IMPLEMENTING REGULATIONS OF THE PATENT LAW OF THE PEOPLE
IMPLEMENTING REGULATIONS OF THE PATENT LAW OF THE PEOPLE'SREPUBLIC OF CHINA
(Revision Approved by the State Council on December 12, 1992 and Promulgated by the Patent Office of the People's Republic of China on December 21, 1992)
Chapter I GENERAL PROVISIONS
Rule 1. These Implementing Regulations are drawn up 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, pattern, color, or their combination, of a product, which creates an aesthetic feeling and is fit for industrial application.
Rule 3.Any proceedings provided for by the Patent Law and these Implementing Regulations shall be conducted in a written form.
Rule 4. Any document submitted under 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 and certified document submitted in accordance with the Patent Law and these Implementing Regulations are in foreign languages, and where the Patent Office deems it necessary, it may request a Chinese translation of the certificate and the certified document to be submitted within a specified time limit; where the translation is not submitted within the specified time limit, the certificate and certified document shall be deemed not to have been submitted.
Rule 5. For any document sent by mail to the Patent Office, the date of mailing indicated by the postmark on the envelope shall be presumed to be the date of filing. If the date of mailing indicated by the postmark on the envelope is illegible, the date on which the Patent Office receives the document shall be the date of filing, except where the date of mailing is proved by the addressee. Any document of the Patent Office may be served by mail, by personal delivery or by public announcement. 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 person first named in the request or to the representative. If such person refuses to accept the document, it shall be presumed to have been served. For any document sent by mail by the Patent Office, the 16th day from the date of mailing shall be presumed to be the date on which the addressee receives the document. For any document which shall be delivered personally in accordance with the prescription of the Patent Office, the date of delivery is the date on which the addressee receives the document. Where the address of a document is not clear and it cannot be sent by mail, the document may be served by making an announcement in the Patent Gazette. At the expiration of one month from the date of the
announcement, the document shall be presumed to have been served.
Rule 6. The first day of any time limit prescribed in the Patent Law and these Implementing Regulations shall not be counted. Where a 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, the time limit shall expire on the first working day after that official holiday.
Rule 7. Where a time limit prescribed in the Patent Law or these Implementing Regulations or specified by the Patent Office is not observed because of force majeure, resulting the loss of any right on the part of the party concerned, he or it shall, 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 Office to restore his or its rights. Where a time limit prescribed in the Patent Law or these Implementing Regulations or specified by the Patent Office is not observed because of any justified reason, resulting the loss of any right on the part of the party concerned, he or it shall, within two months from the date of receipt of a notification from the Patent Office, state the reasons and request the Patent Office to restore his or its rights. Where the party concerned makes a request for an extension of a time limit specified by the Patent Office, he or it shall, before the time limit expires, state the reasons to the Patent Office and complete the relevant procedures. The provisions of paragraphs one and two of this Rule shall not be applicable to the time limits referred to in Articles 24, 29, 41, 45 and 61 of the Patent Law. The provisions of paragraph two of this Rule shall not be applicable to the time limit referred to in Rule 88 of these Implementing Regulations.
Rule 8.Where the invention for which a patent is applied for by the entity of the national defense system relates to the security of the State concerning national defense and is required to be kept secret, the application for patent shall be filed with the patent organization set up by the competent department of science and technology of national defense under the State Council. Where any application for patent for invention relating to the secrets of the State concerning national defense and requiring to be kept classified is received by the Patent Office, the Patent Office shall transfer the application to the said patent organization. The Patent Office shall make a decision on the basis of the observations of the examination of the application presented by the said patent organization. Subject to the preceding paragraph, the Patent Office, after receipt of an application for patent for invention which is required to be examined for the purpose of security, shall send it to the competent department concerned of the State Council for examination. The said department shall, within four months from receipt of the application, send a report on the results of the examination to the Patent Office. Where the invention for which a patent is applied for is required to be kept classified, the Patent Office shall handle it as an application for secret patent and notify the applicant accordingly.
Rule 9. The date of filing referred to in the Patent Law, except that mentioned in Articles 28 and 45, means the priority date where a right of priority is claimed. The date of filing referred to in these Implementing Regulations means the date on which the application for patent is filed with the Patent Office.
Rule 10."Service invention-creation made by a person in execution of the tasks of the entity to which he belongs" mentioned in Article 6 of the Patent Law refers to 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."Material means of the entity" mentioned in Article 6 of the Patent Law refers to entity's money, equipment, spare parts, raw materials, or technical data which are not to be disclosed to the public.
Rule 11."Inventor" or "creator" mentioned in the Patent Law refers to any person who has made creative contributions to the substantive features of the invention-creation. Any person who, during the course of accomplishing the invention-creation, is responsible only for organization work, or who offers facilities for making use of material means, or who takes part in other auxiliary functions, shall not be considered as inventor or creator.
Rule 12. For any identical invention-creation, only one patent right shall be granted. Two or more applicants who 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 Office, hold consultation among themselves to decide the person or persons who shall be entitled to file the application.
Rule 13. 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 Office for record.
