Implementing Rules of the Patent Law of the People's Republic of China (Revised in 2010)
Implementing Rules of the Patent Law of the People's Republic of China (Revised in 2010)
Implementing Rules of the Patent Law of the People's Republic of China (Revised in 2010)
Order of the State Council No.569
January 9, 2010
(Promulgated by Order of the State Council No.306 on June 15, 2001, amended in accordance with the Decision of the State Council on the Revision of the Implementing Rules of the Patent Law of the People's Republic of China, and further amended in accordance with the Decision of the State Council on the Revision of the Implementing Rules of the Patent Law of the People's Republic of Chinaon January 9, 2010, and to come into effect on February 1, 2010.)
Chapter I General Provisions
Article 1 These Rules have been formulated in accordance with the Patent Law of the People's Republic of China (hereinafter referred to as the "Patent Law").
Article 2 All kinds of procedures stipulated in the Patent Law and these Rules shall be completed in writing or in another form prescribed by the patent administrative authority under the State Council.
Article 3 All documents submitted in accordance with the Patent Law and these 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 the name of a foreign person or place or a foreign scientific or technical term, the original term shall be used.
If any certificate or supporting document submitted in accordance with the Patent Law and these Rules is in a foreign language, the patent administrative authority under the State Council 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 4 The postmark date of any document mailed to the patent administrative authority under the State Council shall be deemed to be the date of submission. If the postmark date is unclear, the date on which the patent administrative authority under the State Council receives the document shall be deemed to be the date of submission unless the party concerned can supply evidence regarding the date of mailing.
Documents of the patent administrative authority under the State Council may be served on the party concerned by mail, direct delivery or otherwise. If the party has appointed a patent agency, such documents shall be delivered to the patent agency. If the party has not appointed a patent agency, such documents shall be delivered to the contact person designated in the claim letter.
Documents mailed by the patent administrative authority under the State Council shall be assumed to have been received by the party concerned 15 days after the date of sending.
The date of service of documents that regulations of the patent administrative authority under the State Council 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 document may be served on the party concerned by public announcement. Such document shall be deemed to have been served one month after the date of the announcement.
Article 5 The first day of any time limit stipulated in the Patent Law or these Rules shall not be included as part of the time limit when calculating the same. If a time limit is calculated in years or months, the corresponding day of the last month of such time limit shall be the expiry date. If there is no corresponding day in such month, the last day of that month shall be the expiry date. If the expiry date for a time limit is a statutory holiday, the first working day following the holiday shall be the expiry date.
Article 6 Where a party fails to observe a time limit stipulated in the Patent Law or these Rules or a time limit prescribed by the patent administrative authority under the State Council due to an event of force majeure, and consequently forfeits his rights, he may, within two months of the date the relevant obstacle has been eliminated, but no later than two years after the expiry date for the time limit, request that the patent administrative authority under the State Council 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 these Rules or a time limit prescribed by the patent administrative authority under the State Council for legitimate reasons and consequently forfeits his rights, he may, within two months of the date on which he receives a notice from the patent administrative authority under the State Council, request that such authority restore his rights. Such request shall contain an explanation of the reasons.
Where the party concerned requests that his rights be restored in accordance with the provisions of Paragraph 1 or Paragraph 2 of this Article, a rights restoration request shall be submitted along with explanatory reasons and, when necessary, relevant certification documents, and the corresponding formalities that should have been gone through before he was deprived of his rights shall be completed; where the party concerned requests that his rights be restored in accordance with Paragraph 2 of this Article, a rights restoration request fee shall be paid.
If a party requests an extension of a time limit prescribed by the patent administrative authority under the State Council, he shall explain the reasons to the patent administrative authority under the State Council and go through the relevant procedure prior to the expiration of the time limit.
The provisions of the first and second paragraphs of this Article shall not apply to the time limits stipulated in Articles 24, 29, 42 and 68 of the Patent Law.
Article 7 Where the patent application involves national defense interests and thus needs to remain confidential, the application shall be accepted by and subject to the examination of the national defense patent institution; where the patent application accepted by the patent administrative department under the State Council involves national defense interests, the application shall be transferred to the national defense patent institution for examination in a timely manner. Where the national defense patent institution finds no grounds for rejection in the course of its examination, the patent administrative department under the State Council shall make a decision to grant a national defense patent right.
