(Promulgated by Decree No. 306 of the State Council
of the People's Republic of China on June 15,
2001, and effective as of July 1, 2001)
(Translated by the Patent Administration Department
under the State Council of the People's
Republic of China. In case of discrepancy, the
original version shall prevail.)
Chapter I General
Provisions
Rule 1. These Implementing Regulations are
formulated in accordance with the Patent Law
of the People's Republic of China (hereinafter
referred to as the Patent Law).
Rule 2 "Invention" in the Patent Law means
any new technical solution relating to a product,
a process or improvement thereof.
"Utility model" in the Patent Law means any
new technical solution relating to the shape,
the structure, or their combination, of a product,
which is fit for practical use.
"Design" in the Patent Law means any new design
of the shape, the pattern or their combination,
or the combination of the color with shape or
pattern, of a product, which creates an aesthetic
feeling and is fit for industrial application.
Rule 3 Any formalities prescribed by the Patent
Law and these Implementing Regulations shall
be complied with in a written form or in any
other form prescribed by the Patent Administration
Department under the State Council .
Rule 4 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 5 Where any document is sent by
mail to the Patent Administration Department
under the State Council , the date of
mailing indicated by the postmark on the envelope
shall be deemed to be the date of filing; where
the date of mailing indicated by the postmark
on the envelope is illegible, the date on which
the Patent Administration Department under the
State Council receives the document
shall be the date of filing, except where the
date of mailing is proved by the party concerned.
Any document of the Patent Administration Department
under the State Council may be served
by mail, by personal delivery or by other forms.
Where any party concerned appoints a patent
agency, the document shall be sent to the patent
agency; where no patent agency is appointed,
the document shall be sent to the liaison person
named in the request.
Where any document is sent by mail by
the Patent Administration Department under the
State Council , the 16th day from the
date of mailing shall be presumed to be the
date on which the party concerned receives the
document.
Where any document is delivered personally in
accordance with the provisions of the Patent
Administration 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 be served.
Rule 6 The first day of any time limit prescribed
in the Patent Law and these Implementing Regulations
shall not be counted in the time limit. Where
the time limit is counted by year or by month,
it shall expire on the corresponding day of
the last month; if there is no corresponding
day in that month, the time limit shall expire
on the last day of that month; if a time limit
expires on an official holiday, it shall expire
on the first working day following that official
holiday.
Rule 7 Where a time limit prescribed in the
Patent Law or these Implementing Regulations
or specified by the Patent Administration Department
under the State Council is not observed
by a party concerned because of force majeure,
resulting in loss of his or its rights, he or
it may, within two months from the date on which
the impediment is removed, at the latest within
two years immediately following the expiration
of that time limit, state the reasons, together
with relevant supporting documents, and request
the Patent Administration Department under the
State Council to restore his or
its rights.
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 justified
reason, resulting in loss of his or its rights,
he or it may, within two months from the date
of receipt of a notification from the Patent
Administration Department under the State Council
, state the reasons and request the Patent Administration
Department under the State Council
to restore his or its rights.
Where the party concerned makes a request for
an extension of a time limit specified by the
Patent Administration Department under the State
Council , he or it shall, before the time
limit expires, state the reasons to the Patent
Administration Department under the State Council
and go through the relevant formalities.
The provisions of paragraphs one and two of
this Rule shall not be applicable to the time
limit referred to in Articles 24, 29, 42 and
62 of the Patent Law.
Rule 8 Where an application for a patent for
invention relates to the secrets of the State
concerning national defense and requires to
be kept secret, the application for patent shall
be filed with the patent department of national
defense. Where any application for patent for
invention relating to the secrets of the State
concerning national defense and requiring to
be kept secret is received by the Patent Administration
Department under the State Council , the
application shall be forwarded to the patent
department of national defense for examination,
and the Patent Administration Department under
the State Council shall make a decision
on the basis of the observations of the examination
made by the patent department of national defense.
Subject to the preceding paragraph, the
Patent Administration Department under the State
Council shall, after receipt of
an application for patent for invention which
is required to be examined for the purpose of
security, send it to the relevant competent
department under the State Council for examination.
The relevant competent department shall, within
four months from the date of receipt of the
application, notify the Patent Administration
Department under the State Council
of the results of the examination. Where the
invention for which a patent is applied for
is required to be kept secret, the Patent Administration
Department under the State Council
shall handle it as an application for secret
patent and notify the applicant accordingly.
