Implementing Regulations of the
Patent Law of the People's Republic of China
(Promulgated by Decree No. 306 of the State Council of the People's
Republic of China on June 15, 2001, and effective as of July 1,
2001)
(Translated by the Patent Administration Department under the State
Council of the People's Republic of China. In case of discrepancy,
the original version shall prevail.)
Chapter 1 General Provisions
Rule 1
These Implementing Regulations are formulated in accordance with the
Patent Law of the People's Republic of China (hereinafter referred
to as the Patent Law).
Rule 2
"Invention" in the Patent Law means any new technical solution
relating to a product, a process or improvement thereof.
"Utility model" in the Patent Law means any new technical solution
relating to the shape, the structure, or their combination, of a
product, which is fit for practical use.
"Design" in the Patent Law means any new design of the shape, the
pattern or their combination, or the combination of the color with
shape or pattern, of a product, which creates an aesthetic feeling
and is fit for industrial application.
Rule 3
Any formalities prescribed by the Patent Law and these Implementing
Regulations shall be complied with in a written form or in any other
form prescribed by the Patent Administration Department under the
State Council.
Rule 4
Any document submitted in accordance with the provisions of the
Patent Law and these Implementing Regulations shall be in Chinese;
the standard scientific and technical terms shall be used if there
is a prescribed one set forth by the State; where no generally
accepted translation in Chinese can be found for a foreign name or
scientific or technical term, the one in the original language shall
be also indicated.
Where any certificate or certifying document submitted in accordance
with the provisions of the Patent Law and these Implementing
Regulations is in a foreign language, the Patent Administration
Department under the State Council may, when it deems necessary,
request a Chinese translation of the certificate or the certifying
document be submitted within a specified time limit; where the
translation is not submitted within the specified time limit, the
certificate or certifying document shall be deemed not to have been
submitted.
Rule 5
Where any document is sent by mail to the Patent Administration
Department under the State Council , the date of mailing indicated
by the postmark on the envelope shall be deemed to be the date of
filing; where the date of mailing indicated by the postmark on the
envelope is illegible, the date on which the Patent Administration
Department under the State Council receives the document shall be
the date of filing, except where the date of mailing is proved by
the party concerned.
Any document of the Patent Administration Department under the State
Council may be served by mail, by personal delivery or by other
forms. Where any party concerned appoints a patent agency, the
document shall be sent to the patent agency; where no patent agency
is appointed, the document shall be sent to the liaison person named
in the request.
Where any document is sent by mail by the Patent Administration
Department under the State Council , the 16th day from the date of
mailing shall be presumed to be the date on which the party
concerned receives the document.
Where any document is delivered personally in accordance with the
provisions of the Patent Administration Department under the State
Council , the date of delivery is the date on which the party
concerned receives the document.
Where the address of any document is not clear and it cannot be sent
by mail, the document may be served by making an announcement. At
the expiration of one month from the date of the announcement, the
document shall be deemed to be served.
Rule 6
The first day of any time limit prescribed in the Patent Law and
these Implementing Regulations shall not be counted in the time
limit. Where the time limit is counted by year or by month, it shall
expire on the corresponding day of the last month; if there is no
corresponding day in that month, the time limit shall expire on the
last day of that month; if a time limit expires on an official
holiday, it shall expire on the first working day following that
official holiday.
Rule 7
Where a time limit prescribed in the Patent Law or these
Implementing Regulations or specified by the Patent Administration
Department under the State Council is not observed by a party
concerned because of force majeure, resulting in loss of his or its
rights, he or it may, within two months from the date on which the
impediment is removed, at the latest within two years immediately
following the expiration of that time limit, state the reasons,
together with relevant supporting documents, and request the Patent
Administration Department under the State Council to restore his
or its rights.
Where a time limit prescribed in the Patent Law or these
Implementing Regulations or specified by the Patent Administration
Department under the State Council is not observed by a party
concerned because of any justified reason, resulting in loss of his
or its rights, he or it may, within two months from the date of
receipt of a notification from the Patent Administration Department
under the State Council , state the reasons and request the Patent
Administration Department under the State Council to restore his
or its rights.
Where the party concerned makes a request for an extension of a time
limit specified by the Patent Administration Department under the
State Council , he or it shall, before the time limit expires,
state the reasons to the Patent Administration Department under the
State Council and go through the relevant formalities.
