| Detailed Implementation Rules of Patent Law - I |
| Wednesday,January 15,2003 Posted: 11:16 BJT(0316 GMT) |
| (Order No. 306 of the State Council of the People's Republic of China on 15 June 2001) TABLE OF CONTENTS CHAPTER 1 General Principles CHAPTER 2 Applications for Patents CHAPTER 3 Examination and Approval of Applications for Patents CHAPTER 4 Review of Applications for Patents and Invalidity Declarations of Patent Rights CHAPTER 5 Compulsory Licenses for Exploitation of Patents CHAPTER 6 Rewards to Inventors or Creators of Work-related Invention-Creations CHAPTER 7 Protection of Patent Rights CHAPTER 8 Patent Registration and Patent Gazette CHAPTER 9 Fees CHAPTER 1O Special Regulations for International Applications CHAPTER 11 Supplementary Provisions CHAPTER 1 General Principles Article 1 These Detailed 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 "Invention" in the Patent Law refers to any new technical solution relating to a product or process, or improvement thereof. "A utility model" in the Patent Law refers to any utility technical solution relating to the shape or the structure, or their combination, of a product. "An exterior design" in the Patent Law refers to any new design of the shape or pattern, or their combinations, or the combination of color, shape and pattern of a product, which creates an aesthetic feeling and is fit for industrial application. Article 3 Any formalities required by the Patent Law and these Detailed Rules shall be carried out in written form or in other format stipulated by the State Council administrative department responsible for patents. Article 4 Any document submitted under the Patent Law and these Detailed Rules shall be in Chinese. The standard scientific and technical terms shall be used if there are prescribed ones set forth by the State. Where there is no generally accepted translation in Chinese for a foreign name or scientific or technical term, the one in the original language shall also be quoted. Where any certificate or certified document which is submitted in accordance with the Patent Law or these Detailed Rules is in a foreign language, where it is deemed necessary. the State Council administrative department responsible for patents may request the party concerned to submit a Chinese translation within a specified time limit. Where the translation is not submitted within the specified time limit, the abovementioned certificate or certified document shall be regarded as not having been submitted. Article 5 For any document sent to the State Council administrative department responsible for patents by mail, the date of mailing indicated by the postmark shall be the date of submission. If the date of mailing indicated by the postmark is not legible, the date on which the State Council administrative department responsible for patents receives the document shall be the date of submission, unless the date of mailing is proven by the party concerned. Documents of the State Council administrative department responsible for patents may be sent to the party concerned via mail, delivered directly in person or in any other fashion. Where the party concerned appoints a patent agency, the documents shall be sent to the patent agency. Where the party concerned does not have a patent agency, the documents shall be sent to the designated contact person in the letter of request. For any document sent by mail by the State Council administrative department responsible for patents, the fifteenth day from the date of mailing shall be presumed to be the date of receipt by the party concerned. For documents that shall be delivered directly in person in accordance with the regulations of the State Council administrative department responsible for patents, the date of the handing over of the document shall be regarded as the date of delivery of the documents. Where the address is unclear and there is no way of notifying the party concerned through the mail. they may he notified by proclamation One (1) month after the date of the proclamation, the documents shall be deemed to have been delivered Article 6 The first day of any time limit prescribed in the Patent Law or these Detailed Rules shall not be counted. Where a time limit is counted by years or by months, it shall expire on the corresponding day of the last month; if there is no corresponding day in that month, the time limit shall expire on the last day of that month. Where a time limit is due to expire on an official holiday, it shall be deemed to expire on the first working day after that official holiday. Article 7 Where, due to force majeure a party has lost rights resulting from not being able to meet a time limit prescribed in the Patent Law or these Detailed Rules, or a time limit specified by the State Council administrative department responsible for patents, the party concerned may, within two (2) months from the day on which the impediment is removed, but no later than two (2) years after the expiration of the time limit, state the reasons, accompanied by relevant proof, and make a request to the State Council administrative department responsible for patents for the relevant rights to be resumed. Where a party has lost rights resulting from not being able to meet, for any justified reasons, a time limit prescribed in the Patent Law or these Detailed Rules, or time limits specified by the State Council administrative department responsible for patents, the party concerned may, within two (2) months from the date of receipt of the notice from the State Council administrative department responsible for patents, request that the rights be resumed. Where a party requests an extension of the time limit specified by the State Council administrative department responsible for patents, the party concerned shall state the reasons for this and carry out all relevant procedures prior to the expiration of the time limit. The provisions of Paragraph 1 and Paragraph 2 of this Article shall not apply to the time limits stipulated in Article 24, Article 29, Article 42 and Article 62 of the Patent Law. Article 8 Where an application for a patent of an invention relates to State secrets involving national defense and is required to be kept confidential, the application for the patent shall be submitted to the national defense patent authorities. Where an application for a patent for an invention submitted to the State Council administrative department responsible for patents relates to State secrets involving national defense and is required to be kept confidential, it shall be transferred to the national defense patent authorities for examination. The State Council administrative department responsible for patents shall make a decision on the basis of reports made by the national defense patent authorities after examination. In addition to the provisions of the preceding paragraph, the State Council administrative department responsible for patents, after receiving an application for a patent of an invention which requires security examination, shall send the application to the relevant responsible department of the State Council for examination; the said department shall, within four (4) months of the date of receipt of the application notify the State Council administrative department responsible for patents of the results of the examination. Where it is required to be kept confidential, the State Council administrative department responsible for patents shall handle it as a confidential application for a patent and shall notify the applicant accordingly. Article 9 The inventions declared by Article 5 in the Patent Law as inventions violating state laws do not include inventions of which only their application is prohibited by the state laws. Article 10 Except for the provisions of Article 28 and Article 42 of the Patent Law, the date of application in the Patent Law shall refer to the date