Rule 9 Any invention-creation that is contrary
to the laws of the State 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 of the State.
Rule 10 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 l1 "A service invention-creation
made by a person in execution of the tasks of
the entity to which he belongs" referred to
in Article 6 of the Patent Law means any invention-creation
made:
(1) in the course of performing his own duty;
(2) in execution of any task, other than his
own duty, which was entrusted to him by the
entity to which he belongs;
(3) within one year from his resignation, retirement
or change of work, where the invention-creation
relates to his own duty or the other task entrusted
to him by the 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.
Rule 12 "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 offers facilities for making use of material
and technical means, or who takes part in other
auxiliary functions, shall not be considered
as inventor or creator.
Rule l3 For any identical invention-creation,
only one patent right shall be granted.
Two or more applicants who respectively file,
on the same day, applications for patent for
the identical invention-creation, as provided
for in Article 9 of the Patent Law, shall, after
receipt of a notification from the Patent Administration
Department under the State Council , hold
consultations among themselves to decide the
person or persons who shall be entitled to file
the application.
Rule 14 Any assignment of the right to apply
for a patent or of the patent right, by a Chinese
entity or individual, to a foreigner shall be
approved by the competent department for foreign
trade and economic affairs of the State Council
in conjunction with the science and technology
administration department of the State Council.
Rule 15 Except for the assignment of the patent
right in accordance with Article 10 of the Patent
Law, where the patent right is transferred because
of any other reason, the person or persons concerned
shall, accompanied by relevant certified documents
or legal papers, request the Patent Administration
Department under the State Council
to make a registration of change in the owner
of the patent right.
Any license contract for exploitation of the
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.
Chapter II Application for Patent
Rule l6 Anyone who applies for a patent in
written form shall file with the Patent Administration
Department under the State Council
application documents in two copies.
Anyone who applies for a patent in other forms
as provided by the Patent Administration Department
under the State Council shall comply
with the relevant provisions.
Any applicant who appoints a patent agency for
applying for a patent, or for having other patent
matters to attend to before the Patent Administration
Department under the State Council , shall
submit at the same time a power of attorney
indicating the scope of the power entrusted.
Where there are two or more applicants and no
patent agency is appointed, unless otherwise
stated in the request, the applicant named first
in the request shall be the representative.
Rule l7 "Other related matters" in the request
referred to in Article 26, paragraph two of
the Patent Law means:
(1) the nationality of the applicant;
(2) where the applicant is an enterprise or
other organization, the name of the country
in which the applicant has the principal business
office;
(3) where the applicant has appointed a patent
agency, the relevant matters which shall be
indicated; where no patent agency is appointed,
the name, address, postcode and telephone number
of the liaison person;
(4) where the priority of an earlier application
is claimed, the relevant matters which shall
be indicated;
(5) the signature or seal of the applicant or
the patent agency;
(6) a list of the documents constituting the
application;
(7) a list of the documents appending the application;
and
(8) any other related matter which needs to
be indicated.
Rule l8 The description of an application for
a patent for invention or utility model shall
state the title of the invention or utility
model, which shall be the same as it appears
in the request. The description shall include
the following:
(1) technical field: specifying the technical
field to which the technical solution for which
protection is sought pertains;
(2) background art: indicating the background
art which can be regarded as useful for the
understanding, searching and examination of
the invention or utility model, and when possible,
citing the documents reflecting such art;
(3) contents of the invention: disclosing the
technical problem the invention or utility model
aims to settle and the technical solution adopted
to resolve the problem; and stating, with reference
to the prior art, the advantageous effects of
the invention or utility model;
(4) description of figures: briefly describing
each figure in the drawings, if any;
(5) mode of carrying out the invention or utility
model: describing in detail the optimally selected
mode contemplated by the applicant for carrying
out the invention or utility model; where appropriate,
this shall be done in terms of examples, and
with reference to the drawings, if any;
The manner and order referred to in the preceding
paragraph shall be followed by the applicant
for a patent for invention or for utility model,
and each of the parts shall be preceded by a
heading, unless, because of the nature of the
invention or utility model, a different manner
or order would result in a better understanding
and a more economical presentation.
The description of the invention or utility
model shall use standard terms and be in clear
wording, and shall not contain such references
to the claims as: "as described in claim ?",
nor shall it contain commercial advertising.
