Chine

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)

Chapter I General Provisions

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”).

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 a shape or pattern, of a product, which creates an

aesthetic feeling and is fit for industrial application.

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.

4. Any document submitted in accordance with the provisions of the Patent Law and these Implementing

Regulations shall be in Chinese. Standard scientific and technical terms shall be used if they have been

prescribed 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 that 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.

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 on 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 have been served.

1. 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.

2. 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 the 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 the loss of his or its rights, he or it shall, 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 complete the relevant

formalities.

The provisions of the first and second paragraphs of this Rule shall not be applicable to the time

limits referred to in Articles 24, 29, 42 and 62 of the Patent Law.

8. Where an application for a patent for invention relates to State secrets concerning

national defense and is required to be kept secret, the application for a patent shall be filed with

the patent department of national defense. Where any application for a patent for invention

relating to the State secrets 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 a 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 a secret patent and

notify the applicant accordingly.

9. Any invention­creation that is contrary to the laws of the State referred to in Article 5 of the Patent Law

shall not include the invention­creation merely because its exploitation is prohibited by the laws of the

State.

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.

11. A service invention­creation 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 invention­creation made:

(1) in the course of performing his own duties;

(2) in the execution of any task, other than his own duties, 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 invention­creation

relates to his own duties or the other tasks 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.

12. “Inventor” or “creator” referred to in the Patent Law means any person who makes creative

contributions to the substantive features of an invention­creation. Any person who, during the course of

accomplishing the invention­creation, 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.

l3. For any identical invention­creation, only one patent right shall be granted.

Two or more applicants who respectively file, on the same day, applications for a patent for an

identical invention­creation, 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.

1. 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.

2. Except for the assignment of the patent right in accordance with Article 10 of the Patent Law, where

the patent right is transferred for 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 register the change in ownership of the patent right.

Any license contract for the exploitation of a 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 II Application for Patent

16. Anyone who applies for a patent in written form shall file application documents in two copies

with the patent administration department under the State Council.

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 to deal with other patent

matters 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.

17. “Other related matters” in the request referred to in Article 26, second paragraph, 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 its 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, postal code 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 appended to the application; and

(8) any other related matter which needs to be indicated.

18. 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 solve

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 a 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 the 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

machine­readable form shall also be submitted in accordance with the provisions of the patent

administration department under the State Council.

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 1, Figure 2.”

The scale and the distinctness of the drawings shall be such that a reproduction with a linear

reduction in size to two­thirds 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.

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.

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.

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 relevant 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 relevant 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 it is not appropriate to follow the manner specified in the preceding paragraphs 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.

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 refer 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.

24. The abstract shall consist of a summary of the disclosure as contained in the application for a 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

a clear understanding of the technical problem, the basis of the technical solution to 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 such that a reproduction with a linear

reduction in size to 4 cm x 6 cm 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.

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, complete 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 depositary 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 on the characteristics of the biological material;

(3) indicating, where the application relates to the deposit of 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 have not been supplied, the

sample of the biological material shall be deemed not to have been deposited.

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 a patent for invention is published, any entity or individual that intends to make use of the

biological material to which the application relates, for experimental purposes, shall submit 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 purposes only before the grant of

the patent right.

27. The size of the drawings or photographs of a design submitted in accordance with the

provisions of Article 27 of the Patent Law shall not be smaller than 3 cm x 8 cm, nor larger than l5 cm x

22 cm.

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 requires protection, submit the relevant views and stereoscopic drawings or photographs, so as

to clearly show the subject matter for which protection is sought.

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 but shall omit a 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.

1. 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 30 cm and its weight shall not

surpass l5 kilograms. Articles that are perishable or fragile articles that are dangerous shall not be

submitted as samples or models.

2. The existing technology referred to in Article 22, third paragraph, 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.

3. 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 invention­creation for which a patent is applied for 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 invention­creation was exhibited or published and the date of its exhibition or

publication.

Where any invention­creation for which a patent is applied for 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 the

second paragraph of this Rule, or fails to submit certifying documents within the specified time limit as

required in the third paragraph of this Rule, the provisions of Article 24 of the Patent Law shall not

apply to the application.

32. Where any applicant completes the formalities for claiming 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 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 documents certifying the assignment of priority. Where

domestic priority is claimed, a copy of the earlier application document shall be prepared by the patent

administration department under the State Council.

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 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 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.

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 a patent right, a priority right and other related rights in that

country.

1. 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 31, first paragraph, of the Patent

Law shall be technically interrelated 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.

2. The expression “the same class” referred to in Article 31, second paragraph, 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 design 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

31, second paragraph, 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.

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

invention­creation, 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 have 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 a patent shall be published in the next issue of the Patent

Gazette.

Chapter III Examination and Approval of Application for Patent

38. Where any of the following events occurs, a person who examines or hears a case in the

preliminary examination procedure, examination as to substance, reexamination or invalidation shall, on

his own initiative or at the request of the parties concerned or any other interested person, be excluded

from exercising 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 a 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 he is a member of the Patent Reexamination Board who has taken part in the examination of the

same application.

1. 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 a 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.

2. 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 a 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 Rule 120, first paragraph, 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 19, first paragraph, of the Patent Law;

(6) where the kind of protection (patent for invention, utility model or design) applied for in the

application for a patent is not clear and definite or cannot be ascertained.

1. 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.

2. 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, first paragraph, of these

Implementing Regulations, submit a divisional application to the patent administration department

under the State Council. However, where an application for a 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 31 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.

A divisional application may not change the kind of protection of the initial application.

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 complete 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

for a divisional application. When a 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.

