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en:01专利法规_02专利法实施细则2023 [2024/01/17 06:11] – 外部编辑 127.0.0.1en:01专利法规_02专利法实施细则2023 [2024/03/05 13:30] (当前版本) – 外部编辑 127.0.0.1
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-====== Rules for the Implementation of the Patent Law of the People's Republic of China ======+====== Implementation Rules of the Patent Law of the People's Republic of China (machine translation)======
  
 (Promulgated by Order No.306 of the State Council of the People's Republic of China on June 15, 2001) Revised for the first time in accordance with the Decision of the State Council on Amending the Rules for the Implementation of the Patent Law of the People's Republic of China on December 28, 2002 According to the second revision of the Decision of the State Council on Amending the Rules for the Implementation of the Patent Law of the People's Republic of China on January 9, 2010, and the third revision of the Decision of the State Council on Amending the Rules for the Implementation of the Patent Law of the People's Republic of China on December 11, 2023) (Promulgated by Order No.306 of the State Council of the People's Republic of China on June 15, 2001) Revised for the first time in accordance with the Decision of the State Council on Amending the Rules for the Implementation of the Patent Law of the People's Republic of China on December 28, 2002 According to the second revision of the Decision of the State Council on Amending the Rules for the Implementation of the Patent Law of the People's Republic of China on January 9, 2010, and the third revision of the Decision of the State Council on Amending the Rules for the Implementation of the Patent Law of the People's Republic of China on December 11, 2023)
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 ===== Chapter I General Provisions ===== ===== Chapter I General Provisions =====
  
-==== Rule1 ====+==== Rule 1 ====
 These Rules are formulated in accordance with the Patent Law of the People's Republic of China (hereinafter referred to as the Patent Law). These Rules are formulated in accordance with the Patent Law of the People's Republic of China (hereinafter referred to as the Patent Law).
  
-==== Rule2 ====+==== Rule 2 ====
 All formalities provided in the Patent Law and these Rules shall be fulfilled in written form or in other forms provided by the administrative department for patent under the State Council. A data message (hereinafter referred to as "electronic form") that is capable of expressing its contents in a tangible manner and is readily accessible by means of electronic data interchange or other means is deemed to be in writing. All formalities provided in the Patent Law and these Rules shall be fulfilled in written form or in other forms provided by the administrative department for patent under the State Council. A data message (hereinafter referred to as "electronic form") that is capable of expressing its contents in a tangible manner and is readily accessible by means of electronic data interchange or other means is deemed to be in writing.
  
-==== Rule3 ====+==== Rule 3 ====
 Any document to be submitted in accordance with the provisions of the Patent Law and these Rules shall be in Chinese; where there is a unified scientific and technological term stipulated by the State, it shall be a standard term; where there is no unified Chinese translation of a foreign name, place name or scientific and technological term, the original text shall be indicated. Any document to be submitted in accordance with the provisions of the Patent Law and these Rules shall be in Chinese; where there is a unified scientific and technological term stipulated by the State, it shall be a standard term; where there is no unified Chinese translation of a foreign name, place name or scientific and technological term, the original text shall be indicated.
  
 Where any certificate or certifying document submitted in accordance with the provisions of the Patent Law and these Rules is in a foreign language, the administrative department for patent under the State Council may, when it deems necessary, request the party concerned to submit a Chinese translation within a specified time limit; where the translation is not submitted at the expiration of the time limit, the certificate or certifying document shall be deemed to have not been submitted. Where any certificate or certifying document submitted in accordance with the provisions of the Patent Law and these Rules is in a foreign language, the administrative department for patent under the State Council may, when it deems necessary, request the party concerned to submit a Chinese translation within a specified time limit; where the translation is not submitted at the expiration of the time limit, the certificate or certifying document shall be deemed to have not been submitted.
  
-==== Rule4 ====+==== Rule 4 ====
 Where any document is mailed to the administrative department for patent under the State Council, the date of mailing indicated by the postmark shall be regarded as the date of submission; where the date of mailing indicated by the postmark is not clear, unless the party concerned can provide proof, the date of receipt by the administrative department for patent under the State Council shall be regarded as the date of submission. Where any document is mailed to the administrative department for patent under the State Council, the date of mailing indicated by the postmark shall be regarded as the date of submission; where the date of mailing indicated by the postmark is not clear, unless the party concerned can provide proof, the date of receipt by the administrative department for patent under the State Council shall be regarded as the date of submission.
  
行 31: 行 31:
 Where any document is served by the administrative department for patent under the State Council in electronic form, the date of entry into the electronic system recognized by the party concerned shall be the date of service. Where any document is served by the administrative department for patent under the State Council in electronic form, the date of entry into the electronic system recognized by the party concerned shall be the date of service.
  
-==== Rule5 ====+==== Rule 5 ====
 Any time limit provided in the Patent Law or these Rules shall not be counted from the beginning of the day, but shall be counted from the next day. 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, it shall expire on the last day of that month; if a time limit expires on a statutory holiday, it shall expire on the first working day following that holiday. Any time limit provided in the Patent Law or these Rules shall not be counted from the beginning of the day, but shall be counted from the next day. 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, it shall expire on the last day of that month; if a time limit expires on a statutory holiday, it shall expire on the first working day following that holiday.
  
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 The provisions of Paragraph 1 and Paragraph 2 of this Article shall not be applicable to the time limit provided in Article 24, Article 29, Article 42 and Article 74 of the Patent Law. The provisions of Paragraph 1 and Paragraph 2 of this Article shall not be applicable to the time limit provided in Article 24, Article 29, Article 42 and Article 74 of the Patent Law.
  
-==== Rule7 ====+==== Rule 7 ====
 Where a patent application involves the interests of national defense and needs to be kept confidential, it shall be accepted and examined by the national defense patent office. Where a patent application accepted by the patent administration department under the State Council involves the interests of national defense and needs to be kept confidential, it shall be transferred to the national defense patent office for examination in a timely manner. If no reason for rejection is found after examination by the national defense patent authority, the patent administration department under the State Council shall make a decision to grant the national defense patent right. Where a patent application involves the interests of national defense and needs to be kept confidential, it shall be accepted and examined by the national defense patent office. Where a patent application accepted by the patent administration department under the State Council involves the interests of national defense and needs to be kept confidential, it shall be transferred to the national defense patent office for examination in a timely manner. If no reason for rejection is found after examination by the national defense patent authority, the patent administration department under the State Council shall make a decision to grant the national defense patent right.
  
 Where the administrative department for patent under the State Council considers that the application for patent for invention or utility model it has accepted involves national security or vital interests other than the interests of national defence and needs to be kept confidential, it shall make a timely decision to deal with the application as a confidential patent and notify the applicant. Special procedures for the examination and reexamination of an application for a confidential patent and for the invalidation of a confidential patent right shall be prescribed by the patent administration department under the State Council. Where the administrative department for patent under the State Council considers that the application for patent for invention or utility model it has accepted involves national security or vital interests other than the interests of national defence and needs to be kept confidential, it shall make a timely decision to deal with the application as a confidential patent and notify the applicant. Special procedures for the examination and reexamination of an application for a confidential patent and for the invalidation of a confidential patent right shall be prescribed by the patent administration department under the State Council.
  
-==== Rule8 ====+==== Rule 8 ====
 "Invention or utility model made in China" mentioned in Article 19 of the Patent Law means an invention or utility model in which the substantial content of the technical solution is made in China. "Invention or utility model made in China" mentioned in Article 19 of the Patent Law means an invention or utility model in which the substantial content of the technical solution is made in China.
  
行 61: 行 61:
 Where an international application for patent is submitted to the administrative department for patent under the State Council, it shall be deemed that a request for confidentiality examination has been made at the same time. Where an international application for patent is submitted to the administrative department for patent under the State Council, it shall be deemed that a request for confidentiality examination has been made at the same time.
  
-==== Rule9 ====+==== Rule 9 ====
 Where the administrative department for patent under the State Council, after receiving a request submitted in accordance with Article 8 of these Rules, considers, after examination, that the invention or utility model may involve the security or vital interests of the State and needs to be kept confidential, it shall, within 2 months from the date of submission of the request, issue a notice of confidential examination to the applicant; if the circumstances are complicated, the period may be extended by 2 months. Where the administrative department for patent under the State Council, after receiving a request submitted in accordance with Article 8 of these Rules, considers, after examination, that the invention or utility model may involve the security or vital interests of the State and needs to be kept confidential, it shall, within 2 months from the date of submission of the request, issue a notice of confidential examination to the applicant; if the circumstances are complicated, the period may be extended by 2 months.
  
 Where the administrative department for patent under the State Council makes a request for examination in accordance with the preceding paragraph, it shall, within four months from the date of submission of the request, make a decision on whether it is necessary to keep the request confidential and notify the applicant accordingly; if the circumstances are complicated, the period may be extended by two months. Where the administrative department for patent under the State Council makes a request for examination in accordance with the preceding paragraph, it shall, within four months from the date of submission of the request, make a decision on whether it is necessary to keep the request confidential and notify the applicant accordingly; if the circumstances are complicated, the period may be extended by two months.
  
-==== Rule10 ====+==== Rule 10 ====
 "Invention-creation that violates law" mentioned in Article 5 of the Patent Law does not include the invention-creation the exploitation of which is merely prohibited by law. "Invention-creation that violates law" mentioned in Article 5 of the Patent Law does not include the invention-creation the exploitation of which is merely prohibited by law.
  
-==== Rule11 ====+==== Rule 11 ====
 The principle of good faith shall be followed in patent application. All kinds of patent applications shall be based on real invention-creation activities and shall not be fraudulent. The principle of good faith shall be followed in patent application. All kinds of patent applications shall be based on real invention-creation activities and shall not be fraudulent.
  
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 "The entity to which he belongs" mentioned in Article 6 of the Patent Law may also be a temporary entity for which the person works; "material resources of the entity" mentioned in Article 6 of the Patent Law shall include the entity's money, equipment, spare parts, raw materials, or technical information and materials which are not to be disclosed to the public. "The entity to which he belongs" mentioned in Article 6 of the Patent Law may also be a temporary entity for which the person works; "material resources of the entity" mentioned in Article 6 of the Patent Law shall include the entity's money, equipment, spare parts, raw materials, or technical information and materials which are not to be disclosed to the public.
  
-==== Rule14 ====+==== Rule 14 ====
 "Inventor" or "creator" as mentioned in the Patent Law means any person who has made creative contributions to the substantive features of an invention-creation. "A person who, in the course of accomplishing the invention-creation, is merely responsible for organizational work, or who provides facilities for making use of material and technical means, or who takes part in other auxiliary work, is not an inventor or designer.". "Inventor" or "creator" as mentioned in the Patent Law means any person who has made creative contributions to the substantive features of an invention-creation. "A person who, in the course of accomplishing the invention-creation, is merely responsible for organizational work, or who provides facilities for making use of material and technical means, or who takes part in other auxiliary work, is not an inventor or designer.".
  
-==== Rule15 ====+==== Rule 15 ====
 Unless a patent right is assigned in accordance with Article 10 of the Patent Law, the party concerned shall, if the patent right is devolved due to other reasons, fulfill the formalities for the devolution of the patent right to the administrative department for patent under the State Council with relevant certified documents or legal instruments. Unless a patent right is assigned in accordance with Article 10 of the Patent Law, the party concerned shall, if the patent right is devolved due to other reasons, fulfill the formalities for the devolution of the patent right to the administrative department for patent under the State Council with relevant certified documents or legal instruments.
  
行 98: 行 98:
 Where a patent right is pledged, the pledgor and the pledgee shall jointly register the pledge with the patent administration department under the State Council. Where a patent right is pledged, the pledgor and the pledgee shall jointly register the pledge with the patent administration department under the State Council.
  