The provisions of paragraphs one and two of this Rule shall not be
applicable to the time limit referred to in Articles 24, 29, 42 and
62 of the Patent Law.
Rule 8
Where an application for a patent for invention relates to the
secrets of the State concerning national defense and requires to be
kept secret, the application for patent shall be filed with the
patent department of national defense. Where any application for
patent for invention relating to the secrets of the State concerning
national defense and requiring to be kept secret is received by the
Patent Administration Department under the State Council , the
application shall be forwarded to the patent department of national
defense for examination, and the Patent Administration Department
under the State Council shall make a decision on the basis of the
observations of the examination made by the patent department of
national defense.
Subject to the preceding paragraph, the Patent Administration
Department under the State Council shall, after receipt of an
application for patent for invention which is required to be
examined for the purpose of security, send it to the relevant
competent department under the State Council for examination. The
relevant competent department shall, within four months from the
date of receipt of the application, notify the Patent Administration
Department under the State Council of the results of the
examination. Where the invention for which a patent is applied for
is required to be kept secret, the Patent Administration Department
under the State Council shall handle it as an application for
secret patent and notify the applicant accordingly.
Rule 9
Any invention-creation that is contrary to the laws of the State
referred to in Article 5 of the Patent Law shall not include the
invention-creation merely because the exploitation of which is
prohibited by the laws of the State.
Rule 10
The date of filing referred to in the Patent Law, except for those
referred to in Articles 28 and 42, means the priority date where
priority is claimed.
The date of filing referred to in these Implementing Regulations,
except as otherwise prescribed, means the date of filing prescribed
in Article 28 of the Patent Law.
Rule 11
"A service invention-creation made by a person in execution of the
tasks of the entity to which he belongs" referred to in Article 6 of
the Patent Law means any invention-creation made:
(1) in the course of performing his own duty;
(2) in execution of any task, other than his own duty, which was
entrusted to
him by the entity to which he belongs;
(3) within one year from his resignation, retirement or change of
work, where
the invention-creation relates to his own duty or the
other task entrusted
to him by the entity to which he previously belonged.
"The entity to which he belongs" referred to in Article 6 of the
Patent Law includes the entity in which the person concerned is a
temporary staff member. "Material and technical means of the entity"
referred to in Article 6 of the Patent Law mean the entity's money,
equipment, spare parts, raw materials or technical materials which
are not disclosed to the public.
Rule 12
"Inventor" or "creator" referred to in the Patent Law means any
person who makes creative contributions to the substantive features
of an invention-creation. Any person who, during the course of
accomplishing the invention-creation, is responsible only for
organizational work, or who offers facilities for making use of
material and technical means, or who takes part in other auxiliary
functions, shall not be considered as inventor or creator
Rule 13
For any identical invention-creation, only one patent right shall be
granted.
Two or more applicants who respectively file, on the same day,
applications for patent for the identical invention-creation, as
provided for in Article 9 of the Patent Law, shall, after receipt of
a notification from the Patent Administration Department under the
State Council , hold consultations among themselves to decide the
person or persons who shall be entitled to file the application.
Rule 14
Any assignment of the right to apply for a patent or of the patent
right, by a Chinese entity or individual, to a foreigner shall be
approved by the competent department for foreign trade and economic
affairs of the State Council in conjunction with the science and
technology administration department of the State Council.
Rule 15
Except for the assignment of the patent right in accordance with
Article 10 of the Patent Law, where the patent right is transferred
because of any other reason, the person or persons concerned shall,
accompanied by relevant certified documents or legal papers, request
the Patent Administration Department under the State Council to
make a registration of change in the owner of the patent right.
Any license contract for exploitation of the patent which has been
concluded by the patentee with an entity or individual shall, within
three months from the date of entry into force of the contract, be
submitted to the Patent Administration Department under the State
Council for the record.
Chapter 2 Application for Patent
Rule 16
Anyone who applies for a patent in written form shall file with the
Patent Administration Department under the State Council
application documents in two copies.
Anyone who applies for a patent in other forms as provided by the
Patent Administration Department under the State Council shall
comply with the relevant provisions.
Any applicant who appoints a patent agency for applying for a
patent, or for having other patent matters to attend to before the
Patent Administration Department under the State Council , shall
submit at the same time a power of attorney indicating the scope of
the power entrusted.
Where there are two or more applicants and no patent agency is
appointed, unless otherwise stated in the request, the applicant
named first in the request shall be the representative.
