(Promulgated by Decree No. 306 of the State Council of the People's Republic of China on June 15, 2001, amended for 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, amended for 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, and amended for the third time on December 11, 2023 according to the Decision of the State Council on Amending the Implementing Regulations of the Patent Law of the People's Republic of China.)
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. Data messages that could tangibly present the contents by electronic data interchange and other means (hereinafter referred to as “electronic form”), and could be consulted and accessed at any time for reference is deemed to be in written form.
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.
Where various documents are submitted in electronic form to the patent administrative department of the State Council, the date on which the documents enter the specific electronic system designated by the patent administrative department of the State Council shall be the date of submission.
Any document of the patent administration department under the State Council may be served by electronic form, 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 the party concerned provides evidence proving the date of actual receipt of the documents, the date of actual receipt shall prevail.
Where any document is delivered personally in accordance with the provisions of the patent administration 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.
For various documents served in electronic form by the patent administrative department of the State Council, the date on which they enter the electronic system recognized by the party concerned shall be the date of service.
Rule 5. The date on which the time limit prescribed in the Patent Law and the Implementing Regulations begins shall not be counted in the time limit, and the calculation shall start from the next day. 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 her or its rights, he or she or it may, within two months from the date on which the impediment is removed and within two years immediately following the expiration of that time limit request the patent administration department under the State Council to restore his or her 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 her or its rights, he or she 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 her or its rights; however, where the time limit for requesting reexamination is not observed, he/she/it may, within two months from the expiration of the time limit for requesting reexamination, request the patent administrative department of the State Council to restore his/her/its rights.
Where any party concerned requests to restore his or her or its right according to paragraph one or paragraph two of this Rule, he or she or it shall submit a request for restoration of his or her 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 her or its right. Where the party concerned requests for restoration of his or her or its right according to paragraph two of this Rule, he or she or it shall pay the fee for requesting 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 she or it shall, before the time limit expires, file a request for extension of time limit, 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 74 of the Patent Law.
Rule 7. Where a patent application relates to the interests of national defense and is required to be kept secret, the patent application shall be filed with and examined by the patent department of national defense. Where a patent application 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 concerning national defense.
Where the patent administration department under the State Council finds that an invention or a utility model patent application 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 made in China as mentioned in Article 19 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 a patent application abroad for the invention or utility model made in China, it or he or she shall request, by one of the following manner, the patent administration department under the State Council to conduct a secrecy review:
(1) where any entity or individual intends to file a patent application directly in a foreign country or an international patent application with a relevant foreign organization, it or he or she shall file a request for secrecy review in advance with the patent administration department under the State Council and describe the related technical solution in detail;
(2) where after having filed a patent application with the patent administration department under the State Council, the applicant intends to file a patent application in a foreign country or an international patent application with a relevant foreign organization, it or he or she shall file the request for secrecy review with the patent administration department under the State Council before filing of the patent application 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 or she shall be deemed to have simultaneously filed the request for secrecy review.
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 issue a notification of secrecy review to the applicant within 2 months from the date of the filing of the request;; under complex circumstances, the time limit may be extended by two months.
Where the patent administration department under the State Council carries out a secrecy review in accordance with the notification prescribed in the preceding paragraph, it shall, within 4 months from the date of the filing of the request, make a decision on whether the invention or utility mode is required to be kept secret and notify the applicant accordingly; under complex circumstances, the time limit may be extended by two months..
Rule 10. Any invention-creation that is contrary to the laws referred to in Article 5 of the Patent Law shall not include the invention-creation merely because the exploitation of which is prohibited by the laws.
Rule 11. The application for a patent shall follow the principle of good faith. Patent applications of all kinds shall be filed on the basis of genuine invention-creation activities and the applicants shall not practice fraud.
Rule 12. 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 13. "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/her own duty;
(2) in execution of any task, other than his/her own duty, which was entrusted to him/her by the entity to which he belongs;
(3) within one year from his/her retirement, resignation or from termination of his/her employment or personnel relationship with the entity to which he/she previously belonged, where the invention-creation relates to his/her own duty or the other task entrusted to him/her by the entity to which he previously belonged.
"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 disclosed to the public, etc.
Rule 14. "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 inventor or creator.
Rule 15. Except for the assignment of the patent in accordance with Article 10 of the Patent Law, where the patent 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.
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 is pledged, both the pledger and the pledgee shall jointly register the contract of pledge with the patent administration department under the State Council.
Rule 16. The patent work shall implement the strategic deployment of the Party and the state for intellectual property rights, improve the level of China's patent creation, utilization, protection, management, and service, support comprehensive innovation, and promote the construction of an innovative country.
The patent administration department under the State Council shall enhance the public service capacity on patent information, publish patent information in a complete, accurate and timely manner, provide patent basic data, and promote the opening, sharing and interconnection of patent-related data resources.
Chapter II Application for Patents
Rule 17. Where a patent application is filed, application documents shall be filed with the patent administration department under the State Council. The application documents 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 18. Where a patent agency is appointed to apply for a patent and handle other patent matters in China in accordance with the provisions of paragraph one of Article 18 of the Patent Law, the applicant or patentee may handle the following matters, if involved, on their own:
(1) where an application claims priority, filing a copy of the patent application filed for the first time (hereinafter referred to as the “earlier application”);
(2) paying fees;
(3) other matters prescribed by the patent administration department under the State Council.
Rule 19. The filing request of an invention, a utility model or a design patent application, 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 or her title or name, address, postal code, the unified social credit code or the identification certificate number; where the applicant is a foreigner, a foreign enterprise or other foreign organization, his or its or her 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 qualification certificate number and the telephone number of the patent agent assigned by the agency;
(5) where the priority is claimed, the filing date, the application number of the earlier application and the title of the authority with which the earlier 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 20. The description of an invention or a utility model patent application 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 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 an invention patent or a utility model patent, 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: "as described in claim ... ", nor shall it contain commercial advertising.
Where an invention patent application 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 description of a utility model patent application shall include the drawings showing the shape, structure or their combination of the product for which protection is sought.
Rule 21. The figures of drawings of the invention or utility model shall be numbered and arranged in numerical order consecutively as "Figure 1, Figure 2, ... ".
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 22. 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: "as described in part... of the description", or "as illustrated in Figure ... of the drawings".
The technical features mentioned in the claims may, in order to facilitate quicker understanding of the claim, make 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 23. 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 24. 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 "characterized in that... "or 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 scope 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 25. 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.
A dependent claim shall only refer to the preceding claim(s). A multiple dependent claim, 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 claim.
Rule 26. The abstract shall consist of a summary of the disclosure as contained in the invention or utility model patent application. 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.
The abstract may contain the chemical formula which best characterizes the invention; in a patent application which contains drawings, the applicant shall, in the filing request, designate a figure which best characterizes the technical features of the invention or utility model as the abstract figure. There shall be no commercial advertising in the abstract.
Rule 27. 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 28. Where the applicant for an invention patent has deposited a sample of the biological material in accordance with the provisions of Rule 27 of these Implementing Regulations, and after the invention patent application 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.
Rule 29. 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 and the hereditary information developed relying on the use of such material. 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 a patent application is filed for an invention-creation the development of which relies on the use of 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 30. 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.
Where a partial design patent application is filed, the applicant shall submit views of the entire product and indicate the content of the claimed part using a combination of broken and solid lines or other methods.
Where the applicant seeks protection of colors, drawings or photographs in color shall be submitted.
Rule 31. The brief specification of a design patent application 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 specification.
Where a design patent application is filed for two or more similar designs incorporated in the same product, one of these designs shall be indicated as the basic design in the brief specification.
Where a partial design patent application is filed, the claimed part shall be specified in the brief specification, except when the claimed part has been indicated by a combination of broken and solid lines in the views of the entire product.
The brief specification shall not contain any commercial advertising and shall not be used to indicate the function of the product.
Rule 32. Where the patent administration department under the State Council deems necessary, it may require the applicant for a design patent 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 33. The international exhibition recognized by the Chinese Government referred to in Article 24, subparagraph (2) 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 (3) 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, as well as any academic or technological meeting organized by an international organization recognized by a competent department concerned of the State Council.