-==== Rule16 ====+==== Rule 16 ====
 Patent work shall implement the strategic plan of the Party and the state for intellectual property rights, improve the level of patent creation, application, protection, management and service in China, support comprehensive innovation and promote the construction of an innovative country. Patent work shall implement the strategic plan of the Party and the state for intellectual property rights, improve the level of patent creation, application, protection, management and service in China, support comprehensive innovation and promote the construction of an innovative country.
  
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 ===== Chapter II Application for Patent ===== ===== Chapter II Application for Patent =====
  
-==== Rule17 ====+==== Rule 17 ====
 Anyone who applies for a patent shall submit application documents to the administrative department for patent under the State Council. The application documents shall meet the prescribed requirements. Anyone who applies for a patent shall submit application documents to the administrative department for patent under the State Council. The application documents shall meet the prescribed requirements.
  
行 112: 行 112:
 Where there are two or more applicants and no patent agency has been entrusted, the first applicant specified in the request shall be the representative unless otherwise stated in the request. Where there are two or more applicants and no patent agency has been entrusted, the first applicant specified in the request shall be the representative unless otherwise stated in the request.
  
-==== Rule18 ====+==== Rule 18 ====
 Where a patent agency is appointed in accordance with the provisions of Article 18, paragraph 1, of the Patent Law to apply for a patent or to have other patent matters to attend to in China, the applicant or the patentee may attend to the following matters on his own: Where a patent agency is appointed in accordance with the provisions of Article 18, paragraph 1, of the Patent Law to apply for a patent or to have other patent matters to attend to in China, the applicant or the patentee may attend to the following matters on his own:
  
行 121: 行 121:
 (3) other matters prescribed by the administrative department for patent under the State Council. (3) other matters prescribed by the administrative department for patent under the State Council.
  
-==== Rule19 ====+==== Rule 19 ====
 The request for an application for a patent for invention, utility model or design shall state the following: The request for an application for a patent for invention, utility model or design shall state the following:
  
行 142: 行 142:
 (Nine) other relevant matters that need to be specified. (Nine) other relevant matters that need to be specified.
  
-==== Rule20 ====+==== Rule 20 ====
 The description of an application for a patent for invention or utility model shall state the title of the invention or utility model as it appears in the request. The description shall include the following: The description of an application for a patent for invention or utility model shall state the title of the invention or utility model as it appears in the request. The description shall include the following:
  
行 163: 行 163:
 The specification of an application for a patent for utility model shall include drawings showing the shape, structure, or a combination thereof, of the product sought to be protected. The specification of an application for a patent for utility model shall include drawings showing the shape, structure, or a combination thereof, of the product sought to be protected.
  
-==== Rule21 ====+==== Rule 21 ====
 The figures of the appended drawings of the invention or utility model shall be in accordance with "Figure 1, Figure 2" Sequential numbering. The figures of the appended drawings of the invention or utility model shall be in accordance with "Figure 1, Figure 2" Sequential numbering.
  
行 170: 行 170:
 The drawings shall not contain any notes other than the necessary words. The drawings shall not contain any notes other than the necessary words.
  
-==== Rule22 ====+==== Rule 22 ====
 The patent claim shall state the technical features of the invention or utility model. The patent claim shall state the technical features of the invention or utility model.
  
行 179: 行 179:
 The technical features mentioned in the claims may refer to the corresponding reference signs in the drawings of the description, and such reference signs shall follow the corresponding technical features and be placed in parentheses, so that the claims can be easily understood. Reference signs shall not be construed as limiting the claims. The technical features mentioned in the claims may refer to the corresponding reference signs in the drawings of the description, and such reference signs shall follow the corresponding technical features and be placed in parentheses, so that the claims can be easily understood. Reference signs shall not be construed as limiting the claims.
  
-==== Rule23 ====+==== Rule 23 ====
 The patent claim shall have an independent claim, and may also contain subordinate claims. The patent claim shall have an independent claim, and may also contain subordinate claims.
  
行 186: 行 186:
 A dependent claim shall further define the cited claim with additional technical features. A dependent claim shall further define the cited claim with additional technical features.
  
-==== Rule24 ====+==== 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: 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) the preamble portion: indicating the subject title of the technical solution to the invention or utility model which is claimed to be protected and those essential technical features that are common to the subject of the invention or utility model and the closest technology currently available;+(I) the preamble portion: indicating the subject title of the technical solution to the invention or utility model which is claimed to be protected and those essential technical features that are common to the subject of the invention or utility model and the closest technology currently available;
  
 (II) Characteristic part: use "characterized by" Or in similar terms, stating the technical features of the invention or utility model, which distinguish it from the closest technology currently available. These features, in combination with the features indicated in the preamble portion, serve to define the scope of protection of the invention or utility model. (II) Characteristic part: use "characterized by" Or in similar terms, stating the technical features of the invention or utility model, which distinguish it from the closest technology currently available. These features, in combination with the features indicated in the preamble portion, serve to define the scope of protection of the invention or utility model.
  
 +==== Rule 25 ====
 An independent claim may be presented in any other form if the nature of the invention or utility model is not suitable to be expressed in the form mentioned in the preceding paragraph. An independent claim may be presented in any other form if the nature of the invention or utility model is not suitable to be expressed in the form mentioned in the preceding paragraph.
  
行 199: 行 200:
 A subordinate claim of an invention or utility model shall contain a quoting portion and a characterizing portion, and be presented in the following form: A subordinate claim of an invention or utility model shall contain a quoting portion and a characterizing portion, and be presented in the following form:
  
-(1) a reference portion: indicating the serial number (s) of the claim (s) referred to and the title of the subject matter;+(I) 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.+(II) a characterizing portion: stating the additional technical features of the invention or utility model.
  
 A dependent claim refers only to the preceding claim. A multiple dependent claim, which refers to two or more claims, shall refer to the preceding claim in the alternative only, and shall not serve as a basis for another multiple dependent claim. A dependent claim refers only to the preceding claim. A multiple dependent claim, which refers to two or more claims, shall refer to the preceding claim in the alternative only, and shall not serve as a basis for another multiple dependent claim.
  
-==== Rule26 ====+==== Rule 26 ====
 The abstract of the specification shall indicate the outline of the contents made public by the application for a patent for invention or utility model, that is, to indicate the title of the invention or utility model and the field of technology to which it belongs, and shall clearly reflect the technical problem to be solved, the essentials and main uses of the technical solution to this problem. The abstract of the specification shall indicate the outline of the contents made public by the application for a patent for invention or utility model, that is, to indicate the title of the invention or utility model and the field of technology to which it belongs, and shall clearly reflect the technical problem to be solved, the essentials and main uses of the technical solution to this problem.
  
 The abstract of the specification may contain the chemical formula which best characterizes the invention. For an application for a patent which contains drawings, the appended drawing of the specification which best characterizes the invention or utility model shall be designated in the request as the appended drawing of the abstract. Commercial advertising terms shall not be used in the abstract. The abstract of the specification may contain the chemical formula which best characterizes the invention. For an application for a patent which contains drawings, the appended drawing of the specification which best characterizes the invention or utility model shall be designated in the request as the appended drawing of the abstract. Commercial advertising terms shall not be used in the abstract.
  
-==== Rule27 ====+==== Rule 27 ====
 Where an invention for which a patent is applied for involves a new biomaterial which is not available to the public, and the specification on this biomaterial is not enough to make the technicians who belong to this field to exploit the invention, the applicant shall, in addition to complying with the relevant provisions in the Patent Law and these Rules, fulfill the following formalities: Where an invention for which a patent is applied for involves a new biomaterial which is not available to the public, and the specification on this biomaterial is not enough to make the technicians who belong to this field to exploit the invention, the applicant shall, in addition to complying with the relevant provisions in the Patent Law and these Rules, fulfill the following formalities:
  
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 (1) The name and address of the petitioner; (1) The name and address of the petitioner;
  
-An undertaking not to make the biological material available to any other person;+(2) An undertaking not to make the biological material available to any other person;
  
 (3) an undertaking to use the instrument for experimental purposes only before the grant of the patent right. (3) an undertaking to use the instrument for experimental purposes only before the grant of the patent right.
  
 +==== Rule 29 ====
 "Article 29" Genetic resources "as mentioned in the Patent Law means the materials containing units of genetic function such as human bodies, animals, plants or microorganisms, which are of actual or potential value, and the genetic information derived from the utilization of such materials;" invention-creation made on the basis of genetic resources "as mentioned in the Patent Law means an invention-creation made by making use of the genetic functions of genetic resources.". "Article 29" Genetic resources "as mentioned in the Patent Law means the materials containing units of genetic function such as human bodies, animals, plants or microorganisms, which are of actual or potential value, and the genetic information derived from the utilization of such materials;" invention-creation made on the basis of genetic resources "as mentioned in the Patent Law means an invention-creation made by making use of the genetic functions of genetic resources.".
  
 Where an application for a patent is filed for an invention-creation made by relying on genetic resources, the applicant shall explain it in the request and fill in the form formulated by the patent administration department under the State Council. Where an application for a patent is filed for an invention-creation made by relying on genetic resources, the applicant shall explain it in the request and fill in the form formulated by the patent administration department under the State Council.
  
-==== Rule30 ====+==== Rule 30 ====
 The applicant shall submit relevant drawings or photographs of the contents of each design product that needs to be protected. The applicant shall submit relevant drawings or photographs of the contents of each design product that needs to be protected.
  
行 239: 行 241:
 Where an applicant requests the protection of colors, he shall submit color pictures or photographs. Where an applicant requests the protection of colors, he shall submit color pictures or photographs.
  
-==== Rule31 ====+==== Rule 31 ====
 The brief explanation of the design shall indicate the name and use of the design product and the main points of the design, and designate a drawing or photograph that best shows the main points of the design. If the view is omitted or the color is requested to be protected, it shall be indicated in the brief description. The brief explanation of the design shall indicate the name and use of the design product and the main points of the design, and designate a drawing or photograph that best shows the main points of the design. If the view is omitted or the color is requested to be protected, it shall be indicated in the brief description.
  
行 248: 行 250:
 The brief description shall not use commercial advertising terms or describe the performance of the product. The brief description shall not use commercial advertising terms or describe the performance of the product.
  
-==== Rule32 ====+==== Rule 32 ====
 The administrative department for patent under the State Council may, when considering it necessary, 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 shall not exceed 30 cm X 30 cm X 30 cm, and the weight shall not exceed 15 kg. Perishable, perishable or dangerous goods shall not be submitted as samples or models. The administrative department for patent under the State Council may, when considering it necessary, 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 shall not exceed 30 cm X 30 cm X 30 cm, and the weight shall not exceed 15 kg. Perishable, perishable or dangerous goods shall not be submitted as samples or models.
  
-==== Rule33 ====+==== Rule 33 ====
 The international exhibition recognized by the Chinese Government referred to in Article 24, subparagraph (2) of the Patent Law means an international exhibition registered with or recognized by the International Exhibition Bureau as provided for in the Convention on International Exhibitions. The international exhibition recognized by the Chinese Government referred to in Article 24, subparagraph (2) of the Patent Law means an international exhibition registered with or recognized by the International Exhibition Bureau as provided for in the Convention on International Exhibitions.
  
行 262: 行 264:
 Where the applicant fails to make the declaration and submit the certifying documents in accordance with the provisions of Paragraph 3 of this Rule, or fails to submit the certifying documents within the specified time limit in accordance with the provisions of Paragraph 4 of this Rule, the provisions of Article 24 of the Patent Law shall not apply to his or its application. Where the applicant fails to make the declaration and submit the certifying documents in accordance with the provisions of Paragraph 3 of this Rule, or fails to submit the certifying documents within the specified time limit in accordance with the provisions of Paragraph 4 of this Rule, the provisions of Article 24 of the Patent Law shall not apply to his or its application.
  