Rule 17
"Other related matters" in the request referred to in Article 26,
paragraph two of the Patent Law means:
(1) the nationality of the applicant;
(2) where the applicant is an enterprise or other organization, the
name of the
country in which the applicant has the principal
business office;
(3) where the applicant has appointed a patent agency, the relevant
matters
which shall be indicated; where no patent agency is
appointed, the name,
address, postcode and telephone number of the liaison
person;
(4) where the priority of an earlier application is claimed, the
relevant matters
which shall be indicated;
(5) the signature or seal of the applicant or the patent agency;
(6) a list of the documents constituting the application;
(7) a list of the documents appending the application; and
(8) any other related matter which needs to be indicated.
Rule l8
The description of an application for a patent for invention or
utility model shall state the title of the invention or utility
model, which shall be the same as it appears in the request. The
description shall include the following:
(1) technical field: specifying the technical field to which the
technical solution
for which protection is sought pertains;
(2) background art: indicating the background art which can be
regarded as
useful for the understanding, searching and examination
of the invention or
utility model, and when possible, citing the documents
reflecting such art;(3) contents of the invention: disclosing the
technical problem the invention or
utility model aims to settle and the technical solution
adopted to resolve
the problem; and stating, with reference to the prior
art, the advantageous
effects of the invention or utility model;
(4) description of figures: briefly describing each figure in the
drawings, if any;
(5) mode of carrying out the invention or utility model: describing
in detail the
optimally selected mode contemplated by the applicant
for carrying out the
invention or utility model; where appropriate, this
shall be done in terms of
examples, and with reference to the drawings, if any;
The manner and order referred to in the preceding paragraph shall be
followed by the applicant for a patent for invention or for utility
model, and each of the parts shall be preceded by a heading, unless,
because of the nature of the invention or utility model, a different
manner or order would result in a better understanding and a more
economical presentation.
The description of the invention or utility model shall use standard
terms and be in clear wording, and shall not contain such references
to the claims as: "as described in claim ?", nor shall it contain
commercial advertising.
Where an application for a patent for invention contains disclosure
of one or more nucleotide and/or amino acid sequences, the
description shall contain a sequence listing in compliance with the
standard prescribed by the Patent Administration Department under
the State Council . The sequence listing shall be submitted as a
separate part of the description, and a copy of the said sequence
listing in machine-readable form shall also be submitted in
accordance with the provisions of the Patent Administration
Department under the State Council.
Rule 19
The same sheet of drawings may contain several figures of the
invention or utility model, and the figures shall be numbered and
arranged in numerical order consecutively as "Figure l, Figure 2,
?".
The scale and the distinctness of the drawings shall be as such that
a reproduction with a linear reduction in size to two-thirds would
still enable all details to be clearly distinguished.
Reference signs not mentioned in the text of the description of the
invention or utility model shall not appear in the drawings.
Reference signs not mentioned in the drawings shall not appear in
the text of the description. Reference signs for the same composite
part shall be used consistently throughout the application document.
The drawings shall not contain any other explanatory notes, except
words which are indispensable.
Rule 20
The claims shall define clearly and concisely the matter for
which protection is sought in terms of the technical features of the
invention or utility model.
If there are several claims, they shall be numbered consecutively in
Arabic numerals.
The technical terminology used in the claims shall be consistent
with that used in the description. The claims may contain chemical
or mathematical formulae but no drawings. They shall not, except
where absolutely necessary, contain such references to the
description or drawings as: "as described in part ?of the
description", or "as illustrated in Figure ?of the drawings".
The technical features mentioned in the claims may, in order to
facilitate quicker understanding of the claim, make reference to the
corresponding reference signs in the drawings of the description.
Such reference signs shall follow the corresponding technical
features and be placed in parentheses. They shall not be construed
as limiting the claims.
Rule 21
The claims shall have an independent claim, and may also contain
dependent claims.
The independent claim shall outline the technical solution of an
invention or utility model and state the essential technical
features necessary for the solution of its technical problem.
The dependent claim shall, by additional technical features, further
define the claim which it refers to.
