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Legislative Implementation of Flexibilities - China

Title:CHINA: Articles 4, 14 and 20 of the Patents Law of 28/12/2008 and Articles from 7 to 9 of the Regulation on National Defense Patent of 17/09/2004
Field of IP:Patents
Type of flexibility:Security exceptions
Summary table:PDF

Provisions of Law

Patents Law of 28/12/2008

Article 4 Where an invention-creation for the patent of which an application is filed involves national security or other major interests of the State and confidentiality needs to be maintained, the application shall be handled in accordance with the relevant regulations of the State.

Article 14 - If an invention patent of a State-owned enterprise or institution is of great significance to national or public interests, upon approval by the State Council, the relevant competent department under the State Council or the people's government of the province, autonomous region, or municipality directly under the Central Government may decide to have the patent widely applied within an approved scope and allow the designated units to exploit the patent, and the said units shall pay royalties to the patentee in accordance with the regulations of the State.

Article 20 - Any unit or individual that intends to apply for patent in a foreign country for an invention or utility model accomplished in China shall submit the matter to the patent administration department under the State Council for confidentiality examination. Such examination shall be conducted in conformity with the procedures, time limit, etc. prescribed by the State Council.

A Chinese unit or individual may file for international patent applications in accordance with the relevant international treaties to which China has acceded. The applicant for such patent shall comply with the provisions of the preceding paragraph.

The patent administration department under the State Council shall handle international patent applications in accordance with the relevant international treaties to which China has acceded and the relevant provisions of this Law and regulations of the State Council.

With regard to an invention or utility model for which an application is filed for a patent in a foreign country in violation of the provisions of the first paragraph of this Article, if an application is also filed for the patent in China, patent right shall not be granted.

Regulation on National Defense Patent of 17/09/2004

Article 7 - The right to apply for a national defense patent and the right of a national defense patent may be transferred to a Chinese entity or individual within China upon approval.

When transferring the right to apply for a national defense patent or the right of a national defense patent, one shall ensure that the state secrets won't be divulged, shall guarantee that construction of national defense and the army won't be affected and shall file a written application with the NDPI. The NDPI shall conduct a preliminary examination, and then it shall, in accordance with the functions as prescribed in the second paragraph of Article 3 of the present Regulation, timely report it to the administrative department of science, technology and industry for national defense of the State Council or the GAD for examination and approval.

The administrative department of science, technology and industry for national defense of the State Council or the GAD shall make a decision of approval or disapproval within 30 days after the NDPI accepts an application. If it makes a decision of disapproval, it shall give a written notice and an explanation therefor to the applicant.

Where an applicant is approved of transferring the right to apply for a national defense patent or the right of a national defense patent, the parties concerned shall sign a written contract and shall have it registered in the NDPI. The NDPI shall publish it on its Internal Bulletin for National Defense Patent. The right to apply for the national defense patent or the transference of the right of the national defense patent shall be valid from the registration date.

Article 8 - It is prohibited to transfer the right to apply for a national defense patent or the right of a national defense patent to an entity or individual outside China, or to a foreigner or foreign institution within China.

Article 9 - Anyone who needs to entrust a patent agency to apply for a national defense patent or to handle other matters related to national defense patent shall entrust a patent agency designated by the NDPI to do so. The patent agency and its personnel shall be obliged to keep confidential the state secrets they learn in handling the national defense patent application and other matters related to national defense patent.

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