of right of priority where the right of priority exists. For the purposes of these Detailed Rules, unless stipulated otherwise, the date of application shall refer to the date of application stipulated in Article 28 in the Patent Law. Article 11 "Work-related invention-creation made by a person in the execution of the duties of the unit to which he belongs" in Article 6 of the Patent Law refers to any invention-creation made by anyone: (1) in the course of performing their own duty (2) in the execution of any task, other than their own duty, which was entrusted to them by the unit to which they belong (3) within one year from their resignation, retirement or change of work, where the invention-creation relates to their own duty or other tasks entrusted to them by the unit to which they previously belonged "Unit" in Article 6 in the Patent Law includes temporary work units. "Material and technological means of the unit" in Article 6 of the Patent Law refers to a unit's funds, equipment, spare parts, raw materials. or to technical data which are not to be disclosed to the public. Article 12 "Inventor or designer" in the Patent Law refers to any person who has made creative contributions to the substantive features of the invention-creation. Any person who, during the course of accomplishing the invention-creation, is responsible only for organizational work, or who offers facilities for making use of material and technological means, or who takes part in other auxiliary functions, shall not be considered as the inventor or creator. Article 13 Identical invention-creations shall only be granted one patent. In accordance with Article 9 of the Patent Law, two or more applicants who submit, on the. same day, applications for identical invention-creations shall, after receiving a notification from the State Council administrative department responsible for patents, hold consultation among themselves to decide the person or persons who shall be entitled to submit the application. Article 14 Where a Chinese unit or an individual Chinese transfers to foreigners patent application rights or patent rights, the transfer shall be jointly approved by the State Council responsible department of foreign trade and economics and the State Council administrative department in charge of science and technology. Article 15 Except for the transfer of patent rights in accordance with the provisions of Article 10 in the Patent Law, if patent rights are transferred as a result of other reasons, the party concerned shall go to the State Council administrative department responsible for patents to change the name of the patentee with relevant certificates or legal documents. A patentee who has concluded any license contract for exploitation of the patent with another party shall, within three (3) months from the contract Coming into force, submit the contract to the State Council administrative department responsible for patents for recording. CHAPTER 2 Applications for Patents Article 16 Anyone who applies for a patent in written form shall submit application documents in duplicate. Patent applications in any other form regulated by the State Council administrative department responsible for patents shall be produced in accordance with the requirements in the regulations. Where an applicant commissions a patent agency to submit a patent application to the State Council administrative department responsible for patents and to handle other related patent matters, they shall, at the same time, submit a power of attorney with clearly delineated limits of authority. Where there are two or more applicants and where they have not appointed a patent agency, unless declared otherwise in the application, the representative shall be the first applicant designated in the application. Article 17 Other related matters in Paragraph 2, Article 26 of the Patent Law refer to: (1) the nationality of the applicant (2) where the applicant is an enterprise or other organization, the name of the country in which the applicant has its head office (3) where the applicant has appointed a patent agency, the relevant matters which shall be indicated, where an applicant does not appoint a patent agency, the name and address of a contact person, postal code and contact telephone number (4) where priority claims are requested, relevant matters which shall be clearly indicated (5) the signature or the seal of the applicant or the patent agency (6) a list of the documents Constituting the application (7) a list of the documents appended to the application (8) other relevant matters which need to be clearly indicated Article 18 The specifications in an application for a patent for an invention or utility model shall state clearly the name of the invention or utility model. This name shall be the same as that in the application. An application shall include the following contents: (1) field of technology: specifying the technical field of a technological plan requiring protection (2) background technology: indicating any background technology which can be regarded as useful for the understanding, researching and examination of the invention or utility model. Where possible, citing any documents reflecting such background technology (3) contents of invention: indicating the technological problems that the invention or utility model is to solve and the technological plans to be adopted in the solution of the technological problems, and also indicating the effective results of the invention or utility model in comparison with the current technology (4) specification of attached drawing: where a specification has drawings attached, briefly describing each attached drawing (5) specific implementing method: describing in detail the optimum method contemplated by the applicant for putting into use the invention or utility model; where necessary, giving examples, or referring to the drawings, if any An applicant for a patent for an invention or utility model shall describe the specifications in accordance with the method and order stipulated in the preceding paragraph; and a title shall be given to each section in the specifications. A different method or order can be used to describe the nature of the invention or utility model if this can save pages of specification and help other people to understand the invention or utility model. The specifications of the invention or utility model shall use standard and clear language. The citing of references such as "as described ... in the claims" shall not be used; the use of commercial advertising language is also unacceptable. Where the application of an invention contains one or more sequences of nucleotides or amino acids, the specifications shall include a table of the sequences in accordance with the regulations set by the State Council administrative department responsible for patents. An applicant shall submit the said table of sequences as a separate part of the specifications, and submit a copy of the said table of sequences that can be read by computer in accordance with the regulations of the State Council administrative department responsible for patents. Article 19 The same sheet of drawings may contain several figures of the invention or utility model; the figures shall be numbered as figure 1, figure 2 etc. and shall be arranged in numerical order. The scale and the resolution of the drawings shall be such as to ensure that after a reduction to two thirds of the original size, details of the drawings can still be clearly distinguished. No reference markings shall be used in the drawings which do not appear in the written part of the specifications for the invention or utility model, and reference signs not appearing in the drawings shall not be mentioned in the written part of the specifications. The reference markings used in the drawings shall be consistent throughout the application documents. The