-==== Rule34 ====+==== Rule 34 ====
 Where the applicant claims the right of foreign priority in accordance with the provisions of Article 30 of the Patent Law, the copies of the earlier application documents submitted by the applicant shall be certified by the original accepting institution. In accordance with the agreement signed between the patent administration department under the State Council and the accepting institution, where the patent administration department under the State Council obtains a copy of the earlier application document through electronic exchange or other means, it shall be deemed that the applicant has submitted a copy of the earlier application document certified by the accepting institution. Where the domestic priority is claimed and the applicant indicates the filing date and the filing number of the earlier application in the request, the copy of the earlier application documents shall be deemed to have been filed. Where the applicant claims the right of foreign priority in accordance with the provisions of Article 30 of the Patent Law, the copies of the earlier application documents submitted by the applicant shall be certified by the original accepting institution. In accordance with the agreement signed between the patent administration department under the State Council and the accepting institution, where the patent administration department under the State Council obtains a copy of the earlier application document through electronic exchange or other means, it shall be deemed that the applicant has submitted a copy of the earlier application document certified by the accepting institution. Where the domestic priority is claimed and the applicant indicates the filing date and the filing number of the earlier application in the request, the copy of the earlier application documents shall be deemed to have been filed.
  
行 271: 行 273:
 Where the applicant for a patent for design claims the right of foreign priority, if the earlier application does not contain a brief description of the design, the right of priority shall not be affected where the brief description submitted by the applicant in accordance with Article 31 of these Rules does not go beyond the scope of the drawings or photographs shown in the earlier application document. Where the applicant for a patent for design claims the right of foreign priority, if the earlier application does not contain a brief description of the design, the right of priority shall not be affected where the brief description submitted by the applicant in accordance with Article 31 of these Rules does not go beyond the scope of the drawings or photographs shown in the earlier application document.
  
-==== Rule35 ====+==== Rule 35 ====
 An applicant may claim one or more priorities for an application for a patent; where more than one priority is claimed, the priority period for the application shall be calculated from the earliest priority date. An applicant may claim one or more priorities for an application for a patent; where more than one priority is claimed, the priority period for the application shall be calculated from the earliest priority date.
  
行 287: 行 289:
 Where any applicant has exceeded the time limit provided in Article 29 of the Patent Law and has filed with the Patent Administration Department under the State Council an application for a patent for invention or utility model for the same subject matter, he or it may, if he or it has justified reasons, request restoration of the right of priority within two months from the date of expiration of that time limit. Where any applicant has exceeded the time limit provided in Article 29 of the Patent Law and has filed with the Patent Administration Department under the State Council an application for a patent for invention or utility model for the same subject matter, he or it may, if he or it has justified reasons, request restoration of the right of priority within two months from the date of expiration of that time limit.
  
-==== Rule37 ====+==== Rule 37 ====
 Where an applicant for a patent for invention or utility model claims the right of priority, he may, within 16 months from the priority date or within 4 months from the application date, request that the claim for the right of priority be added to or corrected in the request. Where an applicant for a patent for invention or utility model claims the right of priority, he may, within 16 months from the priority date or within 4 months from the application date, request that the claim for the right of priority be added to or corrected in the request.
  
-==== Rule38 ====+==== Rule 38 ====
 Where an application for a patent is filed or the right of foreign priority is claimed by any applicant having no habitual residence or business office in China, the administrative department for patent under the State Council may, when considering it necessary, require the applicant to submit the following documents: Where an application for a patent is filed or the right of foreign priority is claimed by any applicant having no habitual residence or business office in China, the administrative department for patent under the State Council may, when considering it necessary, require the applicant to submit the following documents:
  
行 316: 行 318:
 ===== Chapter III Examination and Approval of Patent Application ===== ===== Chapter III Examination and Approval of Patent Application =====
  
-==== Rule42 ====+==== Rule 42 ====
 Any person who is to examine or hear a case in the procedures of preliminary examination, substantial examination, re-examination, or invalidation shall, at his own discretion or upon the request of the parties concerned or any other interested party, avoid being present in any of the following circumstances: Any person who is to examine or hear a case in the procedures of preliminary examination, substantial examination, re-examination, or invalidation shall, at his own discretion or upon the request of the parties concerned or any other interested party, avoid being present in any of the following circumstances:
  
行 327: 行 329:
 (4) having participated in the examination of the original application in the reexamination or invalidation procedure. (4) having participated in the examination of the original application in the reexamination or invalidation procedure.
  
-==== Rule43 ====+==== Rule 43 ====
 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 patent claims, or an application for a patent for design consisting of a request, one or more drawings or photographs and a brief explanation of the design, the patent administration department under the State Council shall accord the date of filing, issue a filing number, and notify the applicant. 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 patent claims, or an application for a patent for design consisting of a request, one or more drawings or photographs and a brief explanation of the design, the patent administration department under the State Council shall accord the date of filing, issue a filing number, and notify the applicant.
  
-==== Rule44 ====+==== Rule 44 ====
 In any of the following circumstances, the administrative department for patent under the State Council shall not accept the application and notify the applicant: In any of the following circumstances, the administrative department for patent under the State Council shall not accept the application and notify the applicant:
  
行 345: 行 347:
 (6) where the category (for invention, utility model or design) of the application for a patent is not clear or is difficult to discern. (6) where the category (for invention, utility model or design) of the application for a patent is not clear or is difficult to discern.
  
-==== Rule45 ====+==== Rule 45 ====
 Where in an application for a patent for invention or utility model, a claim or a description or part thereof is missing or wrongly submitted, but the applicant claims the right of priority on the date of submission, he may, within 2 months from the date of submission or within the time limit specified by the administrative department for patent under the State Council, submit the application by citing the earlier application documents. If the supplementary documents are in conformity with the relevant provisions, the date of submission of the first document shall be the date of application. Where in an application for a patent for invention or utility model, a claim or a description or part thereof is missing or wrongly submitted, but the applicant claims the right of priority on the date of submission, he may, within 2 months from the date of submission or within the time limit specified by the administrative department for patent under the State Council, submit the application by citing the earlier application documents. If the supplementary documents are in conformity with the relevant provisions, the date of submission of the first document shall be the date of application.
  
-==== Rule46 ====+==== Rule 46 ====
 Where the specification contains explanatory notes to the drawings but the drawings or part of the drawings are missing, the applicant shall, within the time limit specified by the administrative department for patent under the State Council, submit the drawings or make a declaration for the deletion of the explanatory notes to the drawings. Where the appended drawings are submitted by the applicant, the date of filing or mailing of the appended drawings to the administrative department for patent under the State Council shall be the date of filing. If the description of the appended drawings is deleted, the original date of filing shall be retained. Where the specification contains explanatory notes to the drawings but the drawings or part of the drawings are missing, the applicant shall, within the time limit specified by the administrative department for patent under the State Council, submit the drawings or make a declaration for the deletion of the explanatory notes to the drawings. Where the appended drawings are submitted by the applicant, the date of filing or mailing of the appended drawings to the administrative department for patent under the State Council shall be the date of filing. If the description of the appended drawings is deleted, the original date of filing shall be retained.
  
-==== Rule47 ====+==== Rule 47 ====
 Where two or more applicants apply for a patent for the identical invention-creation on the same day (the application date or the priority date if there is a right of priority concerned), the applicants shall be determined through consultation among themselves after receiving the notification from the administrative department for patent under the State Council. Where two or more applicants apply for a patent for the identical invention-creation on the same day (the application date or the priority date if there is a right of priority concerned), the applicants shall be determined through consultation among themselves after receiving the notification from the administrative department for patent under the State Council.
  
行 362: 行 364:
 The patent right for utility model shall terminate as of the date of the announcement of the grant of the patent right for invention. The patent right for utility model shall terminate as of the date of the announcement of the grant of the patent right for invention.
  
-==== Rule48 ====+==== Rule 48 ====
 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 in Paragraph 1 of Article 60 of these Rules, submit to the administrative department for patent under the State Council a divisional application. However, where an application for a patent has been rejected, withdrawn or deemed to have been withdrawn, the divisional application may not be submitted. 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 in Paragraph 1 of Article 60 of these Rules, submit to the administrative department for patent under the State Council a divisional application. However, where an application for a patent has been rejected, withdrawn or deemed to have been withdrawn, the divisional application may not be submitted.
  
行 369: 行 371:
 A divisional application shall not change the category of the original application. A divisional application shall not change the category of the original application.
  
-==== Rule49 ====+==== Rule 49 ====
 For a divisional application filed in accordance with the provisions of Article 48 of these Rules, the initial application date may be reserved; if the right of priority is enjoyed, the priority date may be reserved, provided that the divisional application does not go beyond the scope of the initial application. For a divisional application filed in accordance with the provisions of Article 48 of these Rules, the initial application date may be reserved; if the right of priority is enjoyed, the priority date may be reserved, provided that the divisional application does not go beyond the scope of the initial application.
  
行 376: 行 378:
 The application number and the application date of the original application shall be indicated in the written request for the division of application. The application number and the application date of the original application shall be indicated in the written request for the division of application.
  
-==== Rule50 ====+==== Rule 50 ====
 "Preliminary examination" mentioned in Article 34 and Article 40 of the Patent Law means the examination of an application for a patent to see whether or not it contains the documents provided in Article 26 or Article 27 of the Patent Law and other necessary documents, and whether or not these documents are in conformity with the provided format, which also includes an examination of the following: "Preliminary examination" mentioned in Article 34 and Article 40 of the Patent Law means the examination of an application for a patent to see whether or not it contains the documents provided in Article 26 or Article 27 of the Patent Law and other necessary documents, and whether or not these documents are in conformity with the provided format, which also includes an examination of the following:
  
行 389: 行 391:
 The administrative department for patent under the State Council shall notify the applicant of its opinions from the examination and request the applicant to state his\/its opinions or make corrections within the specified time limit. Where the applicant fails to make any response at the expiry of the time limit, the application shall be deemed to have been withdrawn. Where, after the applicant has made his or its observations or corrections, the administrative department for patent under the State Council still finds that the application is not in conformity with the provisions in the preceding paragraph, the application shall be rejected. The administrative department for patent under the State Council shall notify the applicant of its opinions from the examination and request the applicant to state his\/its opinions or make corrections within the specified time limit. Where the applicant fails to make any response at the expiry of the time limit, the application shall be deemed to have been withdrawn. Where, after the applicant has made his or its observations or corrections, the administrative department for patent under the State Council still finds that the application is not in conformity with the provisions in the preceding paragraph, the application shall be rejected.
  
-==== Rule51 ====+==== Rule 51 ====
 In any of the following circumstances, any document relating to a patent application, other than the patent application documents, which is submitted to the administrative department for patent under the State Council, shall be deemed to have not been submitted: In any of the following circumstances, any document relating to a patent application, other than the patent application documents, which is submitted to the administrative department for patent under the State Council, shall be deemed to have not been submitted:
  
行 400: 行 402:
 Article 52. Where the applicant requests an earlier publication of his or its application for a patent for invention, a statement shall be made to the administrative department for patent under the State Council. The administrative department for patent under the State Council shall, after its preliminary examination of the application, publish it immediately unless it is to be rejected. Article 52. Where the applicant requests an earlier publication of his or its application for a patent for invention, a statement shall be made to the administrative department for patent under the State Council. The administrative department for patent under the State Council shall, after its preliminary examination of the application, publish it immediately unless it is to be rejected.
  
-==== Rule53 ====+==== Rule 53 ====
 Where the applicant indicates the product incorporating the design and the class to which the product belongs, the classification of products for designs published by the administrative department for patent under the State Council shall be used. Where no indication, or an incorrect indication, of the class to which the product incorporating the design belongs is made, the administrative department for patent under the State Council may supplement or amend it. Where the applicant indicates the product incorporating the design and the class to which the product belongs, the classification of products for designs published by the administrative department for patent under the State Council shall be used. Where no indication, or an incorrect indication, of the class to which the product incorporating the design belongs is made, the administrative department for patent under the State Council may supplement or amend it.
  