44. “Preliminary examination” referred to in Articles 34 and 40 of the Patent Law means checking

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 18 or of Article 19, first paragraph, of

the Patent Law, or is obviously not in conformity with the provisions of Article 31, first paragraph, or

Article 33 of the Patent Law, or of Rule 2, first paragraph, 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 18 or of Article 19, first paragraph of the

Patent Law, or is obviously not in conformity with the provisions of Article 26, third or fourth paragraph,

or of Article 31, first paragraph, or of Article 33 of the Patent Law, or of Rule 2, second paragraph, or of

Rule 13, first paragraph, or of Rules 18 to 23, or of Rule 43, first paragraph 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 18 or of Article 19, first paragraph, of the Patent Law,

or is obviously not in conformity with the provisions of Article 31, second paragraph, or of Article 33 of

the Patent Law, or of Rule 2, third paragraph, or of Rule 13, first paragraph, or of Rule 43, first paragraph,

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 respond 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 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.

45. Apart from the application for a patent, any document relating to a 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.

1. 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.

2. 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.

3. 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 or its observations, with reasons therefor, on an application which is not in

conformity with the provisions of the Patent Law.

4. 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.

5. 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, second

paragraph, of the Patent Law, notify the applicant accordingly.

6. When a request for examination as to substance is made and if, within the time limit of three months

after the receipt of the notification from 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 the decision on the

examination as to substance from 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

obvious clerical mistakes and symbol mistakes in the documents of an application for a patent. Where the

patent administration department under the State Council corrects mistakes on its own initiative, it shall

notify the applicant.

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.

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, first paragraph, 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 13, first paragraph, or of Rule 20,

first paragraph, or of Rule 21, second paragraph, 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, third or fourth paragraph, or

of Article 31, first paragraph, 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, first paragraph,

of these Implementing Regulations.

54. After the patent administration department under the State Council issues the notification to grant the

patent right, the applicant shall complete the registration formalities within two months from the date of

receipt of the notification. If the applicant completes the registration formalities 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 complete the registration formalities within the

time limit, he or it shall be deemed to have abandoned its or his right to obtain the patent right.

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 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 to 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 examine 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.

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 on

the utility model patent. Where the patent administration department under the State Council finds, after

the 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 copies of the cited relevant documents together with the report.

57. The patent administration department under the State Council shall correct promptly mistakes in the

patent announcements and documents issued by it once they have been discovered, and the corrections

shall be announced.

Chapter IV Reexamination of Patent Application and Invalidation of Patent Right

58. The Patent Reexamination Board shall consist of technical and legal experts appointed by the patent

administration department under the State Council. The person responsible for the patent

administration department under the State Council shall be the Director of the Board.

59. Where the applicant requests the Patent Reexamination Board to make a reexamination in accordance with

the provisions of Article 41 of the Patent Law, it or he shall file a request for reexamination, state the

reasons and, when necessary, attach the relevant supporting documents. Where the request for

reexamination does not comply with the prescribed form, the person making the request shall rectify it

within the time limit fixed by the Patent Reexamination Board. If the requesting person fails to meet the

time limit for rectifying the request, the request for reexamination shall be deemed not to have been filed.

60. The person making the request may amend its or his application at the time when it or he requests

reexamination or makes responses to the notification of reexamination of the Patent Reexamination Board.

However, the amendments shall be limited only to removal of the defects pointed out in the decision

rejecting the application or in the notification of reexamination. The amendments to the application for a patent shall be in two copies.

61. The Patent Reexamination Board shall remit the request for reexamination which the Board has

received to the examination department of the patent administration department under the State

Council which had made the examination of the application concerned to make an examination.

Where that examination department agrees to revoke its former decision at the request of the person

requesting reexamination, the Patent Reexamination Board shall make a decision accordingly and

notify the requesting person.

62. Where, after reexamination, the Patent Reexamination Board finds that the request does not comply

with the provisions of the Patent Law and these Implementing Regulations, it shall invite the person

requesting reexamination to submit his observations within a specified time limit. If the time limit

for responding is not met, the request for reexamination shall be deemed to have been withdrawn.

Where, after the requesting person has made his or its observations and amendments, the Patent

Reexamination Board still finds that the request

does not comply with the provisions of the Patent Law and these Implementing Regulations, it shall make

a decision of reexamination to maintain the earlier decision rejecting the application.

Where, after reexamination, the Patent Reexamination Board finds that the decision rejecting the

application does not comply with the provisions of the Patent Law and these Implementing Regulations,

or that the amended application has removed the defects as pointed out by the decision rejecting the

application, it shall make a decision to revoke the decision rejecting the application, and ask the

examination department which has made the examination to continue the examination procedure.

63. At any time before the Patent Reexamination Board makes its decision on the request for

reexamination, the requesting person may withdraw his request for reexamination. Where the requesting

person withdraws his request for reexamination before the Patent Reexamination Board makes its decision,

the reexamination procedure is terminated.

64. Anyone requesting invalidation or part invalidation of a patent right in accordance with the provisions

of Article 45 of the Patent Law shall submit a request and the necessary evidence in two copies. The

request for invalidation shall state in detail the grounds for filing the request, making reference to all the

evidence as submitted, and indicate the piece of evidence on which each ground is based. The grounds on

which the request for invalidation is based, referred to in the preceding paragraph, mean that the

invention­creation for which the patent right is granted does not comply with the provisions of Article 22,

Article 23, or of Article 26, third or fourth paragraph, or of Article 33 of the Patent Law, or of Rule 2, or

of Rule 13, first paragraph, or of Rule 20, first paragraph, or of Rule 21, second paragraph, of these

Implementing Regulations; or the invention­creation falls under the provisions of Articles 5 or 25 of the

Patent Law; or the applicant is not entitled to be granted the patent right in accordance with the provisions of Article 9 of the Patent Law.

65. Where the request for invalidation does not comply with the provisions of Rule 64 of these

Implementing Regulations, the Patent Reexamination Board shall not accept it.