Where an application for a patent for invention
contains disclosure of one or more nucleotide
and/or amino acid sequences, the description
shall contain a sequence listing in compliance
with the standard prescribed by the Patent Administration
Department under the State Council . The
sequence listing shall be submitted as a separate
part of the description, and a copy of the said
sequence listing in machine-readable form shall
also be submitted in accordance with the provisions
of the Patent Administration Department under
the State Council .
Rule l9 The same sheet of drawings may contain
several figures of the invention or utility
model, and the figures shall be numbered and
arranged in numerical order consecutively as
"Figure l, Figure 2, ?".
The scale and the distinctness of the drawings
shall be as such that a reproduction with a
linear reduction in size to two-thirds would
still enable all details to be clearly distinguished.
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 20 The claims shall define clearly and
concisely the matter for which protection is
sought in terms of the technical features of
the invention or utility model.
If there are several claims, they shall be numbered
consecutively in Arabic numerals.
The technical terminology 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 of the description.
Such reference signs shall follow the corresponding
technical features and be placed in parentheses.
They shall not be construed as limiting the
claims.
Rule 2l 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 22 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 23 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:
(l) a reference portion: indicating the serial
number(s) of the claim(s) referred to, and the
title of the subject matter;
(2) a characterizing portion: stating the additional
technical features of the invention or utility
model.
Any dependent claim shall only refer to the
preceding claim or claims. Any multiple dependent
claims, which refers to two or more claims,
shall refer to the preceding one in the alternative
only, and shall not serve as a basis for any
other multiple dependent claims.
Rule 24 The abstract shall consist of a summary
of the disclosure as contained in the application
for patent for invention or utility model. The
summary shall indicate the title of the invention
or utility model, and the technical field to
which the invention or utility model pertains,
and shall be drafted in a way which allows the
clear understanding of the technical problem,
the gist of the technical solution of 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 an
application for a patent which contains drawings,
the applicant shall provide a figure which best
characterizes the technical features of the
invention or utility model. The scale and the
distinctness of the figure shall be as such
that a reproduction with a linear reduction
in size to 4cm x 6cm would still enable all
details to be clearly distinguished. The whole
text of the abstract shall contain not more
than 300 words. There shall be no commercial
advertising in the abstract.
Rule 25 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 filing date, 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 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 26 Where the applicant for a patent for
invention has deposited a sample of the biological
material in accordance with the provisions of
Rule 25 of these Implementing Regulations, and
after the application for patent for invention
is published, any entity or individual that
intends to make use of the biological material
to which the application relates, for the purpose
of experiment, shall make a request to the Patent
Administration Department under the State Council
, containing the following items:
(1) the name and address of the requesting person;
(2) an undertaking not to make the biological
material available to any other person;
(3) an undertaking to use the biological material
for experimental purpose only before the grant
of the patent right.
Rule 27 The size of drawings or photographs
of a design submitted in accordance with the
provisions of Article 27 of the Patent Law shall
not be smaller than 3cm x 8cm, nor larger
than l5cm x 22cm.
Where an application for a patent for design
seeking concurrent protection of colors is filed,
a drawing or photograph in color shall be submitted
in two copies.
The applicant shall, in respect of the subject
matter of the product incorporating the design
which is in need of protection, submit the relevant
views and stereoscopic drawings or photographs,
so as to clearly show the subject matter for
which protection is sought.
Rule 28 Where an application for a patent for
design is filed, a brief explanation of the
design shall, when necessary, be made.
The brief explanation of the design shall include
the essential portion of the design, the colors
for which protection is sought and the omission
of the view of the product incorporating the
design. The brief explanation shall not contain
any commercial advertising and shall not be
used to indicate the function of the product.
Rule 29 Where the Patent Administration Department
under the State Council deems necessary,
it may require the applicant for a patent for
design to submit a sample or model of the product
incorporating the design. The volume of the
sample or model submitted shall not exceed 30cm
x 30cm x 30cm, and its weight shall not surpass
l5 kilograms. Articles that are easy to get
rotten or broken or articles that are dangerous
shall not be submitted as sample or model.
Rule 30 The existing technology referred to
in Article 22, paragraph three of the Patent
Law means any technology which has been publicly
disclosed in publications in the country or
abroad, or has been publicly used or made known
to the public by any other means in the country,
before the date of filing (or the priority date
where priority is claimed), that is, prior art.
