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

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

 

  (June 15, 2001, the State Council of the People's Republic of China Order No. 306 was promulgated according to the "Decision of the State Council on Amending the Implementation Rules of the Patent Law of the People's Republic of China" on December 28, 2002. The first revision was based on January 9, 2010. The Second Revision of the Decision of the State Council on Amending the Implementation Rules of the Patent Law of the People's Republic of China

  Chapter I General

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 The various procedures stipulated in the Patent Law and these Rules shall be handled in writing or in other forms as stipulated by the patent administration department under the State Council.

Article 3 All documents submitted in accordance with the provisions of the Patent Law and these Rules shall be in Chinese; if there are scientific and technical terms stipulated by the State, the normative words shall be adopted; if the names of foreigners, geographical names and scientific and technical terms are not uniformly translated in Chinese, they shall be indicated. original.

The various documents and supporting documents submitted in accordance with the Patent Law and these Rules are in a foreign language. The patent administration department under the State Council may, if it deems it necessary, require the parties to attach a Chinese translation within the specified time limit; if it is not attached, it shall be deemed not to have submitted the document. And supporting documents.

Article 4 The various postal documents sent to the Patent Administration Department under the State Council shall be the date of delivery of the postmark; if the postmark date is unclear, the date of receipt by the Patent Administration Department under the State Council shall be the date of submission.

Various documents of the patent administration department under the State Council may be delivered to the parties by post, directly or by other means. If the party entrusts a patent agency, the document shall be sent to the patent agency; if the patent agency is not entrusted, the document shall be sent to the contact specified in the request.

The various documents mailed by the Patent Administration Department under the State Council shall be presumed to be the date on which the parties receive the documents, 15 days after the date of issuance of the documents.

According to the provisions of the patent administration department under the State Council, documents that should be directly delivered shall be delivered on the date of delivery.

If the address of the document is unclear and cannot be mailed, it may be delivered to the party by way of an announcement. The document is deemed to have been delivered for one month from the date of the announcement.

Article 5 The first day of the various periods specified in the Patent Law and these Rules shall not be counted in the time limit. If the time limit is calculated in years or months, the corresponding day of the last month shall be the expiration date; if there is no corresponding day in the month, the last day of the month shall be the expiration date; the expiration date shall be the legal holiday, and shall be on leave. The first working day in the future is the expiration date.

Article 6 If the party delays the time limit stipulated in the Patent Law or these Rules or the time limit specified by the patent administration department under the State Council due to irresistible causes, resulting in the loss of its rights, it shall expire at the latest within 2 months from the date of the elimination of the obstacle. Within two years from the date of the application, the patent administration department under the State Council may request the restoration of rights.

Except as provided in the preceding paragraph, if the party delays the period of time specified in the Patent Law or these Rules or the period specified by the Patent Administration Department of the State Council for other reasons, resulting in the loss of its rights, it may be received from the date of receipt of the notice of the Patent Administration Department under the State Council. Within 2 months, the State Council's patent administration department shall request the restoration of rights.

Where the party requests to restore the right in accordance with the provisions of paragraph 1 or 2 of this Article, it shall submit a request for restoration of rights, explain the reasons, attach relevant certification documents if necessary, and handle the corresponding formalities before the loss of rights; If the provisions of the paragraph request the restoration of rights, the claim for restoration of rights shall also be paid.

Where the party requests to extend the time limit designated by the patent administration department under the State Council, it shall, before the expiration of the time limit, explain the reasons to the patent administration department under the State Council and go through relevant formalities.

The provisions of paragraphs 1 and 2 of this Article shall not apply to the period specified in Articles 24, 29, 42 and 68 of the Patent Law.

Article 7 Where a patent application involves the confidentiality of national defense interests, it shall be accepted and examined by the national defense patent agency; if the patent application accepted by the patent administration department under the State Council involves confidentiality of national defense interests, it shall be promptly transferred to the national defense patent agency for review. If the reasons for the refusal are not found by the defense patent agency, the patent administration department under the State Council shall make a decision to grant the patent right for defense.

Where the patent administration department under the State Council considers that the invention or utility model patent application accepted by the State Council involves national security or major interests other than national defense interests that require confidentiality, it shall promptly make a decision on the handling of the confidential patent application and notify the applicant. The special procedures for the examination, review and invalidation of confidential patent applications shall be prescribed by the patent administration department under the State Council.

Article 8 The invention or utility model completed in China referred to in Article 20 of the Patent Law refers to the invention or utility model completed in China within the substantive content of the technical program.

