Implementing Rules of the Patent Law of the People's Republic of China (Revised in 2002)
Implementing Rules of the Patent Law of the People's Republic of China (Revised in 2002)
Implementing Rules of the Patent Law of the People's Republic of China (Revised in 2002)
Order of the State Council No.368
December 28, 2002
The Decision of the State Council on Amending the Implementing Rules of the Patent Law of the People's Republic of China are hereby promulgated, which shall come into effect as of the date of February 1, 2003.
Premier Zhu Rongji
Implementing Rules of the Patent Law of the People's Republic of China
(Issued by the Order of the State Council No.306 on June 15, 2001; amended according to the Decision of the State Council on the Revision of the Implementing Rules of the Patent Law of the People's Republic of China, which has been adopted on December 28, 2002)
Chapter I General Provisions
Article 1 The present Rules are formulated in accordance with Patent Law of the People's Republic of China.(hereinafter referred to as the "Patent Law").
Article 2 The term "invention" in the Present Rules shall refer to a new technical solution put forward for a product, method or the improvement thereof.
The term "utility model" shall refer to a new technical solution that is put forward for the form or structure, or the combination of the two, of a product and that has practical applicability.
The term "design" shall mean a new design of a product's shape, pattern or the combination thereof, or the combination of its color and its shape and/or pattern, that is aesthetically pleasing and suitable for industrial use.
Article 3 The kinds of procedures stipulated in the Patent Law and the present Rules shall be carried out in writing or in another form prescribed by the State Council's patent administration authority.
Article 4 All documents submitted in accordance with the Patent Law and the present Rules shall be in Chinese. Where the State has prescribed unified scientific and technical terminology, the standard terms shall be used. If there is no unified Chinese translation for a foreign personal or place name or foreign scientific or technical term, the original term shall be indicated.
If any certificate or supporting document submitted in accordance with the Patent Law and the present Rules is in a foreign language, the State Council's patent administration authority may require the party concerned to supply a Chinese translation within a prescribed time limit if it considers this to be necessary. If the translation is not supplied within the time limit, such certificate or supporting document shall be deemed not to have been submitted.
Article 5 The postmark date of a document mailed to the State Council's patent administration authority shall be the date of submission. If the postmark date is unclear, the date of receipt of the document by the State Council's patent administration authority shall be the date of submission, unless the party concerned can supply evidence regarding the date of mailing.
Documents of the State Council's patent administration authority may be served on a party by mail, direct delivery or otherwise. If the party has appointed a patent agency, documents shall be delivered to the patent agency. If the party has not appointed a patent agency, documents shall be delivered to the contact person designated in the request.
Dcuments mailed by the State Council's patent administration authority shall be assumed to have been received by the party concerned after a lapse of 15 days from the date of sending.
The date of service of documents that regulations of the State Council's patent administration authority require to be delivered directly shall be the date of delivery.
If the address to which a document is to be sent is unclear and the document cannot be mailed, the documents may be served on the party concerned by public announcement. Such document shall be deemed to have been served after the lapse of one month from the date of the announcement.
Article 6 The first day of any time limit stipulated inin the Patent Law or the present Rules shall not be calculated as part of the time limit. If a time limit is calculated in years or months, the corresponding day of the last month of such time limit shall be the date of expiration. If there is no corresponding day in such month, the last day of that month shall be the date of expiration. If the date of expiration of a time limit is a statutory holiday, the first working day following the holiday shall be the date of expiration.
Article 7 Where a party fails to observe a time limit stipulated in the Patent Law or the present Rules or a time limit prescribed by the State Council's patent administration authority due to an event of force majeure, and consequently forfeits his rights, he may within two months from the date of elimination of the obstacle, but not later than within two years from the date of expiration of the time limit, request the State Council's patent administration authority to restore his rights. Such request shall contain an explanation of the reasons and be accompanied by relevant supporting documents.
Where a party fails to observe a time limit stipulated in the Patent Law or the present Rules or a time limit prescribed by the State Council's patent administration authority for legitimate reasons,, and consequently forfeits his rights, he may within two months from the date of receipt of a notice from the State Council's patent administration authority request such authority to restore his rights. Such request shall contain an explanation of the reasons.
If a party requests extension of a time limit prescribed by the State Council's patent administration authority, he shall explain the reasons to the State Council's patent administration authority and carry out the relevant procedure prior to the expiration of the time limit.
The provisions of the first and second paragraphs hereof shall not apply to the time limits stipulated in Articles 24, 29, 42 and 62 of the Patent Law.