-==== Rule54 ====+==== Rule 54 ====
 Any person may, from the date of publishing an application for a patent for invention until the date of announcing the grant of the patent right, submit his opinions to the administrative department for patent under the State Council, with the reasons thereof, on the application which is not in conformity with the Patent Law. Any person may, from the date of publishing an application for a patent for invention until the date of announcing the grant of the patent right, submit his opinions to the administrative department for patent under the State Council, with the reasons thereof, on the application which is not in conformity with the Patent Law.
  
行 409: 行 411:
 Where the applicant for a patent for invention is unable to submit, for any justified reason, the documents concerning any search or the results of any examination provided for in Article 36 of the Patent Law, he or it shall make a statement to the Patent Administration Department under the State Council and submit them when he or it obtains the relevant documents. Where the applicant for a patent for invention is unable to submit, for any justified reason, the documents concerning any search or the results of any examination provided for in Article 36 of the Patent Law, he or it shall make a statement to the Patent Administration Department under the State Council and submit them when he or it obtains the relevant documents.
  
-==== Rule56 ====+==== Rule 56 ====
 The administrative department for patent under the State Council shall, when proceeding on its own initiative to examine an application for a patent in accordance with Paragraph 2 of Article 35 of the Patent Law, notify the applicant accordingly. The administrative department for patent under the State Council shall, when proceeding on its own initiative to examine an application for a patent in accordance with Paragraph 2 of Article 35 of the Patent Law, notify the applicant accordingly.
  
行 423: 行 425:
 The administrative department for patent under the State Council may amend the obvious diction and symbol errors in the patent application documents at its own discretion. Where the administrative department for patent under the State Council amends on its own initiative, it shall notify the applicant. The administrative department for patent under the State Council may amend the obvious diction and symbol errors in the patent application documents at its own discretion. Where the administrative department for patent under the State Council amends on its own initiative, it shall notify the applicant.
  
-==== Rule58 ====+==== Rule 58 ====
 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 the provided format 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. 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 the provided format 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.
  
行 435: 行 437:
 (3) where the amendment to the application is not in conformity with the provisions of Article 33 of the Patent Law, or the divisional application is not in conformity with the provisions of Rule 49, paragraph one of these Implementing Regulations. (3) where the amendment to the application is not in conformity with the provisions of Article 33 of the Patent Law, or the divisional application is not in conformity with the provisions of Rule 49, paragraph one of these Implementing Regulations.
  
-==== Rule60 ====+==== Rule 60 ====
 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 2 months from the date of receipt of the notification. If the applicant has fulfilled the formalities of registration within the said time limit, the administrative department for patent under the State Council shall grant the patent right, issue the patent certificate, and announce it. 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 2 months from the date of receipt of the notification. If the applicant has fulfilled the formalities of registration within the said time limit, the administrative department for patent under the State Council shall grant the patent right, issue the patent certificate, and announce it.
  
 If no registration formalities have been carried out at the expiration of the time limit, the right to obtain the patent right shall be deemed to have been abandoned. If no registration formalities have been carried out at the expiration of the time limit, the right to obtain the patent right shall be deemed to have been abandoned.
  
-==== Rule61 ====+==== Rule 61 ====
 Where it is found after examination that there is no cause for rejection of the application for a confidential patent, the administrative department for patent under the State Council shall make a decision to grant the confidential patent right, issue a confidential patent certificate, and register the relevant matters of the confidential patent right. Where it is found after examination that there is no cause for rejection of the application for a confidential patent, the administrative department for patent under the State Council shall make a decision to grant the confidential patent right, issue a confidential patent certificate, and register the relevant matters of the confidential patent right.
  
-==== Rule62 ====+==== Rule 62 ====
 After the announcement of the decision to grant the patent right for utility model or design, the patentee, interested party or the accused infringer provided for in Article 66 of the Patent Law may request the patent administration department under the State Council to make a patent evaluation report. The applicant may request the administrative department for patent under the State Council to make a patent evaluation report when going through the formalities for patent registration. After the announcement of the decision to grant the patent right for utility model or design, the patentee, interested party or the accused infringer provided for in Article 66 of the Patent Law may request the patent administration department under the State Council to make a patent evaluation report. The applicant may request the administrative department for patent under the State Council to make a patent evaluation report when going through the formalities for patent registration.
  
行 450: 行 452:
 Where the request for a patent evaluation report is not in conformity with the provisions, the administrative department for patent under the State Council shall notify the person making the request to rectify it within a specified time limit. Where the person making the request fails to rectify it within the specified time limit, the request shall be deemed not to have been made. Where the request for a patent evaluation report is not in conformity with the provisions, the administrative department for patent under the State Council shall notify the person making the request to rectify it within a specified time limit. Where the person making the request fails to rectify it within the specified time limit, the request shall be deemed not to have been made.
  
-==== Rule63 ====+==== Rule 63 ====
 The administrative department for patent under the State Council shall make a patent evaluation report within 2 months after receiving the request for a patent evaluation report. However, where the applicant requests a patent evaluation report when going through the patent registration formalities, the administrative department for patent under the State Council shall make a patent evaluation report within 2 months from the date of announcing the grant of the patent right. The administrative department for patent under the State Council shall make a patent evaluation report within 2 months after receiving the request for a patent evaluation report. However, where the applicant requests a patent evaluation report when going through the patent registration formalities, the administrative department for patent under the State Council shall make a patent evaluation report within 2 months from the date of announcing the grant of the patent right.
  
 Where more than one petitioner requests a patent evaluation report for the same patent right for utility model or design, the patent administration department under the State Council shall make only one patent evaluation report. Any entity or individual may consult or copy the patent evaluation report. Where more than one petitioner requests a patent evaluation report for the same patent right for utility model or design, the patent administration department under the State Council shall make only one patent evaluation report. Any entity or individual may consult or copy the patent evaluation report.
  
-==== Rule64 ====+==== Rule 64 ====
 The administrative department for patent under the State Council shall, upon discovery of any error in the patent announcement or in the single patent version, correct it in time, and announce such correction. The administrative department for patent under the State Council shall, upon discovery of any error in the patent announcement or in the single patent version, correct it in time, and announce such correction.
  
行 467: 行 469:
 Where the request for reexamination is not in conformity with the provided form, the person making the request shall rectify it within the time limit specified by the administrative department for patent under the State Council. If it is not rectified at the expiry of the time limit, the request for reexamination shall be deemed not to have been made. Where the request for reexamination is not in conformity with the provided form, the person making the request shall rectify it within the time limit specified by the administrative department for patent under the State Council. If it is not rectified at the expiry of the time limit, the request for reexamination shall be deemed not to have been made.
  
-==== Rule66 ====+==== Rule 66 ====
 The person making the request may, when requesting reexamination or making responses to the notification of reexamination made by the administrative department for patent under the State Council, amend the patent application documents; however, the amendments shall be limited to removing the defects pointed out in the decision of rejection or the notification of reexamination. The person making the request may, when requesting reexamination or making responses to the notification of reexamination made by the administrative department for patent under the State Council, amend the patent application documents; however, the amendments shall be limited to removing the defects pointed out in the decision of rejection or the notification of reexamination.
  
行 480: 行 482:
 Where the person making the request withdraws his request for reexamination before the administrative department for patent under the State Council makes a decision on it, the reexamination procedures shall be terminated. Where the person making the request withdraws his request for reexamination before the administrative department for patent under the State Council makes a decision on it, the reexamination procedures shall be terminated.
  
-==== Rule69 ====+==== Rule 69 ====
 Anyone requesting invalidation or partial invalidation of a patent right in accordance with Article 45 of the Patent Law shall submit a written request and necessary supporting documents in two copies to the administrative department for patent under the State Council. The request for invalidation shall specify the reasons for the request for invalidation in combination with all the evidence submitted, and indicate the evidence on which each reason is based. Anyone requesting invalidation or partial invalidation of a patent right in accordance with Article 45 of the Patent Law shall submit a written request and necessary supporting documents in two copies to the administrative department for patent under the State Council. The request for invalidation shall specify the reasons for the request for invalidation in combination with all the evidence submitted, and indicate the evidence on which each reason is based.
  
 The reasons for the request for invalidation referred to in the preceding paragraph means that the invention-creation for which the patent right is granted does not comply with Article 2, Paragraph 1 of Article 19, Article 22, Article 23, Paragraph 3 of Article 26, Paragraph 4 of Article 26, Paragraph 2 of Article 27, Article 33 of the Patent Law or Article 11, Paragraph 2 of Article 23, Paragraph 1 of Article 49 of these Rules. Or falls under the circumstances provided for in Articles 5 and 25 of the Patent Law, or the applicant is not entitled to a patent right in accordance with Article 9 of the Patent Law. The reasons for the request for invalidation referred to in the preceding paragraph means that the invention-creation for which the patent right is granted does not comply with Article 2, Paragraph 1 of Article 19, Article 22, Article 23, Paragraph 3 of Article 26, Paragraph 4 of Article 26, Paragraph 2 of Article 27, Article 33 of the Patent Law or Article 11, Paragraph 2 of Article 23, Paragraph 1 of Article 49 of these Rules. Or falls under the circumstances provided for in Articles 5 and 25 of the Patent Law, or the applicant is not entitled to a patent right in accordance with Article 9 of the Patent Law.
  
-==== Rule70 ====+==== Rule 70 ====
 Where a request for invalidation of a patent right is not in conformity with the provisions of Article 18, paragraph one of the Patent Law or Article 69 of these Rules, the administrative department for patent under the State Council shall not accept it. Where a request for invalidation of a patent right is not in conformity with the provisions of Article 18, paragraph one of the Patent Law or Article 69 of these Rules, the administrative department for patent under the State Council shall not accept it.
  
行 494: 行 496:
 Where the request for invalidation of the patent right is not in conformity with the prescribed form, the person making the request shall rectify it within the time limit specified by the administrative department for patent under the State Council. If the rectification is not made at the expiry of the time limit, the request for invalidation shall be deemed not to have been made. Where the request for invalidation of the patent right is not in conformity with the prescribed form, the person making the request shall rectify it within the time limit specified by the administrative department for patent under the State Council. If the rectification is not made at the expiry of the time limit, the request for invalidation shall be deemed not to have been made.
  
-==== Rule71 ====+==== Rule 71 ====
 After the administrative department for patent under the State Council has accepted the request for invalidation, the person making the request may add reasons or supplement evidence within 1 month from the date when the request for invalidation is filed. The administrative department for patent under the State Council may not consider any additional reasons or supplementary evidence after the expiration of the time limit. After the administrative department for patent under the State Council has accepted the request for invalidation, the person making the request may add reasons or supplement evidence within 1 month from the date when the request for invalidation is filed. The administrative department for patent under the State Council may not consider any additional reasons or supplementary evidence after the expiration of the time limit.
  
-==== Rule72 ====+==== Rule 72 ====
 The administrative department for patent under the State Council shall send the written request for the invalidation of the patent right and the copies of the relevant documents to the patentee, requiring it to state its opinions within a specified time limit. The administrative department for patent under the State Council shall send the written request for the invalidation of the patent right and the copies of the relevant documents to the patentee, requiring it to state its opinions within a specified time limit.
  
 The patentee and the person making the request for invalidation shall, within the specified time limit, make responses to the notification on transmitting the documents or the notification on examining the request for invalidation sent by the administrative department for patent under the State Council; where no response has been made at the expiry of the time limit, the examination by the administrative department for patent under the State Council shall not be affected. The patentee and the person making the request for invalidation shall, within the specified time limit, make responses to the notification on transmitting the documents or the notification on examining the request for invalidation sent by the administrative department for patent under the State Council; where no response has been made at the expiry of the time limit, the examination by the administrative department for patent under the State Council shall not be affected.
  
