IMPLEMENTING REGULATIONS OF THE PATENT LAW OF THE PEOPLE'SREPUBLIC OF CHINA
(Revision Approved by the State Council on December 12, 1992 and Promulgated by the Patent Office of the People's Republic of China on December 21, 1992)
Important Notice:
In case of discrepancy, the original version in Chinese shall prevail.
Whole Document
IMPLEMENTING REGULATIONS OF THE PATENT LAW OF THE PEOPLE'S
REPUBLIC OF CHINA
(Revision Approved by the State Council on December 12, 1992 and
Promulgated by the Patent Office of the People's Republic of China on
December 21, 1992)
(Translated by the Patent Office of the People's Republic of China. In
case of discrepancy, the original version shall prevail.)
TABLE OF CONTENTS*
CHAPTER I GENERAL PROVISIONS
Article
1 Basis of the Implementing Regulations
2 Definitions of Invention, Utility Model and Design
3 Requirement of Written Form for Procedures
4 Language of Documents
5 Filing and Service of Documents
6 Computation of Time Limits
7 Restoration of Right and Extension of Time Limit
8 Applications Relating to State Security
9 Meaning of Date of Filing
10 Service Inventions-Creations
11 Inventors and Creators
12 Prohibition of Double Patenting
13 Record of Patent License Contract
14 Designation of Foreign-Related Patent Agency
15 Dispute Concerning Right to Patent and Patent Ownership
CHAPTER II APPLICATION FOR PATENT
16 Application Document; Appointment of Patent Agency
17 Request
18 Description
19 Drawings
20 Claims
21 Independent Claim and Dependent Claim
22 Form of Independent Claim
23 Form of Dependent Claim
24 Abstract
25 Deposit of Sample of Micro-Organism
26 Request for Use of Sample of Micro-Organism
27 Drawings or Photographs of Design
28 Brief Explanation of Design
29 Sample or Model of Product Incorporating a Design
30 Existing Technology
31 Claiming Grace Period
32 Claiming Right of Priority
33 Claiming One or More Priorities; Claiming Domestic Priority
34 Documents Required for Claiming Foreign Priority
35 Unity of Invention and Utility Model
36 Unity of Design
37 Withdrawal of Patent Application
CHAPTER III EXAMINATION AND APPROVAL OF APPLICATION FOR PATENT
38 Exclusion
39 Notification of Date of Filing and Filing Number
40 Unacceptable Patent Application
41 Belated Furnishing of Drawings
42 Filing of Divisional Application
43 Date of Filing and Date of Priority of Divisional Application
44 Preliminary Examination
45 Submission of Other Related Documents
46 Early Publication of Patent Application
47 Classification of Products Incorporating the Design
48 Observations on Application for Patent for Invention
49 Documents Concerning Search or Results of Examination to Be Furnished
Later
50 Examination by the Patent Office on its Own Initiative
51 Time for Amending Patent Application
52 Form of Amending Patent Application
53 Grounds for Rejecting Application for Patent for Invention
54 Grant of Patent Right
55 Grounds for Revocation
56 Request for Revocation
57 Examination of Request for Revocation
58 Patent Reexamination Board
59 Request for Reexamination
60 Rectification of Request for Reexamination
61 Pre-Examination by Former Examination Department
62 Examination of Request for Reexamination
63 Withdrawal of Request for Reexamination
64 Correction of Mistakes by the Patent Office
CHAPTER IV INVALIDATION OF PATENT RIGHT
65 Request for Invalidation
66 Rectification of Request for Invalidation; Grounds for Request for
Invalidation
67 Observation ns by the Patentee
CHAPTER V COMPULSORY LICENSE FOR EXPLOITATION OF PATENT
68 Request for Compulsory License; Observations by the Patentee; Grant of
Compulsory License
69 Adjudication of Fees for Exploitation
CHAPTER VI REWARDS TO INVENTOR OR CREATOR OF SERVICE INVENTION-CREATION
70 Rewards
71 Money Prize
72 Remuneration Drawn from Profits of Exploitation
73 Remuneration Drawn from Exploitation fee of License
74 Disbursement of Remunerations
75 Applicability to Entities Owning Patent Right
CHAPTER VII ADMINISTRATIVE AUTHORITY FOR PATENT AFFAIRS
76 Administrative Authority for Patent Affairs
77 Function of Administrative Authority for Patent Affairs to Settle
Patent Disputes; Prescription
78 Punishment for Act of Passing Off
79 Jurisdiction of Trans-departmental or Trans-regional Infringement
Disputes
CHAPTER VIII PATENT REGISTER AND PATENT GAZETTE
80 Patent Registration
81 Patent Gazette
CHAPTER IX FEES
82 Kinds of Fees
83 Methods of Payment of Fees
84 Time Limit for Payment of Application Fee
85 Time Limit for Payment of Fees Relating to Examination, Reexamination,
Restoration of Right and Revocation
86 Time Limit for Payment of Application Maintenance Fee
87 Time Limit for Payment of Patent Registration Fee and Annual Fee
88 Grace Period for Application Maintenance Fee and Annual Fee
89 Time Limit for Payment of Other Fees
90 Reduction or Postponement of Payment of Fees
CHAPTER X SUPPLEMENTARY PROVISIONS
91 Inspection, Copy and Keeping of Files
92 Prescribed Form of Documents; Changes in the Bibliographic Data
93 Sending of Documents by Mail
94 Formal Requirements for Application Documents
95 Interpretation of the Implementing Regulations
96 Date of Entry into Force and Transitional Provisions
Chapter I: GENERAL PROVISIONS
Article 1.
These Implementing Regulations are drawn up in accordance with the Patent
Law of the People's Republic of China (hereinafter referred to as the
Patent Law).
Article 2.
"Invention" in the Patent Law means any new technical solution relating to
a product, a process or improvement thereof.
"Utility model" in the Patent Law means any new technical solution
relating to the shape, the structure, or their combination, of a product,
which is fit for practical use.
"Design" in the Patent Law means any new design of the shape, pattern,
color, or their combination, of a product, which creates an aesthetic
feeling and is fit for industrial application.
Article 3.
Any proceedings provided for by the Patent Law and these Implementing
Regulations shall be conducted in a written form.
Article 4.
Any document submitted under the Patent Law and these Implementing
Regulations shall be in Chinese. The standard scientific and technical
terms shall be used if there is a prescribed one set forth by the State.
Where no generally accepted translation in Chinese can be found for a
foreign name or scientific or technical term, the one in the original
language shall be also indicated.