Where any invention-creation for which a patent is applied falls under the provisions of subparagraph (2) or (3) of Article 24 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 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 subparagraph (1) or (4) of Article 24 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 this Rule, the provisions of Article 24 of the Patent Law shall not apply to the application.
Rule 34. 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 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 application 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 application 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 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 priority shall be deemed not to have been claimed.
Where the name or title of the applicant who claims the 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 priority. If no such document is submitted, the priority shall be deemed not to have been claimed.
Where an applicant for a design patent claims a right of foreign priority, and no brief specification of the design was contained in the earlier application, he or it will not be adversely affected as for enjoying the priority if the brief specification submitted by the applicant in accordance with the provisions of Rule 31 of these Regulations does not go beyond the scope as shown in the drawings or photographs of the earlier application.
Rule 35. An applicant may claim one or more priorities for a patent application; where multiple priorities are claimed, the priority period for the application shall be calculated from the earliest priority date.
Where an applicant for an invention or a utility model patent claims the domestic priority, if the earlier application is an invention patent application, he or she or it may file an invention or a utility model patent application for the same subject matter; if the earlier application is a utility model patent application, he or she or it may file a utility model or an invention patent application for the same subject matter. Where an applicant for a design patent claims the domestic priority, and the earlier application is an invention or a utility model patent application, he or she or it may file a design patent application for the same subject matter as the design shown in the drawing; and where the earlier application is a design patent application, he or she or it may file a design patent application 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 it has claimed foreign or domestic priority;
(2) where it has been granted a patent;
(3) where it is 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, except where the applicant for a design patent claims an invention or a utility model patent application as the basis for domestic priority.
Rule 36. Where an applicant, exceeding the time limit as provided for in Article 29 of the Patent Law, files with the patent administration department under the State Council an invention or a utility model patent application on the same subject matter, and has justified reasons, he or she or it may, within two months from the date of expiration of the time limit, request restoration of the priority.
Rule 37. Where an applicant for an invention or a utility model patent claims a priority, he or she or it may, within 16 months from the priority date or within four months from the date of filing an application, request adding or correcting the claim for the priority in the filing request.
Rule 38. Where a patent application 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:
(1) if the applicant is an individual, a certificate concerning his or her nationality;
(2) if the applicant is an enterprise or other organization, a certifying document given by 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, the priority and other related rights in that country.
Rule 39. 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 paragraph one of Article 31 of the Patent Law shall be technically inter-related and contain one or more of the same or corresponding special technical features. The expression "special technical features" shall mean those technical features that define a contribution which each of those inventions or utility models, considered as a whole, makes over the prior art.
Rule 40. Where two or more similar designs of the same product are filed in one application in accordance with the provisions of paragraph two of Article 31 of the Patent Law, the other designs of the product shall be similar to the basic design indicated in the brief specification. The number of similar designs contained in a design patent application shall not exceed 10.
The two or more designs belonging to the same class and sold or used in sets as referred to in paragraph two of Article 31 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 in 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 41. When withdrawing a patent application, 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 application number and the date of filing.
Where a declaration to withdraw a patent application 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 patent application shall be published in the subsequent issue of the Patent Gazette.
Chapter III Examination and Approval of Patent Applications
Rule 42. Where any of the following events occurs, a person who makes examination or hears a case in the procedures of preliminary examination, substantive examination, reexamination or invalidation shall, on his or her own initiative or upon the request of the parties concerned or any other interested person, be recused from exercising his or her function:
(1) where he or she is a near relative of the party concerned or the agent of the party concerned;
(2) where he or she has an interest in the patent application or the patent;
(3) where he or she 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) in a reexamination or invalidation procedure, where he or she has taken part in the examination of the same application.
Rule 43. Upon the receipt of an invention or a utility model patent application consisting of a filing request, a description (drawings must be included for utility models) and one or more claims, or a design patent application consisting of a request, one or more drawings or photographs showing the design and a brief specification, the patent administration department under the State Council shall accord the date of filing, issue an application number, and notify the applicant.
Rule 44. 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 an invention or a utility model patent application does not contain a filing request, a description (the description of utility model does not contain drawings) or claims, or a design patent application does not contain a filing request, drawings or photographs, or a brief specification;
(2) where the application is not written in Chinese;
(3) where the format of the application documents is not in conformity with the provisions;
(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 17, or paragraph one of Article 18 of the Patent Law;
(6) where the type (invention, utility model or design) of the patent application is not clear or cannot be ascertained.
Rule 45. Where the claims, specification, or a part of the claims or specification of an invention or a utility model patent application is omitted or incorrectly submitted, but the applicant has claimed a priority on the date of filing the application, he or she or it may, within two months from the date of filing the application or within the time limit designated by the patent administration department under the State Council, make a supplementary submission by referencing the earlier application documents. If the supplementary documents comply with the relevant provisions, the date of submission of the documents submitted for the first time shall be the date of filing.
Rule 46. 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 47. Two or more applicants who respectively file, on the same day (referring to the date of filing or the priority date where priority is claimed), patent applications 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 determine the applicant(s).
Where an applicant files on the same day (referring to the date of filing) both an invention patent application and a utility model patent application for the identical invention, he or she or it shall state respectively upon filing the application that another patent application for the identical invention-creation has been filed by him or her or it. If the applicant fails to do so, the issue shall be handled according to the provisions of paragraph one of Article 9 of the Patent Law, only one patent shall be granted for any identical invention-creation.
Where the patent administration department under the State Council makes an announcement of the grant of a utility model patent, the statement of the applicant in accordance with the provision of paragraph two of this Rule that he or she or it has simultaneously filed an invention patent application shall be announced.
Where it is found after examination that there is no cause for rejection of the invention patent application, the patent administration department under the State Council shall notify the applicant to declare, within the specified time limit, the abandonment of his or her or its utility model patent. If the applicant so declares, the patent administration department under the State Council shall make the decision to grant an invention patent, and announce at the same time both the grant of the invention patent and the declaration of the applicant to abandon his or her or its utility model patent. If the applicant refuses to abandon his or her or its utility model patent, the patent administration department under the State Council shall reject the invention patent application. If the applicant fails to respond within the time limit, the invention patent application shall be deemed to have been withdrawn.
The utility model patent terminates from the date of the announcement of grant of the invention patent.
Rule 48. Where a patent application contains two or more inventions, utility models or designs, the applicant may, before the expiration of the time limit provided for in paragraph one of Rule 60 of these Implementing Regulations, submit to the patent administration department under the State Council a divisional application. However, where a patent application 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 a patent application is not in conformity with the provisions of Article 31 of the Patent Law or of Rule 39 or 40 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 type of the initial application.
Rule 49. A divisional application filed in accordance with the provisions of Rule 48 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 application number and the date of filing of the initial application shall be indicated in the request of the divisional application.
Rule 50. "Preliminary examination" referred to in Articles 34 and 40 of the Patent Law means the check of a patent application 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 invention patent application obviously falls under Article 5 or 25 of the Patent Law, or is not in conformity with the provisions of Article 17, paragraph one of Article 18 or paragraph one of Article 19 of the Patent Law or Rule 11, Rule 19 or paragraph two of Rule 29 of these Implementing Regulations, or is obviously not in conformity with the provisions of paragraph two of Article 2, paragraph five of Article 26, paragraph one of Article 31, or Article 33 of the Patent Law, or of Rules 20 to 24 of these Implementing Regulations;
(2) whether or not any utility model patent application obviously falls under Article 5 or 25 of the Patent Law, or is not in conformity with the provisions of Article 17, paragraph one of Article 18 or paragraph one of Article 19 of the Patent Law or Rule 11, Rules 19 to 22 or Rules 24 to 26 of these Implementing Regulations, or is obviously not in conformity with the provisions of paragraph three of Article 2, Article 22, paragraph three of Article 26, paragraph four of Article 26, paragraph one of Article 31, Article 33 of the Patent Law, or Rule 23 or paragraph one of Rule 49 of these Implementing Regulations, or is not entitled to a patent in accordance with the provisions of Article 9 of the Patent Law;
(3) whether or not any design patent application obviously falls under Article 5 or paragraph one (6) of Article 25 of the Patent Law, or is not in conformity with the provisions of Article 17, paragraph one of Article 18 of the Patent Law, or Rule 11, Rule 19, Rule 30 or paragraph one of Rule 31 of these Implementing Regulations, or is obviously not in conformity with the provisions of paragraph four of Article 2, paragraph one of Article 23, paragraph two of Article 23, paragraph two of Article 27, paragraph two of Article 31, or Article 33 of the Patent Law, or paragraph one of Rule 49 of these Implementing Regulations, or is not entitled to a patent 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 paragraph one of Rule 3 of these Implementing Regulations.