-==== Rule73 ====+==== Rule 73 ====
 In the course of the examination of the request for invalidation, the patentee of a patent for invention or utility model may amend its claims, but shall not expand the scope of protection of the original patent. Where the administrative department for patent under the State Council makes a decision to maintain the validity of the patent right or to declare a part of the patent right invalid on the basis of the amended claims, it shall announce the amended claims. In the course of the examination of the request for invalidation, the patentee of a patent for invention or utility model may amend its claims, but shall not expand the scope of protection of the original patent. Where the administrative department for patent under the State Council makes a decision to maintain the validity of the patent right or to declare a part of the patent right invalid on the basis of the amended claims, it shall announce the amended claims.
  
行 524: 行 526:
 ===== Chapter V Compensation for the Duration of Patent Right ===== ===== Chapter V Compensation for the Duration of Patent Right =====
  
-==== Rule77 ====+==== Rule 77 ====
 Where a request for compensation for the duration of a patent right is made in accordance with Paragraph 2 of Article 42 of the Patent Law, the patentee shall, within three months from the date of the announcement of the grant of the patent right, submit it to the administrative department for patent under the State Council. Where a request for compensation for the duration of a patent right is made in accordance with Paragraph 2 of Article 42 of the Patent Law, the patentee shall, within three months from the date of the announcement of the grant of the patent right, submit it to the administrative department for patent under the State Council.
  
-==== Rule78 ====+==== Rule 78 ====
 Where compensation for the duration of the patent right is granted in accordance with the provisions of Article 42, paragraph 2, of the Patent Law, the duration of compensation shall be calculated on the basis of the actual number of days of unreasonable delay in the process of authorization of the patent for invention. Where compensation for the duration of the patent right is granted in accordance with the provisions of Article 42, paragraph 2, of the Patent Law, the duration of compensation shall be calculated on the basis of the actual number of days of unreasonable delay in the process of authorization of the patent for invention.
  
行 542: 行 544:
 Where the same applicant applies for both a patent for utility model and a patent for invention for the same invention-creation on the same day, and obtains a patent right for invention in accordance with the provisions of Article 47, paragraph four of these Rules, the duration of the patent right for the invention shall not be governed by the provisions of Article 42, paragraph two of the Patent Law. Where the same applicant applies for both a patent for utility model and a patent for invention for the same invention-creation on the same day, and obtains a patent right for invention in accordance with the provisions of Article 47, paragraph four of these Rules, the duration of the patent right for the invention shall not be governed by the provisions of Article 42, paragraph two of the Patent Law.
  
-==== Rule79 ====+==== Rule 79 ====
 The unreasonable delay caused by the applicant as prescribed in Paragraph 2 of Article 42 of the Patent Law includes the following circumstances: The unreasonable delay caused by the applicant as prescribed in Paragraph 2 of Article 42 of the Patent Law includes the following circumstances:
  
行 553: 行 555:
 (4) Other unreasonable delays caused by the applicant. (4) Other unreasonable delays caused by the applicant.
  
-==== Rule80 ====+==== Rule 80 ====
 The term "patents for inventions related to new drugs" as mentioned in Paragraph 3 of Article 42 of the Patent Law refers to patents for new drug products, patents for preparation methods and patents for medical uses that meet the requirements. The term "patents for inventions related to new drugs" as mentioned in Paragraph 3 of Article 42 of the Patent Law refers to patents for new drug products, patents for preparation methods and patents for medical uses that meet the requirements.
  
-==== Rule81 ====+==== Rule 81 ====
 a request for compensation for the duration of the patent right for inventions related to new drugs in accordance with the provisions of Article 42, paragraph 3, of the Patent Law shall be submitted to the patent administration department under the State Council within three months from the date of obtaining the marketing license for the new drug in China in accordance with the following requirements: a request for compensation for the duration of the patent right for inventions related to new drugs in accordance with the provisions of Article 42, paragraph 3, of the Patent Law shall be submitted to the patent administration department under the State Council within three months from the date of obtaining the marketing license for the new drug in China in accordance with the following requirements:
  
行 565: 行 567:
 (3) The patent is within the period of validity and has not been compensated for the duration of the patent right for inventions related to new drugs. (3) The patent is within the period of validity and has not been compensated for the duration of the patent right for inventions related to new drugs.
  
-==== Rule82 ====+==== Rule 82 ====
 Where compensation for the term of a patent right is granted in accordance with the provisions of Article 42.3 of the Patent Law, the term of compensation shall be determined on the basis of compliance with the provisions of Article 42.3 of the Patent Law by subtracting five years from the number of days between the date of application for the patent and the date of obtaining the marketing license for the new drug in China. Where compensation for the term of a patent right is granted in accordance with the provisions of Article 42.3 of the Patent Law, the term of compensation shall be determined on the basis of compliance with the provisions of Article 42.3 of the Patent Law by subtracting five years from the number of days between the date of application for the patent and the date of obtaining the marketing license for the new drug in China.
  
-==== Rule83 ====+==== Rule 83 ====
 During the term of patent right compensation, the scope of protection of a patent for an invention related to a new drug shall be limited to the new drug and its approved technical scheme related to the indication; within the scope of protection, the patentee shall enjoy the same rights and bear the same obligations as before the term of patent right compensation. During the term of patent right compensation, the scope of protection of a patent for an invention related to a new drug shall be limited to the new drug and its approved technical scheme related to the indication; within the scope of protection, the patentee shall enjoy the same rights and bear the same obligations as before the term of patent right compensation.
  
-==== Rule84 ====+==== Rule 84 ====
 Where the administrative department for patent under the State Council, after examining the request for compensation of the duration of a patent right made in accordance with Paragraph 2 or 3 of Article 42 of the Patent Law, considers that the conditions for compensation are met, it shall make a decision to grant a time limit for compensation, and shall register and announce it; where the conditions for compensation are not met, it shall make a decision not to grant a time limit for compensation, and notify the patentee who made the request. Where the administrative department for patent under the State Council, after examining the request for compensation of the duration of a patent right made in accordance with Paragraph 2 or 3 of Article 42 of the Patent Law, considers that the conditions for compensation are met, it shall make a decision to grant a time limit for compensation, and shall register and announce it; where the conditions for compensation are not met, it shall make a decision not to grant a time limit for compensation, and notify the patentee who made the request.
  
行 592: 行 594:
 The content of the open license statement shall be accurate and clear, and no commercial advertising terms shall appear. The content of the open license statement shall be accurate and clear, and no commercial advertising terms shall appear.
  
-==== Rule86 ====+==== Rule 86 ====
 In any of the following circumstances, the patentee shall not grant an open license to a patent right: In any of the following circumstances, the patentee shall not grant an open license to a patent right:
  
行 605: 行 607:
 (Five) other circumstances that hinder the effective implementation of the patent right. (Five) other circumstances that hinder the effective implementation of the patent right.
  
-==== Rule87 ====+==== Rule 87 ====
 Where a license for exploitation of a patent is granted through an open license, the patentee or the licensee shall file with the administrative department for patent under the State Council for the record on the basis of a written document that can prove that the license has been granted. Where a license for exploitation of a patent is granted through an open license, the patentee or the licensee shall file with the administrative department for patent under the State Council for the record on the basis of a written document that can prove that the license has been granted.
  
-==== Rule88 ====+==== Rule 88 ====
 a patentee shall not, by providing false materials or concealing facts, make an open license declaration or obtain a reduction or exemption of the annual patent fee during the implementation of the open license. a patentee shall not, by providing false materials or concealing facts, make an open license declaration or obtain a reduction or exemption of the annual patent fee during the implementation of the open license.
  
行 616: 行 618:
 "Patented medicine" mentioned in Article 55 of the Patent Law refers to any patented product in the field of medicine needed to solve public health problems or a product directly obtained by a patented process, including the active ingredients required for the manufacture of the patented product and the diagnostic supplies required for the use of the product. "Patented medicine" mentioned in Article 55 of the Patent Law refers to any patented product in the field of medicine needed to solve public health problems or a product directly obtained by a patented process, including the active ingredients required for the manufacture of the patented product and the diagnostic supplies required for the use of the product.
  
-==== Rule90 ====+==== Rule 90 ====
 Anyone requesting a compulsory license shall submit a request for compulsory license to the administrative department for patent under the State Council, state the reasons therefor, and attach relevant supporting documents. Anyone requesting a compulsory license shall submit a request for compulsory license to the administrative department for patent under the State Council, state the reasons therefor, and attach relevant supporting documents.
  
行 625: 行 627:
 When the patent administration department under the State Council makes a decision to grant a compulsory license in accordance with the provisions of Article 55 of the Patent Law, it shall also comply with the provisions of the relevant international treaties concluded or acceded to by China on granting a compulsory license for the purpose of solving public health problems, except where China has made reservations. When the patent administration department under the State Council makes a decision to grant a compulsory license in accordance with the provisions of Article 55 of the Patent Law, it shall also comply with the provisions of the relevant international treaties concluded or acceded to by China on granting a compulsory license for the purpose of solving public health problems, except where China has made reservations.
  
-==== Rule91 ====+==== Rule 91 ====
 Where, in accordance with the provisions of Article 62 of the Patent Law, the administrative department for patent under the State Council is requested to adjudicate the amount of the exploitation fee, the party concerned shall submit a request for adjudication and attach the documents proving that the two parties have not been able to reach an agreement. The administrative department for patent under the State Council shall, within 3 months from the date of receipt of the request, make a ruling and notify the party concerned. Where, in accordance with the provisions of Article 62 of the Patent Law, the administrative department for patent under the State Council is requested to adjudicate the amount of the exploitation fee, the party concerned shall submit a request for adjudication and attach the documents proving that the two parties have not been able to reach an agreement. The administrative department for patent under the State Council shall, within 3 months from the date of receipt of the request, make a ruling and notify the party concerned.
  
 ===== Chapter VII Reward and Remuneration to Inventor or Creator of Service Invention-creation ===== ===== Chapter VII Reward and Remuneration to Inventor or Creator of Service Invention-creation =====
  
-==== Rule92 ====+==== Rule 92 ====
 The entity to which a patent right is granted may agree with the inventor or creator or specify the manner and amount of the reward or remuneration provided for in Article 15 of the Patent Law in the rules and regulations formulated by it according to law. Units granted patent rights are encouraged to implement property rights incentives by means of equity, options and dividends, so that inventors or designers can reasonably share the benefits of innovation. The entity to which a patent right is granted may agree with the inventor or creator or specify the manner and amount of the reward or remuneration provided for in Article 15 of the Patent Law in the rules and regulations formulated by it according to law. Units granted patent rights are encouraged to implement property rights incentives by means of equity, options and dividends, so that inventors or designers can reasonably share the benefits of innovation.
  
行 639: 行 641:
 For an invention-creation made on the basis of an inventor's or creator's proposal adopted by the entity to which he belongs, the entity that has been granted a patent right shall award a money prize on a preferential basis. For an invention-creation made on the basis of an inventor's or creator's proposal adopted by the entity to which he belongs, the entity that has been granted a patent right shall award a money prize on a preferential basis.
  
-==== Rule94 ====+==== Rule 94 ====
 Where the entity to which a patent right is granted has not made an agreement with the inventor or designer, nor has it stipulated in its rules and regulations formulated according to law the manner and amount of remuneration provided for in Article 15 of the Patent Law, it shall pay the inventor or designer reasonable remuneration in accordance with the provisions of the Law of the People's Republic of China on Promoting the Transformation of Scientific and Technological Achievements. Where the entity to which a patent right is granted has not made an agreement with the inventor or designer, nor has it stipulated in its rules and regulations formulated according to law the manner and amount of remuneration provided for in Article 15 of the Patent Law, it shall pay the inventor or designer reasonable remuneration in accordance with the provisions of the Law of the People's Republic of China on Promoting the Transformation of Scientific and Technological Achievements.
  
