Decision of the State Council on the Revision of the Implementing Rules of the Patent Law of the People's Republic of China

Decision of the State Council on the Revision of the Implementing Rules of the Patent Law of the People's Republic of China

Order of the State Council [2010] No.569

January 9, 2010

The Decision of the State Council on the Revision of the Implementing Rules of the Patent Law of the People's Republic of China, which was adopted at the 95th executive meeting of the State Council on December 30, 2009, is hereby promulgated and shall come into force on February 1, 2010.

Premier Wen Jiabao

The State Council has decided to make the following amendments to the Implementing Rules of the Patent Law of the People's Republic of China (hereinafter referred to as the "Rules"):
　
Article 1 Article 2 of the Rules shall be deleted.
　
Article 2 Article 7 of the Rules shall become Article 6 and one paragraph shall be added as the third paragraph, which reads "Where the party concerned requests that his rights be restored in accordance with the provisions of Paragraph 1 or Paragraph 2 of this Article, a rights restoration request shall be submitted along with explanatory reasons and, when necessary, relevant certification documents, and the corresponding formalities that should have been gone through before he was deprived of his rights shall be completed; where the party concerned requests that his rights be restored in accordance with Paragraph 2 of this Article, a rights restoration request fee shall be paid."
　
Article 3 Article 8 of the Rules shall become Article 7 and be revised as follows: "Where the patent application involves national defense interests and thus needs to remain confidential, the application shall be accepted by and subject to the examination of the national defense patent institution; where the patent application accepted by the patent administrative department under the State Council involves national defense interests, the application shall be transferred to the national defense patent institution for examination in a timely manner. Where the national defense patent institution finds no grounds for rejection in the course of its examination, the patent administrative department under the State Council shall make a decision to grant a national defense patent right."
Where the patent administrative department under the State Council finds that a patent application for an invention or utility model involves national security or a major interest other than national defense and thus needs to remain confidential, a decision to handle the application as a secret patent application shall be made in a timely manner and the applicant concerned shall be notified. Provisions on the examination and reexamination of secret patent applications and special procedures for declaring secret patents invalid shall be formulated by the patent administrative department under the State Council.
　
Article 4 One article shall be added as Article 8, which reads "The term "invention or utility model completed in China" as used in Article 20 of the Patent Law refers to an invention or utility model for which the substantive part of the technical solution is completed within China."
"Where any entity or individual files a patent application in a foreign country for an invention or utility model completed in China, a request shall be made to the patent administrative department under the State Council to carry out a confidentiality examination in accordance with any of the following methods:
"(1) where the patent application is filed directly in a foreign country or an international patent application is submitted directly to the relevant foreign institution, a request shall be made to the patent administrative department under the State Council in advance and the technical solution shall be explained;
"(2) where it is proposed that a patent application be filed in a foreign country or that an international patent application be submitted to the relevant foreign institution after a patent application has been filed with the patent administrative department under the State Council, a request shall be made to the patent administrative department under the State Council prior to filing the patent application in the foreign country concerned or submitting the international patent application with the relevant foreign institution.
"Where an international patent application is submitted to the patent administrative department under the State Council, a request for a confidentiality examination shall be deemed to have been made at the same time."
　
Article 5 One article shall be added as Article 9, which reads "Where the patent administrative department under the State Council, after receiving a request submitted in accordance with Article 8 of these Rules and upon examination thereof, finds that the invention or utility model concerned might involve national security or another major interest and thus needs to remain confidential, a confidentiality examination notice shall be forwarded to the applicant in a timely manner; where no confidentiality examination notice is received within four months of the application date, the applicant may file a patent application in a foreign country or submit an international patent application to the relevant foreign institution for such invention or utility model."
"Where the patent administrative department under the State Council carries out a confidentiality examination in accordance with the preceding paragraph, a decision on whether confidentiality is required shall be made in a timely manner and the applicant shall be notified. Where no confidentiality examination notice is received within six months of the application date, the applicant may file a patent application in a foreign country or submit an international patent application to the relevant foreign institution for such invention or utility model."