Article 8 If an application for an invention patent involves State secrets in respect of national defence and needs to be kept confidential, such patent application shall be accepted by the national defence patent organization. Invention patent applications accepted by the State Council's patent administration authority that involve State secrets in respect of national defence and need to be kept confidential shall be transferred to the national defence patent organization for examination. The State Council's patent administration authority shall make a decision in accordance with the opinion reached by the national defence patent organization upon examination.
Except where otherwise provided in the preceding paragraph, those invention applications accepted by the State Council's patent administration authority that require confidential examination shall be transferred to the State Council's relevant department-in-charge for examination. The relevant department-in-charge shall notify the State Council's patent administration authority of the results of its examination within four months from the date on which it receives the application. If confidentiality is required for a patent application, the State Council's patent administration authority shall treat it as a confidential patent application and shall notify the applicant.
Article 9 For the purposes of Article 5 of the Patent Law, inventions or creations that violate State law do not include inventions or creations only the working of which is prohibited under State law.
Article 10 For the purposes of the Patent Law, except for the circumstances stipulated in Articles 28 and 42 thereof, the term "date of application", if the application has priority, shall mean the date of priority.
For the purposes of the present Rules, the term "date of application" shall mean the application date specified in Article 28of the Patent Law, unless otherwise specified.
Article 11 The phrase in Article 6 of the Patent Law "a service invention or creation completed in executing a task of one's work unit" shall mean an invention or creation made:
1. in the course of one's job;
2. in the performance of a task assigned by one's work unit other than in the course of one's job; or
3. within one year of resignation, dismissal, retirement or transfer, where the invention or creation is related to the job held or a task assigned by the original work unit.
The term in Article 6 of the Patent Law "one's work unit" shall include a work unit for which one works on a temporary basis. The phrase "material and technical conditions of one's work unit" shall refer to the work unit's funds, equipment, parts, components, raw materials, or technical information not made public, etc.
Article 12 The term "inventor" or "designer" shall mean a person that makes creative contributions to the essential features of an invention or creation. Persons that are responsible only for organizing the work, that only facilitate the use of material and technical conditions, or that only engage in other support work during the course of accomplishment of an invention or creation are not inventors or designers.
Article 13 Only one patent shall be granted for identical inventions or creations. According to Article 9 in the Patent Law, if two or more applicants on the same day separately apply for a patent for identical inventions or creations, they shall consult among themselves to determine the applicant after being notified by the State Council's patent administration authority.
Article 14 The assignment of patent application rights or patent rights to a foreign national by a Chinese work unit or individual shall be subject to the approval of the State Council's authority in charge of foreign economic relations and trade and the State Council's authority for the administration of science and technology.
Article 15 Where a patent right is transferred other than according to Article 10 of the Patent Law, the parties shall carry out the procedures for a change in patentee with the State Council's patent administration authority on the strength of the relevant supporting document or legal instrument.
A patent licensing contract concluded by the patentee with another party shall be submitted to the State Council's patent administration authority for the record within three months from the date on which the contract enters into effect.
Chapter II Application for a Patent
Article 16 When an application for a patent is made in writing, the application documents shall be filed with the State Council's patent administration authority in duplicate.
When an application for a patent is made in another form specified by the State Council's patent administration authority, such application shall comply with the specified requirements.
If an applicant has appointed a patent agency to apply to the State Council's patent administration authority for a patent and handle other patent matters, the power of attorney specifying the scope of the power entrusted shall be submitted at the same time.
If there are two or more applicants and they have not appointed a patent agency, the first applicant indicated on the request shall be their representative, unless otherwise stated in the request.
Article 17 According to Article 26 of the Patent Law, the phrase "other matters covered in the request" shall refer to:
1. the applicant's nationality;
2. if the applicant is an enterprise or other organization, the country in which its head office is located;
3. if the applicant has appointed a patent agency, the relevant particulars that are to be indicated; if the applicant has not appointed a patent agency, the name, address, postal code and contact telephone number of his contact person;
4. if priority is claimed, the relevant particulars that are to be indicated;
5. the signature or seal of the applicant or patent agency;
6. the list of application documents;
7. the list of appended documents; and
8. other relevant particulars that need to be indicated.