 ===== Chapter VIII Protection of Patent Right ===== ===== Chapter VIII Protection of Patent Right =====
  
-==== Rule95 ====+==== Rule 95 ====
 The administrative authority for patent affairs of the people's government of a province, autonomous region or municipality directly under the Central Government, or the administrative authority for patent affairs of the people's government of a prefecture-level city, autonomous prefecture, league, region or municipality directly under the Central Government with a large amount of patent administration work and actual ability to handle it, may handle and mediate patent disputes. The administrative authority for patent affairs of the people's government of a province, autonomous region or municipality directly under the Central Government, or the administrative authority for patent affairs of the people's government of a prefecture-level city, autonomous prefecture, league, region or municipality directly under the Central Government with a large amount of patent administration work and actual ability to handle it, may handle and mediate patent disputes.
  
-==== Rule96 ====+==== Rule 96 ====
 Any of the following circumstances belongs to a patent infringement dispute that has a significant impact on the whole country as mentioned in Article 70 of the Patent Law: Any of the following circumstances belongs to a patent infringement dispute that has a significant impact on the whole country as mentioned in Article 70 of the Patent Law:
  
行 660: 行 662:
 Where a patentee or interested party requests the patent administration department under the State Council to handle a patent infringement dispute, and the relevant case does not belong to a patent infringement dispute that has a significant impact on the whole country, the patent administration department under the State Council may designate the administrative department for patent work of the local people's government that has jurisdiction to handle it. Where a patentee or interested party requests the patent administration department under the State Council to handle a patent infringement dispute, and the relevant case does not belong to a patent infringement dispute that has a significant impact on the whole country, the patent administration department under the State Council may designate the administrative department for patent work of the local people's government that has jurisdiction to handle it.
  
-==== Rule97 ====+==== Rule 97 ====
 Where a party concerned requests the handling of a patent infringement dispute or the mediation of a patent dispute, it shall be under the jurisdiction of the department for the administration of patent work in the place where the respondent is located or where the infringement occurs. Where a party concerned requests the handling of a patent infringement dispute or the mediation of a patent dispute, it shall be under the jurisdiction of the department for the administration of patent work in the place where the respondent is located or where the infringement occurs.
  
行 667: 行 669:
 Where a jurisdictional dispute arises between the departments for the administration of patent work, jurisdiction shall be designated by the department for the administration of patent work of the people's government at a higher level over both parties; where there is no such department for the administration of patent work of the people's government at a higher level over both parties, jurisdiction shall be designated by the administrative department for patent under the State Council. Where a jurisdictional dispute arises between the departments for the administration of patent work, jurisdiction shall be designated by the department for the administration of patent work of the people's government at a higher level over both parties; where there is no such department for the administration of patent work of the people's government at a higher level over both parties, jurisdiction shall be designated by the administrative department for patent under the State Council.
  
-==== Rule98 ====+==== Rule 98 ====
 Where, in the course of handling a patent infringement dispute, the respondent has filed a request for invalidation and has been accepted by the administrative department for patent under the State Council, he may request the department for the administration of patent work to suspend the handling. Where, in the course of handling a patent infringement dispute, the respondent has filed a request for invalidation and has been accepted by the administrative department for patent under the State Council, he may request the department for the administration of patent work to suspend the handling.
  
 Where the department for the administration of patent work considers that the reasons for suspension given by the respondent are obviously untenable, it may refuse to suspend the disposal. Where the department for the administration of patent work considers that the reasons for suspension given by the respondent are obviously untenable, it may refuse to suspend the disposal.
  
-==== Rule99 ====+==== Rule 99 ====
 Where any patentee affixes a patent mark on the patented product or on the package of that product in accordance with Article 16 of the Patent Law, he or it shall make the affixation in the manner as prescribed by the administrative department for patent under the State Council. Where any patentee affixes a patent mark on the patented product or on the package of that product in accordance with Article 16 of the Patent Law, he or it shall make the affixation in the manner as prescribed by the administrative department for patent under the State Council.
  
 If the patent mark does not conform to the provisions of the preceding paragraph, the department responsible for patent law enforcement at or above the county level shall order it to make corrections. If the patent mark does not conform to the provisions of the preceding paragraph, the department responsible for patent law enforcement at or above the county level shall order it to make corrections.
  
-==== Rule100 ====+==== Rule 100 ====
 Where any applicant or patentee violates the provisions of Article 11 or Article 88 of these Rules, he shall be given a warning and may be fined not more than 100,000 yuan by the department responsible for patent law enforcement at or above the county level. Where any applicant or patentee violates the provisions of Article 11 or Article 88 of these Rules, he shall be given a warning and may be fined not more than 100,000 yuan by the department responsible for patent law enforcement at or above the county level.
  
-==== Rule101 ====+==== Rule 101 ====
 The following acts shall be acts of passing off a patent as provided for in Article 68 of the Patent Law: The following acts shall be acts of passing off a patent as provided for in Article 68 of the Patent Law:
  
行 697: 行 699:
 If a person sells a product that is not known to be a counterfeit patent and can prove the legitimate source of the product, the department responsible for patent law enforcement at or above the county level shall order him to stop selling it. If a person sells a product that is not known to be a counterfeit patent and can prove the legitimate source of the product, the department responsible for patent law enforcement at or above the county level shall order him to stop selling it.
  
-==== Rule102 ====+==== Rule 102 ====
 Except as provided in Article 65 of the Patent Law, the department for the administration of patent work may, at the request of the party concerned, mediate the following patent disputes: Except as provided in Article 65 of the Patent Law, the department for the administration of patent work may, at the request of the party concerned, mediate the following patent disputes:
  
行 712: 行 714:
 For the disputes enumerated in Item (4) of the preceding paragraph, if the parties request the department for the administration of patent work for mediation, they shall do so after the grant of the patent right. For the disputes enumerated in Item (4) of the preceding paragraph, if the parties request the department for the administration of patent work for mediation, they shall do so after the grant of the patent right.
  
-==== Rule103 ====+==== Rule 103 ====
 Where a party concerned, in case of a dispute due to the ownership of the right of patent application or the patent right, has requested the department for the administration of patent work to mediate or has initiated a lawsuit to the people's court, he may request the administrative department for patent under the State Council to suspend relevant procedures. Where a party concerned, in case of a dispute due to the ownership of the right of patent application or the patent right, has requested the department for the administration of patent work to mediate or has initiated a lawsuit to the people's court, he may request the administrative department for patent under the State Council to suspend relevant procedures.
  
行 719: 行 721:
 After the conciliation statement made by the department for the administration of patent work or the judgment made by the people's court has entered into force, the party concerned shall go through the formalities for recovering the relevant procedures in the administrative department for patent under the State Council. Where a dispute relating to the ownership of the right of patent application or the patent right has not been settled within one year from the date of requesting suspension, and it is necessary to continue to suspend the relevant procedures, the petitioner shall request an extension of the suspension within the time limit. Where the request for extension is not made at the expiry of the time limit, the administrative department for patent under the State Council shall resume the relevant procedures at its own discretion. After the conciliation statement made by the department for the administration of patent work or the judgment made by the people's court has entered into force, the party concerned shall go through the formalities for recovering the relevant procedures in the administrative department for patent under the State Council. Where a dispute relating to the ownership of the right of patent application or the patent right has not been settled within one year from the date of requesting suspension, and it is necessary to continue to suspend the relevant procedures, the petitioner shall request an extension of the suspension within the time limit. Where the request for extension is not made at the expiry of the time limit, the administrative department for patent under the State Council shall resume the relevant procedures at its own discretion.
  
-==== Rule104 ====+==== Rule 104 ====
 Where the people's court has ordered to adopt preservative measures over the right to apply for a patent or the patent right in the trial of a civil case, the administrative department for patent under the State Council shall suspend relevant procedures for the preserved right to apply for a patent or the patent right on the day when it receives the written order indicating the application number or the patent number and the notification for assistance in execution. Where, at the expiration of the preservation period, the people's court has not ordered to continue the preservation measures, the administrative department for patent under the State Council shall recover the relevant procedures at its own discretion. Where the people's court has ordered to adopt preservative measures over the right to apply for a patent or the patent right in the trial of a civil case, the administrative department for patent under the State Council shall suspend relevant procedures for the preserved right to apply for a patent or the patent right on the day when it receives the written order indicating the application number or the patent number and the notification for assistance in execution. Where, at the expiration of the preservation period, the people's court has not ordered to continue the preservation measures, the administrative department for patent under the State Council shall recover the relevant procedures at its own discretion.
  
-==== Rule105 ====+==== Rule 105 ====
 that suspension of relevant procedure by the administrative department for patent under the State Council in accordance with the provision of article 103 and 104 of these rules means the suspension of the procedures for preliminary examination, substantive examination and reexamination of an application for patent, the procedure for the grant of patent right and the procedures for the invalidation of patent right; The procedures for abandoning, altering or transferring the patent right or the patent application right, the procedures for the pledge of the patent right and the procedures for the termination of the patent right before the expiration of the term of the patent right shall be suspended. that suspension of relevant procedure by the administrative department for patent under the State Council in accordance with the provision of article 103 and 104 of these rules means the suspension of the procedures for preliminary examination, substantive examination and reexamination of an application for patent, the procedure for the grant of patent right and the procedures for the invalidation of patent right; The procedures for abandoning, altering or transferring the patent right or the patent application right, the procedures for the pledge of the patent right and the procedures for the termination of the patent right before the expiration of the term of the patent right shall be suspended.
  
 ===== Chapter IX Patent Registration and Patent Gazette ===== ===== Chapter IX Patent Registration and Patent Gazette =====
  
-==== Rule106 ====+==== Rule 106 ====
 The administrative department for patent under the State Council shall keep a Patent Register in which the following matters relating to patent applications and patent rights shall be registered: The administrative department for patent under the State Council shall keep a Patent Register in which the following matters relating to patent applications and patent rights shall be registered:
  
行 754: 行 756:
 (12) any change in the name, nationality or address of the patentee. (12) any change in the name, nationality or address of the patentee.
  
-==== Rule107 ====+==== Rule 107 ====
 The administrative department for patent under the State Council shall publish the Patent Gazette at regular intervals, publishing or announcing the following: The administrative department for patent under the State Council shall publish the Patent Gazette at regular intervals, publishing or announcing the following:
  
行 793: 行 795:
 (18) Other relevant matters. (18) Other relevant matters.
  
-==== Rule108 ====+==== Rule 108 ====
 The administrative department for patent under the State Council shall provide the patent Gazette, the single edition of the patent application for invention and the single edition of the patent for invention, utility model and design for free reference by the public. The administrative department for patent under the State Council shall provide the patent Gazette, the single edition of the patent application for invention and the single edition of the patent for invention, utility model and design for free reference by the public.
  
-==== Rule109 ====+==== Rule 109 ====
 The administrative department for patent under the State Council shall be responsible for exchanging patent documents with the patent offices of other countries, regions or regional patent organizations in accordance with the principle of reciprocity. The administrative department for patent under the State Council shall be responsible for exchanging patent documents with the patent offices of other countries, regions or regional patent organizations in accordance with the principle of reciprocity.
  
 ===== Chapter X Expenses ===== ===== Chapter X Expenses =====
  
-==== Rule110 ====+==== Rule 110 ====
 When filing an application for a patent with the administrative department for patent under the State Council and fulfilling other formalities, the following fees shall be charged: When filing an application for a patent with the administrative department for patent under the State Council and fulfilling other formalities, the following fees shall be charged:
  
行 823: 行 825:
 Where any patent fee is overpaid, repaid or wrongly paid, the party concerned may, within three years from the date of payment, request the administrative department for patent under the State Council for a refund, and the administrative department for patent under the State Council shall refund the fee. Where any patent fee is overpaid, repaid or wrongly paid, the party concerned may, within three years from the date of payment, request the administrative department for patent under the State Council for a refund, and the administrative department for patent under the State Council shall refund the fee.
  