Where, after a decision on any request for invalidation of the patent right is made, invalidation

based on the same facts and evidence is requested once again, the Patent Reexamination Board shall

not accept it.

Where a request for invalidation of a patent for design is based on the ground that the patent for

design is in conflict with a prior right of another person, but no effective ruling or judgment is submitted

to prove such conflict of rights, the Patent Reexamination Board shall not accept it.

Where the request for invalidation of the patent right does not comply with the prescribed form, the

person making the request shall rectify it within the time limit specified by the Patent Reexamination

Board. If the rectification is not made within the time limit, the request for invalidation shall be deemed

not to have been made.

66. After a request for invalidation is accepted by the Patent Reexamination Board, the person making the

request may add reasons or supplement evidence within one month from the date when the request for

invalidation is filed. Additional reasons or evidence which are submitted after the specified time

limit may be disregarded by the Patent Reexamination Board.

67. The Patent Reexamination Board shall send a copy of the request for invalidation of the patent right and

copies of the relevant documents to the patentee and invite it or him to present its or his observations

within a specified time limit. The patentee and the person requesting invalidation shall, within the

specified time limit, respond to the notification concerning transmitted documents or the notification

concerning the examination of the request for invalidation sent by the Patent Reexamination Board. Where

no response is made within the specified time limit, the examination of the Patent Reexamination Board

shall not be affected.

68. In the course of the examination of the request for invalidation, the patentee for the patent for invention or

utility model concerned may amend its or his claims, but may not broaden the scope of patent protection.

The patentee for the patent for invention or utility model concerned may not amend its or his description

or drawings. The patentee for the patent for design concerned may not amend its or his drawings, photographs or the brief explanation of the design.

69. The Patent Reexamination Board may, at the request of the parties concerned or in accordance with the

needs of the case, decide to hold an oral procedure in respect of a request for invalidation.

Where the Patent Reexamination Board decides to hold an oral procedure in respect of a request for

invalidation, it shall send notifications to the parties concerned, indicating the date and place of the oral

procedure to be held. The parties concerned shall respond to the notification within the specified time

limit.

Where the person requesting invalidation fails to respond to the notification of the oral procedure

sent by the Patent Reexamination Board within the specified time limit, and fails to take part in the oral

procedure, the request for invalidation shall be deemed to have been withdrawn. Where the patentee fails

to take part in the oral procedure, the Patent Reexamination Board may proceed to examine by default.

1. In the course of the examination of a request for invalidation, the time limit specified by the Patent

Reexamination Board shall not be extended.

2. The person requesting invalidation may withdraw his or its request before the Patent Reexamination

Board makes a decision on it.

Where the person requesting invalidation withdraws his or its request before the Patent

Reexamination Board makes a decision on it, the examination of the request for invalidation is

terminated.

Chapter V Compulsory License for Exploitation of Patent

72. After the expiration of three years from the date of the grant of the patent right, any entity may,

in accordance with the provisions of Article 48 of the Patent Law, request the patent administration

department under the State Council to grant a compulsory license.

Any entity requesting a compulsory license shall submit to the patent administration department

under the State Council a request for a compulsory license, state the reasons therefor, and attach

relevant certifying documents in two copies each.

The patent administration department under the State Council shall send a copy of the request for a

compulsory license to the patentee, who shall make his or its observations within the time limit specified

by the patent administration department under the State Council. Where no response is made within the

time limit, the patent administration department under the State Council shall not be affected in making a

decision concerning a compulsory license.

The decision of the patent administration department under the State Council granting a compulsory

license for exploitation shall limit the exploitation of the compulsory license to be predominately for the

supply of the domestic market. Where the invention­creation involved in the compulsory license relates

to semi­conductor technology, exploitation of the compulsory license shall be limited only to public

non­commercial use or to remedy a practice determined after a judicial or administrative process to be

anti­competitive.

73. Where any entity or individual requests, in accordance with the provisions of Article 54 of the

Patent Law, the patent administration department under the State Council to adjudicate on the fees for

exploitation, it or he shall submit a request for adjudication and furnish documents showing that the

parties concerned have not been able to conclude an agreement in respect of the amount of the

exploitation fee. The patent administration department under the State Council shall adjudicate within

three months from the date of receipt of the request and notify the parties concerned accordingly.

Chapter VI Reward and Remuneration of Inventors or Creators of Service Inventions­Creations

74. The State­owned enterprise or institution to which a patent right is granted shall, within three

months from the date of the announcement of the grant of the patent right, award to the inventor or

creator of a service invention­creation a sum of money as a prize. The amount of the prize money for a

patent for invention shall not be less than 2000 yuan RMB; the amount of the prize money for a patent

for utility model or design shall not be less than 500 yuan RMB.

Where an invention­creation is made on the basis of an inventor’s or creator’s proposal adopted by

the entity to which he belongs, the State­owned enterprise or institution to which a patent right is granted

shall award to him a money prize on favorable terms.

For a money prize awarded to the inventor or creator, the enterprise may have it included in its

production costs, and the institution may have it disbursed out of its operating expenses.

1. The State­owned enterprise or institution to which a patent right is granted shall, after exploiting the

patent for invention­creation within the duration of the patent right, draw each year from the profits

after taxation earned from exploiting the invention or utility model a percentage of not less than 2%, or

from the profits after taxation earned from exploiting the design a percentage of not less than 0.2%,

and award it to the inventor or creator as remuneration. The entity may, as an alternative, by making

reference to the said percentage, award a one­off lump sum to the inventor or creator as remuneration.

2. Where any State­owned enterprise or institution to which a patent right is granted authorizes any other

entity or individual to exploit its patent, it shall draw from the profits it receives for exploiting the said

patent after taxation a percentage of not less than 10% and award it to the inventor or creator as

remuneration.

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

thereto.