Rule 22
An independent claim of an invention or utility model shall contain
a preamble portion and a characterizing portion, and be presented in
the following form:
(1) a preamble portion: indicating the title of the claimed subject
matter of the
technical solution of the invention or utility model,
and those technical
features which are necessary for the definition of the
claimed subject
matter but which, in combination, are part of the most
related prior art;
(2) a characterizing portion: stating, in such words as
"characterized in that..."
or in similar expressions, the technical features of
the invention or utility
model, which distinguish it from the most related prior
art. Those features,
in combination with the features stated in the preamble
portion, serve to
define the scope of protection of the invention or
utility model.
Where the manner specified in the preceding paragraphs is not
appropriate to be followed because of the nature of the invention or
utility model, an independent claim may be presented in a different
manner.
An invention or utility model shall have only one independent claim,
which shall precede all the dependent claims relating to the same
invention or utility model.
Rule 23
Any dependent claim of an invention or utility model shall contain a
reference portion and a characterizing portion, and be presented in
the following manner:
(1) a reference portion: indicating the serial number(s) of the
claim(s) referred
to, and the title of the subject matter;
(2) a characterizing portion: stating the additional technical
features of the
invention or utility model.
Any dependent claim shall only refer to the preceding claim or
claims. Any multiple dependent claims, which refers to two or more
claims, shall refer to the preceding one in the alternative only,
and shall not serve as a basis for any other multiple dependent
claims.
Rule 24
The abstract shall consist of a summary of the disclosure as
contained in the application for patent for invention or utility
model. The summary shall indicate the title of the invention or
utility model, and the technical field to which the invention or
utility model pertains, and shall be drafted in a way which allows
the clear understanding of the technical problem, the gist of the
technical solution of that problem, and the principal use or uses of
the invention or utility model.
The abstract may contain the chemical formula which best
characterizes the invention. In an application for a patent which
contains drawings, the applicant shall provide a figure which best
characterizes the technical features of the invention or utility
model. The scale and the distinctness of the figure shall be as such
that a reproduction with a linear reduction in size to 4cm x 6cm
would still enable all details to be clearly distinguished. The
whole text of the abstract shall contain not more than 300 words.
There shall be no commercial advertising in the abstract.
Rule 25
Where an invention for which a patent is applied for concerns a new
biological material which is not available to the public and which
cannot be described in the application in such a manner as to enable
the invention to be carried out by a person skilled in the art, the
applicant shall, in addition to the other requirements provided for
in the Patent Law and these Implementing Regulations, go through the
following formalities:
(1) depositing a sample of the biological material with a depositary
institution
designated by the Patent Administration Department
under the State
Council before, or at the latest, on the date of filing
(or the priority date
where priority is claimed), and submit at the time of
filing or at the latest,
within four months from the filing date, a receipt of
deposit and the viability
proof from the depository institution; where they are
not submitted within
the specified time limit, the sample of the biological
material shall be
deemed not to have been deposited;
(2) giving in the application document relevant information of the
characteristics of the biological material;
(3) indicating, where the application relates to the deposit of the
biological
material, in the request and the description the
scientific name (with its
Latin name) and the title and address of the depositary
institution, the date
on which the sample of the biological material was
deposited and the
accession number of the deposit; where, at the time of
filing, they are not
indicated, they shall be supplied within four months
from the date of filing;
where after the expiration of the time limit they are
not supplied, the
sample of the biological material shall be deemed not
to have been
deposited.
Rule 26
Where the applicant for a patent for invention has deposited a
sample of the biological material in accordance with the provisions
of Rule 25 of these Implementing Regulations, and after the
application for patent for invention is published, any entity or
individual that intends to make use of the biological material to
which the application relates, for the purpose of experiment, shall
make a request to the Patent Administration Department under the
State Council, containing the following items:
(1) the name and address of the requesting person;
(2) an undertaking not to make the biological material available to
any other
person;
(3) an undertaking to use the biological material for experimental
purpose only
before the grant of the patent right.
Rule 27
The size of drawings or photographs of a design submitted in
accordance with the provisions of Article 27 of the Patent Law shall
not be smaller than 3cm x 8cm, nor larger than l5cm x 22cm.
Where an application for a patent for design seeking concurrent
protection of colors is filed, a drawing or photograph in color
shall be submitted in two copies.
The applicant shall, in respect of the subject matter of the product
incorporating the design which is in need of protection, submit the
relevant views and stereoscopic drawings or photographs, so as to
clearly show the subject matter for which protection is sought.
Rule 28
Where an application for a patent for design is filed, a brief
explanation of the design shall, when necessary, be made.