The patent administration department under the State Council shall notify the applicant of its opinions after checking his or her or its application and invite him or her or it to state his or her or its observations or to rectify his or her 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 her 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 51. Apart from the patent application documents, 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;
(2) where no certifying document is submitted as prescribed.
The patent administration department under the State Council shall notify the applicant of its opinion that the document is deemed not to have been submitted.
Rule 52. Where the applicant requests an earlier publication of his or her or its invention patent application, 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 53. Where the applicant indicates the product incorporating the design and the class to which that product belongs, it/he/she shall 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 54. Any person or entity may, from the date of publication of an invention patent application till the date of announcing the grant of the patent, submit observations to the patent administration department under the State Council, with reasons therefor, on the application which is not in conformity with the provisions of the Patent Law.
Rule 55. Where the applicant for an invention patent 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 she or it shall make a statement to the patent administration department under the State Council and submit them when the documents are available.
Rule 56. The patent administration department under the State Council shall, when proceeding on its own initiative to examine a patent application in accordance with the provisions of paragraph two of Article 35 of the Patent Law, notify the applicant accordingly.
The applicant may request a deferred examination for a patent application
Rule 57. At the time when a request for substantive examination is filed, and within three months after the receipt of the notification on the entry into substantive examination stage issued by the patent administration department under the State Council, the applicant for an invention patent may amend the invention patent application on his or her or its own initiative.
Within two months from the date of filing, the applicant for a utility model or design patent may amend the utility model or design application on his or her or its own initiative.
Where the applicant amends the application documents after receiving a notification of office action issued by the patent administration department under the State Council, he or she 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 a patent application. Where the patent administration department under the State Council corrects mistakes on its own initiative, it shall notify the applicant.
Rule 58. When an amendment to the description or the claims in an invention or a utility model patent application 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 a design patent application is made, a replacement sheet shall be submitted as prescribed.
Rule 59. In accordance with the provisions of Article 38 of the Patent Law, the circumstances where an invention patent application shall be rejected by the patent administration department under the State Council after substantive examination 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 in accordance with the provisions of Article 9 of the Patent Law;
(2) where the application does not comply with the provisions of paragraph two of Article 2, paragraph one of Article 19, Article 22, paragraph three of Article 26, paragraph four of Article 26, paragraph five of Article 26, or paragraph one of Article 31 of the Patent Law, or Rule 11, paragraph two of Rule 23 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 paragraph one of Rule 49 of these Implementing Regulations.
Rule 60. After the patent administration department under the State Council issues the notification to grant the patent, 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 time limit, the patent administration department under the State Council shall grant the patent, issue the patent certificate and announce it.
If the applicant does not go through the formalities of registration within the time limit, he or she or it shall be deemed to have abandoned his or her or its right to obtain the patent.
Rule 61. 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 62. After the announcement of the decision to grant a utility model patent or a design patent, the patentee, the interested party, the accused infringer prescribed in Article 66 of the Patent Law may request the patent administration department under the State Council to make an evaluation report of patent. The applicant may request the patent administration department under the State Council to make an evaluation report of patent at the time of going through the formalities of patent registration.
Where an evaluation report of patent is requested, the requesting party shall submit a request for the evaluation report of patent, indicating the application number or patent number. Each request shall be limited for one patent application or 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.
Rule 63. The patent administration department under the State Council shall make a patent evaluation report within two months from receiving of the request for the patent evaluation report, while if the applicant requests a patent evaluation report at the time of going through the formalities of patent registration, the patent administration department under the State Council shall make the patent evaluation report within two months from the date of the announcement of the grant of the patent.
Where two or more persons request for patent evaluation reports in respect of a same utility model or design patent, the patent administration department under the State Council shall make one evaluation report only. Any entity or individual may view or copy the patent evaluation report.
Rule 64. The patent administration department under the State Council shall correct promptly the mistakes in the patent announcements and patent pamphlets once they are discovered, and the corrections shall be announced.
Chapter IV Reexamination of Patent Applications and Invalidation of Patents
Rule 65. Where the applicant requests the patent administration department under the State Council to make a reexamination in accordance with the provisions of Article 41 of the Patent Law, it or he or she shall file a request for reexamination, state the grounds and, when necessary, attach the relevant supporting documents.
Where the request for reexamination does not comply with the provisions of paragraph one of Article 18 or paragraph one of Article 41 of the Patent Law, the patent administration department under the State Council shall refuse to accept it, notify the applicant in written form and state the grounds thereof.
Where the request for reexamination does not comply with the prescribed form, the person making the request shall rectify it within the time limit specified by the patent administration department under the State Council. If the requesting person fails to do so, the request for reexamination shall be deemed not to have been filed.
Rule 66. The person making the request may amend its or his or her patent application at the time when it or he or she requests reexamination or makes responses to the notification of reexamination of the patent administration department under the State Council. However, the amendments shall be limited only to remove the defects pointed out in the decision of rejection of the application or in the notification of reexamination.
Rule 67. Where, after reexamination, the patent administration department under the State Council finds that the request does not comply with relevant provisions of the Patent Law and these Implementing Regulations or that the patent application otherwise obviously violates relevant provisions of the Patent Law and these Implementing Regulations, it shall invite the person requesting reexamination to submit its or his or her observations within a specified time limit. If the time limit for making response is not met, the request for reexamination shall be deemed to have been withdrawn. Where, after the requesting person has made its or his or her observations or amendments, the patent administration department under the State Council still finds that the request does not comply with relevant provisions of the Patent Law and these Implementing Regulations, it shall make a decision of reexamination to reject the request for reexamination.
Where, after reexamination, the patent administration department under the State Council finds that the decision rejecting the application does not comply with relevant provisions of the Patent Law and these Implementing Regulations, or that the amended application has removed the defects as pointed out by the decision rejecting the application, it shall make a decision to revoke the decision rejecting the application, and continue the examination procedure.
Rule 68. At any time before the patent administration department under the State Council makes its decision on the request for reexamination, the requesting party may withdraw its or his or her request for reexamination.
Where the requesting party withdraws its or his or her request for reexamination before the patent administration department under the State Council makes its decision, the procedure of reexamination is terminated.
Rule 69. Anyone requesting invalidation or part invalidation of a patent in accordance with the provisions of Article 45 of the Patent Law shall submit to the patent administration department under the State Council a request and the necessary evidence in two copies. The request for invalidation shall state in detail the grounds for filing the request, making reference to all the evidence as submitted, and indicate the piece of evidence on which each ground is based.
The grounds on which the request for invalidation is based, referred to in the preceding paragraph, mean that the invention-creation for which the patent is granted does not comply with the provisions of Article 2, paragraph one of Article 19, Article 22, Article 23, paragraph three of Article 26, paragraph four of Article 26, paragraph two of Article 27, or Article 33 of the Patent Law, or Rule 11, paragraph two of Rule 23, or paragraph one of Rule 49 of these Implementing Regulations; or the invention-creation falls under the circumstances prescribed in Article 5 or 25 of the Patent Law; or the applicant is not entitled to be granted the patent in accordance with the provisions of Article 9 of the Patent Law.
Rule 70. Where the request for invalidation does not comply with the provisions of paragraph one of Article 18 of the Patent Law, or of Rule 69 of these Implementing Regulations, the patent administration department under the State Council shall refuse to accept it.
Where, after a decision on any request for invalidation of the patent is made, invalidation based on the same grounds and evidence is requested once again, the patent administration department under the State Council shall refuse to accept it.
Where a request for invalidation of a design patent is filed on the grounds that the design patent does not comply with the provision of paragraph three of Article 23 of the Patent Law, but no evidence is submitted to prove the conflict of rights, the patent administration department under the State Council shall refuse to accept it.