drawings shall not Contain any explanatory notes other than words that are indispensable. Article 20 A claim request shall describe the technical features of the invention or utility model, and clearly and concisely state the coverage for which protection is sought. Where there are several claims, they shall be numbered consecutively in Arabic numerals. The scientific and technical terminology used in the claim shall be consistent with that used in the specifications. The patent request may contain chemical or mathematical formulae but no illustrations. They shall not, except where absolutely necessary, contain such references as "as described ... in the specification", or "as illustrated in figure ... of the drawings". The technical features in a claim may refer to the related markings in the drawings of the specifications; the said markings shall be placed at the end of the relevant technical features, and shall be placed within parentheses, to assist in the understanding of the patent request. The reference markings used in the drawings shall not be permitted to delineate the limitations of the patent request. Article 21 A claim shall contain independent claims, and may also contain accessory claims. An independent claim shall outline the technical plan as a whole of an invention or utility model, and describe the indispensable technical features that provide solutions to technological problems. An accessory claim shall use the additional technical features to further define the scope of the claim. Article 22 An independent claim for an invention or utility model shall include a preamble section and a feature section, and shall be presented in the following format: (1) a preamble section: indicating the subject name of the invention or utility model which requires protection, and the necessary technical features common to the existing technology and the subject of the utility model (2) a feature section: specifying, in such words as "as characterized by" or similar expressions, the differences between the technical features of the invention or utility model and the existing technology. These features and those outlined in the preamble section together define the scope of the protection required by the invention or utility model Where the nature of the invention or utility model cannot be expressed by the method outlined in the preceding paragraph, the independent claim may use other forms of expression. Each invention or utility model shall have only one independent claim that shall precede any accessory claims relating to the same invention or utility model. Article 23 An accessory claim for an invention or utility model shall include a reference section and a delimitation section and shall be presented in the following format: (1) a reference section: indicating the serial number and the subject of the patent request (2) a delimitation section: stating any additional technical features of the invention or utility model Accessory claims shall only refer to the preceding [independent] claim. Accessory claims referring to more than two claims shall only refer to one of the preceding [independent] claim, and shall not serve as the basis for any other multiple accessory claims. Article 24 The abstract of a description shall be an outline of the publicized contents of an application for a patent for an invention or utility model, i.e., the name of the invention or utility model and the technological field to which the invention or utility model pertains, and clearly state the technological problems to be solved, main points of the technological plan used to solve the said problems as well as the main usage. The abstract of a. description may contain chemical formulae which best characterize the invention. Where an application for a patent contains drawings, one drawing which best characterizes the invention or utility model shall be provided. The size and resolution of the drawing shall ensure that details of the drawing can still be clearly recognized if the original drawing is reduced to 4cm x 6cm. The written part of the abstract shall not exceed 300 words. Commercial advertising language shall not be used in the abstract. Article 25 Where an application for a patent for an invention concerns new biological material which is not available to the public, and the description of the said biological material is not sufficient for the technical personnel in the field to apply the invention, the applicant shall, in addition to complying with the relevant provisions of the Patent Law and these Detailed Rules, carry out the following procedures. (1) deposit a sample of the biological material with a depository institution designated by the State Council administrative department responsible for patents before the date of application (if there is a priority claim, the date of priority), or at the latest, on the date of application, and submit the deposit certificate and the certificate of living samples issued by the depository institution when applying, or at the latest within four (4) months from the date of application. Where the certificate is not submitted within the time limit, the said sample shall be regarded as not having been deposited (2) provide in the application document relevant information regarding the characteristics of the biological material (3) where the application for a patent relates to the deposited sample of biological material, indicate in the patent request and specifications the classification name (including the Latin name), the name and address of the depository institution, the date on which the sample of the biological material was deposited and the file number of the deposit. Where these items of information are not given at the time of submission, they shall be provided within four (4) months from the date of submission. Where there is a failure to provide them within the time limit, the said sample of biological material shall be regarded as not having been deposited Article 26 Where an applicant for the patent of an invention deposits a sample of biological material in accordance with the provisions in Article 25 of these Detailed Rules, after the publication of an application for a patent for an invention, any unit or individual who intends to make use of the biological material mentioned in the application for the purpose of experimentation shall submit an application to the State Council administrative department responsible for patents containing the following: (1) the name or title and address of the applicant submitting the request (2) an undertaking not to make the biological material available to any other person (3) an undertaking to use the biological material for experimental purposes only before the granting of a patent Article 27 The size of drawings or photographs of an exterior design submitted in accordance with the provisions of Article 27 of the Patent Law shall be no smaller than 3cm x 8cm, nor larger than 15cm x 22cm. An application for a patent of an exterior design simultaneously seeking protection of colors shall submit color drawings or photographs in duplicate. The applicant shall submit drawings or photographs of different views for each exterior design for which protection of contents is sought, and clearly show the object for which the protection is sought. Article 28 An application for a patent for an exterior design shall, when necessary, provide concise specifications of the exterior design. The concise specifications of the exterior design shall indicate the main points of the design, the colors for which protection is sought and sketch drawings of different views of the product which uses the said exterior design. Commercial advertising language shall not be used in the concise specifications, and shall not be used to explain the function of the product. Article 29 Where the State Council administrative department responsible