The brief explanation of the design shall include the essential
portion of the design, the colors for which protection is sought and
the omission of the view of the product incorporating the design.
The brief explanation shall not contain any commercial advertising
and shall not be used to indicate the function of the product.
Rule 29
Where the Patent Administration Department under the State Council
deems necessary, it may require the applicant for a patent for
design to submit a sample or model of the product incorporating the
design. The volume of the sample or model submitted shall not exceed
30cm x 30cm x 30cm, and its weight shall not surpass l5 kilograms.
Articles that are easy to get rotten or broken or articles that are
dangerous shall not be submitted as sample or model.
Rule 30
The existing technology referred to in Article 22, paragraph
three of the Patent Law means any technology which has been publicly
disclosed in publications in the country or abroad, or has been
publicly used or made known to the public by any other means in the
country, before the date of filing (or the priority date where
priority is claimed), that is, prior art.
Rule 31
The academic or technological meeting referred to in Article 24,
subparagraph (2) of the Patent Law means any academic or
technological meeting organized by a competent department concerned
of the State Council or by a national academic or technological
association.
Where any invention-creation for which a patent is applied falls
under the provisions of Article 24, subparagraph (l) or (2) of the
Patent Law, the applicant shall, when filing the application, make a
declaration and, within a time limit of two months from the date of
filing, submit certifying documents issued by the entity which
organized the international exhibition or academic or technological
meeting, stating the fact that the invention-creation was exhibited
or published and with the date of its exhibition or publication.
Where any invention-creation for which a patent is applied falls
under the provisions of Article 24, subparagraph (3) of the Patent
Law, the Patent Administration Department under the State Council
may, when it deems necessary, require the applicant to submit the
relevant certifying documents within the specified time limit.
Where the applicant fails to make a declaration and submit
certifying documents as required in paragraph two of this Rule, or
fails to submit certifying documents within the specified time limit
as required in paragraph three of this Rule, the provisions of
Article 24 of the Patent Law shall not apply to the application.
Rule 32
Where any applicant goes through the formalities of claims priority
in accordance with the provisions of Article 30 of the Patent Law,
he or it shall, in his or its written declaration, indicate the date
and the number of the application which was first filed (hereinafter
referred to as the earlier application) and the country in which the
application was filed. If the written declaration does not contain
the filing date of the earlier application and the name of the
country in which the application was filed, the declaration shall be
deemed not to have been made.
Where the foreign priority is claimed, the copy of the earlier
application documents submitted by the applicant shall be certified
by the competent authority of the foreign country in which the
application was filed. Where in the certifying material submitted,
the name of the earlier applicant is not the same as that of the
later one, the applicant shall submit document certifying the
assignment of priority. Where the domestic priority is claimed, the
copy of the earlier application document shall be prepared by the
Patent Administration Department under the State Council.
Rule 33
An applicant may claim one or more priorities for an application for
a patent; where multiple priorities are claimed, the priority period
for the application shall be calculated from the earliest priority
date.
Where an applicant claims the right of domestic priority, if the
earlier application is one for a patent for invention, he or it may
file an application for a patent for invention or utility model for
the same subject matter; if the earlier application is one for a
patent for utility model, he or it may file an application for a
patent for utility model or invention for the same subject matter.
However, when the later application is filed, if the subject matter
of the earlier application falls under any of the following, it may
not be taken as the basis for claiming domestic priority:
(1) where the applicant has claimed foreign or domestic priority;
(2) where it has been granted a patent right;
(3) where it is the subject matter of a divisional application filed
as prescribed.
Where the domestic priority is claimed, the earlier application
shall be deemed to be withdrawn from the date on which the later
application is filed.
Rule 34
Where an application for a patent is filed or the right of foreign
priority is claimed by an applicant having no habitual residence or
business office in China, the Patent Administration Department under
the State Council may, when it deems necessary, require the
applicant to submit the following documents:
(1) a certificate concerning the nationality of the applicant;
(2) a document certifying the seat of the business office or the
headquarters,
if the applicant is an enterprise or other
organization;
(3) a document certifying that the country, to which the foreigner,
foreign
enterprise or other foreign organization belongs,
recognizes that Chinese
entities and individuals are, under the same conditions
as those applied to
its nationals, entitled to the patent right, the right
of priority and other
related rights in that country.
