Rules for the Implementation of the Patent Law of the People's Republic of China
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Rules for the Implementation 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, revised for the first time in accordance with the Decision of the State Council on Amending the Rules for the Implementation of the Patent Law of the People's Republic of China on December 28, 2002, and revised for the second time in accordance with the Decision of the State Council on Amending the Rules for the Implementation of the Patent Law of the People's Republic of China on January 9, 2010)

 

Chapter I  General Provisions

 

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

 

Article 2  Any formalities prescribed by the Patent Law and these Rules shall be performed in written form or in any other form prescribed by the patent administration department of the State Council.

 

Article 3  Any document submitted in accordance with the provisions of the Patent Law and these Rules 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 Rules is in a foreign language, the patent administration department of the State Council may, when it deems it necessary, require a Chinese translation of the certificate or the certifying document to 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.

 

Article 4  Where any document is sent by mail to the patent administration department of 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 of 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 of the State Council may be served by mail, by personal delivery or by other forms. Where any party concerned appoints a patent agency, the document shall be sent to the patent agency; where no patent agency is appointed, the document shall be sent to the liaison person named in the request.

 

Where any document is sent by mail by the patent administration department of the State Council, the 16th day from the date of mailing shall be presumed to be the date on which the party concerned receives the document.

 

Where any document is delivered personally in accordance with the provisions of the patent administration department of 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.

 

Article 5  The first day of any time limit prescribed in the Patent Law and these Rules 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.

 

Article 6  Where a time limit prescribed in the Patent Law or these Rules or specified by the patent administration department of 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 date of the expiration of that time limit, request the patent administration department of the State Council to restore his or its rights.

 

Except for circumstances prescribed in the preceding paragraph, where a time limit prescribed in the Patent Law or these Rules or specified by the patent administration department of 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 of the State Council, request the patent administration department of the State Council to restore his or its rights.

 

Where any party concerned requests restoration of his or its rights in accordance with the provisions of the first or second paragraph of this Article, he or it shall submit a request for restoration of rights, stating the reasons and attaching, if necessary, the relevant certifying documents, and go through the relevant formalities which should have been performed before the loss of his or its rights; where the party concerned requests restoration of his or its rights in accordance with the provisions of the second paragraph of this Article, he or it shall pay the fee for requesting restoration of rights.

 

Where the party concerned makes a request for an extension of a time limit specified by the patent administration department of the State Council, he or it shall, before the time limit expires, state the reasons to the patent administration department of the State Council and go through the relevant formalities.

 

The provisions of the first and second paragraphs of this Article shall not be applicable to the time limit referred to in Articles 24, 29, 42 and 68 of the Patent Law.

 

Article 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 national defense patent authority; where an application for patent accepted by the patent administration department of 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 national defense patent authority for examination. Where it is found after examination by the national defense patent authority that there is no ground for rejecting the application, the patent administration department of the State Council shall make a decision to grant a national defense patent right.

 

Where the patent administration department of the State Council finds that an application for patent for invention or patent for utility model which it accepts relates to national security or other vital interests of the State other than interests of 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 an application for secret patent as well as the invalidation of secret patent shall be provided for by the patent administration department of the State Council.

 

Article 8  An invention or utility model developed in China referred to in Article 20 of the Patent Law means an invention or utility model in which the substantive contents of the technical solution are made within the territory of China.

 

Where any entity or individual intends to file an application for patent abroad for an invention or utility model developed in China, it or he shall request, in one of the following manners, the patent administration department of the State Council to conduct confidentiality examination:

 

(1) where filing an application for patent directly in a foreign country or filing an international patent application directly with a relevant foreign organization, it or he shall submit a request for confidentiality examination in advance to the patent administration department of the State Council and state the related technical solution in detail;

 

(2) where, after filing an application for patent with the patent administration department of the State Council, it or he 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 submit a request for confidentiality examination to the patent administration department of the State Council before filing the application for patent in a foreign country or the international patent application with the relevant foreign organization.

