Patent Law of the People's Republic of China (Amended in 2008)
Patent Law of the People's Republic of China (Amended in 2008)
Patent Law of the People's Republic of China (Amended in 2008)
Order of the President of the People's Republic of China No.8
December 27, 2008
Adopted at the Fourth Session of the Standing Committee of the Sixth National People's Congress on March 12, 1984; amended for the first time in accordance with the Decision on the Revision of the Patent Law of the People's Republic of China issued by the Standing Committee of the Seventh National People's Congress at its 27th Session on September 4, 1992; amended for the second time in accordance with the Decision on the Revision of the Patent Law of the People's Republic of China issued by the Standing Committee of the Ninth National People's Congress at its 17th Session on August 25, 2000; and amended for the third time in accordance with the Decision on the Revision of the Patent Law of the People's Republic of China issued by the Standing Committee of the 11th National People's Congress at its Sixth Session on December 27, 2008
Contents
Chapter I General Provisions
Chapter II Requirements for Granting Patent Rights
Chapter III Patent Application
Chapter IV Examination and Approval of Patent Applications
Chapter V Duration, Termination and Invalidation of Patent Rights
Chapter VI Compulsory License for Exploitation of a Patent
Chapter VII Protection of Patent Rights
Chapter VIII Supplementary Provisions
Chapter I General Provisions
Article 1 The Patent Law of the People's Republic of China (hereinafter referred to as the "Law") is enacted in order to protect the lawful rights and interests of patentees, encourage invention and creative activities, promote the application of inventions and creations, enhance innovation capability and facilitate the advancement of science and technology and the economic and social development.
Article 2 For the purposes of the Law, the term "invention-creations" refers to inventions, utility models and designs.
The term "invention" refers to any new technical solution pertaining to any or all of a product or process or the improvement thereof.
The term "utility model" refers to any new technical solution relating to the shape, the structure, or their combination, of a product, which is fit for practical use.
The term "design" refers to any new design pertaining to the shape, the pattern, or their combination, or the combination of color and shape or pattern, of a product, which creates an aesthetic feeling and is fit for industrial application.
Article 3 The patent administrative department under the State Council is responsible for the administration of patent-related work nationwide. It accepts and examines patent applications in a uniform way and grants patent rights in accordance with the law.
The patent administrative departments under the people's governments of provinces, autonomous regions and municipalities directly under the Central Government are responsible for patent administration within their respective administrative areas.
Article 4 In the event an invention-creation, for which a patent application has been filed, relates to national security or other vital interests of the State and confidentiality is required to be maintained, the application shall be handled in accordance with the relevant provisions of the State.
Article 5 No patent right may be granted for any invention-creation that violates any law or public morality or harm public interest.
No patent right may be granted for any invention-creation that is accomplished by relying on genetic resources that are acquired or utilized in violation of the provisions of laws and administrative regulations.
Article 6 An invention-creation that is accomplished by a person in the course of performing any task for an entity to which the person belongs, or mainly by using materials or technical means of the said entity is a service invention-creation. For a service invention-creation, the right to apply for a patent belongs to the entity. After the relevant application is approved, the entity shall be the patentee.
For a non-service invention-creation, the right to apply for a patent belongs to the inventor or designer. After the relevant application is approved, the inventor or designer is the patentee.
For an invention-creation that is accomplished by a person using materials or technical means of an entity to which the person belongs, if the said entity and the inventor or designer have entered into a contract which provides for the ownership of the right to apply for a patent and the patent right, such provision shall apply.
Article 7 No entity or individual may prevent the inventor or designer from filing an application for a patent for a non-service invention-creation.
Article 8 With regard to an invention-creation that is accomplished by two or more entities or individuals in collaboration, or an invention-creation that is accomplished by an entity or individual under the entrustment of another entity or individual, the right to apply for a patent shall be vested in the entities or individuals that have accomplished the invention-creation in collaboration or in the entity or individual that has done so under entrustment, unless it is otherwise agreed upon. After the relevant application is approved, the entity or individual that filed the said application is the patentee.
