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e03007,e00062
The State Council
Order of the State Council of the People’s Repubilc of China
No.306
Rules for the Implementation of the Patent Law of the People’s Republic of China is hereby promulgated, and enter into force as of
July 1, 2001.
Premier of the State Council: Zhu Rongji
June 15, 2001
Rules for the Implementation of the Patent Law of the People’s Republic of China
Chapter I General Provisions
Article 1
These Rules are formulated in accordance with the Patent Law of the People’s Republic of China (hereinafter referred to as “the Patent
Law”).
Article 2
“Invention” as mentioned in the Patent Law means any new technical solution relating to a product, a process or an improvement thereof.
“Utility model” as mentioned in the Patent Law means any new technical solution relating to a product’s shape, structure, or a combination
thereof, which is fit for practical use.
“Design” as mentioned in the Patent Law means any new design of a product’s shape, pattern or a combination thereof, as well as its
combination with the color and the shape or pattern of a product, which creates an aesthetic feeling and is fit for industrial application.
Article 3
All formalities provided in the Patent Law or these Rules shall be fulfilled in a written form or another form provided by the administrative
department for patents under the State Council.
Article 4
Any document to be submitted under the Patent Law or these Rules shall be in Chinese. A standard technical terminology shall be used
if it is uniformly provided by the State. Where there is no uniform Chinese translation for the name of a foreigner, a foreign locality
or a foreign technical terminology, the term in the original language shall be indicated.
Where any certificate or certified document which is to be submitted in accordance with the Patent Law or these Rules is in a foreign
language, the administrative department for patent under the State Council may, when considered necessary, request the party concerned
to submit a Chinese translation within a specified time limit; where the translation has not been submitted at the expiry of the
time limit, the certificate or certified document shall be deemed to have not been submitted.
Article 5
For any document sent by mail to the administrative department for patent under the State Council, the date of mailing indicated by
the postmark shall be regarded as the application date. If the date of mailing indicated by the postmark is illegible, the date on
which the administrative department for patent under the State Council receives the document shall be regarded as the application
date unless otherwise proven by the party concerned. Any document of the administrative department for patent under the State Council
may be served by mail, by personal delivery or by other means. Where any party concerned has entrusted a patent agency, the document
shall be sent to the patent agency; where no patent agency has been entrusted, the document shall be sent to the contact designated
in the written request.
For any document mailed by the administrative department for patent under the State Council, the 15th day from the date when the document
was sent shall be presumed to be the date of the reception of the document.
For any document to be served by personal delivery as required by the provisions of the administrative department for patent under
the State Council, the date of delivery shall be regarded as the date of service.
Where the address to which a document is to be served is not clear for the purpose of mailing, the document may be served by announcement,
and shall be deemed to have been served at the expiry of 1 month as of the date of announcement.
Article 6
The first day of any time limit provided in the Patent Law or these Rules shall not be counted. Where a time limit is counted by years
or by months, it shall expire on the corresponding day of the last month; where there is no corresponding day in that month, the
time limit shall expire on the last day of that month; and where a time limit expires on a statutory holiday, it shall expire on
the first working day following that statutory holiday.
Article 7
Where a party concerned has delayed past the time limit provided in the Patent Law or these Rules or that specified by the administrative
department for patent under the State Council due to force majeure, thus resulting the loss of his/its rights, he/it may, within
2 months as of the removal of the impediment, or at the latest within 2 years as of the expiry of that time limit, request the administrative
department for patent under the State Council to recover his/its rights by stating the reasons and affixing relevant supporting documents.
Where a party concerned has delayed past the time limit provided in the Patent Law or these Rules or that specified by the administrative
department for patent under the State Council due to a justified reason, thus resulting in the loss of his/its rights, he/it may,
within 2 months as of the receipt of the notice from the administrative department for patent under the State Council, request the
administrative department for patent under the State Council to recover his/its rights by stating the reason.