Any unit or individual that applies for a patent for a invention or utility model completed in China shall apply to the patent administration department under the State Council for confidentiality review in accordance with one of the following methods:

(1) If a patent application is filed directly to a foreign country or an international application for a patent is filed with a foreign institution concerned, it shall submit a request to the patent administration department under the State Council in advance, and specify its technical plan in detail;

(2) After applying for a patent to the patent administration department under the State Council, if it intends to apply for a patent to a foreign country or submit an international patent application to a foreign institution concerned, it shall make a request to the patent administration department under the State Council before applying for a patent to a foreign country or submitting an international patent application to a foreign institution concerned. .

If an international patent application is filed with the patent administration department under the State Council, it shall be deemed that a confidentiality review request has been filed at the same time.

Article 9 After receiving the request submitted in accordance with the provisions of Article 8 of these Rules, the patent administration department under the State Council shall, after examination, consider that the invention or utility model may involve national security or a major interest requiring confidentiality, and shall promptly issue a confidentiality review notice to the applicant; If the applicant fails to receive the confidentiality review notice within 4 months from the date of the request for submission, he may apply for a patent for the invention or utility model or submit an international patent application to the relevant foreign institution.

Where the patent administration department under the State Council has notified the confidentiality review in accordance with the provisions of the preceding paragraph, it shall promptly make a decision on whether confidentiality is required and notify the applicant. If the applicant fails to receive a decision requiring confidentiality within 6 months from the date of submission of the request, he may apply for a patent for the invention or utility model or file an international patent application with the foreign institution concerned.

Article 10 Inventions and creations that violate the law as mentioned in Article 5 of the Patent Law do not include inventions and creations that are only prohibited by law.

Article 11 Except as provided in Articles 28 and 42 of the Patent Law, the date of application referred to in the Patent Law, which has priority, refers to the priority date.

The application date referred to in these Rules refers to the filing date specified in Article 28 of the Patent Law unless otherwise specified.

Article 12 The service inventions and creations completed by the implementation of the tasks of the unit referred to in Article 6 of the Patent Law refer to:

(1) inventions and creations made in the course of their duties;

(2) performing the inventions and creations made by the tasks other than the ones delivered by the unit;

(3) Inventions created after retirement, transfer from the original unit, or within one year after the termination of labor or personnel relations, in connection with their own work undertaken by the original unit or the tasks assigned by the original unit.

The unit referred to in Article 6 of the Patent Law includes temporary work units; the material and technical conditions of the unit referred to in Article 6 of the Patent Law refer to the funds, equipment, parts, raw materials or technical materials not disclosed to the unit. .

Article 13 The term "inventor or designer" as used in the Patent Law refers to a person who makes creative contributions to the substantive characteristics of inventions and creations. In the process of completing the invention and creation, only those who are responsible for organizing the work, those who provide convenience for the use of material and technical conditions, or those who perform other auxiliary work are not inventors or designers.

Article 14 In addition to the transfer of patent rights in accordance with Article 10 of the Patent Law, if the patent right is transferred due to other reasons, the party concerned shall, with the relevant certification documents or legal documents, go through the formalities for transferring the patent right to the patent administration department under the State Council.

The patent implementation license contract concluded between the patentee and others shall be filed with the patent administration department under the State Council within 3 months from the effective date of the contract.

If the patent is granted, the pledgor and the pledgee shall jointly go through the pledge registration with the patent administration department under the State Council.


Chapter II Application for Patent



Article 15 Where a patent is filed in writing, it shall submit the application documents in duplicate to the patent administration department under the State Council.

Where a patent is applied for in other forms as stipulated by the patent administration department under the State Council, it shall meet the requirements of the regulations.

Where an applicant entrusts a patent agency to apply for a patent and handles other patent affairs with the patent administration department under the State Council, it shall simultaneously submit a power of attorney stating the power of entrustment.

Where the applicant has more than 2 persons and has not entrusted a patent agency, the first applicant specified in the request shall be the representative, unless otherwise stated in the request.

Article 16 The request for an invention, utility model or design patent application shall state the following:

(1) the name of the invention, utility model or design;

(2) The applicant is a Chinese entity or individual whose name or name, address, zip code, organization code or resident identification number; if the applicant is a foreigner, foreign enterprise or other foreign organization, its name or name, Nationality or registered country or region;

(3) the name of the inventor or designer;

(4) The name, agency code and the name, license number and contact number of the patent attorney designated by the applicant when the applicant entrusts the patent agency;

(5) Where the applicant claims priority, the applicant's first application for the patent application (hereinafter referred to as the prior application), the application number and the name of the original accepting institution;

(6) The signature or seal of the applicant or patent agency;

(7) a list of application documents;

(8) A list of attached documents;

(9) Other related matters that need to be clearly stated.

