Implementing Regulations of the Patent Law of the People’s Republic of China
(Promulgated by Decree No. 306 of the State Council of the People’s Republic of China on June 15, 2001, and effective as of July 1,
2001)
(Translated by the Patent Administration Department under the State Council of the People’s Republic of China. In case of discrepancy,
the original version shall prevail.)
Chapter I General Provisions
Rule 1. These Implementing Regulations are formulated in accordance with the Patent Law of the People’s Republic of China (hereinafter
referred to as the Patent Law).
Rule 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, the pattern or their combination, or the combination of the color
with shape or pattern, of a product, which creates an aesthetic feeling and is fit for industrial application.
Rule 3 Any formalities prescribed by the Patent Law and these Implementing Regulations shall be complied with in a written form or
in any other form prescribed by the Patent Administration Department under the State Council .
Rule 4 Any document submitted in accordance with the provisions of 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 or certifying document submitted in accordance with the provisions of the Patent Law and these Implementing
Regulations is in a foreign language, the Patent Administration Department under the State Council may, when it deems necessary,
request a Chinese translation of the certificate or the certifying document be submitted within a specified time limit; where the
translation is not submitted within the specified time limit, the certificate or certifying document shall be deemed not to have
been submitted.
Rule 5 Where any document is sent by mail to the Patent Administration Department under the State Council , the date of mailing
indicated by the postmark on the envelope shall be deemed to be the date of filing; where the date of mailing indicated by the postmark
on the envelope is illegible, the date on which the Patent Administration Department under the State Council receives the document
shall be the date of filing, except where the date of mailing is proved by the party concerned.
Any document of the Patent Administration Department under the State Council may be served by mail, by personal delivery or
by other forms. 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 liaison person named in the request.
Where any document is sent by mail by the Patent Administration Department under the State Council , the 16th day from the
date of mailing shall be presumed to be the date on which the party concerned receives the document.
Where any document is delivered personally in accordance with the provisions of the Patent Administration Department under the
State Council , the date of delivery is the date on which the party concerned receives the document.
Where the address of any document is not clear and it cannot be sent by mail, the document may be served by making an announcement.
At the expiration of one month from the date of the announcement, the document shall be deemed to be served.
Rule 6 The first day of any time limit prescribed in the Patent Law and these Implementing Regulations shall not be counted in the
time limit. Where the 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, it shall expire on the first working day following that official holiday.
Rule 7 Where a time limit prescribed in the Patent Law or these Implementing Regulations or specified by the Patent Administration
Department under the State Council is not observed by a party concerned because of force majeure, resulting in loss of his or its
rights, he or it may, 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
Administration Department under the State Council to restore his or its rights.
Where a time limit prescribed in the Patent Law or these Implementing Regulations or specified by the Patent Administration
Department under the State Council is not observed by a party concerned because of any justified reason, resulting in loss of his
or its rights, he or it may, within two months from the date of receipt of a notification from the Patent Administration Department
under the State Council , state the reasons and request the Patent Administration Department under the State Council to restore
his or its rights.
Where the party concerned makes a request for an extension of a time limit specified by the Patent Administration Department
under the State Council , he or it shall, before the time limit expires, state the reasons to the Patent Administration Department
under the State Council and go through the relevant formalities.
The provisions of paragraphs one and two of this Rule shall not be applicable to the time limit referred to in Articles 24,
29, 42 and 62 of the Patent Law.
Rule 8 Where an application for a patent for invention relates to the secrets of the State concerning national defense and requires
to be kept secret, the application for patent shall be filed with the patent department of national defense. Where any application
for patent for invention relating to the secrets of the State concerning national defense and requiring to be kept secret is received
by the Patent Administration Department under the State Council , the application shall be forwarded to the patent department of
national defense for examination, and the Patent Administration Department under the State Council shall make a decision on the
basis of the observations of the examination made by the patent department of national defense.
Subject to the preceding paragraph, the Patent Administration Department under the State Council shall, after receipt of an
application for patent for invention which is required to be examined for the purpose of security, send it to the relevant competent
department under the State Council for examination. The relevant competent department shall, within four months from the date of
receipt of the application, notify the Patent Administration Department under the State Council of the results of the examination.
Where the invention for which a patent is applied for is required to be kept secret, the Patent Administration Department under the
State Council shall handle it as an application for secret patent and notify the applicant accordingly.
Rule 9 Any invention-creation that is contrary to the laws of the State referred to in Article 5 of the Patent Law shall not include
the invention-creation merely because the exploitation of which is prohibited by the laws of the State.