Where a party concerned requests extension of the time limit specified by the administrative department for patent under the State
Council, he/it shall, before the expiry of the said time limit, state the reason to the administrative department for patent under
the State Council and fulfill relevant formalities.
The provisions in Paragraph 1 and 2 of this Article shall not apply to the time limit provided in Article 24 , Article 29 , Article
42 , or Article 62 of the Patent Law.
Article 8
Where an application for a patent for invention involves any State secret in respect to national defense that needs to be maintained
confidential, it shall be accepted by the institution for patent of national defense. Where an application for a patent for invention
which involves any State secret in respect to national defense that needs to be maintained confidential has been accepted by the
administrative department for patent under the State Council, it shall be transferred to the institution for patent of national defense
for examination, and the administrative department for patent under the State Council shall make its decision upon the opinions from
the examination by the institution for patent of national defense.
In addition to the preceding paragraph, the administrative department for patent under the State Council shall, after accepting a
patent application for invention, transmit it to the relevant competent department of the State Council for examination if such invention
needs to be examined for its confidential nature. The said department shall, within 4 months as of the receipt of the application,
notify the administrative department for patent under the State Council of the examination result. Where the invention needs to be
maintained confidential, the administrative department for patent under the State Council shall deal with the application as one
of confidential patent and notify the applicant accordingly.
Article 9
“Invention-creation that violates the laws of the State” mentioned in Article 5 of the Patent Law shall not include the invention-creations
the use of which is prohibited by the laws of the State.
Article 10
Except for the circumstances provided in Article 28 and Article 42 of the Patent Law, the application date mentioned in the Patent
Law means the priority date if there is a right of priority concerned.
Unless otherwise provided, the application date mentioned in these Rules means the one provided in Article 28 of the Patent Law.
Article 11
“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 means 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 delivered to him by the entity to which he belongs;
(3)
within 1 year from his resignation, retirement or change of work, provided that the invention-creation relates to his own duty or
to the other task distributed to him by the entity to which he previously belonged.
“The entity to which he belongs” mentioned in Article 6 of the Patent Law may also be a temporary entity for which the person works;
“material resources of the entity” mentioned in Article 6 of the Patent Law shall include the entity’s money, equipment, spare parts,
raw materials, or technical data which are not to be disclosed to the public.
Article 12
“Inventor” or “designer” as mentioned in the Patent Law means any person who has made creative contributions to the substantive features
of the invention-creation. Any person who, in the process of accomplishing the invention-creation, is responsible only for organizational
work, or who offers facilities for the use of material resources, or who takes part in other auxiliary functions, shall not be an
inventor or designer.
Article 13
For any identical invention-creations, only one patent right shall be granted.
In accordance with Article 9 of the Patent Law, two or more applicants who, on the same day, file applications for patent regarding
identical invention-creations, shall, after receiving the notification from the administrative department for patent under the State
Council, negotiate between themselves at their own discretion to determine who shall be enpost_titled to file the application.
Article 14
Where a Chinese entity or individual is to assign the right of patent application or a patent right to a foreigner, he/it shall obtain
a joint approval from the competent department for foreign trade and economic cooperation under the State Council and the administrative
department for science and technology under the State Council.
Article 15
Unless a patent right is assigned in accordance with Article 10 of the Patent Law, the party concerned shall, if the patent right
is devolved due to other reasons, fulfill the formalities for the change of the patent holder in the administrative department for
patent under the State Council with relevant certified documents or legal instruments.
Any contract on the license for use of a patent concluded between the patent holder and another party shall, within 3 months as of
the date when the contract entered into force, be submitted to the administrative department for patent under the State Council for
record.
Chapter II Application for Patent
Article 16
Anyone who applies for a patent in written form shall submit the application documents to the administrative department for patent
under the State Council in duplicate.
Anyone who applies for a patent in any other form provided by the administrative department for patent under the State Council shall
comply with the provided requirements.
Where an applicant entrusts a patent agency to file an application for a patent or to handle other patent matters in the administrative
department for patent under the State Council, he/it shall meanwhile submit a power of attorney indicating the scope of the power
entrusted.