Where any certificate and certified document submitted in accordance with
the Patent Law and these Implementing Regulations are in foreign
languages, and where the Patent Office deems it necessary, it may request
a Chinese translation of the certificate and the certified document to be
submitted within a specified time limit; where the translation is not
submitted within the specified time limit, the certificate and certified
document shall be deemed not to have been submitted.
Article 5.
For any document sent by mail to the Patent Office, the date of mailing
indicated by the postmark on the envelope shall be presumed to be the date
of filing. If the date of mailing indicated by the postmark on the
envelope is illegible, the date on which the Patent Office receives the
document shall be the date of filing, except where the date of mailing is
proved by the addressee.
Any document of the Patent Office may be served by mail, by personal
delivery or by public announcement. Where any party concerned appoints a
patent agency, the document shall be sent to the patent agency; where no
patent agency is appointed, the document shall be sent to the person first
named in the request or to the representative. If such person refuses to
accept the document, it shall be presumed to have been served.
For any document sent by mail by the Patent Office, the 15th day from the date of
mailing shall be presumed to be the date on which the addressee receives
the document.
For any document which shall be delivered personally in
accordance with the prescription of the Patent Office, the date of
delivery is the date on which the addressee receives the document.
Where the address of a document is not clear and it cannot be sent by
mail, the document may be served by making an announcement in the Patent
Gazette. At the expiration of one month from the date of the announcement,
the document shall be presumed to have been served.
Article 6.
The first day of any time limit prescribed in the Patent Law and these
Implementing Regulations shall not be counted. Where a time limit is
counted by year or by month, it shall expire on the corresponding day of
the last month; if there is no corresponding day in that month, the time
limit shall expire on the last day of that month.
If a time limit expires on an official holiday, the time limit shall
expire on the first working day after that official holiday.
Article 7.
Where a time limit prescribed in the Patent Law or these Implementing
Regulations or specified by the Patent Office is not observed because of
force majeure, resulting the loss of any right on the part of the party
concerned, he or it shall, within two months from the date on which the
impediment is removed, at the latest within two years immediately
following the expiration of that time limit, state the reasons, together
with relevant supporting documents and request the Patent Office to
restore his or its rights.
Where a time limit prescribed in the Patent Law or these Implementing
Regulations or specified by the Patent Office is not observed because of
any justified reason, resulting the loss of any right on the part of the
party concerned, he or it shall, within two months from the date of
receipt of a notification from the Patent Office, state the reasons and
request the Patent Office to restore his or its rights.
Where the party concerned makes a request for an extension of a time limit specified by
the Patent Office, he or it shall, before the time limit expires, state
the reasons to the Patent Office and complete the relevant procedures.
The provisions of paragraphs one and two of this Rule shall not be
applicable to the time limits referred to in Articles 24, 29, 41, 45 and
61 of the Patent Law.
The provisions of paragraph two of this Rule shall
not be applicable to the time limit referred to in Article 88 of these
Implementing Regulations.
Article 8.
Where the invention for which a patent is applied for by the entity of the
national defence system relates to the security of the State concerning
national defence and is required to be kept secret, the application for
patent shall be filed with the patent organization set up by the competent
department of science and technology of national defence under the State
Council. Where any application for patent for invention relating to the
secrets of the State concerning national defence and requiring to be kept
classified is received by the Patent Office, the Patent Office shall
transfer the application to the said patent organization. The Patent
Office shall make a decision on the basis of the observations of the
examination of the application presented by the said patent organization.
Subject to the preceding paragraph, the Patent Office, after receipt of an
application for patent for invention which is required to be examined for
the purpose of security, shall send it to the competent department
concerned of the State Council for examination. The said department shall,
within four months from receipt of the application, send a report on the
results of the examination to the Patent Office. Where the invention for
which a patent is applied for is required to be kept classified, the
Patent Office shall handle it as an application for secret patent and
notify the applicant accordingly.
Article 9.
The date of filing referred to in the Patent Law, except that mentioned in
Articles 28 and 45, means the priority date where a right of priority is
claimed.
The date of filing referred to in these Implementing Regulations means the
date on which the application for patent is filed with the Patent Office.
Article 10.
"Service invention-creation made by a person in execution of the tasks of
the entity to which he belongs" mentioned in Article 6 of the Patent Law
refers to any invention-creation made:
(1) in the course of performing his own duty;
(2) in execution of any task, other than his own duty, which was entrusted
to him by the entity to which he belongs;
(3) within one year from his resignation, retirement or change of work,
where the invention-creation relates to his own duty or the other task
entrusted to him by the entity to which he previously belonged.
"Material means of the entity" mentioned in Article 6 of the Patent Law
refers to entity's money, equipment, spare parts, raw materials, or
technical data which are not to be disclosed to the public.
Article 11.
"Inventor" or "creator" mentioned in the Patent Law refers to any person
who has made creative contributions to the substantive features of the
invention-creation. Any person who, during the course of accomplishing the
invention-creation, is responsible only for organization work, or who
offers facilities for making use of material means, or who takes part in
other auxiliary functions, shall not be considered as inventor or creator.
Article 12.
For any identical invention-creation, only one patent right shall be
granted. Two or more applicants who file, on the same day, applications
for patent for the identical invention-creation, as provided for in
Article 9 of the Patent Law, shall, after receipt of a notification from
the Patent Office, hold consultation among themselves to decide the person
or persons who shall be entitled to file the application.
Article 13.
Any license contract for exploitation of the patent which has been
concluded by the patentee with an entity or individual shall, within three
months from the date of entry into force of the contract, be submitted to
the Patent Office for record.
Article 14.
"The patent agency" referred to in Article 19, Paragraph one, and Article
20 of the Patent Law shall, on the authorization of the State Council, be
designated by the Patent Office.
Article 15.
Where any dispute arises concerning the right to apply for a patent for an
invention-creation or the right to own a patent right which has been
granted, any of the parties concerned may request the administrative
authority for patent affairs to handle the matter or may institute legal
proceedings in the people's court.
Any party to a dispute concerning the right to apply for a patent or the
right to own a patent right which is pending before the administrative
authority for patent affairs or the people's court, may request the Patent
Office to suspend the relevant procedures.
Any party requesting suspension of the procedure before the Patent Office in accordance with
the preceding paragraph, shall submit a request to the Patent Office,
together with the relevant document of the administrative authority for
patent affairs or the people's court before which the dispute is pending.