 

Where an international patent application is filed with the patent administration department of the State Council, it shall be deemed that a request for confidentiality examination is filed simultaneously.

 

Article 9  Where the patent administration department of the State Council receives a request filed under Article 8 of these Rules and finds, upon examination, that the invention or utility model is likely to relate to national security or other vital interests 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 receives no notification of confidentiality examination within four months from the date of filing of his or its request, the applicant 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 of 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 receives no such decision within six months from the date of filing of his or its request, the applicant 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.

 

Article 10  Invention-creations which violate the law referred to in Article 5 of the Patent Law shall not include invention-creations only the exploitation of which is prohibited by the law.

 

Article 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 Rules, except as otherwise prescribed, means the date of filing prescribed in Article 28 of the Patent Law.

 

Article 12  A service invention-creation made by a person in execution of the tasks of the entity to which he belongs referred to in Article 6 of the Patent Law means any invention-creation made:

 

(1) in the course of performing his own duty;

 

(2) in execution of any task, other than his own duty, which was entrusted to him by the entity to which he belongs; or

 

(3) within one year from his retirement, resignation or from termination of his employment or personnel relationship with the entity to which he previously belongs, where the invention-creation relates to his own duty or any other task entrusted to him by the entity to which he previously belongs.

 

The entity to which he belongs referred to in Article 6 of the Patent Law includes the entity in which the person concerned is a temporary staff member; material and technical means of the entity referred to in Article 6 of the Patent Law mean the entity's money, equipment, spare parts, raw materials or technical materials which are not available to the public, etc.

 

Article 13  An inventor or creator referred to in the Patent Law means any person who makes creative contributions to the substantive features of an invention-creation. Any person who, during the course of accomplishing the invention-creation, is responsible only for organizational work, or who 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 an inventor or creator.

 

Article 14  Except for the assignment of the patent right in accordance with the provisions of Article 10 of the Patent Law, where the patent right is transferred because of any other reason, the party concerned shall, based on the relevant certifying documents or legal papers, request the patent administration department of the State Council to register the transfer 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 of the State Council for the record.

 

Where any patent right is put in pledge, the pledgor and the pledgee shall jointly register the contract of pledge with the patent administration department of the State Council.

 

Chapter II  Application for Patent

 

Article 15  Anyone who applies for a patent in written form shall file with the patent administration department of the State Council application documents in two copies.

 

Anyone who applies for a patent in other forms as provided for by the patent administration department of 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 of 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.

 

Article 16  The following particulars shall be indicated in the request of application for patent for invention, utility model or design:

 

(1) the title of the invention, utility model or design;

 

(2) in the case of an applicant that is a Chinese entity or individual, the applicant's title or name, address, postal code, organization code or resident identity card number; in the case of an applicant that is a foreigner, a foreign enterprise or other foreign organization, the applicant's name or title, nationality or the country or region where the applicant is registered;

 

(3) the name of the inventor or creator;

 

(4) in the case of an applicant that has appointed a patent agency, the title of the appointed agency and its agency code, and the name, the practice certificate number and the telephone number of the patent agent assigned by the agency;

 

(5) in the case that the right of priority is claimed, the date of filing on which the applicant filed his or its first application (hereinafter referred to as the earlier application), the filing number of such application and the title of the authority with which such 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.

 

Article 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 sought to be protected pertains;

 

(2) background art: indicating the background art which can be regarded as useful for the understanding, searching and examination of the invention or utility model, and when possible, citing the documents reflecting such art;

 

(3) contents of the invention: disclosing the technical problem the invention or utility model aims to settle and the technical solution adopted to resolve the problem, and stating, with reference to the prior art, the advantageous effects of the invention or utility model;

 

(4) explanatory notes of drawings: briefly describing each figure in the drawings, if any; and

 

(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 in drafting the description 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 more economical presentation and a better understanding.

 

The description of the invention or utility model shall use standard terms and be clear in wording, and shall not contain such references to the claims as: “as described in claim …”, nor shall it contain commercial advertising.

 

Where an application for a patent for invention contains disclosure of one or more nucleotide and/or amino acid