Patent Law of the People's Republic of China (Amended in 2020)
Patent Law of the People's Republic of China (Amended in 2020)
Patent Law of the People's Republic of China (Amended in 2020)
Order of the President of the People's Republic of China No. 55
October 17, 2020
(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 at the 27th Session of the Standing Committee of the Seventh National People's Congress 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 at the 17th Session of the Standing Committee of the Ninth National People's Congress 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 at the 6th Session of the Standing Committee of the 11th National People's Congress on December 27, 2008; and amended for the fourth time in accordance with the Decision of the Standing Committee of the National People's Congress on Amending the Patent Law of the People's Republic of China issued at the 22nd Session of the Standing Committee of the 13th National People's Congress on October 17, 2020)
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 Special Authorization for Exploitation of Patents
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 of a product's overall or local shape, pattern or combination thereof, or combination of color and shape or pattern, which is fit for industrial application while having a sense of esthetics.
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 executing any task for the entity to which such person belongs, or mainly through taking advantage of the entity's materials or technical resources is a service invention-creation. In terms of a service invention-creation, the right to apply for a patent therefor is vested in the entity. After the relevant application is approved, the entity shall be the patentee. The entity may legally dispose of the right to apply for a patent for its service invention-creation and the patent right, and promote the exploitation and application of the relevant invention-creation.
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 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 15 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.
The State encourages entities being granted patent rights to implement property right incentives and adopt such modes as equity, option and dividend to enable the proper sharing of innovation proceeds by inventors or designers.
Article 16 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 17 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 18 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. In respect of the contents of its clients' invention-creations, except for those that have been published or announced, the agency shall bear the responsibility of maintaining confidentiality in this regard. The administrative regulations governing patent agencies shall be provided for by the State Council.
Article 19 Any entity or individual that seeks to file a foreign application for a patent with respect to an invention or a utility model accomplished in China shall first report the matter to the patent administrative department under the State Council for confidentiality examination. Matters such as the procedures and duration pertaining to the confidentiality examination shall comply with the regulations of the State Council.
Any Chinese entity or individual may file an international application for patent in accordance with any relevant international treaty concerned to which China is a party. Where an applicant files an international application for a patent, it or he shall observe the provisions of the preceding paragraph.
The patent administrative department under the State Council shall handle any international application for a patent in accordance with the relevant international treaty to which China is a party, the Law and the relevant regulations of the State Council.
In the event a patent application is filed for any invention or utility model for which a patent application has already been filed in a foreign country in violation of the provisions of Paragraph 1 of the present article, if an application is also filed for the patent in China, patent right may not be granted.
Article 20 Whoever applies for a patent and exercises the patent right shall follow the principle of good faith. No person may abuse the patent right to harm the public interest or the legitimate rights and interests of other persons.
Whoever abuses the patent right to exclude or restrict competition thus constituting a monopolistic practice shall be punished in accordance with the Anti-monopoly Law of the People's Republic of China.
Article 21 The patent administrative department under the State Council shall, according to the requirements of objectivity, fairness, correctness and timeliness, handle any applications and requests relating to patents in accordance with the law.
The patent administrative department under the State Council shall strengthen the building of a patent information-related public service system, release patent information in a complete, accurate and timely manner, provide patent-related basic data, and publish patent gazettes on a regular basis, thus promoting the dissemination and utilization of patent information.
Before an application for a patent is published or announced, personnel of the patent administrative department under the State Council and other persons involved in the application process are obligated to keep the contents of the application secret.
Chapter II Requirements for Granting Patent Rights
Article 22 Any invention or utility model for which a patent right is to be granted shall possess novelty, creativity and practical applicability.
The term "novelty" means an invention or utility model that is in no way attributed to any existing technology; and no entity or individual has filed an application with respect to such invention or utility model with the patent administrative department under the State Council before the filing date and recorded such invention or utility model in documents pertaining to the patent application released or in patent documents announced after the official filing date.
The term "creativity" means, compared with existing technology, an invention has prominent substantial features and represents notable progress, and a utility model has substantial features and represents any progress.
The term "practical applicability" means an invention or utility model can be manufactured or used and may produce positive results.
