by the applicant shall be certified by
the
authority
with
which
the
earlier
application
was
filed.
Where,
in
accordance
with
the
agreement
between
the
patent
administration
department
under
the
State
Council
and
the
said
authority,
the
patent
administration
department
under
the
State
Council
obtains
a
copy
of
the
earlier
application
documents
through
electronic
transmission or in any other manner,
the copy of the earlier application documents
certified by the authority shall
be
deemed to have been submitted by the applicant.
Where the right of domestic priority is claimed,
if the date of
filing and the filing
number of the earlier application are indicated in
the request by the applicant, the copy of the
earlier application documents shall be
deemed to have been submitted.
Where such one or two items
as the date of filing, the filing number of the
earlier application or the title of the
authority with which the earlier
application was filed are missing or incorrect in
the request when claiming for
right of
priority, the patent administration department
under the State Council shall notify the applicant
to make
rectification
within
the
specified
time
limit.
Where
the applicant
fails
to
make
the
rectification
within
the
time
limit, the right of
priority shall be deemed not to have been claimed.
Where the name
or title of the applicant who claims the right of
priority is not the same as the one recorded in
the
copy of the earlier application,
the applicant shall submit document certifying the
assignment of right of priority.
If no
such document is submitted, the right of priority
shall be deemed not to have been claimed.
Where any
applicant claims a right of foreign priority for
patent application for design, and no brief
explanation of
the design was contained
in the earlier application, he or it will not be
adversely affected as for enjoying the right
of priority if the brief explanation
submitted by the applicant in accordance with the
provisions of Rule 28 of these
Regulations does not go beyond the
scope as shown in the drawings or photographs of
the earlier application.
Rule 32. An applicant may claim one or
more priorities for an application for a patent;
where multiple priorities
are claimed,
the priority period for the application shall be
calculated from the earliest priority date.
Where an
applicant claims the right of domestic priority,
if the earlier application is one for a patent for
invention,
he or it may file an
application for a patent for invention or utility
model for the same subject matter; if the earlier
application is one for a patent for
utility model, he or it may file an application
for a patent for utility model or
invention for the same subject matter.
However, when the later application is filed, if
the subject matter of the
earlier
application falls under any of the following, it
may not be taken as the basis for claiming
domestic priority:
(1) where the applicant has claimed
foreign or domestic priority; (2) where it has
been granted a patent right;
(3) where it is the subject
matter of a divisional application filed as
prescribed. Where the domestic priority
is
claimed, the earlier
application shall be deemed to be withdrawn from
the date on which the later application is
filed.
Rule 33. Where an application for a
patent is filed or the right of foreign priority
is claimed by an applicant having
no
habitual residence or business office in China,
the patent administration department under the
State Council
may, when it deems
necessary, require the applicant to submit the
following documents:
10
(l) if the
applicant is an individual, a certificate
concerning his nationality;
(2) if the applicant is an
enterprise or other organization, a document
certifying the country or region in which it is
registered;
(3) a document certifying that the
country, to which the foreigner, foreign
enterprise or other foreign organization
belongs,
recognizes
that
Chinese
entities
and
individuals
are,
under
the
same
conditions
as
those applied
to
its
nationals, entitled to
the patent right, the right of priority and other
related rights in that country.
Rule 34. Two or more
inventions or utility models belonging to a single
general inventive concept which may be
filed as one application in accordance
with the provisions of Article 31, paragraph one
of the Patent Law shall be
technically
inter-related
and
contain
one
or
more
of
the
same
or
corresponding
special
technical
features.
The
expression
those inventions or utility models,
considered as a whole, makes over the prior art.
Rule 35. Where
two or more similar designs of the same product
are filed in one application in accordance with
the provisions of Article 31, paragraph
two of the Patent Law, the other designs of the
product shall be similar to
the main
design indicated in the brief explanation. The
number of similar designs contained in an
application for
patent for design shall
not exceed 10.