Rule 3l The academic or technological meeting
referred to in Article 24, subparagraph (2)
of the Patent Law means any academic or technological
meeting organized by a competent department
concerned of the State Council or by a national
academic or technological association.
Where any invention-creation for which a patent
is applied falls under the provisions of Article
24, subparagraph (l) or (2) of the Patent Law,
the applicant shall, when filing the application,
make a declaration and, within a time limit
of two months from the date of filing, submit
certifying documents issued by the entity which
organized the international exhibition or academic
or technological meeting, stating the fact that
the invention-creation was exhibited or published
and with the date of its exhibition or publication.
Where any invention-creation for which a patent
is applied falls under the provisions of Article
24, subparagraph (3) of the Patent Law, the
Patent Administration Department under the State
Council may, when it deems necessary,
require the applicant to submit the relevant
certifying documents within the specified time
limit.
Where the applicant fails to make a declaration
and submit certifying documents as required
in paragraph two of this Rule, or fails to submit
certifying documents within the specified time
limit as required in paragraph three of this
Rule, the provisions of Article 24 of the Patent
Law shall not apply to the application.
Rule 32 Where any applicant goes through the
formalities of claims priority in accordance
with the provisions of Article 30 of the Patent
Law, he or it shall, in his or its written declaration,
indicate the date and the number of the application
which was first filed (hereinafter referred
to as the earlier application) and the country
in which the application was filed. If the written
declaration does not contain the filing date
of the earlier application and the name of the
country in which the application was filed,
the declaration shall be deemed not to have
been made.
Where the foreign priority is claimed, the copy
of the earlier application documents submitted
by the applicant shall be certified by the competent
authority of the foreign country in which the
application was filed. Where in the certifying
material submitted, the name of the earlier
applicant is not the same as that of the later
one, the applicant shall submit document certifying
the assignment of priority. Where the domestic
priority is claimed, the copy of the earlier
application document shall be prepared by the
Patent Administration Department under the State
Council .
Rule 33 An applicant may claim one or more
priorities for an application for a patent;
where multiple priorities are claimed, the priority
period for the application shall be calculated
from the earliest priority date.
Where an applicant claims the right of domestic
priority, if the earlier application is one
for a patent for invention, he or it may file
an application for a patent for invention or
utility model for the same subject matter; if
the earlier application is one for a patent
for utility model, he or it may file an application
for a patent for utility model or invention
for the same subject matter. However, when the
later application is filed, if the subject matter
of the earlier application falls under any of
the following, it may not be taken as the basis
for claiming domestic priority:
(1) where the applicant has claimed foreign
or domestic priority;
(2) where it has been granted a patent right;
(3) where it is the subject matter of a divisional
application filed as prescribed.
Where the domestic priority is claimed, the
earlier application shall be deemed to be withdrawn
from the date on which the later application
is filed.
Rule 34 Where an application for a patent is
filed or the right of foreign priority is claimed
by an applicant having no habitual residence
or business office in China, the Patent Administration
Department under the State Council
may, when it deems necessary, require the applicant
to submit the following documents:
(1) a certificate concerning the nationality
of the applicant;
(2) a document certifying the seat of the business
office or the headquarters, if the applicant
is an enterprise or other organization;
(3) a document certifying that the country,
to which the foreigner, foreign enterprise or
other foreign organization belongs, recognizes
that Chinese entities and individuals are, under
the same conditions as those applied to its
nationals, entitled to the patent right, the
right of priority and other related rights in
that country.
Rule 35 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 provision of Article 3l, paragraph
one of the Patent Law shall be technically inter-related
and contain one or more of the same or corresponding
special technical features. The expression "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 36 The expression "the same class" referred
to in Article 3l, paragraph two of the Patent
Law means that the product incorporating the
designs belongs to the same subclass in the
classification of products for designs. The
expression "be sold or used in sets" means that
the products incorporating the designs have
the same designing concept and are customarily
sold and used at the same time.
Where two or more designs are filed as one application
in accordance with the provision of Article
3l, paragraph two of the Patent Law, they shall
be numbered consecutively and the numbers shall
precede the titles of the view of the product
incorporating the design.
Rule 37 When withdrawing an application
for a patent, the applicant shall submit to
the Patent Administration Department under the
State Council a declaration to that
effect stating the title of the invention-creation,
the filing number and the date of filing.