Where the request for invalidation of the patent does not comply with the prescribed form, the person making the request shall rectify it within the time limit specified by the patent administration department under the State Council. If the rectification fails to be made within the time limit, the request for invalidation shall be deemed not to have been made.
Rule 71. After a request for invalidation is accepted by the patent administration department under the State Council, the person making the request may add grounds or supplement evidence within one month from the date when the request for invalidation is filed. Additional grounds or evidence which is submitted after the specified time limit may be disregarded by the patent administration department under the State Council.
Rule 72. The patent administration department under the State Council shall send a copy of the request for invalidation of the patent and copies of the relevant documents to the patentee and invite it or him or her to present its or his or her observations within a designated time limit.
The patentee and the person making the request for invalidation shall, within the specified time limit, make responses to the notification concerning transmitted documents or the notification concerning the examination of the request for invalidation sent by the patent administration department under the State Council.
Where no response is made within the designated time limit, the examination of the patent administration department under the State Council will not be affected.
Rule 73. In the course of the examination of the request for invalidation, the patentee for the invention or utility model patent concerned may amend its or his or her claims, but may not broaden the scope of patent protection. Where the patent administration department under the State Council makes a decision to maintain the validity of the patent or to declare the patent partially invalid on the basis of the amended claims, it shall publish the amended claims.
The patentee for the invention or utility model patent concerned may not amend the description or drawings of the patent. The patentee for the design patent concerned may not amend the drawings, photographs or the brief specification of the design.
Rule 74. The patent administration department under the State Council may, at the request of the parties concerned or in accordance with the needs of the case, decide to hold an oral hearing in respect of a request for invalidation.
Where the patent administration department under the State Council decides to hold an oral hearing in respect of a request for invalidation, it shall send notifications to the parties concerned, indicating the date and place of the oral hearing to be held. The parties concerned shall make response to the notification within the time limit specified in the notification.
Where the person requesting invalidation fails to make response to the notification of the oral hearing sent by the patent administration department under the State Council within the specified time limit, and fails to take part in the oral hearing, the request for invalidation shall be deemed to have been withdrawn. Where the patentee fails to take part in the oral hearing, the patent administration department under the State Council may proceed to examine by default.
Rule 75. In the course of the examination of a request for invalidation, the time limit specified by the patent administration department under the State Council shall not be extended.
Rule 76. The party requesting invalidation may withdraw his or her or its request before the patent administration department under the State Council makes a decision on it.
Where the party requesting invalidation withdraws his or her or its request or where his or her or its request for invalidation is deemed to have been withdrawn before the patent administration department under the State Council makes a decision on it, the examination of the request for invalidation is terminated. Where, based on the examination work it has done, the patent administration department under the State Council finds that it is able to make a decision of invalidation or invalidation in part of the patent, the examination procedure shall not be terminated.
Chapter V Patent Term Compensation
Rule 77. Where the patentee requests patent term compensation in accordance with the provisions of paragraph two of Article 42 of the Patent Law, he or she or it shall file the request with the patent administration department under the State Council within 3 months from the date of grant announcement of the patent.
Rule 78. Where patent term compensation is provided in accordance with the provisions of paragraph two of Article 42 of the Patent Law, the compensation period shall be calculated based on the actual number of days of unreasonable delay in the granting process of the invention patent.
The actual number of days of unreasonable delay in the granting process of the invention patent mentioned in the preceding paragraph refers to the number of days calculated by deducting the number of days of reasonable delay and the number of days of unreasonable delay caused by the applicant from the number of days between the date on which four years have elapsed since the filing date of the invention patent application and on which three years have elapsed since the date of requesting substantive examination and the date of grant announcement of the patent.
The following circumstances are reasonable delay:
(1) delay caused by reexamination procedure where patent application documents are granted after being amended in accordance the provisions of Rule 66 of these Implementing Regulations;
(2) delay caused by circumstances prescribed in paragraph 3 of Rule 103, Rule 104 of these Implementing Regulations;
(3) delay caused by other reasonable circumstances.
Where an applicant applies for both a utility model patent and an invention patent on the same day for the same invention-creation and obtains the invention patent in accordance the provisions of paragraph four of Rule 47 of these Implementing Regulations, the patent term of the invention patent shall not be subject to the provisions of paragraph two of Article 42 of the Patent Law.
Rule 79. The unreasonable delays caused by the applicant as prescribed in paragraph two of Article 42 of the Patent Law include the following circumstances:
(1) failure to respond to the notification issued by patent administration department under the State Council within the specified time limit;
(2) requesting a deferred examination;
(3) delay caused by the circumstances prescribed in Rule 45 of these Implementing Regulations
(4) other unreasonable delays caused by the applicant.
Rule 80. The new drug-related invention patent prescribed in paragraph three of Article 42 refers to product patents, manufacture method patents, and medical use patents of the new drug.
Rule 81. Where a request for patent term compensation for a new drug-related invention patent is filed in accordance with the provisions of paragraph three of Article 42 of the Patent Law, the request shall meet the following requirements and be filed with the patent administration department under the State Council within 3 months from the date of obtaining marketing approval in China for the new drug:
(1) where multiple patents exist for the same drug, the patentee can only request patent term compensation for one of those patents;
(2) where a single patent pertains to multiple drugs, a request for patent term compensation can only be made for one drug in relation to that patent;
(3) the patent, during the patent term, has not obtained any patent term compensation for new drug-related invention patents.
Rule 82. Where patent term compensation is provided in accordance with the provisions of paragraph three of Article 42 of the Patent Law, the compensation period shall be determined by deducting five years from the number of days between the filing date of the patent application and the date on which the new drug obtains marketing approval in China, on the basis of complying with the provisions of paragraph three of Article 42 of the Patent Law.
Rule 83. For a new drug-related invention patent, during the compensation period of patent term, the protection scope of the patent is limited to the technical scheme relating to the new drug and the approved indications thereof; within the protection scope, the patentee enjoys the same rights and undertakes the same obligations as before the patent term compensation.
Rule 84. Upon examination on the request for patent term compensation filed in accordance with the provisions of paragraphs two and three of Article 42 of the Patent Law, the patent administration department under the State Council shall make a decision to grant patent term compensation and register and announce the matter if it finds that the patent meets the conditions for compensation, and shall make a decision not to grant patent term compensation and notify the patentee if the patent does not meet the conditions for compensation,.
Chapter VI Special License for Exploitation of Patents
Rule 85. Where any patentee voluntarily declares that his or her or its patent is open to license, he or she or it shall file the declaration after the announcement of the grant of the patent.
An open license declaration shall indicate the following items:
1) patent number;
2) name or title of the patentee;
3) the payment method, standard of the royalty;
4) the period for the license;
5) other information that needs to be specified.
The content of an open license declaration shall be accurate, clear and shall not contain commercial advertising.
Rule 86. Where any patent falls under any of the following circumstances, the patentee shall not implement open license for his or her or its patent:
1) the patent is within the validity term of an exclusive or sole license;
2) the patent is involved in suspension prescribed in Rule 103, Rule 104 of these Implementing Regulations;
3) the annuity is not paid as required;
4) the patent is pledged, and the consent of the pledgee is not obtained;
5) other circumstances that hinder the effective enforcement of the patent.
Rule 87. Where a patent license is granted via open license, the patentee or the licensee shall record the license with the patent administration department under the State Council based on written documents that can sufficiently prove the grant of the license.
Rule 88. Any patentee shall not, by means of providing false materials or concealing facts, make open license declarations or obtain annuity reductions during the open license implementation period.
Rule 89. The insufficient exploitation of its or his or her patent mentioned in subparagraph (1) of Article 53 of the Patent Law means the manner or scale of the exploitation of patent by the patentee and/or the licensee authorized by it or him or her cannot satisfy the demands of the domestic market for the patented product or patented process.
The pharmaceutical product to which patent has been granted as mentioned in Article 55 of the Patent Law means any patented product, or product directly obtained by a patented process, of pharmaceutical sector needed to address public health problems, including the patented active ingredients necessary for the manufacture of the product and the diagnostic kits needed for its use.
Rule 90. Any entity or individual requesting a compulsory license shall submit to the patent administration department under the State Council a request for compulsory license, state the reasons thereof, and attach relevant certifying documents.