Rule 14. "The patent agency" referred to in Article 19, Paragraph one, and Article 20 of the Patent Law shall, on the authorization of the State Council, be designated by the Patent Office. Rule 15.Where any dispute arises concerning the right to apply for a patent for an invention-creation or the right to own a patent right which has been granted, any of the parties concerned may request the administrative authority for patent affairs to handle the matter or may institute legal proceedings in the people's court. Any party to a dispute concerning the right to apply for a patent or the right to own a patent right which is pending before the administrative authority for patent affairs or the people's court, may request the Patent Office to suspend the relevant procedures. Any party requesting suspension of the procedure before the Patent Office in accordance with the preceding paragraph, shall submit a request to the Patent Office, together with the relevant document of the administrative authority for patent affairs or the people's court before which the dispute is pending.
Chapter II APPLICATION FOR PATENT
Rule 16. Anyone who applies for a patent shall submit application documents in two copies. Any applicant who appoints a patent agency for filing an application for a patent with, or for dealing with other patent matters before, the Patent Office, shall submit a power of attorney indicating the scope of the power entrusted.
Rule17. Other related matters mentioned in Article 26, paragraph
two, of thePatent Law refer to:(1) the nationality of the app licant;(2) where the applicant is an enterprise or other organiz ation, the nameof the country in which the applicant has the p rincipal business office;(3) where the applicant has appointed
a patent agency, the relevantmatters which should be indic ated;(4) where the priority of an earlier application is claimed
, the relevantmatters which should be indicated;(5) the signatu
re or seal of the applicant or the patent agency;(6) a list of t
he documents constituting the application;(7) a list of the docu ments appending the application;(8) any other related matter whi ch needs to be indicated.Where there are two or more applicants and where they have not appointed apatent agency, they shall des ignate a representative.Rule 18.The description of an applicatio
n for a patent for invention or utilitymodel shall be present
ed in the following manner and order:(1) state the title of the invention or utility model as appearing in therequest;(2) speci
fy the technical field to which the invention or utility mode lrelates;(3) indicate the background art which, as far as known
to the applicant,can be regarded as useful for the understandi ng, searching and examinationof the invention or utility model, and cite the documents reflecting suchart;(4) specify the purpo se which the invention or utility model is designedto fulfil;(
5) disclose the technical solution of the invention or utility m odel, asclaimed, in such terms that a person having ordinary sk
ill in the art canunderstand it and fulfil the purpose of the i nvention or utility model;(6) state the advantageous effects of the invention or utility model, withreference to the background art;(7) briefly describe the figures in the drawings, if any;(8) describe in detail the best mode contemplated by the applica
nt forcarrying out the invention or utility model; this shall b
e done in termso
f examples, where appropriate, and with refere nce to the drawings, ifany.The manner and order mentioned
in the preceding paragraph shall beobserved by the applica
nt of a patent for invention or a patent forutility model
, unless, because of the nature of the invention or utilitymod
el, a different manner or order would afford a better understand ing anda more economical presentation.The description of the inv ention or utility model shall not contain suchreferences to th
e claims as: "as described in part......o
f the claim", norshall
it contain commercial advertising.Rule 19.The same sheet of draw ings may contain several figures of the invention orutility mode
l, and the drawings shall be numbered and arranged innu merical order consecutively as "Figure 1, Figure 2,......".The s
cale and the distinctness of the drawings shall be such th
at areproduction with a linear reduction in size to two-third
s would stillenable all details to be clearly distinguished.Dr
awing reference signs not appearing in the text of the descrip
tion ofthe invention or utility model shall not appear in the drawings. Drawingreference signs not appearing in the drawings shall not appear in the textof the description. Drawing referenc
e signs for the same composite partused in an application doc ument shall be consistent throughout.The drawings shall not cont ain any other explanatory notes, except wordswhich are indispe nsable.Rule 20.The claims shall define clearly and concisely
the matter for whichprotection is sought in terms of the te chnical features of the inventionor utility model.If there are several claims, they shall be numbered consecutively inAr
abic numerals. The technical terminology used in the claims s
hall beconsistent with that used in the description. The cl
aims may containchemical or mathematical formulate but no d rawings. They shall not,except where absolutely necessary
, contain such references to thedescription or drawings
as: "as described in part......of thedescription", or
"as illustrated in figure......of the drawings".The technical f eatures mentioned in the claims may, in order to facilitatequick
er understanding of the claim, make reference to the correspo ndingreference signs in the drawings of the description. Such r eference signsshall follow the corresponding technical features and be placed betweenparentheses. They shall not be construe
d as limiting th
e claims.Rule 21.The claims shall have an indepe ndent claim, and may also contain dependentclaims. An independe nt claim shall outline the technical solution o
f aninvention o
r utility model and describe the indispensable technicalf
eatures necessary for fulfilling the purpose of the invention or utilitymodel.A dependent claim shall further define the claim which it refers to byadditional features which it is desired
to protect.Rule 22.An independent claim of an invention or uti
lity model shall contain apreamble portion and a characteriz