Article 17 The description of an invention or utility model patent application shall state the name of the invention or utility model, which shall be consistent with the name in the request. The instructions should include the following:

(1) Technical field: indicate the technical field to which the technical solution required for protection belongs;

(2) Background technology: a background material useful for understanding, retrieving, and reviewing inventions or utility models; where possible, and citing documents reflecting these background technologies;

(III) Contents of the invention: the technical problems to be solved by the invention or utility model and the technical solutions adopted to solve the technical problems, and the beneficial effects of the invention or utility model are written in accordance with the prior art;

(4) Description of the drawings: The descriptions have drawings, and the drawings are briefly described;

(5) Specific implementation methods: detailing the preferred mode that the applicant believes to realize the invention or utility model; if necessary, exemplify; with the drawings, with reference to the accompanying drawings.

Applicants for invention or utility model patents shall write the instructions in the manner and order specified in the preceding paragraph, and write the title in front of each part of the specification, unless the nature of the invention or utility model is written in other ways or in sequence to save the space of the manual and Others can accurately understand their inventions or utility models.

The description of the invention or utility model shall be clearly defined by words and statements, and shall not use quotations such as those described in the claims... or commercial propaganda.

Where the invention patent application contains one or more nucleotide or amino acid sequences, the specification shall include a sequence listing in accordance with the regulations of the patent administration department under the State Council. The applicant shall submit the sequence listing as a separate part of the specification and submit a copy of the sequence form in computer readable form in accordance with the regulations of the patent administration department under the State Council.

The utility model patent application specification should have drawings showing the shape, configuration or combination of the claimed product.

Article 18 Several drawings of inventions or utility models shall be numbered in the order of "Figure 1, Figure 2, ...".

The reference numerals not mentioned in the text of the description of the invention or utility model shall not appear in the drawings, and the reference numerals not appearing in the drawings may not be mentioned in the text of the specification. The reference numerals indicating the same components in the application documents should be identical.

No other comments should be included in the drawings except for the necessary words.

Article 19 The claims shall describe the technical features of the invention or utility model.

Where the claims have several claims, they should be numbered sequentially in Arabic numerals.

The technical terms used in the claims shall be consistent with the scientific terms used in the specification, and may be of a chemical formula or a mathematical formula, but may not have illustrations. Except as absolutely necessary, the words “as described in the instructions...” or “as shown in the figure” may not be used.

The technical features in the claims may be referred to the corresponding reference numerals in the drawings, which should be placed after the corresponding technical features and placed in parentheses for easy understanding of the claims. The reference signs are not to be construed as limiting the claim.

Article 20 The claims shall have independent claims and may also have dependent claims.

The independent claims should reflect the technical solutions of the invention or utility model as a whole, and record the necessary technical features for solving the technical problems.

The dependent claims should be further defined by the appended claims, with additional technical features.

Article 21 The independent claims of an invention or utility model shall include the preamble and the characteristic part, and shall be written in accordance with the following provisions:

(a) Preamble: the subject name and the inventive or utility model theme of the claimed invention or utility model, and the necessary technical features common to the closest prior art;

(b) Feature Part: Use the term "its feature is..." or a similar term to indicate that the invention or utility model differs from the technical features of the closest prior art. These features, together with the features recited in the preamble, define the scope of the invention or utility model claimed.

The nature of the invention or utility model is not suitable for expression in the manner of the preceding paragraph, and the independent claim may be written in other ways.

An invention or utility model should have only one independent claim and be preceded by the dependent claims of the same invention or utility model.

Article 22 The dependent claims of an invention or utility model shall include a reference part and a limited part, written in accordance with the following provisions:

(1) Reference part: the number of the claim cited and its subject name;

(2) Limited part: Write the additional technical features of the invention or utility model.

The dependent claims can only refer to the preceding claims. The dependent claims of the two or more claims may be recited only in the alternatives and may not be used as the basis of the other.

Article 23 The abstract of the specification shall state the summary of the disclosure of the invention or utility model patent application, that is, the name of the invention or utility model and the technical field to which it belongs, and clearly reflect the technical problem to be solved and solve the problem. The main points of the technical plan and the main uses.

The abstract of the specification may contain the chemical formula that best describes the invention; the patent application with the drawings should also provide a description of the invention or the utility model.