Chapter 4 Reexamination of Patent Application and Invalidation of Patent
                   Right

Rule 58
The Patent Reexamination Board shall consist of technical and legal experts appointed by the Patent Administration Department under the State Council  . The person responsible for the Patent Administration Department under the State Council   shall be the Director of the Board.

Rule 59
Where the applicant requests the Patent Reexamination Board to make a reexamination in accordance with the provisions of Article 41 of the Patent Law, it or he shall file a request for reexamination, state the reasons and,  when necessary, attach the relevant supporting documents.
Where the request for reexamination does not comply with the prescribed form, the person making the request shall rectify it within the time limit fixed by the Patent Reexamination Board. If the requesting person fails to meet the time limit for making rectification, the request for reexamination shall be deemed not to have been filed.

Rule 60
The person making the request may amend its or his application at the time when it or he requests reexamination or makes responses to the notification of reexamination of the Patent Reexamination Board. However, the amendments shall be limited only to remove the defects pointed out in the decision of rejection of the application, or in the notification of reexamination.
The amendments to the application for patent shall be in two copies.

Rule 61
The Patent Reexamination Board shall remit the request for reexamination which the Board has received to the examination department of the Patent Administration Department under the State Council   which has made the examination of the application concerned to make an examination. Where that examination department agrees to revoke its former decision upon the request of the person requesting reexamination, the Patent Reexamination Board shall make a decision accordingly and notify the requesting person.

Rule 62
Where, after reexamination, the Patent Reexamination Board finds that the request does not comply with the provisions of the Patent Law and these Implementing Regulations, it shall invite the person requesting reexamination to submit his observations within a specified time limit. If the time limit for making response is not met, the request for reexamination shall be deemed to have been withdrawn. Where, after the requesting person has made its observations and amendments, the Patent Reexamination Board still finds that the request does not comply with the provisions of the Patent Law and these Implementing Regulations, it shall make a decision of reexamination to maintain the earlier decision rejecting the application.
Where, after reexamination, the Patent Reexamination Board finds that the decision rejecting the application does not comply with the provisions of the Patent Law and these Implementing Regulations, or that the amended application has removed the defects as pointed out by the decision rejecting the application, it shall make a decision to revoke the decision rejecting the application, and ask the examination department which has made the examination to continue the examination procedure.

Rule 63
At any time before the Patent Reexamination Board makes its decision on the request for reexamination, the requesting person may withdraw his request for reexamination.
Where the requesting person withdraws his request for reexamination before the Patent Reexamination Board makes its decision, the procedure of reexamination is terminated.

Rule 64
Anyone requesting invalidation or part invalidation of a patent right in accordance with the provisions of Article 45 of the Patent Law shall submit a request and the necessary evidence in two copies. The request for invalidation shall state in detail the grounds for filing the request, making reference to all the evidence as submitted, and indicate the piece of evidence on which each ground is based.
The grounds on which the request for invalidation is based, referred to in the preceding paragraph, mean that the invention-creation for which the patent right is granted does not comply with the provisions of Article 22, Article 23, or of Article 26, paragraph three or four, or of Article 33 of the Patent Law, or of Rule 2, or of Rule l3, paragraph one, or of Rule 20, paragraph one, or of Rule 21, paragraph two of these Implementing Regulations; or the invention-creation falls under the provisions of Articles 5 or 25 of the Patent Law; or the applicant is not entitled to be granted the patent right in accordance with the provisions of Article 9 of the Patent Law.

Rule 65
Where the request for invalidation does not comply with the provisions of Rule 64 of these Implementing Regulations, the Patent Reexamination Board shall not accept it.
Where, after a decision on any request for invalidation of the patent right is made, invalidation based on the same facts and evidence is requested once again, the Patent Reexamination Board shall not accept it.
Where a request for invalidation of a patent for design is based on the ground that the patent for design is in conflict with a prior right of another person, but no effective ruling or judgement is submitted to prove such conflict of rights , the Patent Reexamination Board shall not accept it.
Where the request for invalidation of the patent right does not comply with the prescribed form, the person making the request shall rectify it within the time limit specified by the Patent Reexamination Board. If the rectification fails to be made within the time limit, the request for invalidation shall be deemed not to have been made.

Rule 66
After a request for invalidation is accepted by the Patent Reexamination Board, the person making the request may add reasons or supplement evidence within one month from the date when the request for invalidation is filed.  Additional reasons or evidence which are submitted after the specified time limit may be disregarded by the Patent Reexamination Board.

Rule 67
The Patent Reexamination Board shall send a copy of the request for invalidation of the patent right and copies of the relevant documents to the patentee and invite it or him to present its or his observations within a specified time limit.
The patentee and the person making request for invalidation shall, within the specified time limit, make responses to the notification concerning transmitted documents or the notification concerning the examination of the request for invalidation sent by the Patent Reexamination Board. Where no response is made within the specified time limit, the examination of the Patent Reexamination Board will not be affected.