Chapter II: APPLICATION FOR PATENT
Article 16.
Anyone who applies for a patent shall submit application documents in two
copies.
Any applicant who appoints a patent agency for filing an
application for a patent with, or for dealing with other patent matters
before, the Patent Office, shall submit a power of attorney indicating the
scope of the power entrusted.
Article 17.
Other related matters mentioned in Article 26, paragraph two, of the
Patent Law refer to:
(1) the nationality of the applicant;
(2) where the applicant is an enterprise or other organization, the name
of the country in which the applicant has the principal business office;
(3) where the applicant has appointed a patent agency, the relevant
matters which should be indicated;
(4) where the priority of an earlier application is claimed, the relevant
matters which should be indicated;
(5) the signature or seal of the applicant or the patent agency;
(6) a list of the documents constituting the application;
(7) a list of the documents appending the application;
(8) any other related matter which needs to be indicated.
Where there are two or more applicants and where they have not appointed a
patent agency, they shall designate a representative.
Article 18.
The description of an application for a patent for invention or utility
model shall be presented in the following manner and order:
(1) state the title of the invention or utility model as appearing in the
request;
(2) specify the technical field to which the invention or utility model
relates;
(3) indicate the background art which, as far as known to the applicant,
can be regarded as useful for the understanding, searching and examination
of the invention or utility model, and cite the documents reflecting such
art;
(4) specify the purpose which the invention or utility model is designed
to fulfil;
(5) disclose the technical solution of the invention or utility model, as
claimed, in such terms that a person having ordinary skill in the art can
understand it and fulfil the purpose of the invention or utility model;
(6) state the advantageous effects of the invention or utility model, with
reference to the background art;
(7) briefly describe the figures in the drawings, if any;
(8) describe in detail the best mode contemplated by the applicant for
carrying out the invention or utility model; this shall be done in terms
of examples, where appropriate, and with reference to the drawings, if
any.
The manner and order mentioned in the preceding paragraph shall be
observed by the applicant of a patent for invention or a patent for
utility model, unless, because of the nature of the invention or utility
model, a different manner or order would afford a better understanding and
a more economical presentation.
The description of the invention or utility model shall not contain such
references to the claims as: "as described in part......of the claim", nor
shall it contain commercial advertising.
Article 19.
The same sheet of drawings may contain several figures of the invention or
utility model, and the drawings 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 two-thirds would still
enable all details to be clearly distinguished.
Drawing reference signs not appearing in the text of the description of
the invention or utility model shall not appear in the drawings. Drawing
reference signs not appearing in the drawings shall not appear in the text
of the description. Drawing reference signs for the same composite part
used in an application document shall be consistent throughout.
The drawings shall not contain any other explanatory notes, except words
which are indispensable.
Article 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 formulate 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 between
parentheses. They shall not be construed as limiting the claims.
Article 21.
The claims shall have an independent claim, and may also contain dependent
claims. An independent claim shall outline the technical solution of an
invention or utility model and describe the indispensable technical
features necessary for fulfilling the purpose of the invention or utility
model.
A dependent claim shall further define the claim which it refers to by
additional features which it is desired to protect.
Article 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 invention or utility model, and those technical features of the
invention or utility model which are necessary for the definition of the
claimed subject matter but which, in combination, are part of the 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 prior art. These
features, in combination with the features stated in the preamble portion,
served to define the scope of protection of the invention or utility
model.
Independent claims may be presented in any other form, where it is not
appropriate, according to the nature of the invention or utility model, to
present them in the form prescribed in the preceding paragraph.
Each 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.
Article 23.
A dependent claim of an invention or utility model shall contain a
reference portion and a characterizing portion, and be presented in the
following form:
(1) a reference portion, indicating the serial number(s) of the claim(s)
referred to, and the title of the subject matter;
(2) a characterizing portion, stating the additional technical features of
the invention or utility model.
A dependent claim referring to one or more other claims shall refer only
to the preceding claim or claims. A multiple dependent claim which refers
to more than one other claim shall not serve as a basis for any other
multiple dependent claim.
Article 24.
The abstract shall indicate the technical field to which the invention or
utility model pertains, the technical problems to be solved, the essential
technical features and the 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 indicate and provide a drawing which best characterizes
the invention or utility model. The scale and the distinctness of the
drawings shall be such that a reproduction with a linear reduction in size
to 4cm*6cm would still enable all details to be clearly distinguished. The
whole text of the abstract shall contain not more than 200 Chinese
characters. There shall be no commercial advertising in the abstract.
Article 25.
Where an application for a patent for invention concerns a new micro-
organism, a micro-biological process or a product thereof and involves the
use of a micro-organism which is not available to the public, the
applicant shall, in addition to the other requirements provided for in the
Patent Law and these Implementing Regulations, complete the following
procedures.
(1) deposit a sample of the micro-organism with a depositary institution
designated by the Patent Office before the date of filing, or, at the
latest, on the date of filing, and submit, at the time of filing, or, at
the latest, within three months from the filing date, a receipt of deposit
and the viability proof from the depository institution; where they are
not submitted within the specified time limit, the sample of the micro-
organism shall be deemed not to have been deposited;
(2) give in the application document relevant information of the
characteristics of the micro-organism;
(3) indicate, where the application relates to the deposit of the micro-
organism, in the request and the description the scientific name (with its
Latin name) and the name of the depositary institution, the date on which
the sample of the micro-organism was deposited and the accession number of
the deposit; where, at the time of filing, they are not indicated, they
shall be supplied within three months from the date of filing; where after
the expiration of the time limit they are not supplied, the sample of the
micro-organism shall be deemed not to have been deposited.
Article 26.
After the publication of an application for a patent for invention
relating to a micro-organism, any entity or individual which or who
intends to make use of the micro-organism mentioned in the application for
the purpose of experiment shall make a request to the Patent Office
containing the following:
(1) the name and address of the entity or individual making the request;
(2) an undertaking not to make the micro-organism available to any other
person;
(3) an undertaking to use the micro-organism for experimental purpose only
before the grant of the patent right.
Article 27.
The size of drawings or photographs of a design submitted in accordance
with the provisions of Article 27 of the Patent Law shall not be smaller
than 3cm*8cm, nor larger than 15cm*22cm.
Where an application for a patent for design seeking concurrent protection
of colors is filed, a drawing or photograph in color, and a drawing or
photograph in white and black, shall be submitted.