　
Article 6 Article 11 of the Rules shall become Article 12 and Item (3), Paragraph 1 of the same shall be revised to "Any invention or innovation that is made within one year of the individual's retirement, transfer from the previous entity, or the termination of labor relations or personnel relations, in connection with his/her own duties or tasks assigned by his/her previous entity."
　
Article 7 Article 13 of the Rules shall become Article 41 and be revised as follows: "Where two or more applicants respectively file a patent application for an identical invention or creation on the same day (i.e. the application date, or where a priority right applies, the priority date), the identity of the applicant shall be determined through negotiations between said applicants after notices have been received from the patent administrative department under the State Council."
"Where the same applicant files patent applications for a utility model and an invention with respect to the same invention or innovation on the same day (i.e. the application date), when the applications are filed, statements of having filed another patent application with respect to the same invention or innovation shall be respectively made; where no such statement is made, the application shall be dealt with in accordance with Paragraph 1, Article 9 of the Patent Law under which only one patent shall be granted for the same invention or innovation."
"Where the patent administrative department under the State Council announces that a patent right for a utility model has been granted, the statement shall announce that the applicant has simultaneously applied for an invention patent in accordance with Paragraph 2 of this Article."
"Where no grounds for rejecting an invention patent application are found in the course of an examination, the patent administrative department under the State Council shall notify the applicant that it must declare within a specified period that the utility model patent has been surrendered. Where the applicant makes a surrender declaration, the patent administrative department under the State Council shall make a decision to grant an invention patent and make an announcement stating that the applicant has surrendered its utility model patent when announcing that the invention patent has been granted. Where the applicant refuses to surrender the utility model patent, the patent administrative department under the State Council shall reject the invention patent application; where the applicant has not replied when the time limit expires, the invention patent application shall be deemed to have been withdrawn.
"The utility model patent shall be terminated on the date of the announcement that the invention patent has been granted."
　
Article 8 Article 14 of the Rules shall be deleted.
　
Article 9 Article 15 of the Rules shall become Article 14 and one paragraph shall be added as the third paragraph, which reads "Where a patent is pledged, the pledgor and the pledgee shall jointly register the pledge at the patent administrative department under the State Council."
　
Article 10 Article 17 of the Rules shall become Article 16 and be revised as follows: "The claim letter for an invention, utility model or design patent shall indicate the following matters:
(1) the name of the invention, utility model or design;
(2) where that the applicant is a Chinese entity or individual, its title or his/her name, address, postal code, organization code or resident identity card number; where the applicant is a foreigner, a foreign enterprise or another foreign entity, his/her name or its title, nationality or registered country or region;
(3) the name of the inventor or designer;
(4) where the applicant has instructed a patent agency, the name and organization code of the agency instructed and the name, registered number and telephone number of the patent agent;
(5) where a priority right is claimed, the date and number of the application and the title of the original authority that accepted the application when it was first filed (hereinafter referred to as the "prior application");
(6) the signature or seal of the applicant or patent agency;
(7) a list of the application documents;
(8) a list of the attached documents;
(9) other relevant matters to be indicated."
　
Article 11 Article 18 of the Rules shall become Article 17 and one paragraph shall be added as the fifth paragraph, which reads "The specification for a utility model patent application shall include attached drawings which indicate the need to protect the shape or structure of the product or a combination of the two."
　
Article 12 One article shall be added as Article 26, which reads "The term "genetic resources" as used in the Patent Law refers to any material derived from the human body, animals, plants, microbiotic organisms, etc., which contain units with a hereditary function and have actual or potential value; the term "inventions or innovations based on genetic resources" as used in the Patent Law refers to inventions and creations based on the utilization of genetic resources for their hereditary function.
"Where a patent application is filed for an invention or creation based on genetic resources, the applicant shall given an explanation in the claim letter and complete the forms formulated by the patent administrative department under the State Council."
　
Article 13 Paragraph 1 of Article 27 of the Rules shall be deleted.
　
Article 14 Article 28 of the Rules shall be revised as follows: "The brief explanation of the design shall indicate the title, use and design features of the patented design product and a picture or photograph which best shows the design features shall be specified.
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