The
two
or
more
designs
belonging
to
the
same
class
and
sold
or
used
in
sets
as
referred
to
in
Article
31,
paragraph two of the Patent Law mean
that, each product incorporating the design
belongs to the same class in the
classification of products and is
customarily sold or used at the same time, and the
designs incorporated in each
product
have the same concept of design.
Where two or more designs
are filed as one application, they shall be
numbered consecutively and the numbers
shall precede the titles of the
drawings or photographs of the product
incorporating the design.
Rule 36. When withdrawing an
application for a patent, the applicant shall
submit to the patent administration
department under the State Council a
declaration to that effect stating the title of
the invention-creation, the filing
number and the date of filing.
Where a
declaration to withdraw an application for a
patent is submitted after the preparations for the
publication
of the application document
has been completed by the patent administration
department under the State Council,
the
application document shall be published as
scheduled. However, the declaration withdrawing
the application
for patent shall be
published in the next issue of the Patent Gazette.
Chapter III
Examination and Approval of
Application for Patent
Rule
37.
Where
any
of
the
following
events
occurs,
a
person
who
makes
examination
or
hears
a
case
in
the
procedures
of preliminary examination, examination as to
substance, reexamination or invalidation shall, on
his
own
initiative
or
upon
the
request
of
the
parties
concerned
or
any
other
interested
person,
be
excluded
from
exercising his function:
11
(1) where he is a near relative of the
party concerned or the agent of the party
concerned;
(2)
where he has an interest in the application for
patent or the patent right;
(3) where he has any other
kinds of relations with the party concerned or
with the agent of the party concerned
that may influence impartial
examination and hearing;
(4)
where
a
member
of
the
Patent
Reexamination
Board
who
has
taken
part
in
the
examination
of
the
same
application.
Rule 38. Upon the receipt of an
application for a patent for invention or utility
model consisting of a request, a
description
(drawings
must
be
included
in
an
application
for
utility
model)
and
one
or
more
claims,
or
an
application
for
a
patent
for
design
consisting
of
a
request,
one
or
more
drawings
or
photographs
showing
the
design and a brief
explanation, the patent administration department
under the State Council shall accord the date
of filing, issue a filing number, and
notify the applicant.
Rule 39. In any of the following
circumstances, the patent administration
department under the State Council shall
refuse to accept the application and
notify the applicant accordingly:
(1) where the application
for a patent for invention or utility model does
not contain a request, a description (the
description of utility model does not
contain drawings) or claims, or the application
for a patent for design does
not
contain a request, drawings or photographs, or a
brief explanation;
(2) where the application is not
written in Chinese;
(3)
where
the
application
is
not
in
conformity
with
the
provisions
of
Rule
121,
paragraph
one
of
these
Implementing
Regulations;
(4) where the request does not contain
the name or title, or address of the applicant;
(5) where the application is
obviously
not in conformity with the provisions of Article
18, or of Article 19, paragraph one of the Patent
Law;
(6) where
the kind of protection (patent for invention,
utility model or design) of the application for a
patent is not
clear and definite or
cannot be ascertained.
Rule 40. Where the description states
that it contains explanatory notes to the drawings
but the drawings or part of
them are
missing, the applicant shall, within the time
limit specified by the patent administration
department under
the State Council,
either furnish the drawings or make a declaration
for the deletion of the explanatory notes to the
drawings. If the drawings are submitted
later, the date of their delivery at, or mailing
to, the patent administration
department under the State Council
shall be the date of filing of the application; if
the explanatory notes to the
drawings
are to be deleted, the initial date of filing
shall be retained.
Rule 41. Two or more applicants who
respectively file, on the same day (means the date
of filing or the priority
date where
priority is claimed) , applications for patent for
the identical invention-creation, shall, after
receipt of a
notification
from
the
patent
administration
department
under
the
State
Council,
hold
consultations
among
themselves to decide the person or
persons who shall be entitled to file the
application.