The applicant shall submit, in respect of the subject matter of the
product incorporating the design which is in need of protection, the
relevant views and stereoscopic drawings or photographs, so as to clearly
show the subject matter for which protection is sought.
Article 28.
Where an application for a patent for design is filed, a brief explanation
of the design shall, when necessary, be indicated.
The brief explanation of the design shall include the main creative
portion of the design, the colors for which protection is sought and the
omission of the view of the product incorporating the design. The brief
explanation shall not contain any commercial advertising and shall not be
used to indicate the function and the uses of the product.
Article 29.
Where the Patent Office finds it necessary, it may require the applicant
for a patent for design to submit a sample or model of the product
incorporating the design. The volume of the sample or model submitted
shall not exceed 30cm*30cm*30cm, and its weight shall not surpass 15
kilos. Articles easy to get rotten or broken, or articles that are
dangerous may not be submitted as sample or model.
Article 30.
The existing technology mentioned in Article 22, paragraph three, of the
Patent Law means any technology which has been publicly disclose 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.
Article 31.
The academic or technological meeting mentioned in item (2) of Article 24
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 application for a patent falls under the provisions of item (1) or item (2) of Article 24 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 a certificate issued by the entity which organized the
international exhibition or academic or technological meeting, stating
that the invention-creation was in fact exhibited or made public there and
also the date of its exhibition or making public.
Where any application for a patent falls under the provisions of item (3) of Article 24 of the
Patent Law, the Patent Office may, when necessary, require the applicant
to submit the relevant proof.
Article 32.
Where the applicant is to comply with the requirements for claiming the
right of priority in accordance with Article 30 of the Patent Law, he or
it shall, in his or its written declaration, indicate the date of filing
and the filing number of the application which was first filed
(hereinafter referred to as the earlier application) and the country in
which that application was filed. If the written declaration does not
contain the date of filing of the earlier application and the name of that
country, the declaration shall be deemed not to have been made.
Where the foreign priority is claimed, the copy of the earlier application
document submitted by the applicant shall be certified by the competent
authority of the foreign country; where the domestic priority is claimed,
the copy of the earlier application document shall be prepared by the
Patent Office.
Article 33.
Any applicant may claim one or more priorities for an application for a
patent; where the priorities of several earlier applications are claimed,
the priority period for the application shall be calculated from the
earliest priority date.
Where any applicant claims the right of domestic priority, if the earlier
application is one for a patent for invention, he or it may file an
application for a patent for invention or utility model for the same
subject matter; if the earlier application is one for a patent for utility
model, he or it may file an application for a patent for utility model or
invention for the same subject matter. But when the later application is
filed, if the earlier application falls under any of the following, it may
not be the basis of domestic priority:
(1) where it has claimed foreign or domestic priority;
(2) where it has been granted a patent right;
(3) where it is a 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.
Article 34.
Where an application for a patent is filed or the right of foreign
priority is claimed by any applicant having no habitual residence or
business office in China, the Patent Office may, when necessary, require
the applicant to submit the following documents:
(1) a certificate concerning the nationality of the applicant;
(2) a certificate concerning the seat of the business office or the
headquarters, if the applicant is an enterprise or other organization;
(3) a testimonial showing that the country, to which the foreigner,
foreign enterprise or other foreign organization belongs, recognizes that
Chinese citizens and entities are, under the same conditions applied to
its nationals, entitled to patent right, right of priority and other
related rights in that country.
Article 35.
Two or more inventions or utility models belonging to a single general
inventive concept which may be filed as one application in accordance with
the provision of Article 31, paragraph one, of the Patent Law shall be
technically inter-related and contain one or more 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, considered as a whole, makes over the prior art.
The claims in one application for a patent for two or more inventions
which are in conformity with the provisions of the preceding paragraph may
be any of the following:
(1) independent claims of the same category for two or more products or
processes which cannot be included in one claim;
(2) an independent claim for a product and an independent claim for a
process specially adapted for the manufacture of the product;
(3) an independent claim for a product and an independent claim for a use
of the product;
(4) an independent claim for a product, an independent claim for a process
specially adapted for the manufacture of the product, and an independent
claim for a use of the product;
(5) an independent claim for a product, an independent claim for a process
specially adapted for the manufacture of the product, an independent claim
for an apparatus specially designed for carrying out the process;
(6) an independent claim for a process and an independent claim for an
apparatus specially designed for carrying out the process.
The claims in one application for a patent for two or more utility models
which are in conformity with the provisions of the first paragraph may be
independent claims for two or more products which cannot be included in
one claim.
Article 36.
The expression "the same class" mentioned in Article 31, paragraph two of
the Patent law means that the products incorporating the designs belong to
the same subclass in the classification of products for designs. The
expression "be sold or used in sets" means that the products incorporating
the designs have the same designing concept and are customarily sold or
used at the same time.
Where two or more designs are filed as one application in accordance with
the provisions of Article 31, paragraph two, of the Patent Law, they shall
be numbered consecutively and the numbers shall be placed in front of the
titles of the view of the product incorporating the design.
Article 37.
When withdrawing an application for a patent, the applicant shall submit
to the Patent Office a declaration stating the title of the invention-
creation, the filing number and the date of filing.
Where a declaration to withdraw an application for a patent is submitted
after the printing preparation has been done by the Patent Office for
publication of the application documents, the application shall be
published as scheduled.
Chapter III: EXAMINATION AND APPROVAL OF APPLICATION FOR PATENT
Article 38.
In any of the following situations, any person who makes examination or
hears a case in the procedures of preliminary examination, examination as
to substance, reexamination, revocation and invalidation shall, on his own
initiative or upon the request of the parties concerned or any other
interested person, be excluded from exercising his function:
(1) where he is a close relative of the party concerned or his agent;
(2) where he has an interest in the application for patent or the patent
right;
(3) where he has such other kinds of relations with the party concerned or
his agent that might influence impartial examination and hearing.
Where a member of the Patent Reexamination Board has taken part in the
examination of the application, the provisions of the preceding paragraph
shall apply. The exclusion of persons making examination and hearing
cases shall be decided by the Patent Office.
Article 39.
Upon the receipt of an application for a patent for invention or utility
model consisting of a request, a description (a drawing being
indispensable for utility model) and one or more claims, or an application
for a patent for design consisting of a request and one or more drawings
or photographs showing the design, the Patent Office shall accord the date
of filing and a filing number and notify the applicant.
Article 40.