Where there are two or more applicants and none of them has entrusted a patent agency, the first applicant designated in the written
request shall be regarded as the representative unless otherwise declared in the written request.
Article 17
Other related matters in the written request mentioned in Paragraph 2 of Article 26 of the Patent Law mean:
(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 entrusted a patent agency, the relevant matters to be indicated; where the applicant has not entrusted a patent
agency, the name, address, postal code and telephone number of the contact;
(4)
where the right of priority is claimed, the relevant matters to be indicated;
(5)
the signature or seal of the applicant or the patent agency;
(6)
a list of the application documents;
(7)
a list of the documents appended to the application;
(8)
other related matters which need to be indicated.
Article 18
The specification of an application for a patent for invention or utility model shall indicate the post_title of the invention or utility
model as it appears in the written request. The specification shall include:
(1)
the field of technology: indicating the field of technology to which the technical solution under the request for protection belongs;
(2)
the background technologies: indicating the background technologies useful to the understanding, retrieval and examination of the
invention or utility model; and if possible, citing the documents which reflect these background technologies;
(3)
the contents of invention: indicating the technical problems to be solved for the invention or utility model and the technical solution
adopted for solving the technical problems, and indicating the beneficial effects of the invention or utility model by comparison
with the technology currently available;
(4)
the statement of the appended drawings: if the specification is appended with drawings, briefly stating each appended drawing;
(5)
the specific method of use: indicating in details the best method considered by the applicant to use the invention or utility model;
when necessary, illustrating with examples; and comparing with the appended drawings, if any.
An applicant for a patent for invention or utility model shall present the specification in accordance with the manner and order provided
in the preceding paragraph, and shall indicate the heading in front of each portion of the specification, unless a different manner
or order would afford a more economical presentation and a more accurate understanding due to the nature of the invention or utility
model.
The specification of the invention or utility model shall be written in standard terminologies and clear sentences, and shall not
contain such phrases as: “as described in Part … of the claim,” or any commercial advertising diction.
Where an application for a patent for invention contains one or more sequences of nucleotide or amino acid, the specification shall
include a sequence table in conformity with the provisions of the administrative department for patent under the State Council. The
applicant shall submit the sequence table as an independent portion of the specification, and submit a copy of the sequence table
which can be read by the computer in accordance with the provisions of the administrative department for patent under the State Council.
Article 19
The same sheet of appended 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 appended 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.
Appended drawing reference signs not mentioned in the text of the specification of the invention or utility model shall not appear
in the appended drawings. Appended drawing reference signs not appearing in the appended drawings shall not be mentioned in the text
of the specification. The appended drawing reference signs for the same composite part used in the application documents shall be
consistent throughout.
The appended drawings shall not contain any other explanatory notes, except for words that are indispensable.
Article 20
The patent claim shall state the technical features of the invention or utility model, and define clearly and concisely the scope
of the requested protection.
Where there are several claims in the patent claim, they shall be numbered consecutively in Arabic numerals.
The technical terminology used in the patent claim shall be consistent with that used in the specification. The patent claim may contain
chemical or mathematical formulas but no drawings, and shall not contain such dictions as: “as described in Part … of the specification”
or “as illustrated in Figure …” unless such dictions are absolutely necessary.
The technical features mentioned in the claim may quote the corresponding reference signs in the appended drawings of the specification,
and such reference signs shall follow the corresponding technical features and be placed between parentheses, so that the claim can
be easily understood. The appended drawing reference signs shall not be construed as limiting the claim.
Article 21
The patent claim shall have an independent claim, and may also contain subordinate claims.
An independent claim shall outline the technical solution of an invention or utility model and record the technical features necessary
for solving technical problems.
Subordinate claims shall further define the quoted claim with additional technical features.