Where a declaration to withdraw an application
for a patent is submitted after the preparations
for the publication of the application document
has been completed by the Patent Administration
Department under the State Council , the
application document shall be published as scheduled.
However, the declaration withdrawing the application
for patent shall be published in the next issue
of the Patent Gazette.
Chapter III Examination and Approval
of Application for Patent
Rule 38 Where any of the following events occurs,
a person who makes examination or hears a case
in the procedures of preliminary examination,
examination as to substance, reexamination or
invalidation shall, on his own initiative or
upon the request of the parties concerned or
any other interested person, be excluded from
excising his function:
(1) where he is a near relative of the party
concerned or the agent of the party concerned;
(2) where he has an interest in the application
for patent or the patent right;
(3) where he has any other kinds of relations
with the party concerned or with the agent
of the party concerned that may influence impartial
examination and hearing.
(4) where a member of the Patent Reexamination
Board who has taken part in the examination
of the same application.
Rule 39 Upon the receipt of an application for
a patent for invention or utility model consisting
of a request, a description (drawings must be
included in an application for utility model)
and one or more claims, or an application for
a patent for design consisting of a request
and one or more drawings or photographs showing
the design, the Patent Administration Department
under the State Council shall accord
the date of filing, issue a filing number, and
notify the applicant.
Rule 40 In any of the following circumstances,
the Patent Administration Department under the
State Council shall refuse to accept
the application and notify the applicant accordingly:
(1) where the application for a patent for invention
or utility model does not contain a request,
a description (the description of utility model
does not contain drawings) or claims, or the
application for a patent for design does not
contain a request, drawings or photographs;
(2) where the application is not written in
Chinese;
(3) where the application is not in conformity
with the provisions of Rule120, paragraph one
of these Implementing Regulations;
(4) where the request does not contain the name
and address of the applicant;
(5) where the application is obviously not in
conformity with the provisions of Article 18,
or of Article l9, paragraph one of the Patent
Law;
(6) where the kind of protection (patent for
invention, utility model or design) of the application
for a patent is not clear and definite or cannot
be ascertained.
Rule 41 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 42 Where an application for a patent contains
two or more inventions, utility models or designs,
the applicant may, before the expiration of
the time limit provided for in Rule 54, paragraph
one of these Implementing Regulations, submit
to the Patent Administration Department under
the State Council a divisional application.
However, where an application for patent has
been rejected, withdrawn or is deemed to have
been withdrawn, no divisional application may
be filed.
If the Patent Administration Department under
the State Council finds that an
application for a patent is not in conformity
with the provisions of Article 3l of the Patent
Law or of Rule 35 or 36 of these Implementing
Regulations, it shall invite the applicant to
amend the application within a specified time
limit; if the applicant fails to make any response
after the expiration of the specified time limit,
the application shall be deemed to have been
withdrawn.
The divisional application may not change the
kind of protection of the initial application.
Rule 43 A divisional application filed in accordance
with the provisions of Rule 42 of these Implementing
Regulations shall be entitled to the filing
date and, if priority is claimed, the
priority date of the initial application, provided
that the divisional application does not go
beyond the scope of disclosure contained in
the initial application.
The divisional application shall go through
all the formalities in accordance with the provisions
of the Patent Law and these Implementing Regulations.
The filing number and the date of filing of
the initial application shall be indicated in
the request of the divisional application. When
the divisional application is filed, it shall
be accompanied by a copy of the initial application;
if priority is claimed for the initial application,
a copy of the priority document of the initial
application shall also be submitted.