Where the patent administrative department under the State Council finds that a patent application for an invention or utility model involves national security or a major interest other than national defense and thus needs to remain confidential, a decision to handle the application as a secret patent application shall be made in a timely manner and the applicant concerned shall be notified. Provisions on the examination and reexamination of secret patent applications and special procedures for declaring secret patents invalid shall be formulated by the patent administrative department under the State Council.
Article 8 The term "invention or utility model completed in China" as used in Article 20 of the Patent Law refers to an invention or utility model for which the substantive part of the technical solution is completed within China.
Where any entity or individual files a patent application in a foreign country for an invention or utility model completed in China, a request shall be made to the patent administrative department under the State Council to carry out a confidentiality examination in accordance with any of the following methods:
1. where the patent application is filed directly in a foreign country or an international patent application is submitted directly to the relevant foreign institution, a request shall be made to the patent administrative department under the State Council in advance and the technical solution shall be explained;
2. where it is proposed that a patent application be filed in a foreign country or that an international patent application be submitted to the relevant foreign institution after a patent application has been filed with the patent administrative department under the State Council, a request shall be made to the patent administrative department under the State Council prior to filing the patent application in the foreign country concerned or submitting the international patent application with the relevant foreign institution.
Where an international patent application is submitted to the patent administrative department under the State Council, a request for a confidentiality examination shall be deemed to have been made at the same time.
Article 9 Where the patent administrative department under the State Council, after receiving a request submitted in accordance with Article 8 of these Rules and upon examination thereof, finds that the invention or utility model concerned might involve national security or another major interest and thus needs to remain confidential, a confidentiality examination notice shall be forwarded to the applicant in a timely manner; where no confidentiality examination notice is received within four months of the application date, the applicant may file a patent application in a foreign country or submit an international patent application to the relevant foreign institution for such invention or utility model.
Where the patent administrative department under the State Council carries out a confidentiality examination in accordance with the preceding paragraph, a decision on whether confidentiality is required shall be made in a timely manner and the applicant shall be notified. Where no confidentiality examination notice is received within six months of the application date, the applicant may file a patent application in a foreign country or submit an international patent application to the relevant foreign institution for such invention or utility model.
Article 10 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 implementation of which is prohibited under State law.
Article 11 For the purposes of the Patent Law, other than in the circumstances stipulated in Articles 28 and 42 thereof, the term "application date", if the application has priority, shall mean the priority date.
For the purposes of these Rules, the term "application date" shall mean the application date specified in Article 28 of the Patent Law unless otherwise specified.
Article 12 The phrase "a service invention or creation completed in executing a task at one's work unit" as used in Article 6 of the Patent Law 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. any invention or innovation that is made within one year of the individual's retirement, transfer from the previous entity, or the termination of labor relations or personnel relations, in connection with his/her own duties or tasks assigned by his/her previous entity.
The term "one's work unit" as used in Article 6 of the Patent Law 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, components, raw materials, or technical information not made public, etc.
Article 13 The term "inventor" or "designer" shall mean a person that makes a creative contribution to the essential features of an invention or creation. Persons that are responsible only for organizing such work, who facilitate only the use of materials and technical conditions, or who engage solely in other support work during the course of the completion of an invention or creation are not inventors or designers.
Article 14 Where a patent right is transferred other than according to Article 10 of the Patent Law, the parties shall go through the procedure for a change in patentee with the patent administrative authority under the State Council on the strength of the relevant supporting document or legal instrument.
A patent licensing contract concluded by the patentee and the other party shall be submitted to the patent administrative authority under the State Council for the record within three months of the date on which the contract comes into effect.
Where a patent is pledged, the pledgor and the pledgee shall jointly register the pledge at the patent administrative department under the State Council.
Chapter II Patent Applications
Article 15 When a patent application is made in writing, the application documents shall be filed with the patent administrative authority under the State Council in duplicate.
When a patent application is made in another form specified by the patent administrative authority under the State Council, such application shall comply with the requirements specified.