for patents finds it necessary, it may require the applicant for a patent for an exterior design to submit a sample or model of the product that uses the exterior design. The dimensions of the sample or model submitted shall not exceed 30cm x 30cm x 30cm, and its weight shall not surpass 15 kilograms. Perishable, fragile or dangerous articles may not be submitted as a sample or model. Article 30 The existing technology mentioned in Paragraph 3 of Article 22 of the Patent Law shall refer to the technology which, before the date of submission, has been openly published in China or overseas or has been publicly used nationally or is commonly known through other means, namely the presently existing technology. Article 31 Academic or technological meetings mentioned in item 2 of Article 24 of the Patent Law shall refer to academic or technological meetings organized by a relevant responsible department of the State Council or by a national academic or technological association. Where any invention-creation that a patent has been applied for falls under the provisions of Item 1 or Item 2 of Article 24 of the Patent Law, the applicant shall, when submitting the application for a patent, make a declaration and, within a time limit of two (2) months from the date of submission, submit a certificate issued by any unit which has organized an international exhibition or an academic or technological meeting, stating that the invention-creation has been exhibited or made public, and submit documents which prove the date on which it was exhibited or made public. Where any application for a patent falls under the provisions of Item 3 of Article 24 of the Patent Law, the State Council administrative department responsible for patents may, where necessary. require the applicant to submit relevant proof within a specified time limit. Where an applicant fails to make a declaration or submit proof in accordance with the provisions of Paragraph 2 in this article, or fails to submit relevant proof within a designated time limit in accordance with the provisions in Paragraph 3 in this article, the application does not fall within the provisions of Article 24 of the Patent Law. Article 32 Where an applicant carries out procedures for a request for priority claims in accordance with Article 30 of the Patent Law, the applicant shall indicate in the written declaration the date on which he/she first submitted the application for a patent (hereinafter referred to as the former application), the submission number and the country where the application was accepted. Where the date of submission of the former application and the country where the application was lodged are not included in the written declaration, a declaration shall be regarded as having not been lodged. Where an applicant lodges a request for priority claims in a foreign country, a copy of the former application documents submitted by the applicant shall be certified by the original receipt body. Where, in the submitted materials of proof, the names or titles of the former applicants are not the same as those in the following applications, proof of the transfer of priority claims shall be submitted; where the request for priority claims is lodged within the applicant's own country, a copy of the former application documents submitted by the applicant shall be produced by the State Council administrative department responsible for patents. Article 33 In an application for a patent, the applicant may request one or several priority claims. Where several priority claims are requested, the period of priority claims for the application shall be calculated from the earliest date of priority. Where an applicant requests priority claims in his/her own country, if the former application is an application for a patent for an invention, an application for the patent for the invention or utility model may be submitted on the same subject. Where the former application is an application for a patent for a practical and new model, an application for the patent for the practical and new model or invention may be submitted on the same subject. However, when the latter application is submitted, if one of the following situations applies to the former application, it shall not be used as the basis of a patent request for domestic priority claims: (1) a foreign or domestic priority 'claim request has been made (2) patent rights have been granted (3) where an application is made separately in accordance with the regulations, if the applicant requests domestic priority claims, his/her former application is deemed to be withdrawn from the date when the latter application is made Article 34 Where an application for a patent or for a request for priority claims in a foreign country is submitted by an applicant not having usual residence or a business office in China, the State Council administrative department responsible for patents may, when it is deemed necessary, require the applicant to submit the following documents: (1) a nationality certificate (2) where the applicant is an enterprise or other organization, documentary evidence of the location of the business office or headquarters (3) documentary evidence to show that the country to which the applicant belongs recognizes that Chinese units and citizens are entitled to patent rights, priority claims and other patent related rights in that country under the same conditions applied to its nationals Article 35 According to the provisions in Paragraph 1 of Article 31 in the Patent Law, where two or more inventions or utility models belong to a single inventive concept which has been submitted as one patent application, they must be closely related, and shall contain one or several identical or relevant specific technological features. The specific technological features refer to those technological features by which each invention or utility model as a whole shall make a contribution to the existing technology. Article 36 The same class mentioned in Paragraph 2 of Article 31 of the Patent Law refers to products belonging to the same sub-class under the classification of products', the sale or use as a whole set refers to all products which have the same design concept, and are customarily sold or used simultaneously. When an application is lodged which contains two or more exterior designs in accordance with the provisions of Paragraph 2 in Article 31 of the Patent Law, the consecutive numbers for each exterior design shall be marked in front of the names of the drawings or photographs of the exterior designs which are incorporated in the product. Article 37 When withdrawing an application for a patent, the applicant shall submit to the State Council administrative department responsible for patents a declaration stating the name of the invention-creation, application number and the date of application. Where a declaration to withdraw the application for a patent is submitted after the preparation for the printing of the publication of the application documents has been completed by the State Council administrative department responsible for patents, the application shall be published as scheduled. However, the declaration of the withdrawal of the application shall be published in the next issue of the Patent Gazette. CHAPTER 3 Examination and Approval of Applications for Patents Article 38 During procedures for preliminary examination, substantive examination, re-examination or invalidity declarations, if any of the following situations applies to persons engaged in the examination and handling thereof, they shall, on their own initiative or upon the request of the party concerned or any other interested party, be excluded from exercising this function: (1) where they are close relatives of the party concerned or the patent agent (2) where they have a conflict of interest with the application for a patent or with patent