ing portion, and be presented in thefollowing form:(1) a pre amble portion, indicating the title of the claimed subject matte
rof the invention or utility model, and those technical featur
es of theinvention or utility model which are necessary for th
e definition o
f theclaimed subject matter but which, in combin ation, are part of the priorart;(2) a characterizin
g portion, stating, in suc
h words as "characterized inthat......" or in s
imilar expressions, the technical features of theinvention
or utility model, which distinguish it from the prior art. Thes efeatures, in combination with the features stated in the preamb le portion,served to define the scope of protection of the i nvention or utilitymodel.Independent claims may be presented i n any other form, where it is notappropriate, according to t
he nature of the invention or utility model, topresent them in t
he form prescribed in the preceding paragraph.Each invention or utility model shall have only one independent claim,which sh
all precede all the dependent claims relating to the sa meinvention or utility model.Rule 23.A dependent claim of an i nvention or utility model shall contain areference portion
and a characterizing portion, and be presented in thefollowi
ng form:(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 ofthe invention or utility model.A dependent claim refe rring to one or more other claims shall refer onlyto the prece ding claim or claims. A multiple dependent claim which refersto more than one other claim shall not serve as a basis for an
y othermultiple dependent claim.Rule 24.The abstract shall indi cate the technical field to which the invention orutility model pertains, the technical problems to be solved, the essentialtec hnical features and the use or uses of the invention or utility model.The abstract may contain the chemical formula which best c haracterizes theinvention. In an application for a patent which contains drawings, theapplicant shall indicate and provide a drawing which best characterizesthe invention or utility mod
el. The scale and the distinctness of thedrawings shall be
such that a reproduction with a linear reduction in sizeto 4cm*6 cm would still enable all details to be clearly distinguished. T hewhole text of the abstract shall contain not more than
200 Chinesecharacters. There shall be no commercial advertising in the abstract.Rule 25.Where an application for a patent for invention concerns a new micro-organism, a micro-biological process or a product thereof and involves theuse of a micro-org anism which is not available to the public, theapplicant
shall, in addition to the other requirements provided for in th
ePatent Law and these Implementing Regulations, complete the followingprocedures.(1) deposit a sample of the micro-organism with a depositary institutiondesignated by the Patent Office before the date of filing, or, at thelatest, on the date of
filing, and submit, at the time of filing, or, atthe latest,
within three months from the filing date, a receipt of depositan
d th
e viability proo
f from the depository institution; where t
hey arenot submitted within the specified time limit, the sampl
e o
f the micro-organism shall be deemed not to have been depo sited;(2) give in the application document relevant infor
mation of thecharacteristics of the micro-organism;(3) indica
te, where the application relates to the deposit of the micro- organism, in the request and the description the scientific name (with itsLatin name) and the name of the depositary institution
, the date on whichthe sample of the micro-organsim was deposit ed and the accession number ofthe deposit; where, at the time of filing, they are not indicated, theyshall be supplied within
three months from the date of filing; where afterthe expiration
of the time limit they are not supplied, the sample of themicr
o-organism shall be deemed not to have been deposited.Rule 26.Af ter the publication of an application for a patent for i nventionrelating to a micro-organism, any entity or individu
al which or whointends to make use of the micro-organism ment ioned in the application forthe purpose of experiment shall mak
e a request to the Patent Officecontaining the following:(
1) the name and address of the entity or individual making the r equest;(2) an undertaking not to make the micro-organism availab le to any otherperson;(3) an undertaking to use the micro-orga nism for experimental purpose onlybefore the grant of the patent right.Rule 27.The size of drawings or photographs of a design submitted in accordancewith the provisions of Article 27 of th
e Patent Law shall not be smallerthan 3cm*8cm, nor larger than 15cm*22cm.Where an application for a patent for design seeking concurrent protectiono
f colors is filed, a drawin
g or photograph
in color, and a drawing orphotograph in white and black, sh
all be submitted.The applicant shall submit, in respect of th
e subject matter o
f theproduct incorporatin
g the design whic
h is in need of protection, therelevant views and stereosc
opic drawings or photographs, so as to clearlyshow the subject matter for which protection is sought.Rule 28.Where an applicati on for a patent for design is filed, a brief explanationof the d
esign shall, when necessary, be indicated.The brief explanation
of the design shall include the main creativeportion of t
he design, the colors for which protection is sought and theom ission of the view of the product incorporating the design. Th
e briefexplanation shall not contain any commercial advertising and shall not beused to indicate the function and the uses of
the product.Rule 29.Where the Patent Office finds it necessary,
it may require the applicantfor a patent for design to submit
a sample or model of the productincorporating the design
. The volume of the sample or model submittedshall not exce
ed 30cm*30cm*30cm, and its weight shall not surpass 15kilo
s. Articles easy to get rotten or broken, or articles tha
t aredangerous may not be submitted as sample or model.Rule 30. The existing technology mentioned in Article 22, paragraph three , of thePatent Law means any technology which has been pu blicly disclose inpublications in the country or abroad, or ha
s been publicly used or madeknown to the public by any other m eans in the country, before the date offiling (or the priority
date where priority is claimed), that is, priorart.Rule 31.Th
e academic or technological meeting mentioned in item (2) o