For the purpose of the Law, the term "existing technology" means the technology known to the general public both in China and abroad before the filing date.
Article 23 Any design for which a patent right is granted shall not be attributable to any existing design; and no entity or individual shall have filed an application with the patent administrative department under the State Council, with respect to such design before the filing date nor recorded such design on patent documents officially announced after the filing date.
Any design for which a patent right is granted shall be distinctively different from existing designs or combinations of the features of existing designs.
Any design for which a patent right is granted shall not be in conflict with the lawful rights obtained by others before the filing date.
For the purposes of the Law, the term "existing design" means any design made known to the public in China and abroad before the filing date.
Article 24 The invention-creation for which a patent application has been filed does not lose its novelty if any of the following circumstances occurs within six months before the filing date:
1. in the case of any emergency or extraordinary circumstance occurring to the State, it is made public for the first time in the public interest;
2. in the event the invention-creation is first exhibited at an international exhibition sponsored or recognized by the Chinese Government;
3. in the event the invention-creation is first made public at a prescribed academic or technical meeting; and
4. in the event details of the invention-creation are disclosed by any other person without the consent of the applicant.
Article 25 No patent right shall be granted for any of the following:
1. scientific discoveries;
2. rules and methods for intellectual activities;
3. methods for the diagnosis or treatment of diseases;
4. animal or plant varieties;
5. nuclear transformation method and substances obtained by the method of nuclear transformation; and
6. designs that are used principally to identify the pattern, color or a combination thereof, of plane presswork.
For the production methods of the products specified in Item 4 of the preceding paragraph, the patent right may be granted in accordance with the provisions of the Law.
Chapter III Patent Application
Article 26 In the event an application is filed for a patent for an invention or utility model, documents such as a written request, a written description and abstract of the invention or utility model, as well as a written claim, shall be submitted.
The written request shall specify: the name of the invention or utility model; the name of the relevant inventor; the name or title and address of the relevant applicant; information regarding other matters pertaining to the application.
The written description shall set forth the invention or utility model in a manner sufficiently clear and complete so as to enable a technician in the relevant field of technology to carry it out.
......
Order of the President of the People's Republic of China No. 55
October 17, 2020
(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 at the 27th Session of the Standing Committee of the Seventh National People's Congress 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 at the 17th Session of the Standing Committee of the Ninth National People's Congress 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 at the 6th Session of the Standing Committee of the 11th National People's Congress on December 27, 2008; and amended for the fourth time in accordance with the Decision of the Standing Committee of the National People's Congress on Amending the Patent Law of the People's Republic of China issued at the 22nd Session of the Standing Committee of the 13th National People's Congress on October 17, 2020)
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 Special Authorization for Exploitation of Patents
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 of a product's overall or local shape, pattern or combination thereof, or combination of color and shape or pattern, which is fit for industrial application while having a sense of esthetics.
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 executing any task for the entity to which such person belongs, or mainly through taking advantage of the entity's materials or technical resources is a service invention-creation. In terms of a service invention-creation, the right to apply for a patent therefor is vested in the entity. After the relevant application is approved, the entity shall be the patentee. The entity may legally dispose of the right to apply for a patent for its service invention-creation and the patent right, and promote the exploitation and application of the relevant invention-creation.
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 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 15 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.
The State encourages entities being granted patent rights to implement property right incentives and adopt such modes as equity, option and dividend to enable the proper sharing of innovation proceeds by inventors or designers.
Article 16 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 17 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 18 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. In respect of the contents of its clients' invention-creations, except for those that have been published or announced, the agency shall bear the responsibility of maintaining confidentiality in this regard. The administrative regulations governing patent agencies shall be provided for by the State Council.
Article 19 Any entity or individual that seeks to file a foreign application for a patent with respect to an invention or a utility model accomplished in China shall first report the matter to the patent administrative department under the State Council for confidentiality examination. Matters such as the procedures and duration pertaining to the confidentiality examination shall comply with the regulations of the State Council.
Any Chinese entity or individual may file an international application for patent in accordance with any relevant international treaty concerned to which China is a party. Where an applicant files an international application for a patent, it or he shall observe the provisions of the preceding paragraph.