The patent administration department under the State Council shall send a copy of the request for compulsory license to the patentee, who shall make his or its or her observations within the time limit specified by the patent administration department under the State Council. Where no response is made within the time limit, the patent administration department under the State Council will not be affected in making its decision.
Before making a decision to reject a request for compulsory license or to grant a compulsory license, the patent administration department under the State Council shall, notify the requesting person and the patentee the decision that is to be made and the reasons thereof.
The decision of the patent administration department under the State Council on granting a compulsory license in accordance with Article 55 of the Patent Law, shall be also in conformity with the provisions of the relevant international treaties on granting compulsory license for the purposes of addressing public health issue, to which China is party, except for provisions on which China has made reservation.
Rule 91. Where any entity or individual requests, in accordance with the provisions of Article 62 of the Patent Law, the patent administration department under the State Council to adjudicate the fees for exploitation, it or he or she shall submit a request for adjudication and furnish documents showing that the parties concerned have not been able to conclude an agreement in respect of the amount of the exploitation fee. The patent administration department under the State Council shall make an adjudication within three months from the date of receipt of the request and notify the parties concerned accordingly.
Chapter VII Reward and Remuneration for Inventors or Creators of Service Invention-Creations
Rule 92. The entity to which a patent is granted may, on the manner and amount of the reward and remuneration as prescribed in Article 15 of the Patent Law, enter into a contract with the inventor or creator, or provide it in its rules and regulations formulated in accordance with the laws. The state encourages entities that are granted patents to implement property rights incentives and adopt methods such as equity, stock options, dividends, etc., to ensure that inventors or creators receive a fair share of the innovation benefits.
The reward and remuneration awarded to the inventor or creator by any enterprise or institution shall be handled in accordance with the relevant provisions of the State on financial and accounting systems.
Rule 93. Where the entity to which a patent s granted has not entered into a contract with the inventor or creator on the manner and amount of the reward as prescribed in Article 15 of the Patent Law, nor has the entity provided it in its rules and regulations formulated in accordance with the laws, it shall, within three months from the date of the announcement of the grant of the patent, award to the inventor or creator of a service invention-creation a sum of money as prize. The sum of money prize for an invention patent shall not be less than RMB 4,000 Yuan; the sum of money prize for a utility model or design patent shall not be less than RMB 1,500 Yuan.
Where an invention-creation is made on the basis of an inventor's or creator's proposal adopted by the entity to which he belongs, the entity to which a patent is granted shall award to him or her a money prize on favorable terms.
Rule 94. Where the entity to which a patent is granted has not entered into a contract with the inventor or creator on the manner and amount of the remuneration as prescribed in Article 15 of the Patent law, nor has the entity provided it in its rules and regulations in accordance with the laws, it shall award the inventor or creator a reasonable reward in accordance with the Law of the People's Republic of China on Promoting the Transformation of Scientific and Technological Achievements.
Chapter VIII Protection of Patents
Rule 95. The administrative authority for patent affairs under the people's government of any province, autonomous region, or municipality directly under the Central Government, or the administrative authority for patent affairs under the district people's government of any prefecture-level cities, autonomous prefectures, leagues, regions and municipalities directly under the Central Government which has a large amount of patent administration work and has practical processing ability, could deal with and mediate patent disputes.
Rule 96. Where a patent dispute falls under any of the following circumstances, it belongs to patent infringement disputes that have a major impact throughout the country as prescribed in Article 70 of the Patent Law:
(1) it involves major public interests;
(2) it has a major impact on the development of the industry;
(3) it is an important case across provinces, autonomous regions or municipalities directly under the Central Government;
(4) other circumstances that the patent administration department under the State Council deems may have a major impact.
Where a patentee or an interested party requests the patent administration department under the State Council to handle a patent infringement dispute, but the relevant case is not a patent infringement dispute that has a major impact throughout the country, the patent administration department under the State Council may designate the administrative authority for patent affairs of the local people's government with proper jurisdiction to handle the case.
Rule 97. Where any party concerned requests handling of a patent infringement dispute or mediation of a patent dispute, the case shall be under the jurisdiction of the administrative authority for patent affairs where the alleged infringer is located or where the act of infringement has taken place.
Where two or more administrative authorities for patent affairs have jurisdiction over a patent dispute, any party concerned may file his or her or its request with one of them to handle or mediate the matter. Where requests are filed with two or more administrative authorities for patent affairs with proper jurisdiction, the administrative authority for patent affairs that first accepts the request shall have jurisdiction.
Where administrative authorities for patent affairs have a dispute over their jurisdiction, the administrative authority for patent affairs of their common higher level people's government shall designate the administrative authority for patent affairs to exercise the jurisdiction; if there is no such administrative authority for patent affairs of their common higher level people's government, the patent administration department under the State Council shall designate the administrative authority for patent affairs to exercise the jurisdiction.
Rule 98. Where, in the course of handling a patent infringement dispute, the alleged infringer requests invalidation of the patent and his or her or its request is accepted by the patent administration department under the State Council, he or she or it may request the administrative authority for patent affairs concerned to suspend the handling of the matter.
If the administrative authority for patent affairs considers that the reasons set forth by the alleged infringer for the suspension are obviously untenable, it may not suspend the handling of the matter.
Rule 99. Where any patentee affixes a patent indication on the patented product or on the package of that product in accordance with the provisions of Article 16 of the Patent Law, he or she or it shall make the affixation in the manner as prescribed by the patent administration department under the State Council.
Where any patent indication is not in conformity with the provision of the preceding paragraph, the authority for patent law enforcement at or above the county level shall order to correct it.
Rule 100. Where any applicant or patentee violates Rule 11 or Rule 88 of these Implementing Regulations, he or she or it shall be given a warning and may face a fine of less than 100,000 yuan imposed by the authority for patent law enforcement at or above the county level.
Rule 101. Any of the following is an act of passing off a patent as prescribed in Article 68 of the Patent Law:
(1) affixing patent indication on a product or on the package of a product which has not been granted a patent, continuing to affix patent indication on a product or on the package of a product, after the related patent has been declared invalid or is terminated, or affixing the patent number of another person on a product or on the package of a product without authorization;
(2) sale of the product as prescribed in subparagraph (1) ;
(3) indicating a technology or design to which no patent has been granted as patented technology or patented design, indicating a patent application as patent or using the patent number of another person without authorization, in such materials as specification of product etc., which could mislead the public to regard the related technology or design as patented technology or patented design;
(4) counterfeiting or transforming any patent certificate, patent document or patent application document;
(5) any other act which might cause confusion on the part of the public, misleading them to regard a technology or design to which no patent has been granted as patented technology or patented design.
Affixing patent indication legally on a patented product, or on a product directly obtained by a patented process, or on the package of such products before the termination of the patent, offering for sale or sale of such products after the termination of the patent is not an act of passing off a patent.
Where any person sells a product passing off a patent without knowing it, and can prove that it or he or she obtains the product from a legitimate channel, it or he or she shall be ordered to stop selling the product by the authority for patent law enforcement at or above the county level.
Rule 102. In addition to the provisions of Article 60 of the Patent Law, the administrative authority for patent affairs may also mediate in the following patent disputes at the request of the parties concerned:
(1) any dispute over the right to apply for patent and the ownership of patent;
(2) any dispute over the qualification of the inventor or creator;
(3) any dispute over the award and remuneration of the inventor or creator of a service invention-creation;
(4) any dispute over the appropriate fee to be paid for the exploitation of an invention after the publication of the patent application but before the grant of patent;
(5) any other patent dispute.
In respect of the dispute referred to in subparagraph (4), where the party concerned requests the administrative authority for patent affairs to mediate, the request shall be made after the grant of the patent.
Rule 103. Any party involving in a dispute over the ownership of the right of patent application or patent, who has already applied for mediation with the administrative authority for patent affairs or instituted legal proceedings before the people's court, may request the patent administration department under the State Council to suspend the relevant procedures.
Any party requesting the suspension of the relevant procedures in accordance with the preceding paragraph, shall submit a request to the patent administration department under the State Council and state the reasons, accompanied by a copy of the document acknowledging that the administrative authority for patent affairs or the people's court has accepted the case, in which the application number or the patent number concerned has been indicated. Where the patent administration department under the State Council finds that the reasons for suspension submitted by the requesting party are obviously untenable, it may not suspend the relevant procedures.