Chapter VII Protection of Patent Right

1. The administrative authority for patent affairs referred to in the Patent Law and these Implementing

Regulations means the department responsible for the administrative work concerning patent affairs

set up by the people’s government of any province, autonomous region, or municipality directly under

the Central Government, or by the people’s government of any city which consists of districts, has a

large amount of patent administration work to attend to and has the ability to deal with the matter.

2. In addition to the provisions of Article 57 of the Patent Law, the administrative authority for patent

affairs may also mediate in the following patent disputes at the request of the parties concerned:

(1) any dispute over the ownership of the right to apply for a patent and the patent right;

(2) any dispute over the qualification of the inventor or creator;

(3) any dispute over the award and remuneration of the inventor or creator of a service invention­creation;

(4) any dispute over the appropriate fee to be paid for the exploitation of an invention after the publication

of the application for a patent but before the grant of the patent right.

In respect of the dispute referred to in subparagraph (4), where the patentee requests the

administrative authority for patent affairs to mediate, the request shall be made after the grant of the

patent right.

1. The patent administration department under the State Council shall provide professional guidance to

the administrative authorities for patent affairs in handling and mediating in patent disputes.

2. Where any party concerned requests the handling of or mediation in a patent dispute, it shall fall under

the jurisdiction of the administrative authority for patent affairs where the requested party has his

location or where the act of infringement has taken place.

Where two or more administrative authorities for patent affairs all have jurisdiction over a patent

dispute, any party concerned may file his or its request with one of them to handle or mediate in the matter.

Where requests are filed with two or more administrative authorities for patent affairs, the administrative

authority for patent affairs that first accepts the request shall have jurisdiction.

Where administrative authorities for patent affairs have a dispute over their jurisdiction, the

administrative authority for patent affairs of their common higher­level people’s government shall

designate the administrative authority for patent affairs to exercise jurisdiction. If there is no such

administrative authority for patent affairs of their common higher­level people’s government, the patent

administration department under the State Council shall designate the administrative authority for patent

affairs to exercise jurisdiction.

82. Where, in the course of handling a patent infringement dispute, the defendant requests invalidation of

the patent right and his request is accepted by the Patent Reexamination Board, he may request the

administrative authority for patent affairs concerned to suspend the handling of the matter. If the

administrative authority for patent affairs considers that the reasons set forth by the defendant for the suspension are obviously untenable, it may not suspend the handling of the matter.

83. Where any patentee affixes a patent marking on a patented product or on the packaging of that product

in accordance with the provisions of Article 15 of the Patent Law, he or it shall affix it in the manner

prescribed by the patent administration department under the State Council.

84. Any of the following is an act of passing off the patent of another person as one’s own:

(1) without authorization, indicating the patent number of another person on the product or on the

packaging of that product made or sold by him or it;

(2) without authorization, using the patent number of another person in advertisements or any other

promotional materials for his or its product, so as to mislead other persons into regarding the technology

concerned as the patented technology of another person;

(3) without authorization, using the patent number of another person in a contract entered into by him or it,

so as to mislead other persons into regarding the technology referred to in the contract as the patented

technology of another person;

(4) counterfeiting or transforming any patent certificate, patent document or patent application document

of another person.

85. Any of the following is an act of passing off a non­patented product as a patented product or

passing off a non­patented process as a patented process:

(1) making or selling non­patented products on which are affixed a patent marking;

(2) continuing to affix a patent marking on products that are made or sold after the patent right concerned

has been declared invalid;

(3) passing off any non­patented technology as patented technology in advertisements or any other promotional materials;

(4) stating any non­patented technology as patented technology in any contract entered into by him or it;

(5) counterfeiting or transforming any patent certificate, patent document or patent application document.

86. Any party concerned in a dispute over the ownership of the right to apply for a patent or a patent

right, which is pending before the administrative authority for patent affairs or the people’s court, may

request the patent administration department under the State Council to suspend the relevant procedures.

Any party requesting the suspension of the relevant procedures in accordance with the preceding

paragraph shall submit a written request to the patent administration department under the State Council,

and attach a copy of the document acknowledging receipt of the relevant request from the administrative

authority for patent affairs or the people’s court.

After the decision made by the administrative authority for patent affairs or the judgment rendered

by the people’s court enters into force, the parties concerned shall request the patent administration

department under the State Council to resume the suspended procedure. If, within one year from the date

when the request for suspension is filed, no decision has been made on the dispute relating to the

ownership of the right to apply for a patent or a patent right, and it is necessary to continue the suspension,

the party who or that made the request shall, within the said time limit, request that the suspension be

extended. If, at the expiration of the said time limit, no such request for extension is filed, the patent

administration department under the State Council shall resume the procedure on its own initiative.

87. Where, in hearing civil cases, the people’s court has ordered the adoption of measures for

preservation of a patent right, the patent administration department under the State Council, for the

purpose of assisting the execution of the order, shall suspend the relevant procedure concerning the

preserved patent right. At the expiration of the time limit for preservation, if there is no order of the

people’s court to continue the preservation, the patent administration department under the State Council

shall resume the relevant procedure on its own initiative.

Chapter VIII Patent Registration and Patent Gazette

88. The patent administration department under the State Council shall keep a Patent Register in

which registration of the following matters relating to patent applications or patent rights shall be made:

(1) any grant of a patent right;

(2) any transfer of the right in a patent application or patent right;

(3) any pledge and preservation of a patent right and their discharge;

(4) any patent license contract for exploitation submitted for the record;

(5) any invalidation of a patent right;

(6) any cessation of a patent right;

(7) any restoration of a patent right;

(8) any compulsory license for the exploitation of a patent;

(9) any change in the name, nationality and address of the patentee.