Rule 35
Two or more inventions or utility models belonging to a single
general inventive concept which may be filed as one application in
accordance with the provision of Article 3l, paragraph one of the
Patent Law shall be technically inter-related and contain one or
more of the same or corresponding special technical features. The
expression "special technical features" shall mean those technical
features that define a contribution which each of those inventions
or utility models, considered as a whole, makes over the prior art.
Rule 36
The expression "the same class" referred to in Article 3l, paragraph
two of the Patent Law means that the product incorporating the
designs belongs to the same subclass in the classification of
products for designs. The expression "be sold or used in sets" means
that the products incorporating the designs have the same designing
concept and are customarily sold and used at the same time.
Where two or more designs are filed as one application in accordance
with the provision of Article 3l, paragraph two of the Patent Law,
they shall be numbered consecutively and the numbers shall precede
the titles of the view of the product incorporating the design.
Rule 37
When withdrawing an application for a patent, the applicant shall
submit to the Patent Administration Department under the State
Council a declaration to that effect stating the title of the
invention-creation, the filing number and the date of filing.
Where a declaration to withdraw an application for a patent is
submitted after the preparations for the publication of the
application document has been completed by the Patent Administration
Department under the State Council , the application document shall
be published as scheduled. However, the declaration withdrawing the
application for patent shall be published in the next issue of the
Patent Gazette.
Chapter 3 Examination and Approval of Application for Patent
Rule 38
Where any of the following events occurs, a person who makes
examination or hears a case in the procedures of preliminary
examination, examination as to substance, reexamination or
invalidation shall, on his own initiative or upon the request of the
parties concerned or any other interested person, be excluded from
excising his function:
(1) where he is a near relative of the party concerned or the agent
of the
party concerned;
(2) where he has an interest in the application for patent or the
patent right;
(3) where he has any other kinds of relations with the party
concerned or with
the agent of the party concerned that may influence
impartial examination
and hearing.
(4) where a member of the Patent Reexamination Board who has taken
part in
the examination of the same application.
Rule 39
Upon the receipt of an application for a patent for invention or
utility model consisting of a request, a description (drawings must
be included in an application for utility model) and one or more
claims, or an application for a patent for design consisting of a
request and one or more drawings or photographs showing the design,
the Patent Administration Department under the State Council shall
accord the date of filing, issue a filing number, and notify the
applicant.
Rule 40
In any of the following circumstances, the Patent Administration
Department under the State Council shall refuse to accept the
application and notify the applicant accordingly:
(1) where the application for a patent for invention or utility
model does not
contain a request, a description (the description of
utility model does not
contain drawings) or claims, or the application for a
patent for design does
not contain a request, drawings or photographs;
(2) where the application is not written in Chinese;
(3) where the application is not in conformity with the provisions
of Rule120,
paragraph one of these Implementing Regulations;
(4) where the request does not contain the name and address of the
applicant;
(5) where the application is obviously not in conformity with the
provisions of
Article 18, or of Article l9, paragraph one of the
Patent Law;
(6) where the kind of protection (patent for invention, utility
model or design)
of the application for a patent is not clear and
definite or cannot be
ascertained.
Rule 41
Where the description states that it contains explanatory notes to
the drawings but the drawings or part of them are missing, the
applicant shall, within the time limit specified by the Patent
Administration Department under the State Council , either furnish
the drawings or make a declaration for the deletion of the
explanatory notes to the drawings. If the drawings are submitted
later, the date of their delivery at, or mailing to, the Patent
Administration Department under the State Council shall be the
date of filing of the application; if the explanatory notes to the
drawings are to be deleted, the initial date of filing shall be
retained.
Rule 42
Where an application for a patent contains two or more
inventions, utility models or designs, the applicant may, before the
expiration of the time limit provided for in Rule 54, paragraph one
of these Implementing Regulations, submit to the Patent
Administration Department under the State Council a divisional
application. However, where an application for patent has been
rejected, withdrawn or is deemed to have been withdrawn, no
divisional application may be filed.
If the Patent Administration Department under the State Council
finds that an application for a patent is not in conformity with the
provisions of Article 3l of the Patent Law or of Rule 35 or 36 of
these Implementing Regulations, it shall invite the applicant to
amend the application within a specified time limit; if the
applicant fails to make any response after the expiration of the
specified time limit, the application shall be deemed to have been
withdrawn.
The divisional application may not change the kind of protection of
the initial application.