After entering into force of the mediation made by the administrative authority for patent affairs or the judgment rendered by the people's court, the parties concerned shall request the patent administration department under the State Council to resume the suspended procedure. If, within one year from the date when the request for suspension is filed, no decision is made on the dispute relating to the ownership of the right to apply for a patent or the patent, and it is necessary to continue the suspension, the party who made the request shall, within the time limit, request to extend the suspension. If, at the expiration of the time limit, no such request for extension is filed, the patent administration department under the State Council shall resume the procedure on its own initiative.
Rule 104. Where, in trial of civil cases, the people's court has ordered the adoption of preservation measures on the right of patent application or patent, the patent administration department under the State Council shall suspend the relevant procedure concerning the patent application or patent under preservation on the date of receiving the judgment order and the notification on assisting the execution of the order indicated with the application number or the patent number. At the expiration of the time limit for preservation, if there is no order of the people's court to continue the preservation, the patent administration department under the State Council shall resume the relevant procedure on its own initiative.
Rule 105. The suspension of relevant procedures carried out by the patent administration department under the State Council in accordance with Rule 103 and Rule 104 of these Implementing Regulations, refers to the suspension of such procedures as preliminary examination, substantive examination, reexamination of a patent application, granting of patent and the announcement of invalidation of patent; the suspension of the procedures on handling the abandonment of patent, changing or transferring patent or right of patent application, pledge of patent and the cessation of patent before the expiration of its duration.
Chapter IX Patent Registration and Patent Gazette
Rule 106. The patent administration department under the State Council shall keep a Patent Register in which the registration of the following matters relating to patent application or patent shall be made:
(1) any grant of the patent;
(2) any transfer of the right of patent application or the patent;
(3) any pledge and preservation of the patent and their discharge;
(4) any patent license contract for exploitation submitted for the record;
(5) declassification of national defense patents or secret patents;
(6) any invalidation of the patent;
(7) any termination of the patent;
(8) any restoration of the patent;
(9) compensation for the patent term;
(10) open license for exploitation of the patent;
(11) any compulsory license for exploitation of the patent;
(12) any change in the name or title, nationality and address of the patentee.
Rule 107. The patent administration department under the State Council shall publish the Patent Gazette at regular intervals, publishing or announcing the following:
(1) the bibliographic data and the abstract of the description of an invention patent application;
(2) any request for substantive examination of an invention patent application and any decision made by the patent administration department under the State Council to conduct on its own initiative the substantive examination of an invention patent application;
(3) any rejection, withdrawal, deemed withdrawal, deemed abandonment, restoration and transfer of an invention patent application after its publication;
(4) any grant of patent and the bibliographic data of the patent;
(5) the abstract of the description of a utility model patent, one drawing or photograph of a design patent;
(6) any declassification of national defense patent or secret patent;
(7) any invalidation of the patent;
(8) any termination or restoration of the patent;
(9) compensation for the patent term
(10) any transfer of the patent;
(11) any patent license contract for exploitation submitted for record;
(12) any pledge or preservation of the patent and their discharge;
(13) any grant of compulsory license for exploitation of the patent;
(14) any matter related to open license for exploitation of the patent;
(15) any change in the name or title, nationality and address of the patentee;
(16) any service of documents by way of making an announcement;
(17) any correction made by the patent administration department under the State Council; and
(18) any other related matters.
Rule 108. The patent administration department under the State Council shall make the patent gazettes, the pamphlets of invention patent applications and the pamphlets of invention patents, utility model patents and design patents available to the public for consultation with free of charge.
Rule 109. The patent administration department under the State Council is responsible for exchanging, in accordance with the principle of reciprocity, patent documents with the patent authorities of other countries or regions or with the patent authorities of regional patent organizations.
Chapter X Fees
Rule 110. When any person files a patent application with, or has other formalities to go through at, the patent administration department under the State Council, he or she or it shall pay the following fees:
(1) application fee, additional fee for filing an application, printing fee for publishing the application, and fee for claiming priority;
(2) substantive examination fee for an invention patent application, and reexamination fee;
(3) annual fee;
(4) fee for requesting restoration of right, and fee for requesting extension of time limit;
(5) fee for making a change in the bibliographic data, fee for requesting for evaluation report of patent, and fee for requesting for announcement of invalidation of patent, fee for certifying a copy of patent documents.
The amount of the fees referred to in the preceding paragraphs shall be prescribed by the development and reform department and the finance administration department under the State Council in conjunction with the patent administration department under the State Council according to their respective functions. The finance administration department and the development and reform department under the State Council may, in conjunction with the patent administration department under the State Council, adjust the categories and criteria of the fees that should be paid for applying for patents and going through other formalities based on the actual conditions.
Rule 111. The fees provided for in the Patent Law and in these Implementing Regulations shall be paid strictly in accordance with relevant provisions.
Where any fee is paid directly to the patent administration department under the State Council, the date on which the fee is paid shall be the date of payment; where any fee is paid by way of postal remittance, the date of remittance indicated by the postmark shall be the date of payment; where any fee is paid by way of bank transfer, the date on which the transfer of the fee is done shall be the date of payment.
Where any patent fee is paid in excess of the amount as prescribed, paid repeatedly or wrongly, the party making the payment may, within three years from the date of payment, request a refund from the patent administration department under the State Council, and the patent administration department under the State Council shall return it.
Rule 112. The applicant shall pay the filing fee, the printing fee for the publication of the application and the necessary additional fee for filing an application within two months from the filing date or fifteen days from the date of receipt of the notification of acceptance of the application from the patent administration department under the State Council. If the fees are not paid or not paid in full within the time limit, the application shall be deemed to be withdrawn.
Where the applicant claims priority, he or she or it shall pay the fee for claiming priority at the same time with the payment of the filing fee. If the fee is not paid or not paid in full within the time limit, the claim for priority shall be deemed not to have been made.
Rule 113. Where the party concerned makes a request for substantive examination or a reexamination, the relevant fee shall be paid within the time limit as prescribed respectively for such requests by the Patent Law and these Implementing Regulations. If the fee is not paid or not paid in full within the time limit, the request is deemed not to have been made.
Rule 114. When the applicant goes through the formalities of registration of the grant of patent, it or he or she shall pay the annual fee of the year in which the patent is granted. If such fees are not paid or not paid in full within the time limit, the registration of the grant of patent shall be deemed not to have been made.
Rule 115. The annual fee of the patent after the year in which the patent is granted shall be paid before the expiration of the preceding year. If the patentee fails to payor pay in full the fee, the patent administration department under the State Council shall notify the patentee to pay the fee or to make up the insufficiency within six months from the expiration of the time limit within which the annual fee is due to be paid, and at the same time pay a surcharge. The amount of the surcharge shall be, for each month of late payment, 5% of the whole amount of the annual fee of the year within which the annual fee is due to be paid. Where the fee and the surcharge are not paid within the time limit, the patent shall terminate from the expiration of the time limit within which the annual fee should be paid.
Rule 116 The fee for requesting restoration of right shall be paid within the relevant time limit prescribed in these Implementing Regulations. If the fee is not paid or not paid in full within the time limit, the request shall be deemed not to have been made.
The fee for request of extension of a time limit shall be paid before the expiration of the relevant time limit. If the fee is not paid or not paid in full within the time limit, the request shall be deemed not to have been made.
The fee for a change in the bibliographic data, fee for requesting for evaluation report of patent and fee for request of invalidation of patent shall be paid within one month from the date on which such request is filed. If the fee is not paid or not paid in full within the time limit, the request shall be deemed not to have been made.
Rule 117. Where any applicant or patentee has difficulties in paying the various fees prescribed in these Implementing Regulations, it or he or she may, in accordance with the prescriptions, submit a request to the patent administration department under the State Council for a reduction of the payment. Measures for the reduction of the payment shall be prescribed by the finance administration department under the State Council in conjunction with the development and reform department under the State Council and the patent administration department under the State Council.
Chapter XI Special Provisions Concerning International Application for Inventions and Utility Models
Rule 118. The patent administration department under the State Council receives international patent applications filed under the Patent Cooperation Treaty in accordance with the provisions of Article 19 of the Patent Law.