Rule 68
In the course of the examination of the request for invalidation, the patentee for the patent for invention or utility model concerned may amend its or his claims, but may not broaden the scope of patent protection.
The patentee for the patent for invention or utility model concerned may not amend its or his description or drawings. The patentee for the patent for design concerned may not amend its or his drawings, photographs or the brief explanation of the design.

Rule 69
The Patent Reexamination Board may, at the request of the parties concerned or in accordance with the needs of the case, decide to hold an oral procedure in respect of a request for invalidation.
Where the Patent Reexamination Board decides to hold an oral procedure in respect of a request for invalidation, it shall send notifications to the parties concerned, indicating the date and place of the oral procedure to be held. The parties concerned shall make response to the notification within the specified time limit.
Where the person requesting invalidation fails to make response to the notification of the oral procedure sent by the Patent Reexamination Board within the specified time limit, and fails to take part in the oral procedure, the request for invalidation shall be deemed to have been withdrawn. Where the patentee fails to take part in the oral procedure, the Patent Reexamination Board may proceed to examine by default.

Rule 70
In the course of the examination of a request for invalidation, the time limit specified by the Patent Reexamination Board shall not be extended.

Rule 71
The person requesting invalidation may withdraw his request before the Patent Reexamination Board makes a decision on it.
Where the person requesting invalidation withdraws his request before the Patent Reexamination Board makes a decision on it, the examination of the request for invalidation is terminated.

Chapter 5 Compulsory License for Exploitation of Patent

Rule 72
After the expiration of three years from the date of the grant of the patent right, any entity may, in accordance with the provisions of Article 48 of the Patent Law, request the Patent Administration Department under the State Council   to grant a compulsory license.
Any entity requesting a compulsory license shall submit to the Patent Administration Department under the State Council   a request for compulsory license, state the reasons therefor, and attach relevant certifying documents each in two copies.
The Patent Administration Department under the State Council   shall send a copy of the request for compulsory license to the patentee, who shall make his or its observations within the time limit specified by the Patent Administration Department under the State Council  . Where no response is made within the time limit, the Patent Administration Department under the State Council   will not be affected in making a decision concerning a compulsory license.
The decision of the Patent Administration Department under the State Council   granting a compulsory license for exploitation shall limit the exploitation of the compulsory license to be predominately for the supply of the domestic market. Where the invention-creation involved in the compulsory license relates to the semi-conductor technology, the exploitation of the compulsory license shall be limited only for public non-commercial use or to remedy a practice determined after judicial or administrative process to be anti-competitive.

Rule 73
Where any entity or individual requests, in accordance with the provisions of Article 54 of the Patent Law, the Patent Administration Department under the State Council   to adjudicate the fees for exploitation, it or he shall submit a request for adjudication and furnish documents showing that the parties concerned have not been able to conclude an agreement in respect of the amount of the exploitation fee. The Patent Administration Department under the State Council   shall make an adjudication within three months from the date of receipt of the request and notify the parties concerned accordingly.

Chapter 6 Reward and Remuneration of Inventors or Creators of Service
                   Inventions-Creations

Rule 74
The State-owned enterprise or institution to which a patent right is granted shall, within three months from the date of the announcement of the grant of the patent right, award to the inventor or creator of a service invention-creation a sum of money as prize. The sum of money prize for a patent for invention shall not be less than RMB 2000 yuan; the sum of money prize for a patent for utility model or design shall not be less than RMB 500 yuan.
Where an invention-creation is made on the basis of an inventor's or creator's proposal adopted by the entity to which he belongs, the State-owned enterprise or institution to which a patent right is granted shall award to him a money prize on favorable terms.
For the money prize awarded to the inventor or creator, the enterprise may have it included into its production cost, and the institution may have it disbursed out of its operating expenses.

Rule 75
The State-owned enterprise or institution to which a patent right is granted shall, after exploiting the patent for invention-creation within the duration of the patent right, draw each year from the profits after taxation earned from exploitation of the invention or utility model a percentage of not less than 2%, or from the profits after taxation earned from exploitation of the design a percentage of not less than 0.2%, and award it to the inventor or creator as remuneration. The entity may, as an alternative, by making reference to the said percentage, award a lump sum of money to the inventor or creator as remuneration once and for all.

Rule 76
Where any State-owned enterprise or institution to which a patent right is granted authorizes any other entity or individual to exploit its patent, it shall draw from the profits it receives for exploitation of the said patent after taxation a percentage of not less than 10% and award it to the inventor or creator as remuneration.

Rule 77
The provisions of this Chapter may be implemented by any other Chinese entity by making reference thereto.

Chapter 7 Protection of Patent Right

Rule 78
The administrative authority for patent affairs referred to in the Patent Law and these Implementing Regulations means the department responsible for the administrative work concerning patent affairs set up by the people's government of any province, autonomous region, or municipality directly under the Central Government, or by the people's government of any city which consists of districts, has a large amount of patent administration work to attend to and has the ability to deal with the matter.