Rule 44 "Preliminary examination" referred
to in Articles 34 and 40 of the Patent Law means
the check of an application for a patent to
see whether or not it contains the documents
as provided for in Articles 26 or 27 of the
Patent Law and other necessary documents, and
whether or not those documents are in the prescribed
form; such check shall also include the following:
(1) whether or not any application for a patent
for invention obviously falls under Articles
5 or 25 of the Patent Law, or is not in conformity
with the provisions of Article l8 or of Article
l9, paragraph one of the Patent Law, or is obviously
not in conformity with the provisions of Article
3l, paragraph one, or Article 33 of the Patent
Law, or of Rule 2, paragraph one, or Rule 18,
or Rule 20 of these Implementing Regulations;
(2) whether or not any application for a patent
for utility model obviously falls under Article
5 or 25 of the Patent Law, or is not in conformity
with the provisions of Article l8 or of Artic
le l9, paragraph one of the Patent Law, or is
obviously not in conformity with the provisions
of Article 26, paragraph three or four, or of
Article 3l, paragraph one, or of Article 33
of the Patent Law, or of Rule 2, paragraph two,
or of Rule l3, paragraph one, or of Rule l8
to 23, or of Rule 43, paragraph one of these
Implementing Regulations, or is not entitled
to a patent right in accordance with the provisions
of Article 9 of the Patent Law;
(3) whether or not any application for a patent
for design obviously falls under Article 5 of
the Patent Law, or is not in conformity with
the provisions of Article l8 or of Article l9,
paragraph one of the Patent Law, or is obviously
not in conformity with the provisions of Article
3l, paragraph two, or of Article 33 of the Patent
Law, or of Rule 2, paragraph three, or of Rule
l3, paragraph one, or of Rule 43, paragraph
one of these Implementing Regulations, or is
not entitled to a patent right in accordance
with the provisions of Article 9 of the Patent
Law.
The Patent Administration Department under the
State Council shall notify the applicant
of its opinions after checking his or its application
and invite him or it to state his or its observations
or to correct his or its application within
the specified time limit. If the applicant fails
to make any response within the specified time
limit, the application shall be deemed to have
been withdrawn. Where, after the applicant has
made his or its observations or the corrections,
the Patent Administration Department under the
State Council still finds that the
application is not in conformity with the provisions
of the Articles and the Rules cited in the preceding
subparagraphs, the application shall be rejected.
Rule 45 Apart from the application for patent,
any document relating to the patent application
which is submitted to the Patent Administration
Department under the State Council , shall,
in any of the following circumstances, be deemed
not to have been submitted:
(1) where the document is not presented in the
prescribed form or the indications therein are
not in conformity with the prescriptions;
(2) where no certifying document is submitted
as prescribed.
The Patent Administration
Department under the State Council
shall notify the applicant of its opinion after
checking that the document is deemed not to
have been submitted.
Rule 46 Where the applicant requests an earlier
publication of its or his application for a
patent for invention, a statement shall be made
to the Patent Administration Department under
the State Council . The Patent Administration
Department under the State Council
shall, after preliminary examination of the
application, publish it immediately, unless
it is to be rejected.
Rule 47 The applicant shall, when indicating
in accordance with Article 27 of the Patent
Law the product incorporating the design and
the class to which that product belongs, refer
to the classification of products for designs
published by the Patent Administration Department
under the State Council . Where no indication,
or an incorrect indication, of the class to
which the product incorporating the design belongs
is made, the Patent Administration Department
under the State Council shall supply
the indication or correct it.
Rule 48 Any person may, from the date of publication
of an application for a patent for invention
till the date of announcing the grant of the
patent right, submit to the Patent Administration
Department under the State Council
his observations, with reasons therefor,
on the application which is not in conformity
with the provisions of the Patent Law.
Rule 49 Where the applicant for a patent for
invention cannot furnish, for justified reasons,
the documents concerning any search or results
of any examination specified in Article 36 of
the Patent Law, it or he shall make a statement
to the Patent Administration Department under
the State Council and submit them
when the said documents are available.
Rule 50 The Patent Administration Department
under the State Council shall, when
proceeding on its own initiative to examine
an application for a patent in accordance with
the provisions of Article 35, paragraph two
of the Patent Law, notify the applicant accordingly.
Rule 5l When a request for examination as to
substance is made, and that, within the time
limit of three months after the receipt of the
notification of the Patent Administration Department
under the State Council, the application has
entered into examination as to substance, the
applicant for a patent for invention may amend
the application for a patent for invention on
its or his own initiative.
Within two months from the date of filing, the
applicant for a patent for utility model or
design may amend the application for a patent
for utility model or design on its or his own
initiative.
Where the applicant amends the application after
receiving the notification of opinions of the
examination as to substance of the Patent Administration
Department under the State Council , he
or it shall make the amendment as required by
the notification.
The Patent Administration Department under the
State Council may, on its own initiative,
correct the obvious clerical mistakes and symbol
mistakes in the documents of application for
a patent. Where the Patent Administration Department
under the State Council corrects
mistakes on its own initiative, it shall notify
the applicant.