For any international application filed under the Patent Cooperation Treaty designating China (hereinafter referred to as the international application), the requirements and procedures for entering the phase of process conducted by the patent administration department under the State Council (hereinafter referred to as entering the Chinese national phase) shall be subject to the provisions prescribed in this chapter. Where no provisions are made in this chapter, the relevant provisions in the Patent Law and in any other chapters of these Implementing Regulations shall apply.
Rule 119. Any international application which has been accorded an international filling date in accordance with the Patent Cooperation Treaty and which has designated China shall be deemed as a patent application filed with the patent administration department under the State Council, and the international filing date shall be deemed as the filing date referred to in Article 28 of the Patent Law.
Rule 120. Any applicant for an international application entering the Chinese national phase shall, within 30 months from the priority date as referred to in Article 2 of the Patent Cooperation Treaty (referred to as "the priority date" in this chapter), go through the formalities for entering the Chinese national phase before the patent administration department under the State Council. If the applicant fails to go through the formalities within the prescribed time limit, he or she or it may, after paying a surcharge for the late entry, go through the formalities for entering the Chinese national phase within the 32 months from the priority date.
Rule 121. When the applicant goes through the formalities for entering the Chinese national phase in accordance with the provisions of Rule 120 of these Implementing Regulations, it or he or she shall fulfill the following requirements:
(1) submitting in Chinese a written statement for entering the Chinese national phase, indicating the international application number and the type of patent sought;
(2) paying the application fee and the printing fee for the publication of the application as provided in Rule 119 paragraph one of these Implementing Regulations, and where necessary, the surcharge for the late entry as provided in Rule 120 of these Implementing Regulations;
(3) submitting the Chinese translation of the description and the claims of the initial international application where an international application is filed in a foreign language;
(4) indicating in the written statement for entering the Chinese national phase the title of the invention-creation, the name or title of the applicant, the address of the applicant and the name of the inventor, all of which should be in conformity with those recorded with the International Bureau under the World Intellectual Property Organization (hereafter referred to as the International Bureau). Where the inventor is not indicated in the international application, the name of the inventor shall be indicated in the statement;
(5) where the international application is filed in a foreign language, submitting the Chinese translation of the abstract; submitting a copy of the drawings and designating the drawing of the abstract where there are drawings and the drawing of the abstract; the text matter in the drawings, if any, shall be replaced by the corresponding text matter in Chinese;
(6) where the applicant has gone through the formalities of changing the applicant before the International Bureau in the international phase, certifying documents shall be furnished to prove the right of the applicant after the change to the international application, when necessary;
(7) payment of the additional fee for application when necessary, as provided in Rule 110paragraph (1) of these Implementing regulations.
Where the requirements set forth in subparagraphs (1) to (3), paragraph one of this Rule are met, the patent administration department under the State Council shall issue the application number, indicate clearly the date of entry of the international application into the Chinese national phase (hereafter referred to as the date of entry), and notify the applicant that its or his or her international application has entered into the Chinese national phase.
Where, after entering the Chinese national phase, it is found that an international application does not meet the requirements as set forth in subparagraphs (4) to (7), paragraph one of this Rule, the patent administration department under the State Council shall notify the applicant to make rectification within the specified time limit. If the applicant fails to do so, the application shall be deemed to have been withdrawn.
Rule 122. Where an international application has any of the following circumstances, the effect of the application in China shall cease:
(1) where in the international phase, the international application has been withdrawn or was deemed to have been withdrawn, or the designation of China of the international application has been withdrawn;
(2) where the applicant fails to go through the formalities for entry into the Chinese national phase within 32 months from the priority date in accordance with the provision of Rule 120 of these Implementing Regulations;
(3) while going through the formalities for entry into the Chinese national phase, the applicant fails to fulfill the requirements of subparagraphs (1) to (3) of Rule 121of these Implementing Regulations at the expiration of the time limit of 32 months from the date of priority.
Where the effect of an international application cease in China in accordance with the provision of subparagraph (1) of the preceding paragraph, the provisions of Rule 6 of these Implementing Regulations shall not apply. Where the effect of an international application cease in China in accordance with the provision of subparagraph (2) or (3) of the preceding paragraph, the provisions of paragraph two of Rule 6 of these Implementing Regulations shall not apply.
Rule 123. Where an international application was amended in the international phase and the applicant requests that the examination be based on the amended application, the Chinese translation of the amendments shall be furnished within two months from the date of entry. Where the Chinese translation is not furnished within the time limit, the amendments made in the international phase shall not be taken into consideration by the patent administration department under the State Council.
Rule 124. Where any invention-creation to which the international application relates has one of the events referred to in subparagraph (1) or (3) Article 24 of the Patent Law and where statements have been made in this respect when the international application was filed, the applicant shall indicate it in the written statement concerning entry into the Chinese national phase, and furnish the relevant certifying documents prescribed in paragraph three of Rule 33 of these Implementing Regulations within two months from the date of entry. If the applicant fails to indicate it or furnish the relevant certifying documents within the time limit, the provisions of Article 24 of the Patent Law shall not apply to its or his application.
Rule 125. Where the applicant has made indications concerning deposited biological materials in accordance with the provisions of the Patent Cooperation Treaty, the requirements provided for in subparagraph (3) of Rule 27 of these Implementing Regulations shall be deemed to have been fulfilled. In the statement concerning entry into the Chinese national phase, the applicant shall indicate the documents recording the particulars of the deposit of the biological materials, and the exact location of the record in the documents.
Where particulars concerning the deposit of the biological materials are contained in the description of the international application as initially filed, but there is no such indication in the statement concerning the entry into the Chinese national phase, the applicant shall make corrections within four months from the date of entry. If the correction is not made at the expiration of the time limit, the biological materials shall be deemed not to have been deposited.
Where, within four months from the date of entry, the applicant has submitted the certificates of the deposit and the viability of the biological materials to the patent administration department under the State Council, the deposit of biological materials shall be deemed to have been furnished within the time limit as provided for in subparagraph (1) of Rule 27 of these Implementing Regulations.
Rule 126. Where an invention-creation has been developed relying on the use of genetic resources for which the international application is filed, the applicant shall indicate the fact in the written statement for entering the Chinese national phase, and fill in the forms provided by the patent administration department under the State Council.
Rule 127. Where the applicant claims one or multiple priorities in the international phase and such claims remain valid at the time when the application enters the Chinese national phase, the applicant shall be deemed to have submitted the written declaration in accordance with the provisions of Article 30 of the Patent Law.
The applicant shall pay a fee for the claim of priority within two months from the date of entry. If the fee is not paid or not paid in full within the time limit, the priority shall be deemed not to have been claimed.
Where the applicant has submitted a copy of the earlier application in the international phase in accordance with the provisions of the Patent Cooperation Treaty, he or she or it shall be exempted from submitting a copy of the earlier application to the patent administration department under the State Council at the time of going through the formalities for entering the Chinese national phase. Where the applicant has not submitted a copy of the earlier application in the international phase, and if the patent administration department under the State Council deems necessary, it may notify the applicant to submit a copy of the earlier application within the specified time limit. If no copy is submitted at the expiration of the time limit, his or her or its claim for priority shall be deemed not to have been made.
Rule 128. Where the filing date of an international application is within 2 months from the expiration of priority term, and the Receiving Office has approved the restoration of priority in the international phase, it shall be deemed that a request for restoration of priority has been filed in accordance with Rule 36 of these Implementing Regulations; where the applicant does not request restoration of priority in the international phase, or has filed such request but the request has not been approved by the Receiving Office, the applicant may, within 2 months as of the entry date, file a request for restoration of priority with justified reasons with the patent administration department under the State Council.
Rule 129. Where, before the expiration of 30 months from the priority date, the applicant files a request with the patent administration department under the State Council for early processing and examination of his or her or its international application, he or she or it shall, in addition to going through the formalities for entering the Chinese national phase, submit a request in accordance with the provisions in Article 23, paragraph two of the Patent Cooperation Treaty. Where the international application has not been transmitted by the International Bureau to the patent administration department under the State Council, the applicant shall submit a certified copy of the international application.