Rule 79
In addition to the provisions of Article 57 of the Patent Law, the administrative authority for patent affairs may also mediate in the following patent disputes at the request of the parties concerned:
(1) any dispute over the ownership of the right to apply for patent and the
     patent right;
(2) any dispute over the qualification of the inventor or creator;
(3) any dispute over the award and remuneration of the inventor or creator of
     a service invention-creation;
(4) any dispute over the appropriate fee to be paid for the exploitation of an
     invention after the publication of the application for patent but before the
     grant of patent right.
In respect of the dispute referred to in subparagraph (4), where the patentee requests the administrative authority for patent affairs to mediate, the request shall be made after the grant of the patent right.

Rule 80
The Patent Administration Department under the State Council   shall provide professional guidance to the administrative authorities for patent affairs in handling and mediating patent disputes.

Rule 81
Where any party concerned requests handling or mediation of a patent dispute, it shall fall under the jurisdiction of the administrative authority for patent affairs where the requested party has his location or where the act of infringement has taken place.
Where two or more administrative authorities for patent affairs all have jurisdiction over a patent dispute, any party concerned may file his or its request with one of them to handle or mediate the matter. Where requests are filed with two or more administrative authorities for patent affairs, the administrative authority for patent affairs that first accepts the request shall have jurisdiction.
Where administrative authorities for patent affairs have a dispute over their jurisdiction, the administrative authority for patent affairs of their common higher level people's government shall designate the administrative authority for patent affairs to exercise the jurisdiction; if there is no such administrative authority for patent affairs of their common higher level people's government, the Patent Administration Department under the State Council   shall designate the administrative authority for patent affairs to exercise the jurisdiction.

Rule 82
Where, in the course of handling a patent infringement dispute, the defendant requests invalidation of the patent right and his request is accepted by the Patent Reexamination Board, he may request the administrative authority for patent affairs concerned to suspend the handling of the matter.
If the administrative authority for patent affairs considers that the reasons set forth by the defendant for the suspension are obviously untenable, it may not suspend the handling of the matter.

Rule 83
Where any patentee affixes a patent marking on the patented product or on the package of that product in accordance with the provisions of Article 15 of the Patent Law, he or it shall make the affixation in the manner as prescribed by the Patent Administration Department under the State Council .

Rule 84
Any of the following is an act of passing off the patent of another person as one's own:
(1) without authorization, indicating the patent number of another person on
     the product or on the package of that product made or sold by him or it;
(2) without authorization, using the patent number of another person in the
     advertisement or in any other promotional materials of his or its product, so
     as to mislead other persons to regard the technology concerned as the
     patented technology of another person;
(3) without authorization, using the patent number of another person in the
     contract entered into by him or it , so as to mislead other persons to regard
     the technology referred to in the contract as the patented technology of
     another person;
(4) counterfeiting or transforming any patent certificate, patent document or
     patent application document of another person.

Rule 85
Any of the following is an act of passing a non-patented product off as patented product or passing a non-patented process off as patented process:
(1) making or selling non-patented products which are affixed with patent
     marking;
(2) continuing to affix patent marking on the products that are made or sold
     after the patent right concerned has been declared invalid;
(3) passing any non-patented technology off as patented technology in the
     advertisements or in any other promotional materials;
(4) stating any non-patented technology as patented technology in any
     contract entered into by him or it;
(5) counterfeiting or transforming any patent certificate, patent document or
     patent application document.

Rule 86
Any party concerned to a dispute over the ownership of the right to apply for a patent or the patent right, which is pending before the administrative authority for patent affairs or the people's court, may request the Patent Administration Department under the State Council   to suspend the relevant procedures.
Any party requesting the suspension of the relevant procedures in accordance with the preceding paragraph, shall submit a written request to the Patent Administration Department under the State Council  , and attach a copy of the document acknowledging the receipt of the relevant request from the administrative authority for patent affairs or the people's court.
After the decision made by the administrative authority for patent affairs or the judgment rendered by the people's court enters into force, the parties concerned shall request the Patent Administration Department under the State Council   to resume the suspended procedure. If, within one year from the date when the request for suspension is filed, no decision is made on the dispute relating to the ownership of the right to apply for a patent or the patent right, and it is necessary to continue the suspension, the party who or that the request shall, within the said time limit, request to extend the suspension. If, at the expiration of the said time limit, no such request for extension is filed, the Patent Administration Department under the State Council   shall resume the procedure on its own initiative.

Rule 87
Where, in hearing civil cases, the people's court has ordered the adoption of measures for a patent right preservation, the Patent Administration Department under the State Council  , for the purpose of assisting the execution of the order, shall suspend the relevant procedure concerning the preserved patent right. At the expiration of the time limit for preservation, if there is no order of the people's court to continue the preservation, the Patent Administration Department under the State Council   shall resume the relevant procedure on its own initiative.