89. The patent administration department under the State Council shall publish the Patent

Gazette at regular intervals, publishing or announcing the following:

(1) the bibliographic data contained in patent applications;

(2) the abstract of the description of an invention or utility model, the drawings or photographs of a design

and its brief explanation;

(3) any request for examination as to the substance of an application for a patent for invention and any

decision made by the patent administration department under the State Council to proceed on its own

initiative to examine as to substance an application for a patent for invention;

(4) any declassification of secret patents;

(5) any rejection, withdrawal and deemed withdrawal of an application for a patent for invention after its

publication;

(6) any grant of a patent right;

(7) any invalidation of a patent right;

(8) any cessation of a patent right;

(9) any transfer of a patent application or patent right;

(10) any patent license contract for exploitation submitted for the record;

(11) any pledge and preservation of a patent right and their discharge;

(12) any grant of a compulsory license for the exploitation of a patent;

(13) any restoration of a patent application or patent right;

(14) any change in the name or address of the patentee;

(15) any notification to a party whose address is not known;

(16) any correction made by the patent administration department under the State Council; and

(17) any other related matters.

The description and its drawings, and the claims of an application for a patent for invention or

utility model shall be separately published in full in pamphlet form by the patent administration

department under the State Council.

Chapter IX Fees

90. When any person files an application for a patent with or has other formalities to complete

before the patent administration department under the State Council, he or it shall pay the following

fees:

(1) filing fee, additional fee for filing an application, and printing fee for publishing the application;

(2) substantive examination fee for an application for a patent for invention, and reexamination fee;

(3) registration fee for the grant of a patent right, printing fee for the announcement of the grant of a patent

right, maintenance fee for the application, and annual fee;

(4) fee for a change in the bibliographic data, fee for claiming priority, fee for requesting the restoration of

rights, fee for requesting an extension of a time limit, and fee for establishing a search report on a utility

model patent;

(5) fee for requesting invalidation, fee for requesting the suspension of the patent procedure, fee for

requesting a compulsory license, fee for requesting adjudication on an exploitation fee for a compulsory

license.

The amount of the fees referred to in the preceding paragraph shall be prescribed by the price

administration department under the State Council in conjunction with the patent administration

department under the State Council.

91. The fees provided for in the Patent Law and in these Implementing Regulations may be paid

directly to the patent administration department under the State Council or paid by bank or postal

remittance, or by any other means as prescribed by the patent administration department under the State

Council.

Where any fee is paid by bank or postal remittance, the applicant or the patentee shall indicate on

the money order at least the correct filing number or the patent number and the type of fee paid. If the

requirements as prescribed in this paragraph are not complied with, the payment of the fee shall be

deemed not to have been made.

Where any fee is paid directly to the patent administration department under the State Council, the

date on which the fee is paid shall be the date of payment; where any fee is paid by postal remittance,

the date of remittance indicated by the postmark shall be the date of payment; where any fee is paid by

bank transfer, the date on which the transfer of the fee is made shall be the date of payment. Where,

however, the time between such date and the date of receipt of the order by the patent administration

department under the State Council exceeds 15 days, unless the date of remittance or transfer is proved

by the bank or the post office, the date of receipt by the patent administration department under the State

Council shall be the date of payment.

Where any patent fee is paid in excess of the amount as prescribed, paid repeatedly or wrongly,

the party making the payment may, within one year from the date of payment, request a refund from the

patent administration department under the State Council.

92. The applicant shall, after receipt of the notification of acceptance of the application from the patent

administration department under the State Council, pay the filing fee, the printing fee for the publication of

the application and the necessary additional fees at the latest within two months from the filing date. If

the fees are not paid or not paid in full within the time limit, the application shall be deemed to be

withdrawn. Where the applicant claims priority, he or it shall pay the fee for claiming priority at the same

time as the payment of the filing fee. If the fee is not paid or not paid in full within the time limit, the

claim for priority shall be deemed not to have been made.

93. Where the party concerned makes a request for an examination as to substance, restoration of a right or

reexamination, the relevant fee shall be paid within the time limit as prescribed respectively for such

requests by the Patent Law. If the fee is not paid or not paid in full within the time limit, the request

is deemed not to have been made.

94. Where the applicant for a patent for invention has not been granted a patent right within two years

from the date of filing, it or he shall pay a fee for the maintenance of the application from the third

year.

95. When the applicant completes the registration formalities for the grant of a patent right, it or he shall

pay a registration fee for the grant of a patent right, a printing fee for the announcement of the grant of

a patent right and the annual fee for the year in which the patent right is granted. The applicant for a

patent for invention shall pay the application maintenance fee for all the years, with the exception of

the year in which the patent right is granted. If such fees are not paid within the prescribed time limit,

the registration of the grant of a patent right shall be deemed not to have been made. The subsequent

annual fees shall be paid in advance during the month before the expiration of the preceding year.

96. Where the annual fee for a patent right after the year in which the patent is granted is not paid in due time

by the patentee, or the fee is not paid in full, the patent administration department under the State Council

shall notify the patentee to pay the fee or to make up the insufficiency within six months from the

expiration of the time limit within which the annual fee is due to be paid, and at the same time pay a

surcharge. The amount of the surcharge shall be, for each month of late payment, 5% of the whole

amount of the annual fee for the year within which the annual fee is due to be paid. Where the fee and the

surcharge are not paid within the time limit, the patent right shall lapse from the expiration of the time

limit within which the annual fee should be paid.

97. The fee for a change in the bibliographic data, the fee for establishing a search report on a utility model

patent, the fee for requesting suspension of the patent procedure, the fee for requesting a compulsory

license, the fee for requesting adjudication on an exploitation fee for a compulsory license and the fee

for requesting invalidation shall be paid as prescribed within one month from the date on which such

request is filed. The fee for requesting an extension of a time limit shall be paid before the expiration

of the said time limit. If the fee is not paid or not paid in full within the time limit, the request shall

be deemed not to have been made.