Rule 10 The date of filing referred to in the Patent Law, except for those referred to in Articles 28 and 42, means the priority
date where priority is claimed.
The date of filing referred to in these Implementing Regulations, except as otherwise prescribed, means the date of filing prescribed
in Article 28 of the Patent Law.
Rule l1 “A service invention-creation made by a person in execution of the tasks of the entity to which he belongs” referred to 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 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.
“The entity to which he belongs” referred to in Article 6 of the Patent Law includes the entity in which the person concerned
is a temporary staff member. “Material and technical means of the entity” referred to in Article 6 of the Patent Law mean the entity’s
money, equipment, spare parts, raw materials or technical materials which are not disclosed to the public.
Rule 12 “Inventor” or “creator” referred to in the Patent Law means any person who makes creative contributions to the substantive
features of an invention-creation. Any person who, during the course of accomplishing the invention-creation, is responsible only
for organizational work, or who offers facilities for making use of material and technical means, or who takes part in other auxiliary
functions, shall not be considered as inventor or creator.
Rule l3 For any identical invention-creation, only one patent right shall be granted.
Two or more applicants who respectively 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 Administration Department
under the State Council , hold consultations among themselves to decide the person or persons who shall be enpost_titled to file the
application.
Rule 14 Any assignment of the right to apply for a patent or of the patent right, by a Chinese entity or individual, to a foreigner
shall be approved by the competent department for foreign trade and economic affairs of the State Council in conjunction with the
science and technology administration department of the State Council.
Rule 15 Except for the assignment of the patent right in accordance with Article 10 of the Patent Law, where the patent right is transferred
because of any other reason, the person or persons concerned shall, accompanied by relevant certified documents or legal papers,
request the Patent Administration Department under the State Council to make a registration of change in the owner of the patent
right.
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 Administration Department under
the State Council for the record.
Chapter II Application for Patent
Rule l6 Anyone who applies for a patent in written form shall file with the Patent Administration Department under the State Council
application documents in two copies.
Anyone who applies for a patent in other forms as provided by the Patent Administration Department under the State Council
shall comply with the relevant provisions.
Any applicant who appoints a patent agency for applying for a patent, or for having other patent matters to attend to before
the Patent Administration Department under the State Council , shall submit at the same time a power of attorney indicating the
scope of the power entrusted.
Where there are two or more applicants and no patent agency is appointed, unless otherwise stated in the request, the applicant
named first in the request shall be the representative.
Rule l7 “Other related matters” in the request referred to in Article 26, paragraph two of the Patent Law means:
(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 shall be indicated; where no patent agency
is appointed, the name, address, postcode and telephone number of the liaison person;
(4) where the priority of an earlier application is claimed, the relevant matters which shall 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; and
(8) any other related matter which needs to be indicated.
Rule l8 The description of an application for a patent for invention or utility model shall state the post_title of the invention or utility
model, which shall be the same as it appears in the request. The description shall include the following:
(1) technical field: specifying the technical field to which the technical solution for which protection is sought pertains;
(2) background art: indicating the background art which can be regarded as useful for the understanding, searching and examination
of the invention or utility model, and when possible, citing the documents reflecting such art;
(3) contents of the invention: disclosing the technical problem the invention or utility model aims to settle and the technical
solution adopted to resolve the problem; and stating, with reference to the prior art, the advantageous effects of the invention
or utility model;
(4) description of figures: briefly describing each figure in the drawings, if any;
(5) mode of carrying out the invention or utility model: describing in detail the optimally selected mode contemplated by the
applicant for carrying out the invention or utility model; where appropriate, this shall be done in terms of examples, and with reference
to the drawings, if any;
The manner and order referred to in the preceding paragraph shall be followed by the applicant for a patent for invention or
for utility model, and each of the parts shall be preceded by a heading, unless, because of the nature of the invention or utility
model, a different manner or order would result in a better understanding and a more economical presentation.
The description of the invention or utility model shall use standard terms and be in clear wording, and shall not contain such
references to the claims as: “as described in claim ?”, nor shall it contain commercial advertising.
Where an application for a patent for invention contains disclosure of one or more nucleotide and/or amino acid sequences, the
description shall contain a sequence listing in compliance with the standard prescribed by the Patent Administration Department under
the State Council . The sequence listing shall be submitted as a separate part of the description, and a copy of the said sequence
listing in machine-readable form shall also be submitted in accordance with the provisions of the Patent Administration Department
under the State Council .