f Art icle 24of the Patent Law means any academic or technological me etin
g organized bya competent department concerned of the State Council or by a nationalacademic or technological associatio
n. Where any application for a patentfalls under the provisions
of item (1) or item (2) of Article 24 of thePatent Law, the applicant shall, when filing the application, make adeclar
ation and, within a time limit of two months from the date offiling, submit a certificate issued by the entity which organized theinternational exhibition or academic or technolo gical meeting, statingthat the invention-creation was in fact exhibited or made public there andalso the date of its exhibitio
n or making public. Where any applicationfor a patent falls u
nder the provisions of item (3) of Article 24 of thePatent Law
, the Patent Office may, when necessary, require the applicant
to submit the relevant proof.Rule 32.Where the applicant is to c omply with the requirements for claiming theright of priority
in accordance with Article 30 of the Patent Law, he orit shal
l, in his or its written declaration, indicate the date of fil
ingand the filing number of the application which was
first filed(hereinafter referred to as the earlier application
) and the country inwhich that application was filed. If the
written declaration does notcontain the date of filing of t
he earlier application and the name of thatcountry, the declarat ion shall be deemed not to have been made.Where the foreign prio rity is claimed, the copy of the earlier applicationdocument sub mitted by the applicant shall be certified by the competentau thority of the foreign country; where the domestic priority is claimed,the copy of the earlier application document shall be prepared by thePatent Office.Rule 33.Any applicant may claim one or more priorities for an application for apatent; where
the priorities of several earlier applications are claimed,the priority period for the application shall be calculated fro
m theearliest priority date.Where any applicant claims the righ
t of domestic priority, if the earlierapplication is one for a
patent for invention, he or it may file anapplication for
a patent for invention or utility model for the samesubje
ct matter; if the earlier application is one for a patent for ut ilitymodel, he or it may file an application for a patent for ut
ility model orinvention for the same subject matter. But when t
he later application isfiled, if the earlier application falls
under any of the following, it maynot be the basis of domestic priority:(1) where it has claimed foreign or domestic priority;(
2) where it has been granted a patent right;(3) where it is a di visional application filed as prescribed.Where the domestic prio rity is claimed, the earlier application shall bedeemed to be withdrawn from the date on which the later application isfil
ed.Rule 34.Where an application for a patent is filed or th
e right o
f foreignpriority is claimed by any applicant havi
ng no habitual residence orbusiness office in China, the Pat
ent Office may, when necessary, requirethe applicant to submit the following documents:(1) a certificate concerning the nation ality of the applicant;(2) a certificate concerning the seat o
f the business office or theheadquarters, if the applicant
is an enterprise or other organization;(3) a testimonial showing that the country, to which the foreigner,foreign enterpr
ise or other foreign organization belongs, recognizes thatChine
se citizens and entities are, under the same conditions applie
d toits nationals, entitled to patent right, right of prior
ity and otherrelated rights in that country.Rule 35.Two or mor
e inventions or utility models belonging to a single general inventive concept which may be filed as one application in accor dance withthe provision o
f Article 31, paragraph one, of the Pa
tent Law shall betechnically inter-related and contain one or more same or correspondingspecial technical features. The ex pression "special technical features"shall mean those technic
al features that define a contribution which eachof those inven tions, considered as a whole, makes over the prior art.The claim
s in one application for a patent for two or more invention swhich are in conformity with the provisions of the preceding pa ragraph maybe any of the following:(1) independent claims of the same category for two or more products orprocesses which can not be included in one claim;(2) an independent claim for a prod uct and an independent claim for aprocess specially adapted
for the manufacture of the product;(3) an independent claim for
a product and an independent claim for a useof the product;(4)
an independent claim for a product, an independent claim for a processspecially adapted for the manufacture of the product, and an independentclaim for a use of the product;(5) an independe
nt claim for a product, an independent claim for a processspecia lly adapted for the manufacture of the product, an independent c laimfor an apparatus specially designed for carrying out the pro cess;(6) an independent claim for a process and an independent claim for anapparatus specially designed for carrying out the process.The claims in one application for a patent for two or m ore utility modelswhich are in conformity with the provisions o
f the first paragraph may beindependent claims for two or more products which cannot be included inone claim.Rule 36.The exp ression "the same class" mentioned in Article 31, paragraph two ofthe Patent law means that the products incorporatin
g the desi gns belong tothe same subclass in the classification of produ
cts for designs. Theexpression "be sold or used in sets" mean
s that the products incorporatingthe designs have the same desig ning concept and are customarily sold orused at the same time
.Where two or more designs are filed as one application in accor dance withthe provisions of Article 31, paragraph two, of the P atent Law, they shallbe numbered consecutively and the numbers s hall be placed in front of thetitles of the view of the product incorporating the design.Rule 37.When withdrawing an applicatio n for a patent, the applicant shall submitto the Patent Office
a declaration 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 submittedafter the pri nting preparation has been done by the Patent Office forpub
lication of the application documents, the application sh
all bepublished as scheduled.