Rule 43
A divisional application filed in accordance with the provisions of
Rule 42 of these Implementing Regulations shall be entitled to the
filing date and, if priority is claimed, the priority date of the
initial application, provided that the divisional application does
not go beyond the scope of disclosure contained in the initial
application.
The divisional application shall go through all the formalities in
accordance with the provisions of the Patent Law and these
Implementing Regulations.
The filing number and the date of filing of the initial application
shall be indicated in the request of the divisional application.
When the divisional application is filed, it shall be accompanied by
a copy of the initial application; if priority is claimed for the
initial application, a copy of the priority document of the initial
application shall also be submitted.
Rule 44
"Preliminary examination" referred to in Articles 34 and 40 of the
Patent Law means the check of an application for a patent to see
whether or not it contains the documents as provided for in Articles
26 or 27 of the Patent Law and other necessary documents, and
whether or not those documents are in the prescribed form; such
check shall also include the following:
(1) whether or not any application for a patent for invention
obviously falls
under Articles 5 or 25 of the Patent Law, or is not in
conformity with the
provisions of Article l8 or of Article l9, paragraph
one of the Patent Law, or
is obviously not in conformity with the provisions of
Article 3l, paragraph
one, or Article 33 of the Patent Law, or of Rule 2,
paragraph one, or Rule
18, or Rule 20 of these Implementing Regulations;
(2) whether or not any application for a patent for utility model
obviously falls
under Article 5 or 25 of the Patent Law, or is not in
conformity with the
provisions of Article l8 or of Article l9, paragraph
one of the Patent Law, or
is obviously not in conformity with the provisions of
Article 26, paragraph
three or four, or of Article 3l, paragraph one, or of
Article 33 of the Patent
Law, or of Rule 2, paragraph two, or of Rule l3,
paragraph one, or of Rule l8
to 23, or of Rule 43, paragraph one of these
Implementing Regulations, or is
not entitled to a patent right in accordance with the
provisions of Article 9
of the Patent Law;
(3) whether or not any application for a patent for design obviously
falls under
Article 5 of the Patent Law, or is not in conformity
with the provisions of
Article l8 or of Article l9, paragraph one of the
Patent Law, or is obviously
not in conformity with the provisions of Article 3l,
paragraph two, or of
Article 33 of the Patent Law, or of Rule 2, paragraph
three, or of Rule l3,
paragraph one, or of Rule 43, paragraph one of these
Implementing
Regulations, or is not entitled to a patent right in
accordance with the
provisions of Article 9 of the Patent Law.
The Patent Administration Department under the State Council shall
notify the applicant of its opinions after checking his or its
application and invite him or it to state his or its observations or
to correct his or its application within the specified time limit.
If the applicant fails to make any response within the specified
time limit, the application shall be deemed to have been withdrawn.
Where, after the applicant has made his or its observations or the
corrections, the Patent Administration Department under the State
Council still finds that the application is not in conformity with
the provisions of the Articles and the Rules cited in the preceding
subparagraphs, the application shall be rejected.
Rule 45
Apart from the application for patent, any document relating to the
patent application which is submitted to the Patent Administration
Department under the State Council , shall, in any of the following
circumstances, be deemed not to have been submitted:
(1) where the document is not presented in the prescribed form or
the
indications therein are not in conformity with
the prescriptions;
(2) where no certifying document is submitted as prescribed.
The Patent Administration Department under the State
Council shall notify
the applicant of its opinion after checking that the
document is deemed not
to have been submitted.
Rule 46
Where the applicant requests an earlier publication of its or his
application for a patent for invention, a statement shall be made to
the Patent Administration Department under the State Council . The
Patent Administration Department under the State Council shall,
after preliminary examination of the application, publish it
immediately, unless it is to be rejected.
Rule 47
The applicant shall, when indicating in accordance with Article 27
of the Patent Law the product incorporating the design and the class
to which that product belongs, refer to the classification of
products for designs published by the Patent Administration
Department under the State Council . Where no indication, or an
incorrect indication, of the class to which the product
incorporating the design belongs is made, the Patent Administration
Department under the State Council shall supply the indication or
correct it.
Rule 48
Any person may, from the date of publication of an application for a
patent for invention till the date of announcing the grant of the
patent right, submit to the Patent Administration Department under
the State Council his observations, with reasons therefor, on the
application which is not in conformity with the provisions of the
Patent Law.