rights (3) where they have other relations with the party concerned or the patent agent that might influence the impartial examination and handling of the case (4) where a member of the Patent Re-examination Board has taken part in the original examination of the application Article 39 Upon the receipt of a request for a patent for an invention or utility model, an explanation (or a drawing in the case of a utility model) and a claim, or the receipt of a request for a patent for an exterior design and the drawings or photographs of the exterior design, the State Council administrative department responsible for patents shall confirm the date of the application, give an application number, and notify the applicant. Article 40 Where any of the following situations exists with regard to the application documents, the State Council administrative department responsible for patents shall declare the application unacceptable and notify the applicant: (1) where an application for a patent for an invention or a utility model lacks a patent request, an explanation (or drawings are not provided for a utility model) or a claim, or an application for a patent for exterior design lacks a patent request, drawings or photographs (2) where application documents are not written in Chinese (3) where application documents do not comply with the provisions of Paragraph 1 in Article 120 of these Detailed Rules (4) where a patent request lacks the name or title and address of the applicant (5) where an application clearly does not comply with Paragraph 1 in Article 18 or Article 19 of the Patent Law (6) where the type of application for a patent (for an invention, a utility model or an exterior oesign) is not clear or unable to be determined Article 41 Where the description of an invention mentions that it contains an explanatory note to the attached drawings but the drawings, or part of thereof, are missing, the applicant shall, within the time limit specified by the State Council administrative department responsible for patents, either furnish the drawings or make a declaration for the deletion of the explanatory note to the attached drawings. Where the missing drawings are submitted, the date of their submission or mailing to the State Council administrative department responsible for patents shall be deemed to be the date of application. Where an applicant makes a declaration for the deletion of the explanatory note to the attached drawings, the original date of application shall be preserved. Article 42 Where an application for a patent contains two or more inventions, utility models or exterior designs, the applicant may, before the notice of the granting of patent rights is issued by the State Council administrative department responsible for patents, submit an application to the State Council administrative department responsible for patents to have the one application become divided applications. However. where an application for a patent has been rejected, withdrawn or is deemed to have been withdrawn, an application for division shall not be submitted. Where the State Council administrative department responsible for patents believes that the application for a patent does not conform to the provisions of Article 31 of the Patent Law and Article 35 or Article 36 of these Detailed Rules, it shall notify the applicant to amend the application within the specified time limit. Where the applicant does not respond within the time limit, the application shall be deemed to have been withdrawn. Divided applications shall not be permitted to have the type of the initial application changed. Article 43 Divided applications submitted in accordance with Article 42 of these Detailed Rules may maintain the date of the initial application and. enjoy the right of priority, and may maintain the date of the right of priority. However, they shall not go beyond the scope of the initial application. All procedures for divided applications shall be carried out in accordance with the provisions of the Patent Law and these Detailed Rules. A request for a division of an application shall indicate the application number and date of the initial application. When submitting an application for division, the applicant shall submit a copy of the initial application document. Where the initial application enjoys the right of priority, a copy of the right of priority document for the initial application shall also be submitted. Article 44 Preliminary examination in Article 34 and Article 40 of the Patent Law shall refer to the examination of whether or not the application for a patent has the documents and any other necessary documents stipulated in Article 26 or Article 27 of the Patent Law, and whether or not these documents comply with the prescribed forms, and shall include examination of the following items: (1) whether or not an application for a patent for an invention clearly falls within the provisions of Article 5 or Article 25 of the Patent Law, or does not comply with Article 18, or Paragraph 1 of Article 19 of the Patent Law, or clearly does not comply with Paragraph 1 of Article 31 or Article 33 of the Patent Law or Paragraph 1 of Article 2, Article 18 and Article 20 of these Detailed Rules (2) whether or not an application for a patent for a utility model clearly falls within the provisions of Article 5 or Article 25 of the Patent Law, or does not comply with Article 18, or Paragraph 1 of Article 19 of the Patent Law, or clearly does not comply with Paragraph 3 and Paragraph 4 of Article 26, Paragraph 1 of Article 31, Article 33 or in these Detailed Rules, Paragraph 2 of Article 2, Paragraph 1 of Article 13, Article 18 to Article 23, Paragraph 1 of Article 43, or where the patent rights are unable to be obtained in accordance with Article 9 of the Patent Law (3) whether or not an application for a patent for an exterior design clearly falls within the provisions of Article 5 of the Patent Law, or does not comply with Article 18 or Paragraph 1 of Article 19 of the Patent Law, or clearly does not comply with Paragraph 2 of Article 31, or Article 33 of the Patent Law or Paragraph 3 of Article 2 or Paragraph 1 of Article 13 and Paragraph 1 of Article 43 of these Detailed Rules, or where the patent rights are unable to be obtained in accordance with Article 9 of the Patent Law. The State Council administrative department responsible for patents shall notify the applicant of the examination outcome and shall invite the applicant to present his/her observations, supplements or corrections within a specified time limit. Where an applicant fails to respond within the time limit, the application shall be deemed to have been withdrawn. After the applicant has made the observations, supplements or corrections, where the State Council administrative department responsible for patents still finds that the application does not comply with the provisions of the items cited in the preceding paragraph, the application shall be rejected. Article 45 Except for application documents for a patent, where other related documents are submitted to the State Council administrative department responsible for patents by an applicant, and where the documents have any of the following deficiencies, the documents shall be deemed not to have been submitted: (1) failure to use the prescribed format or to fill in the forms in accordance with the stipulations (2) failure to submit proof according to the regulations Where the documents are deemed not to have been submitted, the State Council administrative department responsible for patents shall notify the applicant of the examination outcome. Article 46 Where the applicant requests an earlier publication of his/her application for a patent for an invention, a declaration shall be made to the State Council administrative department responsible for patents. The State Council administrative department