In any of the following situations, the Patent Office shall declare the
application unacceptable and notify the applicant accordingly;
(1) where the application for a patent for invention or utility model does
not contain a request, a description (the description of utility model
does not contain drawings) or claims, or the application for a patent for
design does not contain a request, drawings or photographs;
(2) where the application is not written in Chinese;
(3) where the application is not in conformity with the provisions of Article
94, paragraph one, of these Implementing Regulations;
(4) where the request does not contain the name and address of the
applicant;
(5) where the application is obviously not in conformity with the
provisions of Article 18, or Article 19, paragraph one, of the Patent Law;
(6) where the kind of protection (patent for invention, utility model or
design) of the application for a patent is not clear and definite or
cannot be discerned.
Article 41.
Where the description mentions 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 Office, 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 delivering at, or mailing to, the Patent Office shall be
the date of filing of the application; if the mention of "explanatory
notes to the drawings" is to be deleted, the initial date of filing shall
be the date of filing of the application.
Article 42.
Where an application for a patent contains two or more inventions, utility
models or designs, the applicant may, at any time before the Patent Office
sends out the notification to grant the patent right, submit to the Patent
Office a divisional application.
If the Patent Office finds that an application for a patent is not in
conformity with the provisions of Article 31 of the Patent Law and Article 35
of these Implementing Regulations, it shall invite the applicant to amend
the application within the specified time limit; if the applicant does not
make any response within the time limit, the application shall be deemed
to have been withdrawn.
The divisional application may not change the kind of protection of the
initial application.
Article 43.
A divisional application filed in accordance with Article 42 of these
Implementing Regulations may enjoy the date of filing and, if priority is
validly 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 be subject to the procedures in accordance with the provisions of the Patent Law and these Implementing Regulations.
The filing number and the date of filing of the initial application shall
be indicated in the request of a divisional application. When submitting
the divisional application, the applicant shall submit a copy of the
initial application document; if priority is claimed for the initial
application, the applicant shall submit a copy of the priority document of
the initial application as well.
Article 44.
"Preliminary examination" mentioned in Articles 34 and 40 of the Patent
Law means examining 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 examination shall also include the following:
(1) whether or not an application for a patent for invention obviously
falls under Articles 5 or 25 of the Patent Law, or is obviously not in
conformity with the provisions of Article 18 or Article 19, paragraph one,
or is obviously not in conformity with the provisions of Article 31,
paragraph one, or Article 33 of the Patent Law, or Article 2, paragraph one,
of these Implementing Regulations;
(2) whether or not an application for a patent for utility model obviously
falls under Articles 5 or 25 of the Patent Law, or is obviously not in
conformity with the provisions of Article 18 or Article 19, paragraph one,
or is obviously not in conformity with the provisions of Article 31,
paragraph 1, or Article 33 of the patent Law, or Article 2, paragraph two, or
Article 12, paragraph one, or Articles 18 to 23 of these Implementing
Regulations, or cannot obtain a patent right according to the provisions
of Article 9 of the Patent Law;
(3) whether or not an application for a patent for design obviously falls
under Article 5 of the Patent Law, or is obviously not in conformity with
the provisions of Article 18 or Article 19, paragraph one, or is obviously
not in conformity with the provisions of Article 31, paragraph two, or
Article 33 of the Patent Law, or Article 2, paragraph three, or Article 12,
paragraph one, of these Implementing Regulations, or cannot obtain a
patent right according to the provisions of Article 9 of the Patent Law.
The Patent Office shall communicate its observations after examination of
the application to the applicant and invite him or it to submit his or its
observations or to correct his or its application within the time limit.
If the applicant makes no response within the time limit, the application
shall be deemed to have been withdrawn. Where, after the applicant has
made the observations or the corrections, the Patent Office still finds
that the application is not in conformity with the provisions of the
Articles and the Rules cited in the relevant preceding sub-paragraph, the
application shall be rejected.
Article 45.
In any of the following situations, any document relating to a patent
application, not including the patent application, which is submitted to
the Patent Office, shall 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 supporting document is submitted as prescribed.
The applicant shall be notified that the document is deemed not to have
been submitted.
Article 46.
Where the applicant requests an earlier publication of its or his
application for a patent for invention, a declaration shall be made to the
Patent Office. The Patent Office shall, after preliminary examination of
the application and, unless it is to be rejected, publish it immediately.
Article 47.
The applicant shall, when indicating in accordance with Article 27 of the
Patent Law the product incorporating the design and the class to which
that product belongs, refer to the classification of products for designs
published by the Patent Office. Where no indication, or an incorrect
indication, of the class to which the product incorporating the design
belongs is made, the Patent Office shall supply the indication or correct
it.
Article 48.
Any person may, from the date of publication of an application for a
patent for invention till the date of announcing the grant of the patent
right, submit to the Patent Office observations, with the reasons
therefor, on the application which is not in conformity with the
provisions of the Patent Law.
Article 49.
Where the applicant for a patent for invention cannot furnish, for
justified reasons, the documents concerning any search or the results of
any examination under Article 36 of the Patent law, it or he shall make a
statement to that effect and submit them when the said documents are
available.
Article 50.
The Patent Office shall, when proceeding on its own initiative to examine
an application for a patent for invention in accordance with the
provisions of Article 35, paragraph two, of the Patent Law, notify the
applicant accordingly.
Article 51.
When a request for examination as to substance is made, or when a response
is made in regard to the first communication of the observations of the
Patent Office after examination as to substance, the applicant may amend
the application for a patent for invention on its or his own initiative.
Within three 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.
Article 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 in prescribed form shall be submitted.
Article 53.
According to the provisions of the Patent Law and these Implementing
Regulations, the situations where after examination as to substance an
application for patent for invention shall be rejected by the Patent
Office shall comprise the following:
(1) where the application does not comply with the provisions of Article 2,
paragraph one, of these Implementing Regulations;
(2) where the application falls under the provisions of Articles 5 or 25
of the Patent Law; or it does not comply with the provisions of Article 22
of the Patent Law and Article 12, paragraph one, of these Implementing
Regulations, or the applicant cannot obtain a patent right according to
the provisions of Article 9 of the Patent Law;
(3) where the application does not comply with the provisions of Article
26, paragraphs three or four, or Article 31, paragraph one, of the Patent
Law;
(4) where the amendment to the application or the divisional application
goes beyond the scope of disclosure contained in the initial description
and the claims.
Article 54.