Article 9 Only one patent can be granted for the same invention-creation. However, in the event the same applicant applies for both a patent for utility model and patent for invention with regard to the same invention-creation on the same date, if the patent for utility model acquired earlier is not terminated yet and the applicant declares to waive the patent for utility model, the patent for invention may be granted.
Where two or more applicants file applications for a patent for the same invention-creation respectively, the patent right shall be granted to the first applicant.
Article 10 The right to apply for a patent or a patent right may be assigned.
Any Chinese entity or individual that seeks to assign the right to apply for a patent or any patent right to a foreigner, foreign enterprise or any other foreign organization shall go through appropriate formalities in accordance with the provisions of the relevant laws or administrative regulations.
For the assignment of the right to apply for a patent or a patent right, the parties concerned shall conclude a written contract and register it with the patent administrative department under the State Council which shall announce the registration upon completion. Such assignment shall take effect as of the date of its registration.
Article 11 After a patent right for an invention or a utility model is granted, except where otherwise provided for in the Law, no entity or individual may, without the permission of the patentee, exploit the patent, namely, for production or commercial purposes, to manufacture, utilize, offer for sale, sell or import the patented product thereof, or to use the patented process, or to utilize, offer for sale, sell or import the product directly obtained through the said patented process.
After a patent right for a design is granted, no entity or individual may, without the permission of the patentee, exploit the patent, namely, for production or business purposes, to manufacture, offer for sale, sell, or import any product containing the patented design.
Article 12 Any entity or individual that seeks to exploit a patent owned by another party shall enter into a license contract for exploitation of the patent with the relevant patentee and pay royalties pertaining to the patent to the patentee. The licensee does not have the right to allow any entity or individual not specified in the contract to exploit such patent.
Article 13 After the application for a patent for invention is published, the applicant may demand the entity or individual exploiting the invention to pay an appropriate fee.
Article 14 In the event that any patent for invention belonging to any state-owned enterprise or public institution is of great significance to the national or public interests, the relevant departments under the State Council and the relevant people's governments of provinces, autonomous regions or municipalities directly under the Central Government may, after approval by the State Council, decide that the relevant patented invention be popularized and applied within the approved scope. The aforementioned authorities may also allow designated entities to exploit the invention. The exploiting entity shall, in accordance with the regulations of the State, pay royalties to the patentee.
Article 15 Where the co-owners of the right to apply for a patent or a patent right have concluded an agreement with respect to the exercise of the right, such agreement shall apply. In the absence of such agreement, any co-owner may independently exploit the patent, or permit another party to exploit the said patent by means of a non-exclusive license. In the event another party is permitted to exploit the patent, any royalties received shall be distributed among the co-owners.
Except under the circumstances specified in the preceding paragraph, the right to apply for a patent or a patent right that is jointly owned shall be exercised with the consent of all co-owners.
Article 16 The entity that is granted a patent right shall reward the inventor or designer of a service invention-creation and, upon exploitation of the patented invention-creation, shall pay the inventor or designer a reasonable remuneration depending on the application scope of the invention-creation and the economic benefits yielded therefrom.
Article 17 An inventor or designer has the right to be named as such in the patent documents.
A patentee has the right to label a patented product, or the package of the said product, with a patent mark.
Article 18 In the event any foreigner, foreign enterprise or other foreign organization without any habitual residence or business address in China, files an application for a patent in China, the application shall be handled pursuant to the Law, based on any agreement concluded between the country to which the applicant belongs and China, or any international treaty to which both countries are parties, or the principle of reciprocity.
Article 19 Any foreigner, foreign enterprise or other foreign organization without any habitual residence or business address in China that seeks to apply for a patent or deals with other patent-related matters in China shall entrust a patent agency established legally to do so on his or its behalf.
Any Chinese entity or individual that seeks to apply for a patent or has other patent-related matters to attend to in China may entrust, should it or he choose to do so, a patent agency established legally to do so on its or his behalf.