responsible for patents shall, after preliminary examination of the application and unless it is to be rejected, publish it immediately. Article 47 When indicating the product incorporating an exterior design and the type to which that product belongs, the applicant shall, in accordance with Article 27 of the Patent Law, refer to the classification of products for exterior designs published by the State Council administrative department responsible for patents. .Where no indication, or an incorrect indication, of the class to which the product incorporating the exterior design belongs is made, the State Council administrative department responsible for patents may supply the indication or correct it. Article 48 Any person may, from the date of the publication of an application for a patent for an invention until the date of the announcement of the granting of patent rights, submit to the State Council administrative department responsible for patents observations on the application for a patent which is not in accordance with the provisions of the Patent Law, with the reasons for this. Article 49 Where the applicant for a patent for an invention cannot furnish, for justified reasons, the documents concerning any index search or the results of any examination under Article 36 of the Patent Law, the applicant shall make a statement to the State Council administrative department responsible for patents and submit the said documents and results when available. Article 50 The State Council administrative department responsible for patents shall notify the applicant accordingly when proceeding on its own initiative to examine an application for a patent for an invention in accordance with the provisions in Paragraph 2 of Article 35 of the Patent Law. Article 51 From the date that a request for a substantive examination is made, and within three (3) months from the date that a notice is issued by the State Council administrative department responsible for patents indicating that a patent application for an invention has entered the stage of substantive examination, the applicant for a patent for an invention may amend the patent application for an invention on his/her own initiative. An applicant for a patent for a utility model or exterior design may, within two (2) months from the date when the application is made, amend the application for a patent for a utility model or exterior design on his/her own initiative. Where an applicant amends the patent application for an invention after receiving notice in regard to an examination outcome issued by the State Council administrative department responsible for patents. tne applicant shall make the amendments in line with the requirements in the notice. The State Council administrative department responsible for patents may correct, en its own initiative. obvious mistakes in Chinese characters and symbols in applications for a patent. Where the State Council administrative department responsible for patents makes corrections on its own initiative, the applicants shall be notified. Article 52 When an amendment to the specifications or claims in an application for a patent for an invention or for a utility model are made, a replacement sheet in the prescribed format shall be submitted. unless the amendment involves only the alteration, insertion or deletion of a few words. When an amendment to drawings or photographs in an application for a patent for an exterior design is made. a replacement sheet shall be submitted in accordance with regulations. Article 53 According to the provisions in Article 38 in the Patent Law, the situations where an application for a patent for an invention shall, after the substantive examination, be rejected are as follows: (1) where the application does not comply with the provisions of Article 2, Paragraph 1 of these Detailed Rules (2) where the application falls within the provisions of Article 5 or Article 25 of the Patent Law, or it does not comply with the provisions of Article 22 of the Patent Law or Paragraph 1 of Article 13, Paragraph 1 of Article 20, and Paragraph 2 of Article 21 of these Detailed Rules, or it cannot obtain a patent right according to the provisions of Article 9 of the Patent Law (3) where the application does not comply with the provisions of Paragraph 3 or Paragraph 4 of Article 26. or Paragraph 1 of Article 31 of the Patent Law (4) where the amendments made to the application are not in accordance with the provisions in Article 33 of the Patent Law, or divided applications are not in accordance with the provisions of Paragraph 1 of Article 43 of these Detailed Rules Article 54 After the State Council administrative department responsible for patents has issued a notice to grant patent rights, the applicant shall, within two (2) months from the date of receiving the notice, carry out the procedures for registration. Where the applicant completes the registration procedures within the time limit, the State Council administrative department responsible for patents shall grant the patent rights, issue the patent certificate and publish an announcement. Where an applicant fails to carry out registration procedures within the specified time limit, he/she shall be deemed to have abandoned his/her right to obtain the patent rights. Article 55 After the announcement of a decision to grant patent rights to a utility model, the patentee of the utility model may request that the State Council administrative department responsible for patents makes a patent retrieval report of the utility model. An application must be submitted when a request for a retrieval report of a utility model patent is made. The patent number of the utility model patent must be clearly indicated. Each request shall be limited to one utility model. Upon receiving a request for a patent retrieval report of a utility model, the State Council administrative department responsible for patents shall undertake an examination. Where the request is found not to be in accordance with regulations or requirements, the parties lodging the request shall be notified to provide supplementary materials or make corrections within a specified time limit. Article 56 Where a request for a patent retrieval of a utility model is proven to be in accordance with relevant regulations after examination, the State Council administrative department responsible for patents shall produce a report about the patent retrieval of a utility model in a timely fashion. Where after retrieval, if the State Council administrative department responsible for patents considers that the patent of the utility model concerned is not in accordance with the provisions of Article 22 of the Patent Law regarding its novelty or creativeness, it shall cite the corresponding documents in its explanations, and attach photocopies of the cited corresponding documents. Article 57 Any mistakes in the patent announcements or patent documents that have been issued shall be corrected as soon as they are detected by the State Council administrative department responsible for patents, and a public announcement shall be made regarding the corrections. CHAPTER 4 Review of Applications for Patents and Invalidity Declarations of Patent Rights Article 58 The Patent Review Board shall consist of experienced technical experts and legal experts designated by the State Council administrative department responsible for patents. The responsible person of the State Council administrative department responsible for patents shall be the Director of the Board. Article 59 Where a party requests the Patent Review Board to make a review in accordance with the provisions of Article 41 of the Patent Law, the party concerned shall submit an application for review and state the reasons for the review; where necessary, it shall also attach relevant evidence. Where the application for review does not comply with the