After the Patent Office issues the notification to grant the patent right,
the applicant shall go through the formalities of registration within two
months from the date of receipt of the notification. If the applicant goes
through the formalities of registration within the said time limit, the
Patent Office shall grant the patent right, issue the patent certificate,
and announce it. The patent right shall come into force upon the date of
issue of the patent certificate.
If the time limit for going through the formalities of registration is not
met, the applicant shall be deemed to have abandoned its or his right to
obtain the patent right.
Article 55.
The grounds on which a revocation may be requested under Article 41 of the
Patent Law of a patent right, which is announced and granted by the Patent
Office, shall comprise the following:
(1) where the invention or utility model for which the patent right is
granted does not comply with the provisions of Article 22 of the Patent
Law;
(2) where the design for which the patent right is granted does not comply
with the provisions of Article 23 of the Patent Law.
Article 56.
Anyone requesting revocation of a patent right in accordance with the
provisions of Article 41 of the Patent Law shall submit to the Patent
Office a request and the relevant documents in two copies, stating the
facts and reasons on which the request is based.
The person requesting revocation may withdraw his request before the
Patent Office makes a decision on it.
Article 57.
After the receipt of the request for revocation of the patent right, the
Patent Office shall make an examination of it. Where the request does not
conform to the prescribed requirements, the Patent Office shall notify the
person making the request to rectify it within the specified time limit.
If the time limit for making rectification is not met, the request for
revocation shall be deemed not to have been filed.
Where, in the request for revocation of the patent right, no facts and reasons have been given
to support the request or the reasons given do not conform to the
provisions of Article 55 of these Implementing Regulations, the request shall
be declared to be unacceptable.
The Patent Office shall send a copy of the request for revocation 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 may amend its or his patent specification, but
may not broaden the scope of patent protection. If no response is made
within the time limit, the examination procedure of the Patent office will
not be affected.
Article 58.
The Patent Reexamination Board shall consist of experienced technical and
legal experts designated by the Patent Office. The Director General of the
Patent Office shall be the Director of the Board.
Article 59.
Where the applicant requests the Patent Reexamination Board to make a
reexamination in accordance with the provisions of Article 43, paragraph
one, of the Patent Law, it or he shall file a request for reexamination
and state the reasons therefor, together with the relevant supporting
documents. The request and the supporting documents shall be in two
copies.
The applicant or the patentee may amend its or his application, which has
been rejected, or its or his patent specification, which has been revoked,
at the time when it or he requests reexamination, but the amendments shall
be limited only to the part to which the decision of rejection of the
application or the decision of revocation of the patent right relates.
Article 60.
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 time limit for making
rectification is not met, the request for reexamination shall be deemed
not to have been filed.
Article 61.
The Patent Reexamination Board shall send the request for reexamination
which the Board has received to the examination department which has made
the examination to make an examination. Where the examination department
agrees to revoke its former decision upon the request of the person
requesting reexamination, the Patent Reexamination Board shall make a
decision accordingly and notify that person.
Article 62.
Where the Patent Reexamination Board finds after reexamination that the
request does not comply with the provisions of the Patent Law, it shall
invite the person requesting reexamination to submit his observations
within the specified time limit. If the time limit for making response is
not met, the request for reexamination shall be deemed to have been
withdrawn.
Article 63.
At any time before the Patent Reexamination Board makes its decision on
the request for reexamination, the person making the request may withdraw
his request for reexamination.
Article 64.
The Patent Office may amend the obvious mistakes which it finds in the
title of the invention-creation, the abstract or the request of the
application, and notify the applicant.
The patent office shall correct promptly the mistakes in the Patent
Gazettes and documents issued by it once they are discovered.
Chapter IV: INVALIDATION OF PATENT RIGHT
Article 65.
Anyone requesting invalidation or part invalidation of a patent right
according to the provisions of Article 48 of the Patent Law shall submit
the request and the relevant documents in two copies, stating the facts
and reasons on which the request is based, to the Patent Reexamination
Board.
The person requesting invalidation may withdraw his request before the
Patent Reexamination Board makes a decision on it.
Article 66.
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 fixed by the Patent Reexamination Board. If the
rectification fails to be made within the time limit, the request for
invalidation shall be deemed not to have been filed.
The grounds on which the request for invalidation may be based shall comprise that the
invention-creation for which the patent right is granted does not comply
with the provisions of Articles 22 or 23, Article 26, paragraphs three or
four, or Article 33 of the Patent Law, or Article 2, or Article 12, paragraph
one of these Implementing Regulations; or it falls under the provisions of
Articles 5 or 25 of the Patent Law; or the person to whom the patent was
granted cannot obtain a patent right according to the provisions of
Article 9 of the Patent Law.
Where, in the request for invalidation, no facts and reasons have been
given to support the request or the reasons given do not conform to the
provisions of the preceding paragraph, or where invalidation is requested
after the request for revocation is made but no decision on that request
has yet been rendered, or where, after decision on any request for
revocation or invalidation of the patent right was made, invalidation
based on the same facts and reasons is requested again, the request shall
be declared to be unacceptable by the Patent Reexamination Board.
Article 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 may amend its or his patent
specification, but may not broaden the scope of patent protection. Where
no response is made within the time limit, the hearing procedure of the
Patent Reexamination Board will not be affected.
Chapter V: COMPULSORY LICENSE FOR EXPLOITATION OF PATENT
Article 68.
After the expiration of three years from the grant of the patent right,
any entity may, in accordance with the provisions of Article 51 of the
Patent Law, request the Patent Office to grant a compulsory license.
Any entity or individual requesting a compulsory license shall submit to
the Patent Office a request for compulsory license and state the reasons
therefor, together with relevant supporting documents. The request and the
supporting documents shall be in two copies respectively.
The Patent Office shall send a copy of the request for compulsory license
to the patentee. He or it shall make his or its observations within the
time limit specified by the Patent Office. Where no response is made
within the time limit, the Patent Office will not be affected in making a
decision to grant a compulsory license.
Where a national emergency or any extraordinary state of affairs occurs, or in cases of public non-
commercial use, the Patent Office may grant a compulsory license.
The decision of the Patent Office granting a compulsory license for
exploitation shall limit the scope and duration of the exploitation on the
basis of the reasons justifying the grant, and provide that the
exploitation shall be predominately for the supply of the domestic market.
The decision of the Patent Office granting a compulsory license shall be
notified to the patentee as soon as reasonably practicable, and shall be
registered and announced by the Patent Office. If and when the
circumstances which led to such compulsory license cease to exist and are
unlikely to recur, the Patent Office may, upon the request of the
patentee, review the continued existence of these circumstances, and
terminate the compulsory license.