If an applicant has appointed a patent agency to apply to the patent administrative authority under the State Council for a patent and handle other patent matters, the power of attorney specifying the scope of the powers 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 in the claim letter shall be their representative unless otherwise stated in the claim letter.
Article 16 The claim letter for an invention, utility model or design patent shall indicate the following matters:
1. the name of the invention, utility model or design;
2. where that the applicant is a Chinese entity or individual, its title or his/her name, address, postal code, organization code or resident identity card number; where the applicant is a foreigner, a foreign enterprise or another foreign entity, his/her name or its title, nationality or registered country or region;
3. the name of the inventor or designer;
4. where the applicant has instructed a patent agency, the name and organization code of the agency instructed and the name, registered number and telephone number of the patent agent;
5. where a priority right is claimed, the date and number of the application and the title of the original authority that accepted the application when it was first filed (hereinafter referred to as the "prior application");
6. the signature or seal of the applicant or patent agency;
7. a list of the application documents;
8. a list of the attached documents;
9. other relevant matters to be indicated.
Article 17 The specification for an invention or utility model in a patent application shall indicate the name of the invention or utility model, which shall be consistent with the name stated in the claim letter. The specification 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 understanding, searching and examining the invention or utility model shall be specified and, where possible, documents reflecting such background art shall be cited;
3. details 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. a description of the drawings: if the specification contains drawings, a brief description shall accompany each drawing; and
5. the specific mode for implementing the invention or utility model: a detailed description of the best mode contemplated by the applicant for implementing the invention or utility model shall be indicated; where appropriate, such description shall be given by offering examples with reference to drawings, if any.
Applicants for invention or utility model patents shall write a specification 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 will reduce the length of the specification and enable others to understand accurately the invention or utility model.
The specification for an invention or utility model shall be worded in standard Chinese and be written clearly, and may not include references such as "as described in claim..." or include commercial advertising terms.
If an invention patent application includes one or more nucleotide or amino acid sequences, the specification shall include a sequence listing that complies with the regulations of the patent administrative authority under the State Council. The applicant shall submit such sequence listing as a separate part of the specification and a duplicate of such sequence listing in computer readable form in accordance with the regulations of the patent administrative authority under the State Council.
The specification for a utility model patent application shall include attached drawings which indicate the need to protect the shape or structure of the product or a combination of the two.
Article 18 Where two or more drawings of an invention or utility model are submitted, they may be drawn on one sheet of paper and shall be arranged in numerical order as "Figure 1, Figure 2, ...".
Reference characters that are not mentioned in the text of the invention or utility model specification 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 specification. Reference characters used in the application documents that refer to the same constituent elements shall be consistent.
Drawings shall not contain any explanatory notes other than indispensable wording.
Article 19 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 claim letter contains two or more claims, the claims shall be numbered consecutively with Arabic numerals.
The technical terminology used in a claim letter shall be consistent with that used in the specification. Claim letters may contain chemical or mathematical formulas, but no illustrations. Unless absolutely necessary, the phrases "as described in part ... of the specification", or "as illustrated in Figure ..." may not be used.
In setting forth technical features in claims, appropriate references in the specification'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 20 Claim letters shall include an independent claim and may also include 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 21 Independent claims for an invention or utility model shall include a preamble and a features section written in accordance with the following provisions:
1. preamble: specifying the title of the subject matter of the technical solution offered by the invention or utility model for which protection is requested and the 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 the technical features of the invention or utility model that differ from the prior art to which it is most closely related by using the expression "it is characterized by ......" or similar expressions; taken together, these features and those described in the preamble shall define the scope of protection requested 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, an independent claim for it may be written in another form.
Only one independent claim shall be made for the same invention or utility model. Such claim shall precede any dependent claim for the same invention or utility model.
Article 22 Dependent claims for an invention or utility model shall contain a reference portion and a limitation portion 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 23 A specification abstract shall consist of a summary of the details included in the patent application for the invention or utility model, i.e., it shall specify the name of the invention or utility model and the technical field to which it pertains, and clearly reflect the technical problem to be resolved, the gist of the technical solution to such problem, and the principal use(s) of the invention or utility model.
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