Rule 52 When an amendment to the description
or the claims in an application for a patent
for invention or utility model is made, a replacement
sheet in prescribed form shall be submitted,
unless the amendment concerns only the alteration,
insertion or deletion of a few words. Where
an amendment to the drawings or photographs
of an application for a patent for design is
made, a replacement sheet shall be submitted
as prescribed.
Rule 53 In accordance with the provisions of
Article 38 of the Patent Law, the circumstances
where an application for a patent for invention
shall be rejected by the Patent Administration
Department under the State Council
after examination as to substance are as follows:
(1) where the application does not comply with
the provisions of Rule 2, paragraph one of these
Implementing Regulations;
(2) where the application falls under the provisions
of Article 5 or 25 of the Patent Law, or it
does not comply with the provisions of Article
22 of the Patent Law or of Rule l3, paragraph
one, or of Rule 20, paragraph one, or of Rule
21, paragraph two of these Implementing Regulations,
or the applicant is not entitled to a patent
right in accordance with the provisions of Article
9 of the Patent Law;
(3) where the application does not comply with
the provisions of Article 26, paragraph three
or four, or of Article 3l, paragraph one of
the Patent Law;
(4) where the amendment to the application does
not comply with the provisions of Article 33
of the Patent Law, or the divisional application
does not comply with the provisions of Rule
43, paragraph one of these Implementing Regulations.
Rule 54 After the Patent Administration Department
under the State Council issues the
notification to grant the patent right, the
applicant shall go through the formalities of
registration within two months from the date
of receipt of the notification. If the applicant
completes the formalities of registration within
the said time limit, the Patent Administration
Department under the State Council
shall grant the patent right, issue the patent
certificate and announce it.
If the applicant does not go through the formalities
of registration within the time limit, he or
it shall be deemed to have abandoned its or
his right to obtain the patent right.
Rule 55 After the announcement of the decision
to grant a patent for utility model, the patentee
of the said patent for utility model may request
the Patent Administration Department under the
State Council to make a search report
on the utility model patent.
Where such person requests for a search report
on a utility model patent, he shall submit a
request, indicating the patent number of the
said patent for utility model. Each request
shall be limited for one patent for utility
model.
After receiving a request for a search report
on a utility model patent, the Patent Administration
Department under the State Council
shall proceed to make an examination of the
request. Where the request does not comply with
the requirements as prescribed, the said department
shall notify the requesting person to amend
the request within a specified time limit.
Rule 56 Where, after examination, the request
for a search report on a utility model patent
complies with the provisions, the Patent Administration
Department under the State Council
shall promptly make a search report on the utility
model patent.
Where the Patent Administration Department under
the State Council finds, after search,
that the patent for utility model concerned
does not comply with the provisions of Article
22 of the Patent Law concerning novelty or inventiveness,
it shall cite the documents considered to be
relevant, state the reasons therefor and send
the copies of the cited relevant documents together
with the report.
Rule 57 The Patent Administration Department
under the State Council shall correct
promptly the mistakes in the patent announcements
and documents issued by it once they are discovered,
and the corrections shall be announced.
Chapter IV Reexamination of Patent Application
and Invalidation of Patent Right
Rule 58 The Patent Reexamination Board shall
consist of technical and legal experts appointed
by the Patent Administration Department under
the State Council . The person responsible
for the Patent Administration Department under
the State Council shall be the Director
of the Board.
Rule 59 Where the applicant requests the Patent
Reexamination Board to make a reexamination
in accordance with the provisions of Article
41 of the Patent Law, it or he shall file a
request for reexamination, state the reasons
and, when necessary, attach the relevant
supporting documents.
Where the request for reexamination does not
comply with the prescribed form, the person
making the request shall rectify it within the
time limit fixed by the Patent Reexamination
Board. If the requesting person fails to meet
the time limit for making rectification, the
request for reexamination shall be deemed not
to have been filed.
Rule 60 The person making the request
may amend its or his application at the time
when it or he requests reexamination or makes
responses to the notification of reexamination
of the Patent Reexamination Board. 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.
The amendments to the application for patent
shall be in two copies.
Rule 61 The Patent Reexamination Board shall
remit the request for reexamination which the
Board has received to the examination department
of the Patent Administration Department under
the State Council which has made
the examination of the application concerned
to make an examination. Where that examination
department agrees to revoke its former decision
upon the request of the person requesting reexamination,
the Patent Reexamination Board shall make a
decision accordingly and notify the requesting
person.