Article 18 The description in an application for a patent for an invention or utility model shall indicate the title of the invention or utility model, which shall be consistent with the title stated in the request. The description shall include the following particulars:
1. technical field: the technical field to which the technical solution for which protection is requested pertains shall be specified;
2. background art: the background art useful for the understanding, searching and examination of the invention or utility model shall be specified and, where possible, the documents reflecting such background art shall be cited;
3. disclosure of the invention: the technical problem(s) to be solved by the invention or utility model, the technical solution adopted to resolve such technical problem(s) and the advantageous effects of the invention or utility model in comparison with prior art shall be specified;
4. description of the drawings: if the description contains drawings, a brief description shall accompany each drawing; and
5. the specific mode for carrying out the invention or utility model: a detailed description of the best mode contemplated by the applicant for carrying out the invention or utility model shall be indicated; where appropriate, such description shall be done in terms of examples with reference to the drawings, if any.
Applicants for patents for inventions or utility models shall write a description in the manner and sequence provided above, with each part thereof preceded by a heading, unless, due to the nature of the invention or utility model, a different manner or different sequence can reduce the length of the description and enable others to accurately understand the invention or utility model.
The description of an invention or utility model shall be worded in standard Chinese and be written clearly, and may not contain such references as "as described in claim..." or contain commercial advertising terms.
If an invention patent application contains one or more nucleotide or amino acid sequences, the description shall include a sequence listing complying with the regulations of the State Council's patent administration authority. The applicant shall submit such sequence listing as a separate part of the description and a duplicate of such sequence listing in computer readable form in accordance with the regulations of the State Council's patent administration authority.
Article 19 Several drawings of an invention or utility model may be drawn on one sheet of paper and shall be arranged in numerical order as "Figure 1, Figure 2, ...".
The size and clarity of drawings shall be such as to ensure that when such drawings are reduced in size by two-thirds, all the details are still clearly distinguishable.
Reference characters that are not mentioned in the text of the invention or utility model description may not appear in the drawings, and reference characters that do not appear in the drawings may not be mentioned in the text of the description. Those reference characters in the application documents that refer to the same constituent parts shall be consistent.
Drawings shall not contain any explanatory notes other than words that are indispensable.
Article 20 Claims shall describe the technical characteristics of the invention or utility model, and clearly and concisely define the scope of the request for protection.
If a letter of claim contains several claims, the claims shall be numbered consecutively with Arabic numerals.
Technical terminology used in a letter of claim shall be consistent with that used in the description. Claims may contain chemical or mathematical formulas, but no illustrations. Unless absolutely necessary, the phrases "as described in part ... of the description", or "as illustrated in Figure ..." may not be used.
In setting forth technical features in claims, appropriate references in the description's drawings may be cited. Such references shall be placed in brackets after the corresponding technical feature, to aid understanding of the claim. Reference characters may not be interpreted as restrictions of the claim.
Article 21 Letters of claim shall have an independent claim and may also have dependent claims.
The independent claim shall reflect the entire technical solution that an invention or utility model offers and record the technical features necessary for resolving the technical problem.
Dependent claims shall further restrict the claims cited by using additional technical features.
Article 22 The independent claim for an invention or utility model shall include a preamble and a features section, which shall be written in accordance with the following provisions:
1. preamble: specifying the title of the subject matter of the technical solution that is offered by the invention or utility model for which protection is requested and those necessary technical features of the subject matter of the invention or utility model that it has in common with the prior art to which it is most closely related;
2. features section: specifying, by using the expression "it is characterized by ......" or similar expressions, the technical features of the invention or utility model that differ from the prior art to which it is most closely related; taken together, these features and those described in the preamble shall define the scope of protection claimed for the invention or utility model.
If, owing to its nature, it is inappropriate to describe an invention or utility model in the above manner, independent claims for it may be written in another form.
Only one independent claim shall be made for one invention or utility model. Such claim shall precede the dependent claims for the same invention or utility model.
Article 23 Dependent claims for an invention or utility model shall contain a reference portion and a limitation portion, which shall be written in accordance with the following provisions:
1. reference portion: specifying the serial number(s) of the claim(s) referred to and the title(s) of its (their) subject matter;
2. limitation portion: specifying additional technical features of the invention or utility model.
Dependent claims may refer only to the preceding claim(s). A multiple dependent claim that refers to two or more claims may refer to the preceding claims in the alternative only and may not serve as the basis for any other multiple dependent claim.
Article 24 A description abstract shall consist of a summary of the disclosure as contained in the patent application for the invention or utility model, i.e. it shall specify the title of the invention or utility model and the technical field to which it pertains, and clearly reflect the technical problem to be solved, the gist of the technical solution to such problem and the principal use(s) of the invention or utility model.
Description abstracts may include the chemical formula that best characterizes the invention.
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