PATENT LAW

   Article 1. This law is enacted to protect patent rights for inventions-creations, to encourage inventions-creations, to
foster the spreading and application of inventions-creations, and to promote the development of science and technology,
for meeting the needs of the construction of socialist modernization.

   Article 2. In this Law, “inventions-creations” mean inventions, utility models and designs.

   Article 3. The Patent Office of the People’s Republic of China receives and examines patent applications and grants patent
rights for inventions-creations that conform with the provisions of this Law.

   Article 4. Where the invention-creation for which a patent is applied for relates to the security or other vital interests of the State
and is required to be kept secret, the application shall be treated in accordance with the relevant prescriptions of the
State.

   Article 5. No patent right shall be granted for any invention-creation that is contrary to the laws of the State or
social morality or that is detrimental to public interest.

   Article 6. For a service invention-creation, made by a person in execution of the tasks of the entity to which he belongs or
made by him mainly by using the material means of the entity, the right to apply for a patent belongs to the entity.
For any non-service invention-creation, the right to apply for a patent belongs to the inventor or creator. After the
application is approved, if it was filed by an entity under ownership by the whole people, the patent right shall be
held by the entity; if it was filed by an entity under collective ownership or by an individual, the patent right shall
be owned by the entity or individual.

For a service invention-creation made by any staff member or worker of a foreign enterprise, or of a Chinese-foreign
joint venture enterprise, located in China, the right to apply for a patent belongs to the enterprise.
For any non-service invention-creation, the right to apply for a patent belongs to the inventor or creator. After
the application is approved, the patent right shall be owned by the enterprise or the individual that applied for
it.

The owner of the patent right and the holder of the patent right are referred to as “patentee”.

   Article 7. No entity or individual shall prevent the inventor or creator from filing an application for a patent for
a non-service invention-creation.

   Article 8. For an invention-creation made in cooperation by two or more entities, or made by an entity in execution of a commission
for research or designing given to it by another entity, the right to apply for a patent belongs, unless otherwise
agreed upon, to the entity which made, or to the entities which jointly made, the invention-creation. After the application
is approved, the patent right shall be owned or held by the entity or entities that applied for it.

   Article 9. Where two or more applicants file applications for patent for the identical invention-creation, the patent right shall be
granted to the applicant whose application was filed first.

   Article 10. The right to apply for a patent and the patent right may be assigned.

Any assignment, by an entity under ownership by the whole people, of the right to apply for a patent, or of the patent
right, must be approved by the competent authority at the higher level.

Any assignment, by a Chinese entity or individual, of the right to apply for a patent, or of the patent right, to a foreigner
must be approved by the competent department concerned of the State Council.

Where the right to apply for a patent or the patent right is assigned, the parties must conclude a written contract,
which will come into force after it is registered with and announced by the Patent Office.

   Article 11. After the grant of the patent right for an invention or utility model, except as otherwise provided for in the law,
no entity or individual may, without the authorization of the patentee, make, use or sell the patented product, or use
the patented process and use or sell the product directly obtained by the patented process, for production or business
purposes.

After the grant of the patent right for a design, no entity or individual may, without the authorization of the patentee,
make or sell the product, incorporating its or his patented design, for production or business purposes.

After the grant of the patent right, except as otherwise provided for in the law, the patentee has the right to prevent
any other person from importing, without its or his authorization, the patented product, or the product directly
obtained by its or his patented process, for the uses mentioned in the preceding two paragraphs.

   Article 12. Any entity or individual exploiting the patent of another must, except as provided for in Article 14 of this Law, conclude
with the patentee a written license contract for exploitation and pay the patentee a fee for the exploitation of the
patent. The licensee has no right to authorize any entity or individual, other than that referred to in the contract
for exploitation, to exploit the patent.

   Article 13. After the publication of the application for a patent for invention, the applicant may require the entity or individual
exploiting the invention to pay an appropriate fee.

   Article 14. The competent departments concerned of the State Council and the people’s governments of provinces, autonomous regions
or municipalities directly under the Central Government have the power to decide, in accordance with the State plan,
that any entity under ownership by the whole people that is within their system or directly under their administration
and that holds the patent right to an important invention-creation is to allow designated entities to
exploit that invention-creation; and the exploiting entity shall, according to the prescriptions of the State,
pay a fee for exploitation to the entity holding the patent right.

Any patent of a Chinese individual or entity under collective ownership, which is of great significance to the
interests of the State or to the public interest and is in need of spreading and application, may, after approval
by the State Council at the solicitation of its competent department concerned, be treated alike by making
reference to the provisions of the preceding paragraph.

   Article 15. The patentee has the right to affix a patent marking and to indicate the number of the patent on the patented product
or on the packing of that product.