12
Where an applicant files
on the same day (means the date of filing)
applications for both a patent for utility model
and a patent for invention for the
identical invention, he or it shall state
respectively upon filing the application
that another patent application for the
identical invention -creation has been filed by
him or it. If the applicant fails
to do
so, the issue shall be handled according to the
provisions of Article 9, paragraph one of the
Patent Law, only
one patent right shall
be granted for any identical invention-creation.
Where
the
patent
administration
department
under
the
State
Council
makes
an
announcement
of
the
grant
of
patent for utility model, the statement
of the applicant in accordance with the provision
of paragraph two of this
Rule that he
has simultaneously filed an application for a
patent for invention shall be announced.
Where it is
found after examination that there is no cause for
rejection of the application for patent for
invention,
the
patent
administration
department
under
the
State
Council
shall
notify
the
applicant
to
declare,
within
the
specified time limit,
the abandonment of his or its patent for utility
model. If the applicant so declares, the patent
administration
department
under
the
State
Council
shall
make
the
decision
to
grant
a
patent
for
invention,
and
announce
at
the
same
time
both
the
grant
of
the
patent
for
invention
and
the
declaration
of
the
applicant
to
abandon his or its patent for utility
model. If the applicant refuses to abandon his or
its patent for utility model, the
patent administration department under
the State Council shall reject the application for
patent for invention. If the
applicant
fails to respond within the time limit, the
application for patent for invention shall be
deemed to have
been withdrawn.
The patent
right for utility model ceases from the date of
the announcement of grant of the patent for
invention.
Rule
42.
Where
an
application
for
a
patent
contains
two
or
more
inventions,
utility
models
or
designs,
the
applicant
may,
before
the
expiration
of
the
time
limit
provided
for
in
Rule
54,
paragraph
one
of
these
Implementing
Regulations, submit
to the patent
administration department under the State Council
a divisional
application. However,
where an application for patent has been rejected,
withdrawn or is deemed to have been
withdrawn, no divisional application
may be filed.
If
the
patent
administration
department
under
the
State
Council
finds
that
an
application
for
a
patent
is
not
in
conformity
with
the
provisions
of
Article
31
of
the
Patent
Law
or
of
Rule
34
or
35
of
these
Implementing
Regulations, it
shall invite the applicant to amend the
application within a specified time limit; if the
applicant
fails to make any response
after the expiration of the specified time limit,
the application shall be deemed to have
been withdrawn.
The divisional application may not
change the kind of protection of the initial
application.
Rule
43.
A
divisional
application
filed
in
accordance
with
the
provisions
of
Rule
42
of
these
Implementing
Regulations shall be entitled to the
filing date and, if priority is claimed, the
priority date of the initial application,
provided
that
the
divisional
application
does
not
go
beyond
the
scope
of
disclosure
contained
in
the
initial
application.
The divisional
application shall go through all the formalities
in accordance with the provisions of the Patent
Law
and these Implementing Regulations.
The filing
number and the date of filing of the initial
application shall be indicated in the request of
the divisional
application. When the
divisional application is filed, it shall be
accompanied by a copy of the initial application;
if
13
priority
is claimed for the initial application, a copy of
the priority document of the initial application
shall also be
submitted.
Rule 44.