98. Where any applicant or patentee has difficulty in paying the various fees prescribed in these

Implementing Regulations, he may, in accordance with the prescriptions, submit a request to the patent

administration department under the State Council for a reduction or postponement of the payment.

Measures for the reduction and postponement of the payment shall be prescribed by the patent

administration department under the State Council in consultation with the finance administration

department and the price administration department under the State Council.

Chapter X Special Provisions Concerning International Application

99. The patent administration department under the State Council receives international patent applications

filed under the Patent Cooperation Treaty in accordance with the provisions of Article 20 of the Patent

Law. Where any international application filed under the Patent Cooperation Treaty designating China

(hereinafter referred to as “the international application”) enters the Chinese national phase, the

requirements and procedures prescribed in this Chapter shall apply. Where no provisions are made in this

Chapter, the relevant provisions in the Patent Law and in any other chapters of these Implementing

Regulations shall apply.

100. Any international application which has been accorded an international filling date in accordance

with the Patent Cooperation Treaty and which has designated China shall be deemed to be an application

for a patent filed with the patent administration department under the State Council, and the said filing

date shall be deemed to be the filing date referred to in Article 28 of the Patent Law. Where, in the

international phase, an international application or its designation of China is withdrawn or deemed to be withdrawn, the effect of the said international application in China shall cease.

101. Any applicant for an international application entering the Chinese national phase shall, within 20

months from the priority date as referred to in Article 2 of the Patent

Cooperation Treaty (referred to as “the priority date” in this Chapter), complete the following formalities

at the patent administration department under the State Council. Where an international application

elects China within 19 months from the priority date, and where the election remains valid, the applicant

of the said application entering the Chinese national phase shall complete the following formalities at the

patent administration department under the State Council within 30 months from the priority date:

(1) submitting a written statement concerning the entry of his or its international application into the

Chinese national phase. The statement shall indicate the international application number, and also

indicate in Chinese the kind of patent protection sought, the title of the invention­creation, the name or title

of the applicant, the address of the applicant and the name of the inventor. Such indications shall be the

same as those recorded by the International Bureau;

(2) paying the filing fee, the additional fee for filing an application and the printing fee for publishing the

application as provided in Rule 90, first paragraph, of these Implementing Regulations;

(3) where an international application is filed in a language other than Chinese, the Chinese translation of

the description, the claims, the text matter of the drawings, and the abstract of the initial international

application shall be furnished; where an international application is filed in Chinese, a copy of the

abstract published in the international publication shall be furnished;

(4) where an international application contains drawings, a copy of the drawings shall be furnished. Where

an international application is filed in Chinese, a copy of the figure of the drawings in the abstract as

published in the international publication shall be furnished.

If the applicant fails to complete the relevant formalities for entering the Chinese national phase

within the time limit prescribed in the preceding paragraph, he or it may, after paying a surcharge for late

entry, complete these formalities before the expiration of the time limit of 22 months or 32 months,

respectively, from the priority date.

102. Where the applicant fails to complete the formalities for entering the Chinese national

phase within the time limit prescribed in Rule 101, second paragraph, of these Implementing

Regulations or any of the following circumstances occurs at the expiration of the said time limit, the

effect of his or its international application shall cease in China:

(1) where the international application number is not indicated in the statement concerning entry into the

Chinese national phase;

(2) where the filing fee, the printing fee for publishing the application prescribed in Rule 90, first

paragraph, of these Implementing Regulations, or the surcharge for late entry as prescribed in Rule 101, second paragraph, of these Implementing Regulations is not paid;

(3) where the international application is filed in a language other than Chinese, the Chinese translation of

the description and the claims of the initial international application are not furnished.

Where the effect of an international application has ceased in China, the provisions of Rule 7,

second paragraph, of these Implementing Regulations shall not apply.

103. Where any of the following circumstances occurs at the time when the applicant completes

the formalities for entering the Chinese national phase, the patent administration department under the

State Council shall notify the applicant to make corrections within the specified time limit:

(1) where the Chinese translation of the abstract or a copy of the abstract is not furnished;

(2) where a copy of the drawings or a copy of the figure of the drawings in the abstract is not furnished;

(3) where the title of the invention­creation, the name of the applicant, the address of the applicant and the

name of the inventor are not indicated in Chinese in the statement concerning entry into the Chinese

national phase;

(4) where the content or the form of the statement concerning entry into the Chinese national phase is not

in conformity with the provisions.

If, at the expiration of the time limit, the applicant fails to make the corrections, his or its

application shall be deemed to be withdrawn.

1. Where an international application is amended in the international phase and the applicant requests

that the examination be based on the amended application, the Chinese translation of the amendments

shall be prescribed by the applicant before completion of the technical preparations for national

publication of the application by the patent administration department under the State Council.

Where the Chinese translation is not furnished within the said time limit, the amendments made in the

international phase shall not be taken into consideration by the patent administration department under

the State Council.

2. When the applicant completes the formalities for entering the Chinese national phase, he or it shall

also fulfill the following requirements:

(1) where the inventor is not indicated in the international application, the name of the inventor shall be

indicated in the statement concerning entry into the Chinese national phase;

(2) where the applicant has completed the formalities for a change in the applicant before the International

Bureau in the international phase, the document certifying the right of the new applicant to the

international application shall be furnished;

(3) where the applicant is not the same person as the applicant of the earlier application which is the basis

of the priority claimed, or where the applicant has changed his or its name after filing the earlier

application, the document certifying the right of the applicant to claim priority shall be furnished when

necessary;

(4) where any invention­creation to which the international application relates concerns one of the events

referred to in Article 24, subparagraph (1) or (2), of the Patent Law and where statements have been made

in this respect when the international application was filed, the applicant shall indicate it in the statement

concerning entry into the Chinese national

phase, and furnish the relevant certificates prescribed in Rule 31, second paragraph, of these

Implementing Regulations within two months from the date of completing the formalities for entering the

Chinese national phase.