   Article 16. The entity owning or holding the patent right shall award to the inventor or creator of a service invention-creation a reward
and, upon exploitation of the patented invention-creation, shall award to the inventor or creator a reward based
on the extent of spreading and application and the economic benefits yielded.

   Article 17. The inventor or creator has the right to be named as such in the patent document.

   Article 18. Where any foreigner, foreign enterprise or other foreign organization having no habitual residence or business office in
China files an application for patent in China, the application shall be treated under this Law in accordance with
any agreement concluded between the country to which the applicant belongs and China, or in accordance with any
international treaty to which both countries are party, or on the basis of the principle of reciprocity.

   Article 19. Where any foreigner, foreign enterprise or other foreign organization having no habitual residence or business office
in China applies for a patent, or has other patent matters to attend to, in China, he or it shall appoint a patent
agency designated by the State Council of the People’s Republic of China to act as his or its agent.

Where any Chinese entity or individual applies for a patent or has other patent matters to attend to in the country,
it or he may appoint a patent agency to act as its or his agent.

   Article 20. Where any Chinese entity or individual intends to file an application in a foreign country for a patent for invention-creation
made in the country, it or he shall file first an application for patent with the Patent Office and, with the
sanction of the competent department concerned of the State Council, shall appoint a patent agency designated by the State
Council to act as its or his agent.

   Article 21. Until the publication or announcement of the application for a patent, staff members of the Patent Office and persons
involved have the duty to keep its content secret.

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

Novelty means that, before the date of filing, no identical invention or utility model 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, nor has any other person filed previously with the Patent Office an application which described the identical
invention or utility model and was published after the said date of filing.

Inventiveness means that, as compared with the technology existing before the date of filing, the invention has prominent
substantive features and represents a notable progress and that the utility model has substantive features and represents
progress.

Practical applicability means that the invention or utility model can be made or used and can produce effective results.

   Article 23. Any design for which patent right may be granted must not be identical with or similar to any design which, before the date
of filing, has been publicly disclosed in publications in the country or abroad or has been publicly used in the country.

   Article 24. An invention-creation for which a patent is applied for does not lose its novelty where, within six months before
the date of filing, one of the following events occurred:

(1) Where it was first exhibited at an international exhibition sponsored or recognized by the Chinese Government;

(2) where it was first made public at a prescribed academic or technological meeting;

(3) where it was disclosed by any person without the consent of the applicant.

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

(1) scientific discoveries;

(2) rules and methods for mental activities;

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

(4) animal and plant varieties;

(5) substances obtained by means of nuclear transformation.

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

   Article 26. Where an application for a patent for invention or utility model is filed, a request, a description and its
abstract, and claims shall be submitted.

The request shall state the post_title of the invention or utility model, the name of the inventor or creator, the name
and the address of the applicant and other related matters.

The description shall set forth the invention or utility model in a manner sufficiently clear and complete so as to
enable a person skilled in the relevant field of technology to carry it out; where necessary, drawings are required. The
abstract shall state briefly the main technical points of the invention or utility model.

The claims shall be supported by the description and shall state the extent of the patent protection asked for.

   Article 27. Where an application for a patent for design is filed, a request, drawings or photographs of the design shall be submitted,
and the product incorporating the design and the class to which that product belongs shall be indicated.

   Article 28. The date on which the Patent Office receives the application shall be the date of filing. If the application
is sent by mail, the date of mailing indicated by the postmark shall be the date of filing.

   Article 29. Where, within twelve months from the date on which any applicant first filed in a foreign country an application for
a patent for invention or utility model, or within six months from the date on which any applicant first filed in a foreign
country an application for a patent for design, he or it files in China an application for a patent for the same subject
matter, he or it may, in accordance with any agreement concluded between the said foreign country and China, or
in accordance with any international treaty to which both countries are party, or on the basis of the principle of mutual recognition
of the right of priority, enjoy a right of priority.

Where, within twelve months from the date on which any applicant first filed in China an application for a patent
for invention or utility model, he or it files with the Patent Office an application for a patent for the same subject matter,
he or it may enjoy a right of priority.

   Article 30. Any applicant who claims the right of priority shall make a written declaration when the application is filed, and
submit, within three months, a copy of the patent application document which was first filed; if the applicant fails
to make the written declaration or to meet the time limit for submitting the patent application document, the claim
to the right of priority shall be deemed not to have been made.

   Article 30. Any applicant who claims the right of priority shall make a written declaration when the application is filed, and
submit, within three months, a copy of the patent application document which was first filed; if the applicant fails
to make the written declaration or to meet the time limit for submitting the patent application document, the claim
to the right of priority shall be deemed not to have been made.