-==== Rule112 ====+==== Rule 112 ====
 The applicant shall, within 2 months from the filing date or within 15 days from the date of receipt of the notification of acceptance of the application, pay the filing fee, the printing fee for publication of the application and the necessary additional fee for filing of application. Where the filing fee is not paid or not paid in full within the time limit, the application shall be deemed to have been withdrawn. The applicant shall, within 2 months from the filing date or within 15 days from the date of receipt of the notification of acceptance of the application, pay the filing fee, the printing fee for publication of the application and the necessary additional fee for filing of application. Where the filing fee is not paid or not paid in full within the time limit, the application shall be deemed to have been withdrawn.
  
行 831: 行 833:
 Where the party concerned requests an examination or reexamination as to substance, the relevant fee shall be paid within the time limit prescribed respectively by the Patent Law and these Implementing Regulations; where the fee has not been paid or fully paid at the expiry of the time limit, the request shall be deemed not to have been made. Where the party concerned requests an examination or reexamination as to substance, the relevant fee shall be paid within the time limit prescribed respectively by the Patent Law and these Implementing Regulations; where the fee has not been paid or fully paid at the expiry of the time limit, the request shall be deemed not to have been made.
  
-==== Rule114 ====+==== Rule 114 ====
 When the applicant goes through the formalities of registration, he shall pay the annual fee for the year in which the patent right is granted. If the fee is not paid or not paid in full at the expiration of the time limit, the applicant shall be deemed not to have gone through the formalities of registration. When the applicant goes through the formalities of registration, he shall pay the annual fee for the year in which the patent right is granted. If the fee is not paid or not paid in full at the expiration of the time limit, the applicant shall be deemed not to have gone through the formalities of registration.
  
-==== Rule115 ====+==== Rule 115 ====
 The annual fee after the year in which the patent right is granted shall be paid before the expiration of the preceding year. Where the annual fee is not paid or not paid in full by the patentee, the administrative department for patent under the State Council shall notify the patentee to rectify the insufficiency within 6 months as of the expiry of the time limit within which the annual fee should be paid, and at the same time pay a surcharge, the amount of which shall be calculated by charging an additional 5% of the total amount of the annual fee for that year for each month exceeding the provided payment time; where the insufficiency has not been paid at the expiry of the time limit, the patent right shall be terminated as of the expiry of the time. The annual fee after the year in which the patent right is granted shall be paid before the expiration of the preceding year. Where the annual fee is not paid or not paid in full by the patentee, the administrative department for patent under the State Council shall notify the patentee to rectify the insufficiency within 6 months as of the expiry of the time limit within which the annual fee should be paid, and at the same time pay a surcharge, the amount of which shall be calculated by charging an additional 5% of the total amount of the annual fee for that year for each month exceeding the provided payment time; where the insufficiency has not been paid at the expiry of the time limit, the patent right shall be terminated as of the expiry of the time.
  
-==== Rule116 ====+==== Rule 116 ====
 The fee for a claim for restoration of rights shall be paid within the relevant time limit prescribed in these Rules; if the fee is not paid or not paid in full at the expiration of the time limit, the claim shall be deemed not to have been filed. The fee for a claim for restoration of rights shall be paid within the relevant time limit prescribed in these Rules; if the fee is not paid or not paid in full at the expiration of the time limit, the claim shall be deemed not to have been filed.
  
行 849: 行 851:
 ===== Chapter XI Special Provisions on International Applications for Inventions and Utility Models ===== ===== Chapter XI Special Provisions on International Applications for Inventions and Utility Models =====
  
-==== Rule118 ====+==== Rule 118 ====
 The administrative department for patent under the State Council shall, in accordance with Article 19 of the Patent Law, accept the international patent applications filed in accordance with the Patent Cooperation Treaty. The administrative department for patent under the State Council shall, in accordance with Article 19 of the Patent Law, accept the international patent applications filed in accordance with the Patent Cooperation Treaty.
  
 Where any international application filed under the Patent Cooperation Treaty designating China (hereinafter referred to as the "international application") enters the phase of processing by the patent administration department under the State Council (hereinafter referred to as the "Chinese national phase"), the requirements and procedures prescribed in this Chapter shall apply. Where no provisions are made in this Chapter, the relevant provisions in the Patent Law and in any other chapters of these Rules shall apply. Where any international application filed under the Patent Cooperation Treaty designating China (hereinafter referred to as the "international application") enters the phase of processing by the patent administration department under the State Council (hereinafter referred to as the "Chinese national phase"), the requirements and procedures prescribed in this Chapter shall apply. Where no provisions are made in this Chapter, the relevant provisions in the Patent Law and in any other chapters of these Rules shall apply.
  
-==== Rule119 ====+==== Rule 119 ====
 Any international application for which the international filing date has been determined in accordance with the Patent Cooperation Treaty and which has designated China shall be deemed to have been filed with the patent administration department under the State Council, and the international filing date shall be deemed to be the filing date referred to in Article 28 of the Patent Law. Any international application for which the international filing date has been determined in accordance with the Patent Cooperation Treaty and which has designated China shall be deemed to have been filed with the patent administration department under the State Council, and the international filing date shall be deemed to be the filing date referred to in Article 28 of the Patent Law.
  
-==== Rule120 ====+==== Rule 120 ====
 Any applicant for an international application 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 at the administrative department for patent under the State Council; If the applicant fails to go through the formalities within the time limit, he may go through the formalities for entering the Chinese national phase within 32 months from the priority date after paying the grace fee. Any applicant for an international application 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 at the administrative department for patent under the State Council; If the applicant fails to go through the formalities within the time limit, he may go through the formalities for entering the Chinese national phase within 32 months from the priority date after paying the grace fee.
  
-==== Rule121 ====+==== Rule 121 ====
 The applicant who goes through the formalities for entering the Chinese national phase in accordance with the provisions of Article 120 of these Rules shall meet the following requirements: The applicant who goes through the formalities for entering the Chinese national phase in accordance with the provisions of Article 120 of these Rules shall meet the following requirements:
  
行 881: 行 883:
 Where the international application has entered the Chinese national phase but does not meet the requirements in Items (4) to (7) of Paragraph 1 of this Article, the administrative department for patent under the State Council shall notify the applicant to make rectification within the specified time limit; where the rectification is not made at the expiry of the time limit, the application shall be deemed to have been withdrawn. Where the international application has entered the Chinese national phase but does not meet the requirements in Items (4) to (7) of Paragraph 1 of this Article, the administrative department for patent under the State Council shall notify the applicant to make rectification within the specified time limit; where the rectification is not made at the expiry of the time limit, the application shall be deemed to have been withdrawn.
  
-==== Rule122 ====+==== Rule 122 ====
 The effectiveness of an international application in China shall be terminated under any of the following circumstances: The effectiveness of an international application in China shall be terminated under any of the following circumstances:
  
行 892: 行 894:
 Where the effectiveness of an international application ceases in China according to the provisions of Item (1) of the preceding paragraph, the provisions of Article 6 of these Rules shall not apply; where the effectiveness of an international application ceases in China according to the provisions of Items (2) and (3) of the preceding paragraph, the provisions of Paragraph 2 of Article 6 of these Rules shall not apply. Where the effectiveness of an international application ceases in China according to the provisions of Item (1) of the preceding paragraph, the provisions of Article 6 of these Rules shall not apply; where the effectiveness of an international application ceases in China according to the provisions of Items (2) and (3) of the preceding paragraph, the provisions of Paragraph 2 of Article 6 of these Rules shall not apply.
  
-==== Rule123 ====+==== Rule 123 ====
 Where an international application has been amended in the International Phase and the applicant requests examination on the basis of the amended application documents, the Chinese translation of the amended part shall be submitted within 2 months from the date of entry. Where the Chinese translation is not submitted within the time limit, the administrative department for patent under the State Council shall not consider the amendments made by the applicant in the international phase. Where an international application has been amended in the International Phase and the applicant requests examination on the basis of the amended application documents, the Chinese translation of the amended part shall be submitted within 2 months from the date of entry. Where the Chinese translation is not submitted within the time limit, the administrative department for patent under the State Council shall not consider the amendments made by the applicant in the international phase.
  
行 905: 行 907:
 Where the applicant submits the certificates of the deposit and the viability of the biological materials to the administrative department for patent under the State Council within four months from the date of entry, the deposit of biological materials shall be deemed to have been made within the time limit as provided for in Rule 27, subparagraph (1) of these Rules. Where the applicant submits the certificates of the deposit and the viability of the biological materials to the administrative department for patent under the State Council within four months from the date of entry, the deposit of biological materials shall be deemed to have been made within the time limit as provided for in Rule 27, subparagraph (1) of these Rules.
  
-==== Rule126 ====+==== Rule 126 ====
 Where the invention-creation involved in an international application is completed in reliance on genetic resources, the applicant shall make a statement in the written declaration on the entry of the international application into the Chinese national phase, and fill in the form formulated by the administrative department for patent under the State Council. Where the invention-creation involved in an international application is completed in reliance on genetic resources, the applicant shall make a statement in the written declaration on the entry of the international application into the Chinese national phase, and fill in the form formulated by the administrative department for patent under the State Council.
  
行 915: 行 917:
 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 it shall be exempted from submitting a copy of the earlier application to the administrative department for patent under the State Council at the time of going through the formalities for entering the Chinese national phase. Where the applicant fails to submit the copies of the earlier application documents in the International Phase, the administrative department for patent under the State Council may, when considering it necessary, notify the applicant to supplement them within a specified time limit; where the applicant fails to do so at the expiry of the time limit, his or its claim for priority shall be deemed not to have been made. 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 it shall be exempted from submitting a copy of the earlier application to the administrative department for patent under the State Council at the time of going through the formalities for entering the Chinese national phase. Where the applicant fails to submit the copies of the earlier application documents in the International Phase, the administrative department for patent under the State Council may, when considering it necessary, notify the applicant to supplement them within a specified time limit; where the applicant fails to do so at the expiry of the time limit, his or its claim for priority shall be deemed not to have been made.
  
-==== Rule128 ====+==== Rule 128 ====
 Where, within 2 months after the expiration of the period of priority, the filing date of the international application has been approved by the receiving Office in the international phase to restore the right of priority, the request for restoration of the right of priority shall be deemed to have been filed in accordance with the provisions of Article 36 of these Rules; Where, in the international phase, the applicant has not requested the restoration of the right of priority, or has made a request for the restoration of the right of priority but the receiving office has not approved it, and the applicant has justified reasons, he may, within 2 months from the date of entry, request the administrative department for patent under the State Council to restore the right of priority. Where, within 2 months after the expiration of the period of priority, the filing date of the international application has been approved by the receiving Office in the international phase to restore the right of priority, the request for restoration of the right of priority shall be deemed to have been filed in accordance with the provisions of Article 36 of these Rules; Where, in the international phase, the applicant has not requested the restoration of the right of priority, or has made a request for the restoration of the right of priority but the receiving office has not approved it, and the applicant has justified reasons, he may, within 2 months from the date of entry, request the administrative department for patent under the State Council to restore the right of priority.
  
行 921: 行 923:
 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 its international application, he 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 23.2 of the Patent Cooperation Treaty. Where the international application has not been transmitted by the International Bureau to the administrative department for patent under the State Council, the applicant shall submit a confirmed copy of the international application. 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 its international application, he 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 23.2 of the Patent Cooperation Treaty. Where the international application has not been transmitted by the International Bureau to the administrative department for patent under the State Council, the applicant shall submit a confirmed copy of the international application.
  