Article 69.
Any party requesting, in accordance with the provisions of Article 57 of
the Patent Law, the Patent Office to adjudicate the fees for exploitation,
shall submit a request for adjudication and furnish documents showing that
the parties have not been able to conclude an agreement in respect of the
amount of the fees. The Patent Office shall make an adjudication within
three months from the date of receipt of the request and notify the
parties accordingly.
Chapter VI: REWARDS TO INVENTOR OR CREATOR OF SERVICE INVENTION-CREATION
Article 70.
"Rewards" mentioned in Article 16 of the Patent Law includes money prizes
and remunerations which are to be awarded to inventors and creators.
Article 71.
Any entity holding a patent right shall, after the grant of the patent
right, award to inventors or creators of a service invention-creation a
sum of money as prize. The sum of money prize for a patent for invention
shall not be less than 200 yuan; the sum of money prize for a patent for
utility model or design shall not be less than 50 yuan.
Where an invention-creation was made on the basis of an inventor's or creator's
proposal adopted by the entity to which he belongs, after the grant of the
patent right, the entity holding it shall award to him a money prize
liberally.
Any enterprise holding the patent right may include the said money prize
paid to such inventors or creators into its production cost; any
institution holding the patent right may disburse the said money prize out
of its operating expenses.
Article 72.
Any entity holding a patent right shall, after exploiting the patent for
invention-creation within the duration of the patent right, draw each year
from any increase in profits after taxation a percentage of 0.5%-2% due to
the exploitation of the invention or the utility model, or a percentage of
0.05%-0.2% due to the exploitation of the design, and award it to the
inventor or creator as remuneration. The entity shall, otherwise, by
making reference to the said percentage, award a lump sum of money to the
inventor or creator as remuneration.
Article 73.
Where any entity holding a patent right for invention-creation authorizes
other entities or individuals to exploit its or his patent, it shall,
after taxation, draw a percentage of 5%-10% from the fees for exploitation
it received and award it to the inventor or creator as remuneration.
Article 74.
The remuneration provided for in these Implementing Regulations shall be
disbursed out of the profits derived from the making of patented products
or the use of patented process and out of the fees obtained for the
exploitation of the patents. The remuneration shall not be included in the
amount of the normal bonuses of the entity, nor subject to the bonus tax.
But the inventor or creator shall pay tax for his income.
Article 75.
The Chinese entities under collective ownership and other enterprises may
award to the inventor or creator money prize and remuneration by making
reference to the provisions in this chapter.
Chapter VII: ADMINISTRATIVE AUTHORITY FOR PATENT AFFAIRS
Article 76.
"The administrative authority for patent affairs" mentioned in the Patent
Law and these Implementing Regulations refers to the administrative
authorities for patent affairs set up by the competent departments
concerned of the State Council and the people's governments in the
localities.
Article 77.
Where, after the publication of an application for a patent for invention
and before the grant of the patent right, any entity or individual has
exploited the invention without paying appropriate fees, the patentee may,
after the grant of the patent right, request the administrative authority
for patent affairs to handle the matter, or may directly institute legal
proceedings in the people's court. The administrative authority handling
the matter shall have the power to decide that the entity or individual
shall pay appropriate fees within the specified time limit. Where any of
the parties concerned is not satisfied with the decision of the said
authority, it or he may institute legal proceedings in the people's court.
Where any dispute arises between any inventor or creator, and the entity
to which he belongs, as to whether an invention-creation is a service
invention-creation, or whether an application for a patent is to be filed
in respect of a service invention-creation, or where the entity owning or
holding the patent right has not according to law awarded a reward or paid
remuneration to the inventor or creator of service invention-creation, the
inventor or creator may request the competent department at the higher
level or the administrative authority for patent affairs of the region in
which the entity is located to handle the matter.
The prescription for requesting the administrative authority for patent
affairs to handle patent disputes is two years counted from the date on
which the patentee or any interested party obtains or should have obtained
knowledge of the relevant fact.
Article 78.
Pursuant to the provisions of Article 63, paragraph two, of the Patent
Law, where any person passes any unpatented product off as patented
product or passes any unpatented process off as patented process, the
administrative authority for patent affairs may, according to the
circumstances, order such person to stop the passing off, to eliminate its
ill effects and, in addition, to pay a fine of 1000 yuan to 50000 yuan or
a fine from 100% to 300% of the amount of his illegal income.
Article 79.
Where parties to any transdepartmental or transregional infringement
dispute request the administrative authority for patent affairs to handle
the matter, the said dispute shall be handled by the administrative
authority for patent affairs of the region in which the infringement has
taken place, or by the administrative authority for patent affairs of the
higher competent department of the infringing entity.
Chapter VIII: PATENT REGISTER AND PATENT GAZETTE
Article 80.
The Patent Office shall maintain a Patent Register in which shall be
recorded the following matters relating to any patent right:
(1) any grant of the patent right;
(2) any assignment and succession of the patent right;
(3) any revocation and invalidation of the patent right;
(4) any cessation of the patent right;
(5) any restoration of the patent right;
(6) any compulsory license for exploitation of the patent;
(7) any changes in the name, the nationality and the address of the
patentee;
Article 81.
The Patent Office 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 substance of an application for a
patent for invention and any decision made by the Patent Office 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 being deemed withdrawal of an
application for a patent for invention after its publication;
(6) any assignment and succession of an application for a patent for
invention after its publication;
(7) any grant of the patent right;
(8) any revocation and invalidation of the patent right;
(9) any cessation of the patent right;
(10) any assignment and succession of the patent right;
(11) any grant of compulsory license for exploitation of the patent;
(12) any restoration of a patent application or patent right;
(13) any change in the name or address of the patentee;
(14) any notification to the applicant whose address is not known;
(15) any other related matters.
The description, its drawings and the claims of an application for a
patent for invention or utility model shall be published in pamphlet form.
Chapter IX: FEES
Article 82.
When any person files an application for a patent with, or has other
formalities to perform in, the Patent Office, he or it shall at the same
time pay the following fees;
(1) filing fee and maintenance fee of an application;
(2) examination fee and reexamination fee;
(3) annual fee;
(4) fee for a change in the bibliographic data, fee for claiming priority,
fee for a request for restoration of rights, fee for a request for
revocation, fee for a request for invalidation, fee for a request for
compulsory license, fee for a request for adjudication on exploitation fee
of a compulsory license, fee for patent registration, and additional fees
as prescribed.