【章名】Chapter III EXAMINATION AND APPROVAL OF APPLICATIO N FOR PATENTRule 38.In any of the following situations, any pers
on who makes examination orhears a case in the procedures of preliminary examination, examination asto substance, reexaminat
ion, revocation and invalidation shall, on his owninitiative or
upon the request of the parties concerned or any otherinte
rested person, be excluded from exercising his function:(1) wher
e he is a close relative o
f the party concerned or his agent;(2)
where he has an interest in the application for patent or the patentright;(3) where he has such other kinds of relations with
the party concerned orhis agent that might influence impartial examination and hearing.Where a member of the Patent Reexaminati
on Board has taken part in theexamination of the application
, the provisions of the preceding paragraphshall apply. The ex
clusion of persons making examination and hearingcases shal
l be decided by the Patent Office.Rule 39.Upon the receipt of an application for a patent for invention or utilitymodel consi
sting of a request, a description (a drawing beingin
dispensable for utility model) and one or more claims, or an app licationfor a patent for design consisting of a request and one
or more drawingsor photographs showing the design, the Patent
Office shall accord the dateof filing and a filing number and no
tify the applicant.Rule 40.In any of the following situations, t
he Patent Office shall declare theapplication unacceptable an
d notify th
e applicant accordingly;(1) where the application for
a patent for invention or utility model doesnot contain a reque
st, a description (the description of utility modeldoes not
contain drawings) or claims, or the application for a patent fo
rdesign does not contain a request, drawings or photographs;(2)
where the application is not written in Chinese;(3) where the ap plication is not in conformity with the provisions of Rule94, pa
ragraph one, of these Implementing Regulations;(4) where the req
uest does not contain the name and address of theapplica
nt;(5) where the application is obviously not in conformi
ty with theprovisions of Article 18, or Article 19, paragraph
one, of the Patent Law;(6) where the kind of protection (patent
for invention, utility model ordesign) of the application for
a patent is not clear and definite orcannot be discerned.R
ule 41.Where the description mentions that it contains "explanat ory notes to thedrawings" but the drawings or part of them ar
e missing, the applicantshall, within the time limit specif
ied by the Patent Office, eitherfurnish the drawings or ma
ke a declaration for the deletion of the"explanatory note
s to the drawings". If the drawings are submitted later,the dat
e o
f their deliverin
g at, or mailing to, the Patent Office shall
bethe date of filing of the application; if the mention of "explanatorynotes to the drawings" is to be deleted, the initia
l date of filing shallbe the date of filing of the application.
Rule 42.Where an application for a patent contains two or more i nventions, utilitymodels or designs, the applicant may, at any t ime before the Patent Officesends out the notification to grant
the patent right, submit to the PatentOffice a divisional applic ation.If the Patent Office finds that an application for a pat
ent is not inconformity with the provisions of Article 31 of
the Patent Law and Rule 35of these Implementing Regulations, it shall invite the applicant to amendthe application within the s pecified time limit; if the applicant does notmake any response within the time limit, the application shall be deemedto have been withdrawn.The divisional application may not change the kin d of protection of theinitial application.Rule 43.A divisiona
l application filed in accordance with Rule 42 of theseI mplementing Regulations may enjoy the date of filing and, if pri ority isvalidly claimed, the priority date of the initial app lication, providedthat the divisional application does not go b eyond the scope of disclosurecontained in the initial applicatio
n. The divisional application shall besubject to the procedures
in accordance with the provisions of the PatentLaw and these I mplementing Regulations.The filing number and the date of filing of the initial application shallbe indicated in the request of
a divisional application. When submittingthe divisional appli cation, the applicant shall submit a copy of theinitial ap
plication document; if priority is claimed for the initial application, the applicant shall submit a copy of the priority d ocument ofthe initial application as well.Rule 44."Preliminary e xamination" mentioned in Articles 34 and 40 of the PatentLaw means examining an application for a patent to see whether or n ot itcontains the documents as provided for in Articles 26 or 2
7 of the PatentLaw and other necessary documents, and whether o r not those documents arein the prescribed form; such examinati
on shall also include the following:(1) whether or not an applic ation for a patent for invention obviouslyfalls under Articl
es 5 or 25 of the Patent Law, or is obviously not inconformi
ty with the provisions of Article 18 or Article 19, paragraph on
e,or is obviously not in conformity with the provisions of
Article 31,paragraph one, or Article 33 of the Patent Law, or R
ule 2, paragraph one,of these Implementing Regulations;(2) whet her or not an application for a patent for utility model obvious lyfalls under Articles 5 or 25 of the Patent Law, or is obviou
sly not inconformity with the provisions of Article 18 or Arti
cle 19, paragraph one,or is obviously not in conformity with t
he provisions of Article 31,paragraph 1, or Article 33 of th
e patent Law, or Rule 2, paragraph two, orRule 12, paragraph one, or Rules 18 to 23 o
f these ImplementingRegulations,
or cannot obtain a patent right according to the provisionsof Article 9 of the Patent Law;(3) whether or not an application f
or a patent for design obviously fallsunder Article 5 of the Pa
tent Law, or is obviously not in conformity withthe provisions
of Article 18 or Article 19, paragraph one, or is obviouslynot i
n conformity with the provisions of Article 31, paragraph two
