Implementing Rules of the Patent Law of the People's Republic of China
Implementing Rules of the Patent Law of the People's Republic of China
Implementing Rules of the Patent Law of the People's Republic of China
Order of the China Patent Office [1992] No.3
December 21, 1992
Chapter I General Provisions
Article 1 These Implementing Regulations are drawn up in accordance with the Patent Law of the People's Republic of China (hereinafter referred to as the Patent Law).
Article 2 "Invention" in the Patent Law 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, pattern,color, or their combination, of a product, which creates an aesthetic feeling and is fit for industrial application.
Article 3 Any proceedings provided for by the Patent Law and these Implementing Regulations shall be conducted in a written form.
Article 4 Any document submitted under the Patent Law and these Implementing Regulations shall be in Chinese. The standard scientific and technicalterms 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 and certified document submitted in accordance with the Patent Law and these Implementing Regulations are in foreign languages, and where the Patent Office deems it necessary, it may request a Chinese translation of the certificate and the certified document to be submitted within a specified time limit; where the translation is not submitted within the specified time limit, the certificate and certified document shall be deemed not to have been submitted.
Article 5 For any document sent by mail to the Patent Office, the date of mailing indicated by the postmark on the envelope shall be presumed to be the date of filing. If the date of mailing indicated by the postmark on the envelope is illegible, the date on which the Patent Office receives the document shall be the date of filing, except where the date of mailing is proved by the addressee.
Any document of the Patent Office may be served by mail, by personal delivery or by public announcement. 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 person first named in the request or to the representative. If such person refuses to accept the document, it shall be presumed to have been served.
For any document sent by mail by the Patent Office, the 16th day from the date of mailing shall be presumed to be the date on which the addressee receives the document.
For any document which shall be delivered personally in accordance with the prescription of the Patent Office, the date of delivery is the date on which the addressee receives the document.
Where the address of a document is not clear and it cannot be sent by mail, the document may be served by making an announcement in the Patent Gazette. At the expiration of one month from the date of the announcement,the document shall be presumed to have been served.
Article 6 The first day of any time limit prescribed in the Patent Law and these Implementing Regulations shall not be counted. Where a 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, the time limit shall expire on the first working day after that official holiday.
Article 7 Where a time limit prescribed in the Patent Law or these Implementing Regulations or specified by the Patent Office is not observed because of force majeure, resulting the loss of any right on the part of the party concerned, he or it shall, 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 Office to restore his or its rights.
Where a time limit prescribed in the Patent Law or these Implementing Regulations or specified by the Patent Office is not observed because of any justified reason, resulting the loss of any right on the part of the party concerned, he or it shall, within two months from the date of receipt of a notification from the Patent Office, state the reasons and request the Patent Office to restore his or its rights.
Where the party concerned makes a request for an extension of a time limit specified by the Patent Office, he or it shall, before the time limit expires, state the reasons to the Patent Office and complete the relevant procedures.
The provisions of paragraphs one and two of this Rule shall not be applicable to the time limits referred to in Articles 24, 29, 41, 45 and 61 of the Patent Law.
The provisions of paragraph two of this Rule shall not be applicable to the time limit referred to in Rule 88 of these Implementing Regulations.
Article 8 Where the invention for which a patent is applied for by the entity of the national defence system relates to the security of the State concerning national defence and is required to be kept secret, the application for patent shall be filed with the patent organization set up by the competent department of science and technology of national defence under the State Council. Where any application for patent for invention relating to the secrets of the State concerning national defence and requiring to be kept classified is received by the Patent Office, the Patent Office shall transfer the application to the said patent organization. The Patent Office shall make a decision on the basis of the observations of the examination of the application presented by the said patent organization.
Subject to the preceding paragraph, the Patent Office, after receipt of an application for patent for invention which is required to be examined for the purpose of security, shall send it to the competent department concerned of the State Council for examination. The said department shall,within four months from receipt of the application, send a report on the results of the examination to the Patent Office. Where the invention for which a patent is applied for is required to be kept classified, the Patent Office shall handle it as an application for secret patent and notify the applicant accordingly.