application for a patent to see whether
or not it contains the documents as provided for
in Article 26 or 27 of the
Patent Law
and other necessary documents, and whether or not
those documents are in the prescribed form; such
check shall also include the following:
(1) whether or
not any application for a patent for invention
obviously falls under Article 5 or 25 of the
Patent Law,
or is not in conformity
with the provisions of Article 18, Article 19,
paragraph one or Article 20, paragraph one of
the Patent Law or Rule 16 or Rule 26,
paragraph two of these Implementing Regulations,
or is obviously not in
conformity with
the provisions of Article 2, paragraph two,
Article 26, paragraph five, Article 31, paragraph
one,
or Article 33 of the Patent Law,
or of Rules 17 to 21 of these Implementing
Regulations;
(2) whether or not any application for
a patent for utility model obviously falls under
Article 5 or 25 of the Patent
Law, or
is not in conformity with the provisions of
Article 18, Article 19, paragraph one or Article
20, paragraph
one of the Patent Law or
Rules 16 to 19 or Rules 21 to 23 of these
Implementing Regulations, or is obviously not
in
conformity
with
the
provisions
of
Article
2,
paragraph
three,
Article
22,
paragraph
two
or
four,
Article
26,
paragraph three or four, or of Article
31, paragraph one, or of Article 33 of the Patent
Law, or of Rule 20 or Rule
43,
paragraph one of these Implementing Regulations,
or is not entitled to a patent right in accordance
with the
provisions of Article 9 of the
Patent Law;
(3)
whether or not any application for a patent for
design obviously falls under Article 5 or Article
25, paragraph
one (6) of the Patent
Law, or is not in conformity with the provisions
of Article 18, Article 19, paragraph one of
the
Patent
Law,
or
of
Rule
16,
Rule
27
or
Rule
28
of
these
Implementing
Regulations,
or
is
obviously
not
in
conformity
with the provisions of Article 2, paragraph four,
Article 23, paragraph one, Article 27, paragraph
two,
Article 31, paragraph two, or of
Article 33 of the Patent Law, or of Rule 43,
paragraph one of these Implementing
Regulations, or is not entitled to a
patent right in accordance with the provisions of
Article 9 of the Patent Law;
(4) whether or not any
application document is in conformity with the
provisions of Rule 2 or Rule 3, paragraph
one of these Implementing Regulations.
The
patent
administration
department
under
the
State
Council
shall
notify
the
applicant
of
its
opinions
after
checking his or its application and
invite him or it to state his or its observations
or to rectify his or its application
within
the
specified
time
limit.
If
the
applicant
fails
to
make
any
response
within
the
specified
time
limit,
the
application shall be deemed to have
been withdrawn. Where, after the applicant has
made his or its observations
or the
corrections, the patent administration department
under the State Council still finds that the
application is
not
in
conformity
with
the
provisions
of
the
Articles
and
the
Rules
cited
in
the
preceding
subparagraphs,
the
application shall be rejected.
Rule 45. Apart
from the application for patent, any document
relating to the patent application which is
submitted
to the patent administration
department under the State Council, shall, in any
of the following circumstances, be
deemed not to have been submitted:
(1) where the
document is not presented in the prescribed form
or the indications therein are not in conformity
with the prescriptions;
14
(2) where no certifying document is
submitted as prescribed.
The
patent
administration
department
under
the
State
Council
shall
notify
the
applicant
of
its
opinion
after
checking that the document is deemed
not to have been submitted.
Rule 46. Where the
applicant requests an earlier publication of his
or its application for a patent for invention, a
statement
shall
be
made
to
the
patent
administration
department
under
the
State
Council.
The
patent
administration
department under the State Council shall, after
preliminary examination of the application,
publish
it immediately, unless it is to
be rejected.
Rule
47. The applicant
shall,
when
indicating
the
product
incorporating
the
design
and
the
class
to
which
that
product
belongs,
refer
to
the
classification
of
products
for
designs
published
by
the
patent
administration
department
under
the
State
Council.
Where
no
indication,
or
an
incorrect
indication,
of
the
class
to
which
the
product incorporating the design
belongs is made, the patent administration
department under the State Council
shall supply the indication or correct
it.
Rule 48.
Any person may, from the date of publication of an
application for a patent for invention till the
date of
announcing the grant of the
patent right, submit to the patent administration
department under the State Council
his
observations, with reasons therefor, on the
application which is not in conformity with the
provisions of the
Patent Law.
Rule
49.
Where
the
applicant
for
a
patent
for
invention
cannot
furnish,
for
justified
reasons,
the
documents
concerning any search or results of any
examination specified in Article 36 of the Patent
Law, he or it shall make a
statement
to
the
patent
administration
department
under
the
State
Council
and
submit
them
when
the
said
documents are available.
Rule
50.