prescribed format, the party making the application shall rectify it within the time limit specified by the Patent Review Board. Where the rectification is not made within the time limit, the application for review shall be deemed to have not been submitted. Article 60 When an applicant requests a review, or when the applicant responds to a review notification made by the Patent Review Board, the applicant may amend the patent application documents, but the amendment shall be limited only to eliminating the defects pointed out in the decision of rejection or in the review notification. The amended patent application documents shall be submitted in duplicate. Article 61 The Patent Review Board shall pass on any request for a review that it has received to the original examining body of the State Council administrative department responsible for patents to make an examination. Where the original examining body has approved the review request of the applicant and agreed to cancel the initial decision, the Patent Review Board shall make a corresponding decision and shall notify the applicant of the review request. Article 62 Where the Patent Review Board believes after review that the request does not comply with the provisions of the Patent Law and these Detailed Rules, it shall notify the party that has made the request for review and invite it to submit a response within the specified time limit. If no response is made within the time limit, the request for review shall be deemed to have been withdrawn. Where, after the submission of the response and corrections, the Patent Review Board considers that the request for review still does not comply with the provisions in the Patent Law and these Detailed Rules, the Patent Review Board shall make a decision to maintain the original decision of rejection. Where, after review, the Patent Review Board believes that the original decision of rejection does not comply with the provisions of the Patent Law and these Detailed Rules, or the revised patent application documents eliminate the defects pointed out by the decision of rejection, the Patent Review Board shall cancel its original decision of rejection; and the original examination authorities shall continue the process of examination. Article 63 Before the Patent Review Board makes its decision on the request for review, the party that has made the request may withdraw the request for review. Where a party making a request for review withdraws the request for review before the Patent Review Board makes its decision, the process of review is terminated. Article 64 According to the provisions of Article 45 in the Patent Law, where there is a request for a declaration of invalidity of a patent or partial invalidity of a patent, the applicant shall submit to the Patent Review Board a request for the declaration for patent invalidity and necessary proof in duplicate. On the basis of all the proof, a request for the declaration of patent invalidity shall explain in detail the reasons for the request for an invalidity declaration, and shall indicate the proof upon which each reason is based. The reasons for the request of an invalidity declaration mentioned in the preceding paragraph refer to the situations where inventions and creations which have been granted patents do not comply with the provisions of Article 22, Article 23, Paragraph 3 and Paragraph 4 of Article 26, or Article 33 in the Patent Law, or Article 2, Paragraph 1 of Article 13, Paragraph 1 of Article 20, Paragraph 2 of Article 21 of these Detailed Rules, or where they fall within the provisions of Article 5, and Article 25 of the Patent Law, or where a patent is unable to be obtained according to the provisions of Article 9 of the Patent Law. Article 65 Where a request for a patent invalidity declaration does not comply with the provisions in Article 64 of these Detailed Rules, the Patent Review Board may not accept the request. Where, after the Patent Review Board makes a decision regarding a request for an invalidity declaration, another request for an invalidity declaration is submitted with the same reasons and proof, the Patent Review Board may not accept the request. Where a request for a patent invalidity declaration is based on the reason that an exterior design which has been granted a patent is in conflict with the legal rights that other parties have acquired prior to the granting of the said patent, but the applicant of the request fails to submit decisions or verdicts which. have taken effect and can prove the conflict of rights, the Patent Review Board may not accept the request. Where the request for a patent invalidity declaration does not comply with the prescribed format, the applicant who made the request shall rectify it within the time limit specified by the Patent Review Board. Where the rectification fails to be made within the time limit, the request for an invalidity declaration shall be deemed not to have been submitted. Article 66 After the Patent Review Board accepts a request for an invalidity declaration, the applicant submitting the request may, within one (1) month of the submission of the request for an invalidity declaration, add reasons or supplementary proofs. Where reasons or supplementary proofs are added after the specified time limit, the Patent Review Board shall give no consideration to them. Article 67 The Patent Review Board shall deliver to the patentee the request for the patent invalidity declaration and copies of the relevant documents, and request that the patentee submit a response within a specified time limit. The patentee and the applicant of the request for an invalidity declaration shall, within the specified time limit, reply to the notice of the transfer of documents or notice of the examination of the request for an invalidity declaration; where no reply is made within the time limit, the processing of the Patent Review Board shall not be affected. Article 68 In the process of the examination of a request for an invalidity declaration, the patentee of the invention or utility model may make alterations in his/her claims, but the scope of protection of the original patent must not be extended. The patentee of an invention or utility model must not make changes to the description of the patent and the attached drawings; the patentee of an exterior design patent must not make changes to the drawings, photographs or brief descriptions Article 69 Upon the basis of the request of the parties concerned or the needs of individual cases, the Patent Review Board may make a decision to conduct an oral examination of the request for an invalidity declaration. Where it decides to conduct an oral examination of the request for an invalidity declaration, the Patent Review Board shall issue to the parties concerned notice of the oral examination, which includes the date and venue of the oral examination. The parties concerned shall reply within the time limit specified in the notice. Where an applicant submitting a request for an invalidity declaration does not reply to the notice of oral examination issued by the Patent Review Board within the specified time limit, and fails to attend the oral examination, the request for an invalidity declaration shall be deemed to have been withdrawn; where a patentee fails to attend an oral examination, the review may proceed in the patentee's absence. Article 70 In the process of examining a request for an invalidity declaration, the time limit specified by the Patent Review Board must not be extended. Article 71 Before the Patent Review Board makes a decision regarding a request for an invalidity declaration, the applicant of the request for an invalidity declaration may withdraw the request. Where an applicant of a request for an invalidity declaration withdraws its request before the Patent Review Board makes a decision, the review process of the request for