Rule l9 The same sheet of 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 l, Figure 2, ?”.
The scale and the distinctness of the drawings shall be as such that a reproduction with a linear reduction in size to two-thirds
would still enable all details to be clearly distinguished.
Reference signs not mentioned in the text of the description of the invention or utility model shall not appear in the drawings.
Reference signs not mentioned in the drawings shall not appear in the text of the description. Reference signs for the same composite
part shall be used consistently throughout the application document.
The drawings shall not contain any other explanatory notes, except words which are indispensable.
Rule 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 formulae 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 in parentheses. They shall not be construed as limiting the claims.
Rule 2l The claims shall have an independent claim, and may also contain dependent claims.
The independent claim shall outline the technical solution of an invention or utility model and state the essential technical
features necessary for the solution of its technical problem.
The dependent claim shall, by additional technical features, further define the claim which it refers to.
Rule 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 post_title of the claimed subject matter of the technical solution of the invention or utility
model, and those technical features which are necessary for the definition of the claimed subject matter but which, in combination,
are part of the most related 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 most related prior art. Those features, in combination
with the features stated in the preamble portion, serve to define the scope of protection of the invention or utility model.
Where the manner specified in the preceding paragraphs is not appropriate to be followed because of the nature of the invention
or utility model, an independent claim may be presented in a different manner.
An 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.
Rule 23 Any dependent claim of an invention or utility model shall contain a reference portion and a characterizing portion, and be
presented in the following manner:
(l) a reference portion: indicating the serial number(s) of the claim(s) referred to, and the post_title of the subject matter;
(2) a characterizing portion: stating the additional technical features of the invention or utility model.
Any dependent claim shall only refer to the preceding claim or claims. Any multiple dependent claims, which refers to two or
more claims, shall refer to the preceding one in the alternative only, and shall not serve as a basis for any other multiple dependent
claims.
Rule 24 The abstract shall consist of a summary of the disclosure as contained in the application for patent for invention or utility
model. The summary shall indicate the post_title of the invention or utility model, and the technical field to which the invention or
utility model pertains, and shall be drafted in a way which allows the clear understanding of the technical problem, the gist of
the technical solution of that problem, and the principal 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 provide a figure which best characterizes the technical features of the invention or utility model.
The scale and the distinctness of the figure shall be as such that a reproduction with a linear reduction in size to 4cm x 6cm would
still enable all details to be clearly distinguished. The whole text of the abstract shall contain not more than 300 words. There
shall be no commercial advertising in the abstract.
Rule 25 Where an invention for which a patent is applied for concerns a new biological material which is not available to the public
and which cannot be described in the application in such a manner as to enable the invention to be carried out by a person skilled
in the art, the applicant shall, in addition to the other requirements provided for in the Patent Law and these Implementing Regulations,
go through the following formalities:
(1) depositing a sample of the biological material with a depositary institution designated by the Patent Administration Department
under the State Council before, or at the latest, on the date of filing (or the priority date where priority is claimed), and submit
at the time of filing or at the latest, within four 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 biological material shall
be deemed not to have been deposited;
(2) giving in the application document relevant information of the characteristics of the biological material;
(3) indicating, where the application relates to the deposit of the biological material, in the request and the description
the scientific name (with its Latin name) and the post_title and address of the depositary institution, the date on which the sample of
the biological material was deposited and the accession number of the deposit; where, at the time of filing, they are not indicated,
they shall be supplied within four months from the date of filing; where after the expiration of the time limit they are not supplied,
the sample of the biological material shall be deemed not to have been deposited.
Rule 26 Where the applicant for a patent for invention has deposited a sample of the biological material in accordance with the provisions
of Rule 25 of these Implementing Regulations, and after the application for patent for invention is published, any entity or individual
that intends to make use of the biological material to which the application relates, for the purpose of experiment, shall make a
request to the Patent Administration Department under the State Council , containing the following items:
(1) the name and address of the requesting person;
(2) an undertaking not to make the biological material available to any other person;
(3) an undertaking to use the biological material for experimental purpose only before the grant of the patent right.
Rule 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 x 8cm, nor larger than l5cm x 22cm.
Where an application for a patent for design seeking concurrent protection of colors is filed, a drawing or photograph in color
shall be submitted in two copies.
The applicant shall, in respect of the subject matter of the product incorporating the design which is in need of protection,
submit the relevant views and stereoscopic drawings or photographs, so as to clearly show the subject matter for which protection
is sought.