A patent agency shall comply with the provisions of laws and administrative regulations and handle patent applications and other patent-related matters according to the entrustment of its clients.
......
Order of the President of the People's Republic of China No.8
December 27, 2008
Adopted at the Fourth Session of the Standing Committee of the Sixth National People's Congress on March 12, 1984; amended for the first time in accordance with the Decision on the Revision of the Patent Law of the People's Republic of China issued by the Standing Committee of the Seventh National People's Congress at its 27th Session on September 4, 1992; amended for the second time in accordance with the Decision on the Revision of the Patent Law of the People's Republic of China issued by the Standing Committee of the Ninth National People's Congress at its 17th Session on August 25, 2000; and amended for the third time in accordance with the Decision on the Revision of the Patent Law of the People's Republic of China issued by the Standing Committee of the 11th National People's Congress at its Sixth Session on December 27, 2008
Contents
Chapter I General Provisions
Chapter II Requirements for Granting Patent Rights
Chapter III Patent Application
Chapter IV Examination and Approval of Patent Applications
Chapter V Duration, Termination and Invalidation of Patent Rights
Chapter VI Compulsory License for Exploitation of a Patent
Chapter VII Protection of Patent Rights
Chapter VIII Supplementary Provisions
Chapter I General Provisions
Article 1 The Patent Law of the People's Republic of China (hereinafter referred to as the "Law") is enacted in order to protect the lawful rights and interests of patentees, encourage invention and creative activities, promote the application of inventions and creations, enhance innovation capability and facilitate the advancement of science and technology and the economic and social development.
Article 2 For the purposes of the Law, the term "invention-creations" refers to inventions, utility models and designs.
The term "invention" refers to any new technical solution pertaining to any or all of a product or process or the improvement thereof.
The term "utility model" refers to any new technical solution relating to the shape, the structure, or their combination, of a product, which is fit for practical use.
The term "design" refers to any new design pertaining to the shape, the pattern, or their combination, or the combination of color and shape or pattern, of a product, which creates an aesthetic feeling and is fit for industrial application.
Article 3 The patent administrative department under the State Council is responsible for the administration of patent-related work nationwide. It accepts and examines patent applications in a uniform way and grants patent rights in accordance with the law.
The patent administrative departments under the people's governments of provinces, autonomous regions and municipalities directly under the Central Government are responsible for patent administration within their respective administrative areas.
Article 4 In the event an invention-creation, for which a patent application has been filed, relates to national security or other vital interests of the State and confidentiality is required to be maintained, the application shall be handled in accordance with the relevant provisions of the State.
Article 5 No patent right may be granted for any invention-creation that violates any law or public morality or harm public interest.
No patent right may be granted for any invention-creation that is accomplished by relying on genetic resources that are acquired or utilized in violation of the provisions of laws and administrative regulations.
Article 6 An invention-creation that is accomplished by a person in the course of performing any task for an entity to which the person belongs, or mainly by using materials or technical means of the said entity is a service invention-creation. For a service invention-creation, the right to apply for a patent belongs to the entity. After the relevant application is approved, the entity shall be the patentee.
For a non-service invention-creation, the right to apply for a patent belongs to the inventor or designer. After the relevant application is approved, the inventor or designer is the patentee.
For an invention-creation that is accomplished by a person using materials or technical means of an entity to which the person belongs, if the said entity and the inventor or designer have entered into a contract which provides for the ownership of the right to apply for a patent and the patent right, such provision shall apply.
Article 7 No entity or individual may prevent the inventor or designer from filing an application for a patent for a non-service invention-creation.
Article 8 With regard to an invention-creation that is accomplished by two or more entities or individuals in collaboration, or an invention-creation that is accomplished by an entity or individual under the entrustment of another entity or individual, the right to apply for a patent shall be vested in the entities or individuals that have accomplished the invention-creation in collaboration or in the entity or individual that has done so under entrustment, unless it is otherwise agreed upon. After the relevant application is approved, the entity or individual that filed the said application is the patentee.