The
patent
administration
department
under
the
State
Council
shall,
when
proceeding
on
its
own
initiative to examine an application
for a patent in accordance with the provisions of
Article 35, paragraph two of
the Patent
Law, notify the applicant accordingly.
Rule 51. At the time when a
request for examination as to substance is made,
and when, within the time limit of
three months after the receipt of the
notification of the patent administration
department under the State Council
on
the
entry
into
examination
as
to
substance
of
the
application,
the
applicant
for
a
patent
for
invention
may
amend the application for a patent for
invention on his or its own initiative.
Within two
months from the date of filing, the applicant for
a patent for utility model or design may amend the
application for a patent for utility
model or design on its or his own initiative.
Where the
applicant amends the application after receiving
the notification of opinions of the examination as
to
substance
of
the
patent
administration
department
under
the
State
Council,
he
or
it
shall
make
the
amendment
directed to the defects pointed out by
the notification.
The
patent
administration
department
under
the
State
Council
may,
on
its
own
initiative,
correct
the
obvious
clerical
mistakes
and
symbol
mistakes
in
the
documents
of
application
for
a
patent.
Where
the
patent
administration
department
under
the
State
Council
corrects
mistakes
on
its
own
initiative,
it
shall
notify
the
15
applicant.
Rule 52. When
an amendment to the description or the claims in
an application for a patent for invention or
utility
model is made, a replacement
sheet in prescribed form shall be submitted,
unless the amendment concerns only
the
alteration, insertion or deletion of a few words.
Where an amendment to the drawings or photographs
of an
application for a patent for
design is made, a replacement sheet shall be
submitted as prescribed.
Rule
53.
In
accordance
with
the
provisions
of
Article
38
of
the
Patent
Law,
the
circumstances
where
an
application
for
a
patent
for
invention
shall
be
rejected
by
the
patent
administration
department
under
the
State
Council after examination as to
substance are as follows:
(1) where the application falls under
Article 5 or 25 of the Patent Law, or the
applicant is not entitled to a patent
right in accordance with the provisions
of Article 9 of the Patent Law;
(2) where the application
does not comply with the provisions of Article 2,
paragraph two, Article 20, paragraph
one, Article 22, Article 26, paragraph
three, four or five, or Article 31, paragraph one
of the Patent Law, or of Rule
20,
paragraph two of these Implementing Regulations;
(3) where the
amendment to the application does not comply with
the provisions of Article 33 of the Patent Law,
or the divisional application does not
comply with the provisions of Rule 43, paragraph
one of these Implementing
Regulations.
Rule 54. After
the patent administration department under the
State Council issues the notification to grant the
patent
right,
the
applicant
shall
go
through
the
formalities
of
registration
within
two
months
from
the
date
of
receipt of the notification. If the
applicant completes the formalities of
registration within the said time limit, the
patent administration department under
the State Council shall grant the patent right,
issue the patent certificate
and
announce it.
If
the applicant does not go through the formalities
of registration within the time limit, he or it
shall be deemed to
have abandoned his
or its right to obtain the patent right.
Rule 55. Where
it is found after examination that there is no
cause for rejection of the application for a
secret
patent, the patent
administration department under the State Council
shall make a decision to grant a secret patent,
issue the certificate of the secret
patent, and register the matters relating to the
secret patent.
Rule
56. After
the
announcement
of
the
decision
to grant
a
patent
for
utility
model
or
a
patent
for
design,
the
patentee or the interested party
prescribed in Article 60 of the Patent Law may
request the patent administration
department under the State Council to
make an evaluation report of patent.
Where such person requests
for an evaluation report of patent, he shall
submit a request for the evaluation report
of patent, indicating the patent
number. Each request shall be limited for one
patent.
Where
the request for the evaluation report of patent
does not comply with the requirements as
prescribed, the
patent administration
department under the State Council shall notify
the requesting party to rectify the request
within
a
specified
time
limit.
If
the
requesting
party
fails
to
do
so
within
the
time
limit,
the
request
shall
be
deemed not to have been submitted.
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