-==== Rule130 ====+==== Rule 130 ====
 For an international application for a patent for utility model, the applicant may, within 2 months from the date of entry, propose to amend the patent application documents on his own initiative. For an international application for a patent for utility model, the applicant may, within 2 months from the date of entry, propose to amend the patent application documents on his own initiative.
  
 The international application for the patent right for invention shall be subject to Paragraph 1 of Article 57 of these Rules. The international application for the patent right for invention shall be subject to Paragraph 1 of Article 57 of these Rules.
  
-==== Rule131 ====+==== Rule 131 ====
 Where the applicant finds that there are errors in the Chinese translation of the description, the claims or the text of the appended drawings as filed, he\/it may file a request for correction in accordance with the original international application within the following time limits: Where the applicant finds that there are errors in the Chinese translation of the description, the claims or the text of the appended drawings as filed, he\/it may file a request for correction in accordance with the original international application within the following time limits:
  
行 937: 行 939:
 Where the applicant corrects the translation in accordance with the notification of the administrative department for patent under the State Council, he\/it shall, within the specified time limit, fulfill the formalities provided in the second paragraph of this Article. Where the applicant fails to fulfill the prescribed formalities at the expiry of the time limit, the application shall be deemed to have been withdrawn. Where the applicant corrects the translation in accordance with the notification of the administrative department for patent under the State Council, he\/it shall, within the specified time limit, fulfill the formalities provided in the second paragraph of this Article. Where the applicant fails to fulfill the prescribed formalities at the expiry of the time limit, the application shall be deemed to have been withdrawn.
  
-==== Rule132 ====+==== Rule 132 ====
 For an international application claiming the patent right for invention, the administrative department for patent under the State Council shall, if considering it to be in conformity with relevant provisions in the Patent Law and these Rules after the preliminary examination, publish it in the Patent Gazette; where the international application is filed in a language other than Chinese, the Chinese translation of the application documents shall be published. For an international application claiming the patent right for invention, the administrative department for patent under the State Council shall, if considering it to be in conformity with relevant provisions in the Patent Law and these Rules after the preliminary examination, publish it in the Patent Gazette; where the international application is filed in a language other than Chinese, the Chinese translation of the application documents shall be published.
  
行 949: 行 951:
 If, in the International Phase, the International Searching Authority or the International Preliminary Examination Authority considers that the international application is not in conformity with the requirement of singularity provided in the Patent Cooperation Treaty, and the applicant fails to pay the additional fee as provided, thus causing some parts of the international application to be the subject of international searching or international preliminary examination, the applicant requests that the said parts be the basis of examination at the time of entry into the National Phase in China. Where the administrative department for patent under the State Council considers that the decision on unity of invention made by the international retrieval entity or the international preliminary examination entity is justified, it shall notify the applicant to pay the fee for restoration of unity within a specified time limit. Where the said fee has not been paid or fully paid at the expiry of the time limit, the parts of the international application which have not undergone search or international preliminary examination shall be deemed to have been withdrawn. If, in the International Phase, the International Searching Authority or the International Preliminary Examination Authority considers that the international application is not in conformity with the requirement of singularity provided in the Patent Cooperation Treaty, and the applicant fails to pay the additional fee as provided, thus causing some parts of the international application to be the subject of international searching or international preliminary examination, the applicant requests that the said parts be the basis of examination at the time of entry into the National Phase in China. Where the administrative department for patent under the State Council considers that the decision on unity of invention made by the international retrieval entity or the international preliminary examination entity is justified, it shall notify the applicant to pay the fee for restoration of unity within a specified time limit. Where the said fee has not been paid or fully paid at the expiry of the time limit, the parts of the international application which have not undergone search or international preliminary examination shall be deemed to have been withdrawn.
  
-==== Rule134 ====+==== Rule 134 ====
 Where, in the International Phase, an international application is refused by a relevant international entity to grant an international application date on it or is declared to be deemed to have been withdrawn, the applicant may, within 2 months from the date on which he or it receives the notice, request the International Bureau to transfer the copy of any document in the file of the international application to the administrative department for patent under the State Council. The administrative department for patent under the State Council shall, after receiving the documents transmitted by the International Bureau, re-examine whether the decision made by the international entity is correct. Where, in the International Phase, an international application is refused by a relevant international entity to grant an international application date on it or is declared to be deemed to have been withdrawn, the applicant may, within 2 months from the date on which he or it receives the notice, request the International Bureau to transfer the copy of any document in the file of the international application to the administrative department for patent under the State Council. The administrative department for patent under the State Council shall, after receiving the documents transmitted by the International Bureau, re-examine whether the decision made by the international entity is correct.
  
-==== Rule135 ====+==== Rule 135 ====
 With respect to the patent right granted upon the international application, if the scope of protection determined in accordance with Article 64 of the Patent Law has exceeded the scope expressed in the original text of the international application due to errors in the translation, the protection scope which is limited on the basis of the original text shall prevail; if the protection scope is narrower than the scope expressed in the original text of the international application due to such errors in the translation, the protection scope at the time of grant shall prevail. With respect to the patent right granted upon the international application, if the scope of protection determined in accordance with Article 64 of the Patent Law has exceeded the scope expressed in the original text of the international application due to errors in the translation, the protection scope which is limited on the basis of the original text shall prevail; if the protection scope is narrower than the scope expressed in the original text of the international application due to such errors in the translation, the protection scope at the time of grant shall prevail.
  
 ===== Chapter XII Special Provisions on International Applications for Designs ===== ===== Chapter XII Special Provisions on International Applications for Designs =====
  
-==== Rule136 ====+==== Rule 136 ====
 The administrative department for patent under the State Council shall, in accordance with the provisions of Article 19 (2) and (3) of the Patent Law, handle the application for international registration of industrial designs filed in accordance with the Hague Agreement for the International Registration of Industrial Designs (1999 Text) (hereinafter referred to as the Hague Agreement). The administrative department for patent under the State Council shall, in accordance with the provisions of Article 19 (2) and (3) of the Patent Law, handle the application for international registration of industrial designs filed in accordance with the Hague Agreement for the International Registration of Industrial Designs (1999 Text) (hereinafter referred to as the Hague Agreement).
  
 The requirements and procedures of the administrative department for patent under the State Council for handling the international registration of designs filed in accordance with the Hague Agreement and designating China (hereinafter referred to as the international application for design) shall be governed by the provisions of this Chapter. Where there are no provisions in this Chapter, the relevant provisions in the Patent Law and other chapters of these Rules shall apply. The requirements and procedures of the administrative department for patent under the State Council for handling the international registration of designs filed in accordance with the Hague Agreement and designating China (hereinafter referred to as the international application for design) shall be governed by the provisions of this Chapter. Where there are no provisions in this Chapter, the relevant provisions in the Patent Law and other chapters of these Rules shall apply.
  
-==== Rule137 ====+==== Rule 137 ====
 Any international application for a design for which an international registration date has been fixed in accordance with the Hague Agreement and which has designated China shall be deemed to be an application for a patent for design filed with the patent administration department under the State Council. The international registration date shall be deemed to be the filing date referred to in Article 28 of the Patent Law. Any international application for a design for which an international registration date has been fixed in accordance with the Hague Agreement and which has designated China shall be deemed to be an application for a patent for design filed with the patent administration department under the State Council. The international registration date shall be deemed to be the filing date referred to in Article 28 of the Patent Law.
  
-==== Rule138 ====+==== Rule 138 ====
 After the publication of an international application for design by the International Bureau, the administrative department for patent under the State Council shall examine the international application for design and notify the International Bureau of the result of the examination. After the publication of an international application for design by the International Bureau, the administrative department for patent under the State Council shall examine the international application for design and notify the International Bureau of the result of the examination.
  
行 982: 行 984:
 Where the international application for a design published by the International Bureau contains a specification containing key points of the design, the specification shall be deemed to have been filed in accordance with the provisions of Rule 31. Where the international application for a design published by the International Bureau contains a specification containing key points of the design, the specification shall be deemed to have been filed in accordance with the provisions of Rule 31.
  
-==== Rule143 ====+==== Rule 143 ====
 Where it is found after examination of the international application for design by the administrative department for patent under the State Council that there is no cause for rejection, the administrative department for patent under the State Council shall make the decision to grant protection and notify the International Bureau of the same. Where it is found after examination of the international application for design by the administrative department for patent under the State Council that there is no cause for rejection, the administrative department for patent under the State Council shall make the decision to grant protection and notify the International Bureau of the same.
  
 The decision to grant protection made by the patent administration department under the State Council shall be announced, and the patent right for design shall take effect as of the date of the announcement. The decision to grant protection made by the patent administration department under the State Council shall be announced, and the patent right for design shall take effect as of the date of the announcement.
  
-==== Rule144 ====+==== Rule 144 ====
 Where the formalities for the change of rights have been completed in the International Bureau, the applicant shall submit the relevant certification materials to the administrative department for patent under the State Council. Where the formalities for the change of rights have been completed in the International Bureau, the applicant shall submit the relevant certification materials to the administrative department for patent under the State Council.
  
 ===== Chapter XIII Supplementary Provisions ===== ===== Chapter XIII Supplementary Provisions =====
  
-==== Rule145 ====+==== Rule 145 ====
 Any person may, upon approval by the administrative department for patent under the State Council, inspect or copy the files of the published or announced patent applications and the Patent Register, and may request the administrative department for patent under the State Council to issue a copy of the Patent Register. Any person may, upon approval by the administrative department for patent under the State Council, inspect or copy the files of the published or announced patent applications and the Patent Register, and may request the administrative department for patent under the State Council to issue a copy of the Patent Register.
  
行 999: 行 1001:
 Where the patent right has been abandoned, wholly invalidated or ceased, the files shall not be preserved after expiration of three years from the date on which the patent right ceases to be valid. Where the patent right has been abandoned, wholly invalidated or ceased, the files shall not be preserved after expiration of three years from the date on which the patent right ceases to be valid.
  
-==== Rule146 ====+==== Rule 146 ====
 The application documents submitted to the administrative department for patent under the State Council and the formalities fulfilled shall be signed or sealed by the applicant, the patentee, other interested parties or their representatives; where a patent agency is appointed, it shall be sealed by the patent agency. The application documents submitted to the administrative department for patent under the State Council and the formalities fulfilled shall be signed or sealed by the applicant, the patentee, other interested parties or their representatives; where a patent agency is appointed, it shall be sealed by the patent agency.
  
 Where a change of the name of the inventor, the name, nationality and address of the applicant or the patentee, or the name and address of the patent agency and the name of the patent agent is requested, a request for a change in the bibliographic data shall be made to the administrative department for patent under the State Council, and when necessary, supporting materials for the change shall be submitted. Where a change of the name of the inventor, the name, nationality and address of the applicant or the patentee, or the name and address of the patent agency and the name of the patent agent is requested, a request for a change in the bibliographic data shall be made to the administrative department for patent under the State Council, and when necessary, supporting materials for the change shall be submitted.
  
-==== Rule147 ====+==== Rule 147 ====
 The documents relating to a patent application or patent right which are mailed to the administrative department for patent under the State Council shall be mailed by registered letter and shall not be mailed by parcel. The documents relating to a patent application or patent right which are mailed to the administrative department for patent under the State Council shall be mailed by registered letter and shall not be mailed by parcel.
  
行 1011: 行 1013:
 A letter shall contain only the documents of the same application. A letter shall contain only the documents of the same application.
  
-==== Rule148 ====+==== Rule 148 ====
 The administrative department for patent under the State Council shall formulate the guidelines for patent examination in accordance with the Patent Law and these Rules. The administrative department for patent under the State Council shall formulate the guidelines for patent examination in accordance with the Patent Law and these Rules.
  
-==== Rule149 ====+==== Rule 149 ====
 These Rules shall enter into force as of July 1, 2001. The Rules for the Implementation 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 simultaneously. These Rules shall enter into force as of July 1, 2001. The Rules for the Implementation 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 simultaneously.