The amount of the fees mentioned in the preceding paragraph shall be
prescribed separately by the Patent Office in conjunction with the
competent departments concerned of the State Council.
Article 83.
The fees provided for in the Patent Law and in these Implementing
Regulations may be paid directly to the Patent Office or paid by way of
bank or postal remittance, but not by telegraphic remittance.
Where fees are paid by way of bank or postal remittance, the applicant or
the patentee shall indicate on the money order the filing number or the
patent number, the name of the applicant or the patentee, the purpose of
the payment and the title of the invention-creation.
Where fees are paid by way of bank or postal remittance, the date on which
the transfer of such fee is ordered shall be the date of payment. Where
the time between such a date and the date of receipt of the order at the
Patent Office lasts more than fifteen days, unless the date of remittance
is proved by the bank or the post office, the date of receipt at the
Patent Office shall be the date of payment.
The payment which is not made in accordance with the provisions of the
second paragraph of this Article shall be deemed not to have been made.
Where any patent fee is paid more than as prescribed, paid once again or
wrongly paid, the person making the payment may claim a refund, but the
request for such refund shall be made within one year from the date of
payment.
Article 84.
The applicant shall, after receipt of the notification of acceptance of
the application from the Patent Office, pay the filing fee at the latest
within two months from the filing date. If the fee is not paid or not paid
in full within the time limit, the application shall be deemed to have
been withdrawn.
Where the applicant claims the right of priority, he or it shall pay the
fee for claiming priority at the same time with the payment of the filing
fee. If the fee is not paid or not paid in full within the time limit, the
claim to the right of priority shall be deemed not to have been made.
Article 85.
Where a request for an examination as to substance, a restoration of
right, a reexamination or revocation of patent right is made, by the party
concerned, 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.
Article 86.
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. The
first maintenance fee shall be paid within the first month of the third
year. The subsequent maintenance fees shall be paid in advance within the
month before the expiration of the preceding year.
Article 87.
When the applicant goes through the formalities of patent registration, it
or he shall pay a fee for patent registration, and the annual fee of the
year in which the patent right was granted. Where the maintenance fee of
the application of the year in which the patent right was granted has been
paid, the annual fee of that year shall not be paid. If such fees are not paid in the prescribed time limit, the patent registration shall be deemed
not to have been made. The subsequent annual fees shall be paid in advance
within the month before the expiration of the preceding year.
Article 88.
Where the maintenance fee of the application or the annual fee of the
years after the year in which the patent was granted is not paid in due
time by the applicant or the patentee, or the fees are not paid in full,
the Patent Office shall notify the applicant or 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 maintenance fee or the annual fee was
to be paid, and at the same time pay a surcharge which amounts to 25% that
of the maintenance fee or the annual fee. Where the fees are not paid
within the time limit, the application shall be deemed to have been
withdrawn or the patent right shall be deemed lapsed from the expiration
of the time limit within which the maintenance fee or the annual fee
should be paid.
Article 89.
The fee for a change in the bibliographic data, fee for a request for
compulsory license, fee for a request for adjudication on exploitation fee
of a compulsory license and fee for a request for invalidation shall be
paid as prescribed within one month from the date on which such request is
filed. 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.
Article 90.
Where any person filing an application for a patent or having other
formalities to go through, has difficulties in paying the various fees
prescribed by Article 82 of these Implementing Regulations, that person may,
according to prescriptions, submit a request to the Patent Office, asking
for a reduction or postponement of the payment. The conditions for the
reduction and postponement of the payment shall be prescribed by the
Patent Office.
Chapter X: SUPPLEMENTARY PROVISIONS
Article 91.
Any person may, after approval by the Patent Office, inspect or copy the
files of the published or announced patent applications and the Patent
Register. Any person may request the Patent Office to issue a copy of
extracts from the Patent Register.
The files of patent applications which have been withdrawn or deemed to have been withdrawn or which have been rejected, shall not be preserved after expiration of two years from the
date on which they cease to be valid.
Where the patent right ceases or has been revoked, abandoned or
invalidated, the files shall not be preserved after expiration of three
years from the date on which the patent right ceases to be valid.
Article 92.
Any patent application which is filed with, and any formalities which are
performed in the Patent Office, shall be made in the prescribed form of
the Patent Office 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 of the name of the inventor, the name, nationality and address of the
applicant or the patentee, or the name of the patent agency and patent
agent is requested, a request for a change in the bibliographic data shall
be made to the Patent Office, together with the relevant supporting
documents.
Article 93.
The documents relating to a patent application or patent right which are
mailed to the Patent Office shall be mailed by registered letter, not by
parcel.
When any document (not including any patent application filed for the
first time) is submitted to and any formalities are performed in the
Patent Office, the filing number or the patent number, the title of the
invention-creation 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.
Article 94.
Any sheets constituting an application for patent shall be typed or
printed. All the characters shall be in black ink, neat and clear. They
shall be free from any alterations. 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,
claim, drawings and abstract shall be numbered separately in Arabic
numerals and arranged in numerical order.
The written language shall run from left to right. Only one side of each
sheet shall be used.
Article 95.
The Patent Office shall be responsible for interpreting these Implementing
Regulations.
Article 96.
These Implementing Regulations shall enter into force on January 1, 1993.
The applications for patent filed before the entry into force of these
Implementing Regulations and the patent rights granted on the basis of the
said applications shall continue to be governed by the provisions of the
Patent Law before they were amended by the Decision Regarding the Revision
of the Patent Law of the People's Republic of China, adopted at the 27th
Session of the Standing Committee of the Seventh National People's
Congress on September 4, 1992 and the relevant provisions of the
Implementing Regulations of the Patent Law of the People's Republic of
China, approved by the State Council on January 19, 1985 and promulgated
by the Patent Office on the same day. However, the procedures provided by
the amended Articles 39 to 44 and the amended Article 48 of the Patent Law
concerning the approval of applications for patent, and the revocation and
invalidation of the patent right and the relevant provisions of these
Implementing Regulations shall apply to the said applications which,
before the entry into force of these Implementing Regulations, are not
announced according to the provisions of Articles 39 and 40 of the Patent
Law before they were amended.
* This Table of Contents was established for the convenience of the reader
by the Patent Laws Research Institute of the Chinese Patent Office. The
text of the Implementing Regulations of the Patent Law approved by the
State Council does not contain such a table and the rules have no titles
in the Regulations.