   Article 31. An application for a patent for invention or utility model shall be limited to one invention or utility model.
Two or more inventions or utility models belonging to a single general inventive concept may be filed as one application.

An application for a patent for design shall be limited to one design incorporated in one product. Two or more designs
which are incorporated in products belonging to the same class and are sold or used in sets may be filed as one application.

   Article 32. An applicant may withdraw his or its application for a patent at any time before the patent right is granted.

   Article 33. An applicant may amend his or its application for a patent, but the amendment to the application for a patent for invention
or utility model may not go beyond the scope of the disclosure contained in the initial description and claims,
and the amendment to the application for a patent for design may not go beyond the scope of the disclosure as shown
in the initial drawings or photographs.

   Article 34. Where, after receiving an application for a patent for invention, the Patent Office, upon preliminary examination,
finds the application to be in conformity with the requirements of this Law, it shall publish the application promptly
after the expiration of eighteen months from the date of filing. Upon the request of the applicant, the Patent Office
publishes the application earlier.

   Article 35. Upon the request of the applicant for a patent for invention, made at any time within three years from the date
of filing, the Patent Office will proceed to examine the application as to its substance. If, without any justified
reason, the applicant fails to meet the time limit for requesting examination as to substance, the application
shall be deemed to have been withdrawn.

The Patent Office may, on its own initiative, proceed to examine any application for a patent for invention as
to its substance when it deems it necessary.

   Article 36. When the applicant for a patent for invention requests examination as to substance, he or it shall furnish pre-filing
date reference materials concerning the invention.

The applicant for a patent for invention who has filed in a foreign country an application for a patent for the same
invention shall, at the time of requesting examination as to substance, furnish documents concerning any search made
for the purpose of examining that application, or concerning the results of any examination made, in that country.
If, without any justified reason, the said documents are not furnished, the application shall be deemed to have been withdrawn.

   Article 37. Where the Patent Office, after it has made the examination as to substance of the application for a patent for
invention, finds that the application is not in conformity with the provisions of this Law, it shall notify the applicant
and request him or it to submit, within a specified time limit, his or its observations or to amend the application.
If, without any justified reason, the time limit for making response is not met, the application shall be deemed to have
been withdrawn.

   Article 38. Where, after the applicant has made the observations or amendments, the Patent Office finds that the application
for a patent for invention is still not in conformity with the provisions of this Law, the application shall be rejected.

   Article 39. Where it is found after examination as to substance that there is no cause for rejection of the application
for a patent for invention, the Patent Office shall make a decision to grant the patent right for invention, issue
the certificate of patent for invention, and register and announce it.

   Article 40. Where it is found after preliminary examination that there is no cause for rejection of the application for a
patent for utility model or design, the Patent Office shall make a decision to grant the patent right for utility model
or the patent right for design, issue the relevant patent certificate, and register and announce it.

   Article 41. Where, within six months from the date of the announcement of the grant of the parent right by the Patent
Office, any entity or individual considers that the grant of the said patent right is not in conformity with the
relevant provisions of this Law, it or he may request the Patent Office to revoke the patent right.

   Article 42. The Patent Office shall examine the request for revocation of the patent right, make a decision revoking
or upholding the patent right, and notify the person who made the request and the patentee. The decision revoking the
patent right shall be registered and announced by the Patent Office.

   Article 43. The Patent Office shall set up a Patent Reexamination Board. Where any party is not satisfied with the decision
of the Patent Office rejecting the application, or the decision of the Patent Office revoking or upholding the patent
right, such party may, within three months from the date of receipt of the notification, request the Patent Reexamination
Board to make a reexamination. The Patent Reexamination Board shall, after reexamination, make a decision and
notify the applicant, the patentee or the person who made the request for revocation of the patent right.

Where the applicant for a patent for invention, the patentee of an invention or the person who made the request for
revocation of the patent right for invention is not satisfied with the decision of the Patent Reexamination
Board, he or it may, within three months from the date of receipt of the notification, institute legal proceedings
in the people’s court.

The decision of the Patent Reexamination Board in respect of any request, made by the applicant, the patentee or the
person who made the request for revocation of the patent right, for reexamination concerning a utility model or design is
final.

   Article 44. Any patent right which has been revoked shall be deemed to be non-existent from the beginning.

   Article 45. The duration of patent right for inventions shall be twenty years and the duration of patent right for utility models
and patent right for designs shall be ten year, counted from the date of filing.

   Article 46. The patentee shall pay an annual fee beginning with the year in which the patent right was granted.

   Article 47. In any of the following cases, the patent right shall cease before the expiration of its duration:

(1) Where an annual fee is not paid as prescribed;

(2) Where the patentee abandons his or its patent right by a written declaration.