the invalidity declaration is terminated. CHAPTER 5 Compulsory Licences for Exploitation of Patents Article 72 After three (3) years from the date of granting the patent rights, any unit may, in accordance with the provisions of Article 48 of the Patent Law, request the State Council administrative department responsible for patents to grant a compulsory license. Where a request for a compulsory license is made, the applicant shall submit a request for a compulsory license and shall provide the reasons, together with relevant supporting documents that shall be in duplicate. The State Council administrative department responsible for patents shall deliver copies of the request for a compulsory license to the patentee. The patentee shall submit a response within the time limit specified by the State Council administrative department responsible for patents. Where the patentee fails to respond within the time limit, this shall have no effect on the State Council administrative department responsible for patents in the making of the decision on the compulsory license. The decision of granting a compulsory license made by the State Council administrative department responsible for patents shall limit the implementation of the compulsory license mainly to the needs of the domestic market. Where a compulsory license involves semiconductor technology, the implementation of a compulsory license is restricted to public and non-commercial uses, or to uses that counteract anti-competitive actions, as determined by judicial or administrative procedures. Article 73 Where a request is made, in accordance with the provisions of Article 57 of the Patent Law, for the State Council administrative department responsible for patents to adjudicate the amount of exploitation fees, the applicant shall submit a request for adjudication and provide the evidence that both parties involved are unable to conclude an agreement. The State Council administrative department responsible for patents shall, after receipt of the request, make a ruling within three (3) months and notify the parties accordingly. CHAPTER 6 Bonuses and Rewards to Inventors or Creators of Work-related Invention-Creations Article 74 Within three (3) months of the date of the public announcement of a patent right, any state-owned enterprise or state-run institution having been granted a patent right shall award to the inventors or creators of the work-related invention-creation a sum of money as a prize The prize for an invention patent shall be not less than 2,000 yuan; the prize for a patent for utility model or exterior design shall be not less than 500 yuan. Where an invention-creation is completed on the basis of an inventor's or creator's proposal and has been adopted by the unit to which an inventor or a creator belongs, the state-owned enterprise or state-run institution which has been granted the patent right shall award the inventor or creator a generous bonus. The prize money awarded to the inventor or creator may be calculated as part of the production cost of an enterprise; a state-run institution may disburse the said prize out of its operating expenses. Article 75 After the invention-creation patent right has been implemented, the state-owned enterprise or state-run institution which has been granted the patent right shall, for the duration of the valid patent period, pay to the inventor or designer an annual sum, as a reward, of no less than 2 per cent of any after tax profits earned as a result of implementing the said invention, or pay to the designer no less than 0.2 per cent of any after tax profits earned from the said exterior design. Alternatively, the unit may, referring to the above ratio, pay a lump sum of money to the inventor or designer as remuneration. Article 76 Where a state-owned enterprise or state-run institution which has been granted a patent right for an invention-creation authorizes other entities or individuals to exploit the said patent, it shall. after taxation, draw no less than 10 per cent from the fees generated by exploitation of the said patent and award it to the inventor or creator as remuneration. Article 77 Other Chinese units may refer to and implement the provisions of this chapter regarding bonuses and awards. CHAPTER 7 Protection of Patent Rights Article 78 The department responsible for patent management in the Patent Law and these Detailed Rules refers to the departments responsible for patent management at the levels of the people's government of provinces, autonomous regions, and centrally administered municipalities, and the department responsible for patent management established by the municipal people's government with districts under its jurisdiction and with the actual capacity to handle a large volume of patent management cases. Article 79 Apart from the provisions of Article 57 in the Patent Law, at the request of the parties concerned, the departments responsible for patent management may provide mediation for the following patent disputes. (1) disputes over the ownership of patent application rights and patent rights (2) disputes over the qualifications of inventors and designers (3) disputes over awards and bonuses to the inventors and creators of work-related invention-creations (4) disputes over the use of patents without the payment of adequate fees after the publication of the application for a patent of an invention and before the granting of patent rights In respect to the disputes in item (4) listed above, a patentee shall request mediation by the departments responsible for patent management only after being granted patent rights. Article 80 The State Council administrative department responsible for patents shall provide professional guidance to the settlement and mediation of patent disputes conducted by the departments responsible for patent management. Article 81 Where the parties concerned request the settlement or mediation of patent disputes, the settlement or mediation of the disputes shall be put under the jurisdiction of the place where the applicant resides, or the department responsible for patent management in the place where the infringing conduct has taken place. Where two (2) or more departments responsible for patent management have jurisdiction over a patent dispute, the parties concerned shall submit requests to one of the departments; where the parties concerned submit requests to two (2) or more departments responsible for patent management the department which receives the request first shall have jurisdiction over the dispute. Where the departments responsible for patent management have disputes over jurisdiction, it shall be determined by their common superior department responsible for patent management of the people's government at a higher level. Where there is no common superior department responsible for patent management of the people's government at a higher level, the State Council administrative department responsible for patents shall determine designation of jurisdiction. Article 82 Where, in the process of dispute settlement over patent infringement, an applicant submits a request for an invalidity declaration and the request is accepted by the Patent Review Board, the applicant may request that the department responsible for patent management to suspend the settlement of the disputes. Where the department responsible for patent management believes that the reasons for suspension submitted by the applicant are untenable, the department may not suspend the settlement of the disputes. Article 83 Where a patentee makes a patent mark on patent products or on the packaging of the said products in accordance with the provisions of Article 15 of the Patent Law, the mark shall be in accordance with the formats set down by the State Council administrative department responsible for patents. |
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