Detailed Rules for the Implementation of the Patent Law of the People's Republic of China (2010 Revision)

Detailed Rules for the Implementation of the Patent Law of the People's Republic of China (2010 Revision) Detailed Rules for the Implementation of the Patent Law of the People's Republic of China (Promulgated by Order No. 306 of the State Council of the People's Republic of China on June 15, 2001; Amended for the first time according to the Decision of the State Council on Amending the Detailed Rules for the Implementation of the Patent Law of the People's Republic of China on December 28, 2002; Amended for the second time according to the Decision of the State Council on Amending the Detailed Rules for the Implementation of the Patent Law of the People's Republic of China on January 9, 2010) 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 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 3 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 4 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 one month as of the date of announcement. Article 5 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 6 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 petitions for recovering his/her right under Paragraph 1 or 2 of this Article, he/she shall submit a petition for the recovery of right, state the reason, attach the supporting documents when necessary, and handle the formalities that should be handled before the loss of right; where a party concerned petitions for recovering his/her right under Paragraph 2 of this Article, he/she shall also pay a petition fee for the recovery of right. 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 68 of the Patent Law. Article 7 Where a patent application involves the interests of national defense and needs to be maintained confidential, it shall be accepted and examined by the institution for patent of national defense. Where a patent application which involves the interests of national defense and needs to be maintained confidential is 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. If the institution for patent of national defense believes that there is no reason to reject it upon examination, the administrative department for patent under the State Council shall make a decision of granting the patent right of national defense. Where the administrative department for patent under the State Council believes that a patent application of invention or utility model which has been accepted by it involves national security or vital interests other than the interests of national defense, it shall immediately make a decision of treating it as a secret patent application and notify the applicant accordingly. The examination and reexamination of a secret patent application and the announcement of patent invalidation shall be prescribed by the administrative department for patent under the State Council. Article 8 The term 'an invention or utility model accomplished in China' mentioned in Article 20 of the Patent Law refers to an invention or utility model the material contents of whose technical scheme being accomplished in China. Any entity or individual that intends to file an application in a foreign country for patenting an invention or utility model accomplished in China shall report to the administrative department for patent under the State Council for confidentiality review by either way as described below: (1) To directly file an application for patent in a foreign country or file an international application for patent with a competent foreign institution, the entity or individual shall file a request with the administrative department for patent under the State Council beforehand, elaborating the technical scheme; (2) To file an application for patent in a foreign country or file an international application for patent with a competent foreign institution after applying to the administrative department for patent under the State Council, the entity or individual shall file a request with the administrative department for patent under the State Council before filing an application for patent in a foreign country or filing an international application for patent with a competent foreign institution. Where an international application for patent has been filed with the administrative department for patent under the State Council, it shall be deemed that a request for confidentiality review has been filed simultaneously. Article 9 Where the administrative department for patent under the State Council, after receiving a request under Article 8 of these Rules, believes that the invention or utility model may involve national security or vital interests and need to be treated as confidential, it shall send a confidentiality review notice to the applicant in a timely manner; and the applicant, if failing to receive any confidentiality review notice within four months after the request is filed, may file an application for patent with a foreign country or file an international application for patent with a competent foreign institution for that invention or utility model. The administrative department for patent under the State Council shall, after sending a confidentiality review notice under the preceding paragraph, make a decision on whether the patent shall be treated as confidential and notify the applicant in a timely manner. The applicant, if failing to receive a decision on treating the patent as confidential within six months after the request is filed, may file an application for patent with a foreign country or file an international application for patent with a competent foreign institution for that invention or utility model. Article 10 “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 11 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 12 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 of his retirement, removal from office, or termination of the employee or personnel relationship, provided that the invention-creation relates to his own duty in the entity where he worked or relates to a task assigned to him by the entity. “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 13 “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 14 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. To pledge a patent right, the pledgor and the pledgee shall jointly handle the registration of pledge at the administrative department for patent under the State Council. Chapter II Application for Patent Article 15 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 16 A request for the patent application of an invention, utility model or design shall indicate: (1) the name of the invention, utility model or design; (2) if the applicant is a Chinese entity or individual, the name, address, zip code, and organizational code or resident's identify card number thereof; if the applicant is a foreigner, a foreign enterprise or any other foreign organization, the name, nationality or country or region of registration thereof; (3) the name of the inventor or designer; (4) if the applicant has entrusted a patent agency to file the application, the name and institutional code of the agency, and the name, practicing certification number and telephone number of the patent agent designated by the agency; (5) if priority right has been claimed, the application date and number of the first patent application filed by the applicant or the name of the acceptance organ; (6) the signature or seal affixed by the applicant or the patent agency; (7) a list of the application documents; (8) a list of appended documents; and (9) other matters that shall be specified. Article 17 The specification of an application for a patent for invention or utility model shall indicate the 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. The description of a patent application of utility model shall contain a drawing of the shape, structure or a combination thereof of the product requiring protection. Article 18 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 19 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 20 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 21 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 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 22 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 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 23 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 24 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 25 Where an applicant for a patent for invention has a sample of biomaterial deposited in accordance with Article 24 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 26 The term “generic resources” as mentioned in the Patent Law refers to the substances which are taken from human bodies, animals, plants or microorganisms, which contain hereditary units and have actual or potential values; the term 'invention-creations accomplished by using generic resources' as mentioned in the Patent Law refers to the invention-creations accomplished by utilizing the hereditary functions of generic resources. A patent application of an invention-creation accomplished based on generic resources shall state the fact in the request and fill out a form made by the administrative department for patent under the State Council. Article 27 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 The summary of a design shall contain the name and uses of the design and the design essentials and specify a drawing or photograph which best demonstrates the design essentials. The omission of the view and the colors for which protection is sought shall be specified in the summary. A patent application for multiple similar designs of a same product shall designate in the summary one of the designs as the basic one. The summary shall not contain any commercial advertising element 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 surpass 15 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 term 'an international exhibition sponsored or recognized by the Chinese Government' as mentioned in Item 1 of Article 24 of the Patent Law refers to an international exhibition described in the Convention Relating to International Exhibitions and registered or approved by the Bureau of International Expositions. 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 3 of this Article, or fails to submit the certified document within a specified time limit in accordance with Paragraph 4 of this Article, the application may not be subject to Article 24 of the Patent Law. Article 31 Where anyone claims for foreign priority under Article 30 of the Patent Law , a duplicate of the prior application document submitted by the applicant shall be certified by the original acceptance organ. Pursuant to the agreement concluded by the administrative department for patent under the State Council and the acceptance organ, if the administrative department for patent under the State Council receives the duplicate of the prior application document through electronic data interchange, it shall be deemed that the applicant has submitted the duplicate of the prior application document which has been certified by the acceptance organ. Where domestic priority is claimed, if the applicant has specified the date and sequence number of the prior application in the request, it shall be deemed that the duplicate of the prior application document have been submitted. Where priority is claimed, if either the date, sequence number or acceptance organ of the prior application is missing or wrongly entered in the request, the administrative department for patent under the State Council shall notify the applicant to supplement or correct within a certain time limit; if the applicant fails to do so, it shall be deemed that no claim has been made for priority right. Where the name of the applicant for priority is not identical with that recorded in the duplicate of the prior application document, a priority assignment certificate shall be provided, or it shall be deemed that no claim has been filed for priority. Where a design patent applicant that claims for foreign priority fails to give a summary on the design in the prior application document, it shall not affect the applicant's right of priority, provided that the summary submitted by the applicant under Article 28 of these Rules meets the description of the drawing or photograph in the prior application document. Article 32 Any applicant may claim one or more rights of priority f......