Where the applicant fails to satisfy the requirements provided for in subparagraph (1),

(2) or (3) of the preceding paragraph, the patent administration department under the State Council shall

notify the applicant to make corrections within the specified time limit. Where, within the time limit, no

correction is made in respect of the requirements provided for in subparagraph (1) or (2), the application

shall be deemed to be withdrawn. Where, within the time limit, no correction is made in respect of the

requirement provided for in subparagraph (3), the claim for priority shall be deemed not to have been

made. Where the applicant fails to fulfill the requirement provided for in subparagraph (4) of the first

paragraph of this Rule, the provisions of Article 24 of the Patent Law shall not apply to his or its

international application.

106. Where the applicant has made indications concerning deposited biological materials in

accordance with the provisions of the Patent Cooperation Treaty, the requirements provided for in Rule

25, subparagraph (3), of these Implementing Regulations shall be deemed to have been fulfilled. In

the statement concerning entry into the Chinese national phase, the applicant shall indicate the

documents recording the particulars of the deposit of the biological materials, and the exact location of

the record in the documents.

Where particulars concerning the deposit of the biological materials are contained in the description

of the international application as initially filed, but there is no such indication in the statement concerning

the entry into the Chinese national phase, the applicant shall make corrections within four months from the

date of completing the formalities for entering the Chinese national phase. If the correction is not made at

the expiration of the time limit, the biological materials shall be deemed not to have been deposited.

Where the applicant submits the certificates of the deposit and the viability of the biological

materials to the patent administration department under the State Council within four months from the

date of completing the formalities for entering the Chinese national phase, the deposit of biological

materials shall be deemed to have been made within the time limit as provided for in Rule 25,

subparagraph (1), of these Implementing Regulations.

107. Where the applicant claims one or multiple priorities in the international phase and such

claims remain valid at the time when the application enters the Chinese national phase, the applicant shall

be deemed to have submitted the written declaration in accordance with the provisions of Article 30 of the

Patent Law.

Where there are clerical mistakes or the application number of the earlier application is missing in

the written declaration claiming the priority made in the international phase, the applicant may request to

make corrections or to fill in the missing application number of the earlier application at the time of

completing the formalities for entering the Chinese national phase. Where a request for making

corrections is made, the applicant shall pay the fee for correcting the claim for priority.

Where the applicant has submitted a copy of the earlier application in the international phase in

accordance with the provisions of the Patent Cooperation Treaty, he or it shall be exempted from

submitting a copy of the earlier application to the patent administration department under the State

Council at the time of completing the formalities for entering the Chinese national phase. Where the

applicant has not submitted a copy of the earlier application in the international phase, and if the patent

administration department under the State Council deems necessary, it may request the applicant to

submit a copy of the earlier application within the specified time limit. If no copy is submitted at the

expiration of the time limit, his or its claim for priority shall be deemed not to have been made.

Where the claim for priority is deemed not to have been made in the international phase and the

information has already been published by the International Bureau, the applicant may, if he has justified

reasons, request the patent administration department under the State Council to restore his or its claim for

priority at the time of completing the formalities for entering the Chinese national phase.

108. Where, before the expiration of 20 months from the priority date, the applicant files a request with

the patent administration department under the State Council for early processing and examination of

his or its international application, he or it shall, in addition to completing the formalities for entering

the Chinese national phase, submit a request in accordance with the provisions in Article 23, paragraph

(2), of the Patent Cooperation Treaty. Where the international application has not been transmitted

by the International Bureau to the patent administration department under the State Council, the

applicant shall submit a confirmed copy of the international application.

109. With regard to an international application for a patent for utility model, the applicant may file a request

with the patent administration department under the State Council to amend the description, the drawings

and the claims within one month from the date of completing the formalities for entering the Chinese

national phase. With regard to an international application for a patent for invention, the provisions of

Rule 51, first paragraph, of these Implementing Regulations shall apply.

110. Where the applicant finds that there are mistakes in the Chinese translation of the description, the

claims or the text matter of the drawings as filed, he or it may correct the translation in accordance

with the international application as filed within the following time limits:

(1) before the completion of technical preparations for national publication by the patent administration

department under the State Council;

(2) within three months from the date of receipt of the notification sent by the patent administration

department under the State Council, stating that the application for a patent for invention has entered into

the substantive examination phase.

Where the applicant intends to correct the mistakes in the translation, he or it shall file a written

request, furnish a replacement sheet of the translation and pay the prescribed fee for the correction of the

translation.

Where the applicant corrects the translation in accordance with the notification of the patent

administration department under the State Council, he or it shall, within the specified time limit,

complete the formalities prescribed in the second paragraph of this Rule. If the prescribed formalities

have not been completed at the expiration of the time limit, the international application shall be

deemed to be withdrawn.

111. With regard to any international application for a patent for invention, if the patent

administration department under the State Council, after preliminary examination, considers it in

compliance with the provisions of the Patent Law and these Implementing Regulations, it shall publish it

in the Patent Gazette. Where the international application is filed in a language other than Chinese, the

Chinese translation of the international application shall be published.

Where the international publication by the International Bureau of an international application for a

patent for invention is in Chinese, the provisions of Article 13 of the Patent Law shall apply from the date

of the international publication. If the international publication by the International Bureau is in a

language other than Chinese, the provisions of Article 13 of the Patent Law shall apply from the date of

the publication of the Chinese translation by the patent administration department under the State Council.

With regard to an international application, the publication referred to in Articles 21 and 22 of the

Patent Law means the publication referred to in the first paragraph of this Rule.