Rule 49
Where the applicant for a patent for invention cannot furnish, for
justified reasons, the documents concerning any search or results of
any examination specified in Article 36 of the Patent Law, it or he
shall make a statement to the Patent Administration Department under
the State Council and submit them when the said documents are
available.
Rule 50
The Patent Administration Department under the State Council
shall, when proceeding on its own initiative to examine an
application for a patent in accordance with the provisions of
Article 35, paragraph two of the Patent Law, notify the applicant
accordingly.
Rule 51
When a request for examination as to substance is made, and that,
within the time limit of three months after the receipt of the
notification of the Patent Administration Department under the State
Council, the application has entered into examination as to
substance, the applicant for a patent for invention may amend the
application for a patent for invention on its or his own initiative.
Within two months from the date of filing, the applicant for a
patent for utility model or design may amend the application for a
patent for utility model or design on its or his own initiative.
Where the applicant amends the application after receiving the
notification of opinions of the examination as to substance of the
Patent Administration Department under the State Council , he or it
shall make the amendment as required by the notification.
The Patent Administration Department under the State Council may,
on its own initiative, correct the obvious clerical mistakes and
symbol mistakes in the documents of application for a patent. Where
the Patent Administration Department under the State Council
corrects mistakes on its own initiative, it shall notify the
applicant.
Rule 52
When an amendment to the description or the claims in an application
for a patent for invention or utility model is made, a replacement
sheet in prescribed form shall be submitted, unless the amendment
concerns only the alteration, insertion or deletion of a few words.
Where an amendment to the drawings or photographs of an application
for a patent for design is made, a replacement sheet shall be
submitted as prescribed.
Rule 53
In accordance with the provisions of Article 38 of the Patent Law,
the circumstances where an application for a patent for invention
shall be rejected by the Patent Administration Department under the
State Council after examination as to substance are as follows:
(1) where the application does not comply with the provisions of
Rule 2,
paragraph one of these Implementing Regulations;
(2) where the application falls under the provisions of Article 5 or
25 of the
Patent Law, or it does not comply with the provisions
of Article 22 of the
Patent Law or of Rule l3, paragraph one, or of Rule 20,
paragraph one, or of
Rule 21, paragraph two of these Implementing
Regulations, or the applicant
is not entitled to a patent right in accordance with
the provisions of Article
9 of the Patent Law;
(3) where the application does not comply with the provisions of
Article 26,
paragraph three or four, or of Article 3l, paragraph
one of the Patent Law;
(4) where the amendment to the application does not comply with the
provisions of Article 33 of the Patent Law, or the
divisional application does
not comply with the provisions of Rule 43, paragraph
one of these
Implementing Regulations.
Rule 54
After the Patent Administration Department under the State Council
issues the notification to grant the patent right, the applicant
shall go through the formalities of registration within two months
from the date of receipt of the notification. If the applicant
completes the formalities of registration within the said time
limit, the Patent Administration Department under the State
Council shall grant the patent right, issue the patent certificate
and announce it.
If the applicant does not go through the formalities of registration
within the time limit, he or it shall be deemed to have abandoned
its or his right to obtain the patent right.
Rule 55
After the announcement of the decision to grant a patent for utility
model, the patentee of the said patent for utility model may request
the Patent Administration Department under the State Council to
make a search report on the utility model patent.
Where such person requests for a search report on a utility model
patent, he shall submit a request, indicating the patent number of
the said patent for utility model. Each request shall be limited for
one patent for utility model.
After receiving a request for a search report on a utility model
patent, the Patent Administration Department under the State
Council shall proceed to make an examination of the request. Where
the request does not comply with the requirements as prescribed, the
said department shall notify the requesting person to amend the
request within a specified time limit.
Rule 56
Where, after examination, the request for a search report on a
utility model patent complies with the provisions, the Patent
Administration Department under the State Council shall promptly
make a search report on the utility model patent.
Where the Patent Administration Department under the State Council
finds, after search, that the patent for utility model concerned
does not comply with the provisions of Article 22 of the Patent Law
concerning novelty or inventiveness, it shall cite the documents
considered to be relevant, state the reasons therefor and send the
copies of the cited relevant documents together with the report.
Rule 57
The Patent Administration Department under the State Council shall
correct promptly the mistakes in the patent announcements and
documents issued by it once they are discovered, and the corrections
shall be announced.