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 forms:
(1)
the preamble portion: indicating the subject post_title of the technical solution to the invention or utility model which is claimed to
be protected and those essential technical features that are common to the subject of the invention or utility model and the closest
technology currently available;
(2)
the characterizing portion: stating, in such diction as “characterized in that …” or in similar diction, the technical features
of the invention or utility model, which distinguish it from the closest technology currently available; these features, in combination
with the features indicated in the preamble portion, serve to define the scope of protection of the invention or utility model.
An independent claim may be presented in any other form if the nature of the invention or utility model is not appropriate to be expressed
in the form provided in the preceding paragraph.
Each invention or utility model shall have only one independent claim, which shall precede all the subordinate claims of the same
invention or utility model.
Article 23
A subordinate claim of an invention or utility model shall contain a quoting portion and a defining portion, and be presented in the
following form:
(1)
the quoting portion: indicating the serial number(s) of the quoted claim(s), and the post_title of the subject;
(2)
the defining portion: stating the additional technical features of the invention or utility model.
A subordinate claim may only quote the preceding claim or claims. A multiple subordinate claim which quotes two or more claims may
only apply to the preceding claim or claim in a selected form, and shall not be regarded as the basis for another multiple subordinate
claim.
Article 24
The abstract of the specification shall indicate the outline of the contents made public by the application for a patent for invention
or utility model, that is, to indicate the name of the invention or utility model and the field of technology to which it belongs,
and shall clearly reflect the technical problem to be solved, the essentials and main uses of the technical solution to this problem.
The abstract of the specification may contain the chemical formula which best characterizes the invention. For an application for
a patent which contains appended drawings, an appended drawing which best characterizes the invention or utility model shall also
be provided. The scale and the distinctness of the appended drawing 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 300 Chinese characters. There shall be no commercial advertising diction in the abstract.
Article 25
Where an application for a patent for invention involves a new biomaterial which is not available to the public, and the specification
on this biomaterial is not enough to make the technicians who belong to this field to exploit the invention, the applicant shall,
in addition to complying with the relevant provisions in the Patent Law and these Rules, fulfill the following formalities:
(1)
submit a sample of the biomaterial to a depository institution admitted by the administrative department for patent under the State
Council before the application date, or, at the latest, on the application date (or the priority date if there is a right of priority
concerned) for deposit, and submit, at the time of application, or, at the latest, within 4 months as of the application date, a
receipt of deposit and the viability proof from the depository institution; where they have not been submitted at the expiry of the
time limit, the sample shall be deemed to have not been deposited;
(2)
in the application, submit relevant information on the characteristics of the biomaterial;
(3)
indicate, where the application involves the deposit of the sample of biomaterial, in the written request and the specification the
name of its classification (with its Latin name), the name and address of the depository institution, the date on which the sample
was deposited and the accession number of the deposit; where, at the time of application, they are not indicated, a rectification
shall be made within 4 months as of the date of application; where no rectification has been made at the expiry of the time limit,
the sample shall be deemed to have not been deposited.
Article 26
Where an applicant for a patent for invention has a sample of biomaterial deposited in accordance with Article 25 of these Rules,
any entity or individual that intends to make use of the biomaterial for the purpose of experiment shall, after the application for
a patent for invention has been published, make a request to the administrative department for patent under the State Council containing
the following:
(1)
the name and address of the entity or individual making the request;
(2)
a guarantee not to make the biomaterial available to any other person;
(3)
a guarantee to use the biomaterial 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 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, the drawing or photograph in color
shall be submitted in duplicate.
The applicant shall submit, with respect to the contents of each design product which is in need of protection, relevant views or
photographs, so as to clearly show the object 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 design essentials for the use 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 diction or be used to indicate the functions of the product.
Article 29
The administrative department for patent under the State Council may, when considering it necessary, 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 surpass15 kilograms. Articles that are easy to rot or become broken, or articles
that are dangerous, may not be submitted as sample or model.
Article 30
The existing technology mentioned in Paragraph 3 of Article 22 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 application date (or the priority date if there is a right of priority concerned); that is, the technology currently available.