, orArticle 33 of the Patent Law, or Rule 2, paragraph three,
or Rule 12,paragraph one, of these Implementing Regulation
s, or cannot obtain apatent right according to the provision
s of Article 9 of the Patent Law.The Patent Office shall communi cate its observations after examination ofthe application to th
e applicant and invite him or it to submit his or itsobservation
s or to correct his or its application within the time limit.If
the applicant makes no response within the time limit, the appl icationshall be deemed to have been withdrawn. Where, after th
e applicant hasmade the observations or the corrections, the P atent Office still findsthat the application is not in confo
rmity with the provisions of theArticles and the Rules cite
d in th
e relevant preceding sub-paragraph, theapplication shall
be rejected.Rule 45.In any of the following situations, any do cument relating to a patentapplication, not including the pa
tent application, which is submitted tothe Patent Office, shal
l be deemed not to have been submitted:(1) where the document is not presented in the prescribed form or theindications the
rein are not in conformity with the prescriptions;(2) where no s upporting document is submitted as prescribed.The applicant shal l be notified that the document is deemed not to havebeen sub
mitted.Rule 46.Where the applicant requests an earlier publ ication of its or hisapplication for a patent for invention,
a declaration shall be made to thePatent Office. The Patent Off ice shall, after preliminary examination ofthe application and
, unless it is to be rejected, publish it immediately.Rule 47.Th
e applicant shall, when indicating in accordance with Article 27
of thePatent Law the product incorporating the design and the class to whichthat product belongs, refer to the classificat
ion of products for designspublished by the Patent Office. Whe
re no indication, or an incorrectindication, of the class t
o which the product incorporating the designbelongs is made,
the Patent Office shall supply the indication or correctit.Rul
e 48.Any person may, from the date o
f publication of an appl ication for apatent for invention till the date of announcing
the grant of the patentright, submit to the Patent Office observations, with the reasonstherefor, on the applicati
on which is not in conformity with theprovisions of the P
atent Law.Rule 49.Where the applicant for a patent for inve
ntion cannot furnish, forjustified reasons, the documents con cerning any search or the results ofany examination under Arti cle 36 of the Patent law, it or he shall make astatement to tha
t effect and submit them when the said documents areavaila ble.Rule 50.The Patent Office shall, when proceeding on its own initiative to examinean application for a patent for inve
ntion in accordance with theprovisions of Article 35, paragr
aph two, of the Patent Law, notify theapplicant accordingly.
Rule 51.When a request for examination as to substance is made, or when a responseis made in regard to the first communication o f the observations of thePatent Office after examination as t
o substance, the applicant may amendthe application for a pate
nt for invention on its or his own initiative.Within three month
s from the date of filing, the applicant for a patentfor util
ity model or design may amend the application for a patent f orutility model or design on its or his own initiative.Rule 52.W hen an amendment to the description or the claims in an applicat ion for apatent for invention or utility model is made, a rep lacement sheet inprescribed form shall be submitted, unless th
e amendment concerns only thealteration, insertion or deletion o
f a few words. Where an amendment tothe drawings or photograp hs of an application for a patent for design ismade, a replace ment sheet in prescribed form shall be submitted.Rule 53.Accordi
ng to the provisions of the Patent Law and these Implement ingRegulations, the situations where after examination as to substance anapplication for patent for invention shall be re jected by the PatentOffice shall comprise the following:(1) w here the application does not comply with the provisions of Rul
e 2,paragraph one, o
f these Implementin
g Regulations;(2) where the application falls under the provisions of Articles 5 or 25
of the Patent Law; or it does not comply with the provisions of Article 22of the Patent Law and Rule 12, paragraph one, of
these ImplementingRegulations, or the applicant cannot obtain
a patent right according tothe provisions of Article 9 of the Patent Law;(3) where the application does not comply with the p rovisions of Article26, paragraphs three or four, or Article 3
1, paragraph one, of the PatentLaw;(4) where the amendment to t he application or the divisional applicationgoes beyond the sc ope of disclosure contained in the initial descriptionand the claims.Rule 54.After the Patent Office issues the notification t
o grant the patent right,the applicant shall go through the form alities of registration within twomonths from the date of recei
pt of the notification. If the applicant goesthrough the formali ties of registration within the said time limit, thePatent Of
fice shall grant the patent right, issue the patent certificate
,and announce it. The patent right shall come into force upon th e date ofissue of the patent certificate.If the time limit for
going through the formalities of registration is notmet, the ap plicant shall be deemed to have abandoned its or his right too btain the patent right.Rule 55.The grounds on which a revocation may be requested under Article 41 of thePatent Law of a patent right, which is announced and granted by the PatentOffice, shall comprise the following:(1) where the invention or utility model for which the patent right isgranted does not comply with t
he provisions of Article 22 of the PatentLaw;(2) where the de sign for which the patent right is granted does not complywith t he provisions of Article 23 of the Patent Law.Rule 56.Anyone req uesting revocation of a patent right in accordance with the provisions of Article 41 of the Patent Law shall submit to t
he PatentOffice a request and the relevant documents in two c opies, stating thefacts and reasons on which the request is ba sed.The person requesting revocation may withdraw his reques