Any cessation of the patent right shall be registered and announced by the Patent Office.

   Article 48. Where, after the expiration of six months from the date of the announcement of the grant of the patent right by the Patent
Office, any entity or individual considers that the grant of the said patent right is not in conformity with the
relevant provisions of this Law, it or he may request the Patent Reexamination Board to declare the patent right invalid.

   Article 49. The Patent Reexamination Board shall examine the request for invalidation of the patent right, make a decision and notify
the person who made the request and the patentee. The decision declaring the patent right invalid shall be registered
and announced by the Patent Office.

Where any party is not satisfied with the decision of the Patent Reexamination Board declaring the patent
right for invention invalid or upholding the patent right for invention, such party may, within three months
from receipt of the notification of the decision, institute legal proceedings in the people’s court.

The decision of the Patent Reexamination Board in respect of a request to declare invalid the patent right for utility
model or design is final.

   Article 50. Any patent right which has been declared invalid shall be deemed to be non-existent from the beginning.

The decision of invalidation shall have no retroactive effect on any judgment or order on patent infringement
which has been pronounced and enforced by the people’s court, on any decision concerning the handling of patent
infringement which has been made and enforced by the administrative authority for patent affairs, and on any contract
of patent license and of assignment of patent right which have been performed, prior to the decision of invalidation;
however, the damages caused to other persons in bad faith on the part of the patentee shall be compensated.

If, pursuant to the provisions of the preceding paragraph, no repayment, by the patentee or the assignor of the
patent right to the licensee or the assignee of the patent right, of the fee for the exploitation of the patent or the
price for the assignment of the patent right is obviously contrary to the principle of equity, the patentee or the assignor
of the patent right shall repay the whole or part of the fee for the exploitation of the patent or the price for the assignment
of the patent right to the licensee or the assignee of the patent right.

The provisions of the second and third paragraph of this Article shall apply to the patent right which has been revoked.

   Article 51. Where any entity which is qualified to exploit the invention or utility model has made requests for authorization
from the patentee of an invention or utility model to exploit its or his patent on reasonable terms and such efforts
have not been successful within a reasonable period of time, the Patent Office may, upon the application of that
entity, grant a compulsory licence to exploit the patent for invention or utility model.

   Article 52. Where a national emergency or any extraordinary state of affairs occurs, or where the public interest so requires, the Patent
Office may grant a compulsory licence to exploit the patent for invention or utility model.

   Article 53. Where the invention or utility model for which the patent right was granted is technically more advanced than another invention
or utility model for which a patent right has been granted earlier and the exploitation of the later invention
or utility model depends on the exploitation of the earlier invention or utility model, the Patent Office may,
upon the request of the later patentee, grant a compulsory licence to exploit the earlier invention or utility model.

Where, according to the preceding paragraph, a compulsory licence is granted, the Patent Office may, upon the
request of the earlier patentee, also grant a compulsory licence to exploit the later invention or utility model.

   Article 54. The entity or individual requesting, in accordance with the provisions of this Law, a compulsory licence for
exploitation shall furnish proof that it or he has not been able to conclude with the patentee a licence contract for exploitation
on reasonable terms.

   Article 55. The decision made by the Patent Office granting a compulsory licence for exploitation shall be registered and announced.

   Article 56. Any entity or individual that is granted a compulsory licence for exploitation shall not have an exclusive right
to exploit and shall not have the right to authorize exploitation by any others.

   Article 57. The entity or individual that is granted a compulsory licence for exploitation shall pay to the patentee
a reasonable exploitation fee, the amount of which shall be fixed by both parties in consultations. Where the
parties fail to reach an agreement, the Patent Office shall adjudicate.

   Article 58. Where the patentee is not satisfied with the decision of the Patent Office granting a compulsory licence for exploitation
or with the adjudication regarding the exploitation fee payable for exploitation, he or it may, within three months
from the receipt of the notification, institute legal proceedings in the people’s court.

   Article 59. The extent of protection of the patent right for invention or utility model shall be determined by the terms
of the claims. The description and the appended drawings may be used to interpret the claims.

The extent of protection of the patent right for design shall be determined by the product incorporating the patented
design as shown in the drawings or photographs.

   Article 60. For any exploitation of the patent, without the authorization of the patentee, constituting an infringing act,
the patentee or any interested party may 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 for patent
affairs handling the matter shall have the power to order the infringer to stop the infringing act and to compensate for
the damage. Any party dissatisfied may, within three months

Disclaimer: There is no confidential attorney-client relationship formed by using Laws.com website and information provided on this site is not legal advice. For legal advice, please contact your attorney. Attorneys listed on this website are not referred or endorsed by this website. By using Laws.com you agree to Laws.com Terms Of Use.

Facebook