Rule 130. With regard to an international application for a utility model patent, the applicant may amend the patent application documents on its or his or her own initiative within two months from the date of entry.
With regard to an international application for an invention patent, the provisions of Rule 57, paragraph one of these Implementing Regulations shall apply.
Rule 131. Where the applicant finds that there are mistakes in the Chinese translation of the description, the claims or the text matter in the drawings as filed, he or she or it may correct the translation in accordance with the international application as filed within the following time limits:
(1) before the completion of preparations for publication of an invention patent application or announcement of a utility model patent by the patent administration department under the State Council;
(2) within three months from the date of receipt of the notification sent by the patent administration department under the State Council, stating that the invention patent application has entered into the substantive examination phase.
Where the applicant intends to correct the mistakes in the translation, he or she or it shall file a written request and pay the prescribed fee for the correction of the translation.
Where the applicant makes correction of the translation in accordance with the notification of the patent administration department under the State Council, he or she or it shall, within the specified time limit, go through the formalities prescribed in paragraph 2 of this Rule. If the prescribed formalities are not gone through at the expiration of the time limit, the international application shall be deemed to be withdrawn.
Rule 132. With regard to any international application for an invention patent, if the patent administration department under the State Council, after preliminary examination, considers it in compliance with relevant provisions of the Patent Law and these Implementing Regulations, it shall publish it in the Patent Gazette; where the international application is filed in a language other than Chinese, the Chinese translation of the international application shall be published.
Where the international publication of an international application for an invention patent by the International Bureau is in Chinese, the provisions of Article 13 of the Patent Law shall apply from the date of the international publication or the date of publication made by the patent administration department under the State Council. If the international publication by the International Bureau is in a language other than Chinese, the provisions of Article 13 of the Patent Law shall apply from the date of the publication of the Chinese translation by the patent administration department under the State Council.
With regard to an international application, the publication referred to in Articles 21 and 22 of the Patent Law means the publication referred to in paragraph 1 of this Rule.
Rule 133. Where two or more inventions or utility models are contained in an international application, the applicant may, from the date of entry, submit a divisional application in accordance with the provisions in paragraph one of Rule 48 of these Implementing Regulations.
Where, in the international phase, some parts of the international application have not been the subject of international search or international preliminary examination because the International Searching Authority or the International Preliminary Examination Authority considers that the international application does not comply with the requirement of unity of invention prescribed in the Patent Cooperation Treaty, and the applicant fails to pay the additional fee, whereas at the time of going through the formalities for entering the Chinese national phase, the applicant requests that the parts be the basis of examination, the patent administration department under the State Council, finding that the decision concerning unity of invention made by the International Searching Authority or the International Preliminary Examination Authority is justified, shall notify the applicant to pay the restoration fee for unity of invention within the specified time limit. Where the fee is not paid or not paid in full at the expiration of the prescribed time limit, those parts of the international application which have not been searched or have not been the subject of international preliminary examination shall be deemed to be withdrawn.
Rule 134. Where an international application in the international phase has been refused to be accorded an international filling date or has been declared to be deemed withdrawn by an international authority concerned, the applicant may, within two months from the date on which he or she or it receives the notification, request the International Bureau to send the copy of any document in the file of the international application to the patent administration department under the State Council, and shall go through the formalities prescribed in Rule 120 of these Implementing Regulations within the time limit before the patent administration department under the State Council. After receiving the documents sent by the International Bureau, the patent administration department under the State Council shall review the decision made by the international authority concerned to find whether it is correct.
Rule 135. With regard to a patent granted on the basis of an international application, if the scope of protection determined in accordance with the provisions of Article 64 of the Patent Law exceeds the scope of the international application in its original language because of incorrect translation, the scope of protection granted on the international application shall be determined according to what is limited in the original language of the application; if the scope of protection granted on the international application is narrower than the scope of the application in its original language, the scope of protection shall be determined according to the patent when it is granted.
Chapter XI Special Provisions Concerning International Design Applications
Rule 136. The patent administrative department under the State Council, in accordance with the provisions of paragraphs two and three of Article 19 of the Patent Law, handles international applications for design registration filed under the Hague Agreement Concerning the International Registration of Industrial Designs (1999) (hereinafter referred to as the "Hague Agreement").
The conditions and procedures for the handling of international applications for design registration filed under the Hague Agreement and designating China (hereinafter referred to as "international design applications") by the patent administrative department of the State Council shall be governed by the provisions of this chapter; where this chapter does not provide for such conditions and procedures, the relevant provisions of the Patent Law and other chapters of these Implementing Regulations shall apply.
Rule 137. An international design application that has been assigned an international registration date under the Hague Agreement and designates China shall be deemed as a design patent application filed with the patent administrative department under the State Council, and the international registration date shall be deemed as the date of filing referred to in Article 28 of the Patent Law.
Rule 138. After the International Bureau publishes an international design application, the patent administrative department under the State Council shall examine the international design application and notify the International Bureau of the examination results.
Rule 139. If the international design application published by the International Bureau includes one or more priorities, it shall be deemed to have submitted a written declaration in accordance with the provisions of Article 30 of the Patent Law.
Where the applicant of an international design application claims priority, it/he/she shall submit a certified copy of the earlier application documents within three months from the date of publication of the international design application.
Rule 140. Where the industrial design filed in an international design application falls under the circumstances listed in subparagraph (2) or (3) of Article 24 of the Patent Law, a statement shall be made at the time of filing the international design application, and the relevant certifying documents specified in paragraph three of Rule 33 of these Implementing Regulations shall be submitted within two months from the date of publication of the international design application.
Rule 141. Where an international design application includes two or more designs, the applicant may, within two months from the date of publication of the international design application, file a divisional application with the patent administrative department under the State Council and pay the prescribed fee.
Rule 142.Where an international design application published by the International Bureau includes a description of the essential features of the design, it shall be deemed to have submitted a brief specification in accordance with the provisions of Rule 31 of these Implementing Regulations.
Rule 143. Where the patent administrative department under the State Council finds no reason for rejection upon examination of the international design application, it shall make a decision to grant protection and notify the International Bureau.
After the patent administrative department under the State Council makes a decision to grant protection, it shall announce it, and the design patent shall take effect from the date of the announcement.
Rule 144. Where the formalities for the change of rights have been gone through in the International Bureau, the applicant shall submit relevant certifying materials with the patent administrative department under the State Council.
Chapter XIII Supplementary Provisions
Rule 145. Any person may, after approval by the patent administration department under the State Council, consult or copy the files of the published or announced patent applications and the Patent Register. Any person may request the patent administration department under the State Council to issue a copy of extracts from the Patent Register.
The files of the patent applications which have been withdrawn or deemed to be withdrawn or which have been rejected, shall not be preserved after expiration of two years from the date on which the applications cease to be valid.
Where the patent has been abandoned, wholly invalidated or terminated, the files shall not be preserved after expiration of three years from the date on which the patent ceases to be valid.
Rule 146. Any patent application which is filed with, or any formality which is gone through before, the patent administration department under the State Council shall be signed or sealed by the applicant, the patentee, any other interested person or his or her or its representative. Where any patent agency is appointed, it shall be sealed by such agency.
Where a change in the name of the inventor, or in the title or name, nationality and address of the applicant or the patentee, or in the title and address of the patent agency and the name of patent agent is requested, a request for a change in the bibliographic data shall be made to the patent administration department under the State Council, and the relevant certifying documents shall be filed when necessary.
Rule 147. The document relating to a patent application or patent which is mailed to the patent administration department under the State Council shall be mailed by registered letter, not by parcel.
Except for the patent application documents filed for the first time, when filing any document and going through any formality before the patent administration department under the State Council, the application number or the patent number, the title of the invention-creation and the title or name of the applicant or the patentee shall be indicated.
Only documents relating to the same application shall be included in one letter.
Rule 148. The patent administration department under the State Council shall formulate Guidelines for Examination in accordance with the Patent Law and these Implementing Regulations.
Rule 149. These Implementing Regulations shall enter into force on July 1, 2001. The Implementing Regulations of the Patent Law of the People's Republic of China approved by the State Council on December 12, 1992 and promulgated by the Patent Office of the People's Republic of China on December 21, 1992 shall be repealed at the same time.