Rule 62 Where, after reexamination, the Patent
Reexamination Board finds that the request does
not comply with the provisions of the Patent
Law and these Implementing Regulations, it shall
invite the person requesting reexamination to
submit his 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 observations
and amendments, the Patent Reexamination Board
still finds that the request does not comply
with the provisions of the Patent Law and these
Implementing Regulations, it shall make a decision
of reexamination to maintain the earlier decision
rejecting the application.
Where, after reexamination,
the Patent Reexamination Board finds that the
decision rejecting the application does not
comply with the 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
ask the examination department which has made
the examination to continue the examination
procedure.
Rule 63 At any time before the Patent Reexamination
Board makes its decision on the request for
reexamination, the requesting person may withdraw
his request for reexamination.
Where the requesting person withdraws his request
for reexamination before the Patent Reexamination
Board makes its decision, the procedure of reexamination
is terminated.
Rule 64 Anyone requesting invalidation or part
invalidation of a patent right in accordance
with the provisions of Article 45 of the Patent
Law shall submit 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 right is granted does not comply with
the provisions of Article 22, Article 23, or
of Article 26, paragraph three or four, or of
Article 33 of the Patent Law, or of Rule 2,
or of Rule l3, paragraph one, or of Rule 20,
paragraph one, or of Rule 21, paragraph two
of these Implementing Regulations; or the invention-creation
falls under the provisions of Articles 5 or
25 of the Patent Law; or the applicant is not
entitled to be granted the patent right in accordance
with the provisions of Article 9 of the Patent
Law.
Rule 65 Where the request for invalidation
does not comply with the provisions of Rule
64 of these Implementing Regulations, the Patent
Reexamination Board shall not accept it.
Where, after a decision on any request for
invalidation of the patent right is made, invalidation
based on the same facts and evidence is requested
once again, the Patent Reexamination Board shall
not accept it.
Where a request for invalidation of a patent
for design is based on the ground that the patent
for design is in conflict with a prior right
of another person, but no effective ruling or
judgement is submitted to prove such conflict
of rights , the Patent Reexamination Board shall
not accept it.
Where the request for invalidation of the patent
right does not comply with the prescribed form,
the person making the request shall rectify
it within the time limit specified by the Patent
Reexamination Board. If the rectification fails
to be made within the time limit, the request
for invalidation shall be deemed not to have
been made.
Rule 66 After a request for invalidation is
accepted by the Patent Reexamination Board,
the person making the request may add reasons
or supplement evidence within one month from
the date when the request for invalidation is
filed. Additional reasons or evidence
which are submitted after the specified time
limit may be disregarded by the Patent Reexamination
Board.
Rule 67 The Patent Reexamination Board shall
send a copy of the request for invalidation
of the patent right and copies of the relevant
documents to the patentee and invite it or him
to present its or his observations within a
specified time limit.
The patentee and the person making 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 Reexamination Board. Where
no response is made within the specified time
limit, the examination of the Patent Reexamination
Board will not be affected.
Rule 68 In the course of the examination of
the request for invalidation, the patentee for
the patent for invention or utility model concerned
may amend its or his claims, but may not broaden
the scope of patent protection.
The patentee for the patent for invention or
utility model concerned may not amend its or
his description or drawings. The patentee for
the patent for design concerned may not amend
its or his drawings, photographs or the brief
explanation of the design.
Rule 69 The Patent Reexamination Board may,
at the request of the parties concerned or in
accordance with the needs of the case, decide
to hold an oral procedure in respect of a request
for invalidation.
Where the Patent Reexamination Board decides
to hold an oral procedure in respect of a request
for invalidation, it shall send notifications
to the parties concerned, indicating the date
and place of the oral procedure to be held.
The parties concerned shall make response to
the notification within the specified time limit.
Where the person requesting invalidation fails
to make response to the notification of the
oral procedure sent by the Patent Reexamination
Board within the specified time limit, and fails
to take part in the oral procedure, the request
for invalidation shall be deemed to have been
withdrawn. Where the patentee fails to take
part in the oral procedure, the Patent Reexamination
Board may proceed to examine by default.
Rule 70 In the course of the examination of
a request for invalidation, the time limit specified
by the Patent Reexamination Board shall not
be extended.
Rule 71 The person requesting invalidation
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