112. Where two or more inventions or utility models are contained in an international application, the

applicant may, after completing the formalities for entering the Chinese national phase, submit a divisional

application in accordance with the provisions in Rule 42, first paragraph, of these Implementing

Regulations. Where, in the international phase, some parts of the international application have not been

the subject of an international search or international preliminary examination because the International

Searching Authority or the International Preliminary Examination Authority considers that the

international application does not comply with the requirement of unity of invention prescribed in the

Patent Cooperation Treaty, and the applicant fails to pay the additional fee, whereas at the time of

completing the formalities for entering the Chinese national phase the applicant requests that the said parts

be the basis of the examination, the patent administration department under the State Council, finding that

the decision concerning unity of invention made by the International Searching Authority or the

International Preliminary Examination Authority is justified, shall notify the applicant to pay the

restoration fee for unity of invention within the specified time limit. Where the fee is not paid or not paid

in full at the expiration of the prescribed time limit, those parts of the international application which have

not been searched or have not been the subject of an international preliminary examination shall be deemed to be withdrawn.

113. Where the applicant furnishes the documents and pays the fees in accordance with the provisions of

Rule 101 of these Implementing Regulations, the date on which the patent administration department

under the State Council receives the documents shall be the date of submission, and the date on which

it receives the fees shall be the date of payment.

Where there is a delay in the mailing of the documents and the applicant proves, within one month

from the date on which he finds the delay, that the documents were mailed five days prior to the

expiration of the time limit prescribed in Rule 101 of these Implementing Regulations, the documents

shall be deemed to have been received on the date on which the time limit expires. However, the time

limit for the applicant to furnish evidence may not be later than six months after the expiration of the time

limit prescribed in Rule 101 of these Implementing Regulations.

Where documents are to be submitted to the patent administration department under the State

Council in accordance with the provisions of Rule 101 of these Implementing Regulations, the applicant

may send them by facsimile. Where the applicant submits the documents by facsimile, the date on which

the patent administration department under the State Council receives the facsimile shall be the date of

submission. The applicant shall submit to the patent administration department under the State Council

the original copy within 14 days from the date of the transmission by facsimile. Where the original copy

is not submitted within the time limit, the documents shall be deemed not to have been submitted.

1. Where an international application claims priority, the applicant shall, at the time of completing the

formalities for entering the Chinese national phase, pay the fee for claiming priority. If the fee is not

paid or not paid in full, the patent administration department under the State Council shall notify the

applicant to pay it within the specified time limit. If the fee is still not paid or not paid in full at the

expiration of the time limit, the claim for priority shall be deemed not to have been made.

2. Where an international application in the international phase has been refused to be accorded an

international filling date or has been declared to be deemed withdrawn by an international authority

concerned, the applicant may, within two months from the date on which he or it receives the

notification, request the International Bureau to send the copy of any document in the file of the

international application to the patent administration department under the State Council, and shall

complete the formalities prescribed in Rule 101 of these Implementing Regulations within the said

time limit at the patent administration department under the State Council. After receiving the

documents sent by the International Bureau, the patent administration department under the State

Council shall review the decision made by the international authority concerned to ascertain whether it

is correct.

3. With regard to a patent right granted on the basis of an international application, if the scope of

protection determined in accordance with the provisions of Article 56 of the Patent Law exceeds the

scope of the international application in its original language because of incorrect translation, the scope

of protection granted to the international application shall be limited according to the original language

of the application. If the scope of protection granted to the international application is narrower than

the scope of the application in its original language, the scope of protection shall be determined

according to the patent in the language when it is granted.

Chapter XI Supplementary Provisions

117. Any person may, after approval by the patent administration department under the

State Council, consult or copy the files of the published or announced patent applications and the

Patent Register. Any person may request the patent administration department under the State Council to

issue a copy of extracts from the Patent Register.

The files of patent applications which have been withdrawn or deemed to be withdrawn or which

have been rejected shall not be preserved after the expiration of two years from the date on which the

applications cease to be valid.

Where the patent right has been abandoned, wholly invalidated or has ceased, the files shall not be

preserved after the expiration of three years from the date on which the patent right ceases to be valid.

118. Any patent application which is filed with, or any formality which has been completed at, the patent

administration department under the State Council shall comply with the unified form prescribed by the

patent administration department under the State Council, and signed or sealed by the applicant, the

patentee, any other interested person or his or its representative. Where any patent agency is appointed, it

shall be sealed by such agency. Where a change in the name of the inventor, or in the name, nationality

and address of the applicant or the patentee, or in the name and address of the patent agency and the name

of the patent agent is requested, a request for a change in the bibliographic data shall be made to the patent administration department under the State Council, together with the relevant certifying documents.

119. Documents relating to a patent application or patent right which are mailed to the patent

administration department under the State Council shall be mailed by registered letter, not by parcel

post.

Except for any patent application filed for the first time, any document which is submitted to and

any formality which has been completed at the patent administration department under the State

Council, the filing number or the patent number, the title of the invention­creation and the name of the

applicant or the patentee shall be indicated.

Only documents relating to the same application shall be included in one letter.

120. Various kinds of application documents shall be typed or printed. All the characters shall

be in black ink, neat and clear. They shall be free from any alterations. The drawings shall be made in

black ink with the aid of drafting instruments. The lines shall be uniformly thick and well defined, and

free from alterations.

The request, description, claims, drawings and abstract shall be numbered separately in Arabic

numerals and arranged in numerical order.

The written language of the application shall run from left to right. Only one side of each sheet

shall be used.

1. The patent administration department under the State Council shall formulate guidelines for

examination in accordance with the Patent Law and these Implementing Regulations.

2. These Implementing Regulations shall enter into force on July 1, 2001. The Implementing

Regulations of the Patent Law of the People’s Republic of China 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, shall be repealed at the same time.