The patent administrative department under the State Council shall handle any international application for a patent in accordance with the relevant international treaty to which China is a party, the Law and the relevant regulations of the State Council.
In the event a patent application is filed for any invention or utility model for which a patent application has already been filed in a foreign country in violation of the provisions of Paragraph 1 of the present article, if an application is also filed for the patent in China, patent right may not be granted.
Article 20 Whoever applies for a patent and exercises the patent right shall follow the principle of good faith. No person may abuse the patent right to harm the public interest or the legitimate rights and interests of other persons.
Whoever abuses the patent right to exclude or restrict competition thus constituting a monopolistic practice shall be punished in accordance with the Anti-monopoly Law of the People's Republic of China.
Article 21 The patent administrative department under the State Council shall, according to the requirements of objectivity, fairness, correctness and timeliness, handle any applications and requests relating to patents in accordance with the law.
The patent administrative department under the State Council shall strengthen the building of a patent information-related public service system, release patent information in a complete, accurate and timely manner, provide patent-related basic data, and publish patent gazettes on a regular basis, thus promoting the dissemination and utilization of patent information.
Before an application for a patent is published or announced, personnel of the patent administrative department under the State Council and other persons involved in the application process are obligated to keep the contents of the application secret.
Chapter II Requirements for Granting Patent Rights
Article 22 Any invention or utility model for which a patent right is to be granted shall possess novelty, creativity and practical applicability.
The term "novelty" means an invention or utility model that is in no way attributed to any existing technology; and no entity or individual has filed an application with respect to such invention or utility model with the patent administrative department under the State Council before the filing date and recorded such invention or utility model in documents pertaining to the patent application released or in patent documents announced after the official filing date.
The term "creativity" means, compared with existing technology, an invention has prominent substantial features and represents notable progress, and a utility model has substantial features and represents any progress.
The term "practical applicability" means an invention or utility model can be manufactured or used and may produce positive results.
For the purpose of the Law, the term "existing technology" means the technology known to the general public both in China and abroad before the filing date.
Article 23 Any design for which a patent right is granted shall not be attributable to any existing design; and no entity or individual shall have filed an application with the patent administrative department under the State Council, with respect to such design before the filing date nor recorded such design on patent documents officially announced after the filing date.
Any design for which a patent right is granted shall be distinctively different from existing designs or combinations of the features of existing designs.
Any design for which a patent right is granted shall not be in conflict with the lawful rights obtained by others before the filing date.
For the purposes of the Law, the term "existing design" means any design made known to the public in China and abroad before the filing date.
Article 24 The invention-creation for which a patent application has been filed does not lose its novelty if any of the following circumstances occurs within six months before the filing date:
1. in the case of any emergency or extraordinary circumstance occurring to the State, it is made public for the first time in the public interest;
2. in the event the invention-creation is first exhibited at an international exhibition sponsored or recognized by the Chinese Government;
3. in the event the invention-creation is first made public at a prescribed academic or technical meeting; and
4. in the event details of the invention-creation are disclosed by any other person without the consent of the applicant.
Article 25 No patent right shall be granted for any of the following:
1. scientific discoveries;
2. rules and methods for intellectual activities;
3. methods for the diagnosis or treatment of diseases;
4. animal or plant varieties;
5. nuclear transformation method and substances obtained by the method of nuclear transformation; and
6. designs that are used principally to identify the pattern, color or a combination thereof, of plane presswork.
For the production methods of the products specified in Item 4 of the preceding paragraph, the patent right may be granted in accordance with the provisions of the Law.
Chapter III Patent Application
Article 26 In the event an application is filed for a patent for an invention or utility model, documents such as a written request, a written description and abstract of the invention or utility model, as well as a written claim, shall be submitted.
The written request shall specify: the name of the invention or utility model; the name of the relevant inventor; the name or title and address of the relevant applicant; information regarding other matters pertaining to the application.
The written description shall set forth the invention or utility model in a manner sufficiently clear and complete so as to enable a technician in the relevant field of technology to carry it out.
......