Legislative Implementation of Flexibilities - China

Title:	Article 2 of the Rules for the implementation of the Patent Law (Decree No. 306 of 15/06/2001) and Articles 22 and 25 of the Patent Law of 12/03/1984 as last amended on 27/12/2008
Field of IP:	Patents
Type of flexibility:	Utility models
Summary table:

Provisions of Law

Article 2. "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.

Article 22. Any invention or utility model for which patent right may be granted must possess novelty, inventiveness and usefulness.

"Novelty" means that the invention or utility model shall neither belong to the prior art, nor has any entity or individual previously filed before the date of filing with the patent administrative department under the State Council an application on an identical invention or utility model which was recorded in patent application documents or other gazetted patent documents published after the said date of filing.

"Inventiveness" means that, compared with the prior art the invention has prominent and substantive distinguishing features and represents a marked improvement, or the utility model possesses substantive distinguishing features and represents an improvement.

"Usefulness" means that the invention or utility model can be made or used and can create positive results.

The "prior art" referred to in this Law refers to any technology known to the public before the filing date of the patent application in China or abroad.

Article 25 For any of the following, no patent right shall be granted:

(1) scientific discoveries;

(2) rules and methods for mental activities;

(3) methods for the diagnosis or for the treatment of diseases;

(4) animal and plant varieties;

(5) substances obtained by means of nuclear transformation;

(6) two dimensional designs of images, colours or combinations of the two mainly serve as indicators.

For processes used in producing products referred to in items (4) of the preceding paragraph, patent right may be granted in accordance with the provisions of this Law.