t before thePatent Office makes a decision on it.Rule 57.After
the receipt of the request for revocation of the patent right,
thePatent Office shall make an examination of it. Where the re quest does notconform to the prescribed requirements, the Paten
t Office shall notify theperson making the request to rectify it
within the specified time limit.If the time limit for making re ctification is not met, the request forrevocation shall be d
eemed not to have been filed. Where, in the requestfor revocat
ion of the patent right, no facts and reasons have been givent
o support the request or the reasons given do not conform
to theprovisions of Rule 55 of these Implementing Regulations
, the request shallbe declared to be unacceptable.The Patent Off
ice shall send a copy of the request for revocation of thepate
nt right and copies of the relevant documents to the patente
e andinvite it or him to present its or his observations with
in a specifiedtime limit. The patentee may amend its or his p
atent specification, butmay not broaden the scope of patent pr otection. If no response is madewithin the time limit, the e xamination procedure of the Patent office willnot be affected.Ru
le 58.The Patent Reexamination Board shall consist of experience
d technical andlegal experts designated by th
e Patent Office. T
he Director General of thePatent Office shall be the Director of
the Board.Rule 59.Where the applicant requests the Patent Reex amination Board to make areexamination in accordance with th
e provisions o
f Article 43, paragraphone, of the Patent Law, i
t or he shall file a request for reexaminationand state the r
easons therefor, together with the relevant supportingdocum ents. The request and the supporting documents shall be in twocopies.The applicant or the patentee may amend its or his a pplication, which hasbeen rejected, or its or his patent specif ication, which has been revoked,at the time when it or he reques
ts reexamination, but the amendments shallbe limited only to the part to which the decision of rejection of theapplication
or the decision of revocation of the patent right relates.Rule 6
0.Where the request for reexamination does not comply with the prescribedform, the person making the request shall rectify it
within the time limitfixed by the Patent Reexamination Board. I
f the time limit for makingrectification is not met, the re
quest for reexamination shall be deemednot to have been filed
.Rule 61.The Patent Reexamination Board shall send the request
for reexaminationwhich the Board has received to the examinati
on department which has madethe examination to make an examinat ion. Where the examination departmentagrees to revoke its form
er decision upon the request of the personrequesting reex amination, the Patent Reexamination Board shall make adecis
ion accordingly and notify that person.Rule 62.Where the Patent Reexamination Board finds after reexamination that therequest
does not comply with the provisions of the Patent Law, it sh
allinvite the person requesting reexamination to submit his observationswithin the specified time limit. If the time limit
for making response isnot met, the request for reexamination
shall be deemed to have beenwithdrawn.Rule 63.At any time b
efore the Patent Reexamination Board makes its decision onthe request for reexamination, the person making the request may w ithdrawhis request for reexamination.Rule 64.The Patent Office m
ay amend the obvious mistakes which it finds in thetitle of
the invention-creation, the abstract or the request of th eapplication, and notify the applicant.The patent office shall
correct promptly the mistakes in the PatentGazettes and do
cuments issued by it once they are discovered.
【章名】Chapter IV INVALIDATION OF PATENT RIGHTRule 65.Any one requesting invalidation or part invalidation of a patent rightaccording to the provisions of Article 48 of the Patent L
aw shall submitthe request and the relevant documents in two c opies, stating the factsand reasons on which the request is b
ased, to the Patent ReexaminationBoard.The person requesting invalidation may withdraw his request before thePatent Reex amination Board makes a decision on it.Rule 66.Where the request
for invalidation of the patent right does not complywith th
e prescribed form, the person making the request shall rectify
itwithin the time limit fixed by the Patent Reexamination Bo
ard. If therectification fails to be made within the time li
mit, the request forinvalidation shall be deemed not to have
been filed. The grounds on whichthe request for invalidation
may be based shall comprise that theinvention-creation fo
r which the patent right is granted does not complywith the pr ovisions of Articles 22 or 23, Article 26, paragraphs three orf
our, or Article 33 of the Patent Law, or Rule 2, or Rule 12, paragraphone of these Implementing Regulations; or it falls unde
r the provisions ofArticles 5 or 25 of the Patent Law; or the pe
rson to whom the patent wasgranted cannot obtain a patent ri
ght according to the provisions ofArticle 9 of the Patent L
aw.Where, in the request for invalidation, no facts and reason
s have beengiven to support the request or the reasons given d
o not conform to theprovisions of the preceding paragraph, or
where invalidation is requestedafter the request for revocatio
n is made but no decision on that requesthas yet been rendered
, or where, after decision on any request forrevocation
or invalidation of the patent right was made, invalidationb
ased on the same facts and reasons is requested again, the reque
st shallbe declared to be unacceptable by the Patent Reexaminat
ion Board.Rule 67.The Patent Reexamination Board shall send a
copy of the request forinvalidation of the patent right and
copies of the relevant documents tothe patentee and invite it
or him to present its or his observationswithin a specifi
ed time limit. The patentee may amend its or his patentspecif
ication, but may not broaden the scope of patent protection. W
hereno response is made within the time limit, the hearing proc
edure of thePatent Reexamination Board will not be affected.