Article 9 Only one patent can be granted for the same invention-creation. However, in the event the same applicant applies for both a patent for utility model and patent for invention with regard to the same invention-creation on the same date, if the patent for utility model acquired earlier is not terminated yet and the applicant declares to waive the patent for utility model, the patent for invention may be granted.
Where two or more applicants file applications for a patent for the same invention-creation respectively, the patent right shall be granted to the first applicant.
Article 10 The right to apply for a patent or a patent right may be assigned.
Any Chinese entity or individual that seeks to assign the right to apply for a patent or any patent right to a foreigner, foreign enterprise or any other foreign organization shall go through appropriate formalities in accordance with the provisions of the relevant laws or administrative regulations.
For the assignment of the right to apply for a patent or a patent right, the parties concerned shall conclude a written contract and register it with the patent administrative department under the State Council which shall announce the registration upon completion. Such assignment shall take effect as of the date of its registration.
Article 11 After a patent right for an invention or a utility model is granted, except where otherwise provided for in the Law, no entity or individual may, without the permission of the patentee, exploit the patent, namely, for production or commercial purposes, to manufacture, utilize, offer for sale, sell or import the patented product thereof, or to use the patented process, or to utilize, offer for sale, sell or import the product directly obtained through the said patented process.
After a patent right for a design is granted, no entity or individual may, without the permission of the patentee, exploit the patent, namely, for production or business purposes, to manufacture, offer for sale, sell, or import any product containing the patented design.
Article 12 Any entity or individual that seeks to exploit a patent owned by another party shall enter into a license contract for exploitation of the patent with the relevant patentee and pay royalties pertaining to the patent to the patentee. The licensee does not have the right to allow any entity or individual not specified in the contract to exploit such patent.
Article 13 After the application for a patent for invention is published, the applicant may demand the entity or individual exploiting the invention to pay an appropriate fee.
Article 14 In the event that any patent for invention belonging to any state-owned enterprise or public institution is of great significance to the national or public interests, the relevant departments under the State Council and the relevant people's governments of provinces, autonomous regions or municipalities directly under the Central Government may, after approval by the State Council, decide that the relevant patented invention be popularized and applied within the approved scope. The aforementioned authorities may also allow designated entities to exploit the invention. The exploiting entity shall, in accordance with the regulations of the State, pay royalties to the patentee.
Article 15 Where the co-owners of the right to apply for a patent or a patent right have concluded an agreement with respect to the exercise of the right, such agreement shall apply. In the absence of such agreement, any co-owner may independently exploit the patent, or permit another party to exploit the said patent by means of a non-exclusive license. In the event another party is permitted to exploit the patent, any royalties received shall be distributed among the co-owners.
Except under the circumstances specified in the preceding paragraph, the right to apply for a patent or a patent right that is jointly owned shall be exercised with the consent of all co-owners.
Article 16 The entity that is granted a patent right shall reward the inventor or designer of a service invention-creation and, upon exploitation of the patented invention-creation, shall pay the inventor or designer a reasonable remuneration depending on the application scope of the invention-creation and the economic benefits yielded therefrom.
Article 17 An inventor or designer has the right to be named as such in the patent documents.
A patentee has the right to label a patented product, or the package of the said product, with a patent mark.
Article 18 In the event any foreigner, foreign enterprise or other foreign organization without any habitual residence or business address in China, files an application for a patent in China, the application shall be handled pursuant to the Law, based on any agreement concluded between the country to which the applicant belongs and China, or any international treaty to which both countries are parties, or the principle of reciprocity.
Article 19 Any foreigner, foreign enterprise or other foreign organization without any habitual residence or business address in China that seeks to apply for a patent or deals with other patent-related matters in China shall entrust a patent agency established legally to do so on his or its behalf.
Any Chinese entity or individual that seeks to apply for a patent or has other patent-related matters to attend to in China may entrust, should it or he choose to do so, a patent agency established legally to do so on its or his behalf.
A patent agency shall comply with the provisions of laws and administrative regulations and handle patent applications and other patent-related matters according to the entrustment of its clients.
......