Article 31
The academic or technical conference mentioned in Item (2) of Article 24 of the Patent Law means any academic or technical conference
organized and convened by a relevant department of the State Council or by a national academic association. Where the invention-creation
in an application for a patent falls under any of the circumstances enumerated in 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 2 months as of the application
date, submit a certificate issued by the entity which organized the international exhibition or academic or technical conference,
stating that the invention-creation has been exhibited or published and also submit the certified documents on the date of its exhibition
or publication.
Where any invention-creation in an application for a patent falls under the circumstance enumerated in Item (3) of Article 24 of
the Patent Law, the administrative department for patent under the State Council may, when considered necessary, require the applicant
to submit a certified document within a specified time limit. Where the applicant fails to make a declaration and submit the certified
document in accordance with Paragraph 2 of this Article, or fails to submit the certified document within a specified time limit
in accordance with Paragraph 3 of this Article, the application may not be subject to Article 24 of the Patent Law.
Article 32
Where an applicant is to fulfill the formalities for claiming the right of priority in accordance with Article 30 of the Patent Law,
he/it shall, in his/its written declaration, indicate the date and the number of the application which was first filed (hereinafter
referred to as the earlier application) as well as the country in which that application was accepted. Where the written declaration
does not contain the application date of the earlier application or the name of the said country, the declaration shall be deemed
to have not been made.
Where the right of foreign priority is claimed, the copies of the earlier application documents submitted by the applicant shall be
certified by the original acceptance authority. Where, among the submitted certified documents, the name of the earlier applicant
is inconsistent with that of the later applicant, the certified documents on the assignment of the right of property shall be submitted.
Where the domestic right of priority is claimed, the copies of the earlier application documents shall be prepared by the administrative
department for patent under the State Council.
Article 33
Any applicant may claim one or more rights of priority for an application for a patent; where more than one right of priority 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, and the earlier application is one for a patent for invention, he/it may
file an application for a patent for invention or utility model for the same subject; if the earlier application is one for a patent
for utility model, he/it may file an application for a patent for utility model or invention for the same subject. However, if, when
the later application is filed, the earlier application is in any of the following circumstances, it may not be the basis of the
right of domestic priority:
(1)
where the right of foreign or domestic priority has already been claimed;
(2)
where a patent right has been granted;
(3)
where it belongs to divisional application filed as provided.
Where the applicant claims the right of domestic priority, the earlier application shall be deemed to be withdrawn as of 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 regular residence
or business office in China, the administrative department for patent under the State Council may, when considering it necessary,
require the applicant to submit the following documents:
(1)
a certificate concerning the nationality of the applicant;
(2)
a certificate concerning the locality of the business office or the headquarters, if the applicant is an enterprise or other organization;
(3)
a certified document showing that the country, to which the applicant belongs, recognizes that Chinese entities and individuals are,
under the same conditions applied to its nationals, enpost_titled 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 Paragraph 1 of Article 31 the Patent Law shall be technically interrelated and contain one or more same or corresponding
special technical features. The expression “special technical features” means those technical features that define a contribution
which each of those inventions, considered as a whole, makes over the technology currently available.
Article 36
The expression “the same category” mentioned in Paragraph 2 of Article 31 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 Paragraph 2 of Article 31 of the Patent Law, they shall
be numbered consecutively and each number shall be placed before the corresponding post_title of the view of the product incorporating
the design.
Article 37
When withdrawing an application for a patent, the applicant shall make a declaration to the administrative department for patent under
the State Council stating the post_title of the invention-creation, the number and date of the application.
Where a declaration to withdraw an application for a patent is made after the printing preparation has been done by the administrative
department for patent under the State Council for publishing the application documents, the application documents shall still be
published as scheduled. However, the declaration to withdraw an application for a patent shall be announced on the subsequently published
Patent Gazette.
Chapter III Examination and Approval of Application for Patent
Article 38
Any person who is to examine or hear a case in the procedures of preliminary examination, substantial examination, re-examination,
or invalidation shall, at his own discretion or upon the request of the party concerned or any other interested person, avoid being
present in any of the following circumstances:
(1)
where he is a close relative of the par
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