【章名】Chapter V COMPULSORY LICENSE FOR EXPLOITATION OF P ATENTRule 68.After the expiration of three years from the grant
of the patent right,any entity may, in accordance with the pr
ovisions of Article 51 of thePatent Law, request the Patent
Office to grant a compulsory license.Any entity or individual re questing a compulsory license shall submit tothe Patent Office
a request for compulsory license and state the reasonstherefo
r, together with relevant supporting documents. The request and thesupporting documents shall be in two copies respectively.The
Patent Office shall send a copy of the request for compulsory l
icenseto the patentee. He or it shall make his or its observati
ons within thetime limit specified by the Patent Office. Whe
re no response is madewithin the time limit, the Patent Offi
ce will not be affected in making adecision to grant a compulso
ry license. Where a national emergency or anyextraordinary stat
e o
f affairs occurs, or in cases of public non-commerci
al use, the Patent Office may grant a compulsory license. T
hedecision of the Patent Office granting a compulsory l
icense forexploitation shall limit the scope and duration of t
he exploitation on thebasis of the reasons justifying the
grant, and provide that theexploitation shall be predominat
ely for the supply of the domestic market.The decision of the Pa
tent Office granting a compulsory licence shall benotified to
the patentee as soon as reasonably practicable, and shall bere
gistered and announced by the Patent Office. If and wh
en thecircumstances which led to such compulsory license cease
to exist and areunlikely to recur, the Patent Office may,
upon the request of thepatentee, review the continued exi
stence of these circumstances, andterminate the compulsory l icense.Rule 69.Any party requesting, in accordance with the prov isions of Article 57 ofthe Patent Law, the Patent Office to ad
judicate the fees for exploitation,shall submit a request for ad judication and furnish documents showing thatthe parties have no
t been able to conclude an agreement in respect of theamount of
the fees. The Patent Office shall make an adjudication withi
nthree months from the date of receipt of the request and
notify theparties accordingly.
【章名】Chapter VI REWARDS TO INVENTOR OR CREATOR OF SER VICE INVENTION-CREATIONRule 70."Rewards" mentioned in Article 1
6 of the Patent Law includes money prizesand remunerations whic
h are to be awarded to inventors and creators.Rule 71.Any entity holding a patent right shall, after the grant of the patent
right, award to inventors or creators of a service invention-c
reation asum of money as prize. The sum of money prize for a pa
tent for inventionshall not be less than 200 yuan; the sum of
money prize for a patent forutility model or design shall no
t be less than 50 yuan. Where aninvention-creation was m
ade on the basis of an inventor's or creator'sproposal adopt
ed by the entity to which he belongs, after the grant of thepate
nt right, the entity holding it shall award to him a money prizeliberally.Any enterprise holding the patent right may incl
ude the said money prizepaid to such inventors or creator
s into its production cost; anyinstitution holding the pate
nt right may disburse the said money prize outof its operating e xpenses.Rule 72.Any entity holding a patent right shall, after e xploiting the patent forinvention-creation within the duration
of the patent right, draw each yearfrom any increase in profits
after taxation a percentage of 0.5%-2% due tothe exploitation o
f the invention or the utility model, or a percentage of0.05%-0.
2% due to the exploitation of the design, and award it to t
heinventor or creator as remuneration. The entity shall, ot
herwise, bymaking reference to the said percentage, award a lum
p sum of money to theinventor or creator as remuneration.Rule 7
3.Where any entity holding a patent right for invention-creation
authorizesother entities or individuals to exploit its or hi
s patent, it shall,after taxation, draw a percentage of 5%-10
% from the fees for exploitationit received and award it to the
inventor or creator as remuneration.Rule 74.The remuneration pro vided for in these Implementing Regulations shall bedisbursed
out of the profits derived from the making of patented products
or the use of patented process and out of the fees obtained
for theexploitation of the patents. The remuneration shall no
t be included in theamount of the normal bonuses of the entity,
nor subject to the bonus tax.But the inventor or creator shall p
ay tax for his income.Rule 75.The Chinese entities under collect
ive ownership and other enterprises mayaward to the inventor or creator money prize and remuneration by makingreference to t
he provisions in this chapter.
【章名】Chapter VII ADMINISTRATIVE AUTHORITY FOR PATENT AF FAIRSRule 76."The administrative authority for patent affairs" m entioned in the PatentLaw and these Implementing Regulations
refers to the administrativeauthorities for patent affair
s set up by the competent departmentsconcerned of the Sta
te Council and the people's governments in thelocalities.
Rule 77.Where, after the publication of an application for a pat
ent for inventionand before the grant of the patent right, any
entity or individual hasexploited the invention without payi
ng appropriate fees, the patentee may,after the grant of the pat
ent right, request the administrative authorityfor patent affai
rs to handle the matter, or may directly institute legalprocee
dings in the people's court. The administrative authority hand
lingthe matter shall have the power to decide that the entity
or individualshall pay appropriate fees within the specified ti
me limit. Where any ofthe parties concerned is not satisfied
with the decision of the saidauthority, it or he may instit
ute legal proceedings in the people's court.Where any dispute ar
ises between any inventor or creator, and the entityto which h
e belongs, as to whether an invention-creation is a service
invention-creation, or whether an application for a patent is to
be filedin respect of a service invention-creation, or where t
he entity owning orholding the patent right has not according t
o law awarded a reward or paidremuneration to the inventor or cr eator of service invention-creation, theinventor or creator may request the competent department at the higherlevel or the a