Rule 28 Where an application for a patent for design is filed, a brief explanation of the design shall, when necessary, be made.
The brief explanation of the design shall include the essential 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 of the product.
Rule 29 Where the Patent Administration Department under the State Council deems 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 x 30cm x 30cm, and its weight shall not surpass l5 kilograms. Articles that are easy to get rotten or broken or articles
that are dangerous shall not be submitted as sample or model.
Rule 30 The existing technology referred to in Article 22, paragraph three 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 date of filing (or the priority date where priority is claimed), that is, prior art.
Rule 3l The academic or technological meeting referred to in Article 24, subparagraph (2) 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 invention-creation for which a patent is applied falls under the provisions of Article 24, subparagraph (l) or (2)
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 certifying documents issued by the entity which organized the international exhibition or academic or
technological meeting, stating the fact that the invention-creation was exhibited or published and with the date of its exhibition
or publication.
Where any invention-creation for which a patent is applied falls under the provisions of Article 24, subparagraph (3) of the
Patent Law, the Patent Administration Department under the State Council may, when it deems necessary, require the applicant to
submit the relevant certifying documents within the specified time limit.
Where the applicant fails to make a declaration and submit certifying documents as required in paragraph two of this Rule, or
fails to submit certifying documents within the specified time limit as required in paragraph three of this Rule, the provisions
of Article 24 of the Patent Law shall not apply to the application.
Rule 32 Where any applicant goes through the formalities of claims priority in accordance with the provisions of Article 30 of the
Patent Law, he or it shall, in his or its written declaration, indicate the date and the number of the application which was first
filed (hereinafter referred to as the earlier application) and the country in which the application was filed. If the written declaration
does not contain the filing date of the earlier application and the name of the country in which the application was filed, the declaration
shall be deemed not to have been made.
Where the foreign priority is claimed, the copy of the earlier application documents submitted by the applicant shall be certified
by the competent authority of the foreign country in which the application was filed. Where in the certifying material submitted,
the name of the earlier applicant is not the same as that of the later one, the applicant shall submit document certifying the assignment
of priority. Where the domestic priority is claimed, the copy of the earlier application document shall be prepared by the Patent
Administration Department under the State Council .
Rule 33 An applicant may claim one or more priorities for an application for a patent; where multiple priorities 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, 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. However, when the later application is filed, if the subject matter of the earlier application falls under any of the following,
it may not be taken as the basis for claiming domestic priority:
(1) where the applicant has claimed foreign or domestic priority;
(2) where it has been granted a patent right;
(3) where it is the subject matter of 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.
Rule 34 Where an application for a patent is filed or the right of foreign priority is claimed by an applicant having no habitual
residence or business office in China, the Patent Administration Department under the State Council may, when it deems necessary,
require the applicant to submit the following documents:
(1) a certificate concerning the nationality of the applicant;
(2) a document certifying the seat of the business office or the headquarters, if the applicant is an enterprise or other organization;
(3) a document certifying that the country, to which the foreigner, foreign enterprise or other foreign organization belongs,
recognizes that Chinese entities and individuals are, under the same conditions as those applied to its nationals, enpost_titled to the
patent right, the right of priority and other related rights in that country.
Rule 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 3l, paragraph one of the Patent Law shall be technically inter-related and contain one
or more of the 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 or utility models, considered as a whole, makes over the prior
art.
Rule 36 The expression “the same class” referred to in Article 3l, paragraph two of the Patent Law means that the product incorporating
the designs belongs 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 and used at the same time.
Where two or more designs are filed as one application in accordance with the provision of Article 3l, paragraph two of the
Patent Law, they shall be numbered consecutively and the numbers shall precede the post_titles of the view of the product incorporating
the design.
Rule 37 When withdrawing an application for a patent, the applicant shall submit to the Patent Administration Department under the
State Council a declaration to that effect stating the post_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 preparations for the publication of the application
document has been completed by the Patent Administration Department under the State Council , the application document shall be
published as scheduled. However, the declaration withdrawing the application for patent shall be published in the next issue of the
Patent Gazette.
Chapter III Examination and Approval of Application for Patent
Rule 38 Where any of the following events occurs, a person who makes examination or hears a case in the procedures of preliminary
examination, examination as to substance, reexamination or invalidation shall, on his own initiative or upon the request of the parties
concerned or any other interested person, be excluded from excising his function:
(1) where he is a near relative of the party concerned or the agent of the