Article 9 The date of filing referred to in the Patent Law, except that mentioned in Articles 28 and 45, means the priority date where a right of priority is claimed.
The date of filing referred to in these Implementing Regulations means the date on which the application for patent is filed with the Patent Office.
Article 10 "Service invention-creation made by a person in execution of the tasks of the entity to which he belongs" mentioned in Article 6 of the Patent Law refers to 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.
"Material means of the entity" mentioned in Article 6 of the Patent Law refers to entity's money, equipment, spare parts, raw materials, or technical data which are not to be disclosed to the public.
Article 11 "Inventor" or "creator" mentioned in the Patent Law refers to any person who has made creative contributions to the substantive features of the invention-creation. Any person who, during the course of accomplishing the invention-creation, is responsible only for organization work, or who offers facilities for making use of material means, or who takes part in other auxiliary functions, shall not be considered as inventor or creator.
Article 12 For any identical invention-creation, only one patent right shall be granted.
Two or more applicants who 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 Office, hold consultation among themselves to decide the person or persons who shall be entitled to file the application.
Article 13 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 Office for record.
Article 14 "The patent agency" referred to in Article 19, Paragraph one, and Article 20 of the Patent Law shall, on the authorization of the State Council, be designated by the Patent Office.
Article 15 Where any dispute arises concerning the right to apply for a patent for an invention-creation or the right to own a patent right which has been granted, any of the parties concerned may request the administrative authority for patent affairs to handle the matter or may institute legal proceedings in the people's court.
Any party to a dispute concerning the right to apply for a patent or the right to own a patent right which is pending before the administrative authority for patent affairs or the people's court, may request the Patent Office to suspend the relevant procedures.
Any party requesting suspension of the procedure before the Patent Office in accordance with the preceding paragraph, shall submit a request to the Patent Office,together with the relevant document of the administrative authority for patent affairs or the people's court before which the dispute is pending.
Chapter II Application for Patent
Article 16 Anyone who applies for a patent shall submit application documents in two copies.
Any applicant who appoint a patent agency for filing an application for a patent with, or for dealing with other patent matters before, the Patent Office, shall submit a power of attorney indicating the scope of the power entrusted.
Article 17 Other related matters mentioned in Article 26, paragraph two of the Patent Law refer to:
1. the nationality of the applicant;
2. where the applicant is an enterprise or other organization, the name of the country in which the applicant has the principal business office;
3. where the applicant has appointed a patent agency, the relevant matters which should be indicated;
4. where the priority of an earlier application is claimed, the relevant matters which should 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;
8. any other related matter which needs to be indicated.
Where there are two or more applicants and where they have not appointed a patent agency, they shall designate a representative.
Article 18 The description of an application for a patent for invention or utility model shall be presented in the following manner and order:
1. state the title of the invention or utility model as appearing in the request;
2. specify the technical field to which the invention or utility model relates;
3. indicate the background art which, as far as known to the applicant, can be regarded as useful for the understanding, searching and examination of the invention or utility model, and cte the documents reflecting such art;
4. specify the purpose which the invention or utility model is designed to fulfil;
5. disclose the technical solution of the invention or utility model, as claimed, in such terms that a person having ordinary skill in the art can understand it and fulfil the purpose of the invention or utility model;
6. state the advantageous effects of the invention or utility model, with reference to the background art;
7. briefly describe the figures in the drawings, if any;
8. describe in detail the best mode contemplated by the applicant for carrying out the invention or utility model; this shall be done in terms of examples, where appropriate, and with reference to the drawings, if any.
The manner and order mentioned in the preceding paragraph shall be observed by the applicant of a patent for invention or a patent for utility model, unless, because of the nature of the invention or utility model, a different manner or order would afford a better understanding and a more economical presentation.
The description of the invention or utility model shall not contain such references to the claims as: "as described in part......of the claim", nor shall it contain commercial advertising.
Article 19 The same sheet of drawings may contain several figures of the invention or utility model, and the drawings shall be numbered and arranged in numerical order consecutively as "Figure 1, Figure 2,......".
The scale and the distinctness of the drawings shall be such that a reproduction with a linear reduction in size to two-thirds would still enable all details to be clearly distinguished.
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