Patent Law of the People's Republic of China

发表时间:2017-09-02    浏览次数:1093

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 Administrative Organ under the State Council is responsible for the patent work nationwide, receives and examines patent applications and grants patent rights for inventions-creations that conform to he provisions of this Law. 
The authorities for patent work under the people's governments of provinces autonomous regions and municipalities directly under the Central Government are responsible for the patent administration work of their own administrative areas.

Article 4. Where an invention-creation for which a patent is applied 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. An invention-creation, made by a person in execution of the tasks of the entity to which he belongs, or made by him by mainly using the material and technical means of the entity is a service invention. For a service invention-creation, the right to apply for a patent belongs to the entity. After the application is approved, the entity shall be the patentee. 
For a non-service invention-creation, the right to apply for a patent belongs to the inventor or creator. After the application is approved, the inventor or creator shall be the patentee. 
For an invention-creation, made by a person by using the material and technical means of the entity to which he belongs, and where the entity and the inventor or creator has entered into an agreement under which there is provision on who has right to apply for a patent and to whom the patent right belongs, the provisions of the agreement shall prevail.

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 jointly made by two or more entities or individuals, or made by an entity or individual in execution of a commission for another entity or individual, the right to apply for a patent belongs, unless otherwise agreed upon, to the entity or individual which made, or to the entities or individual which jointly made, the invention-creation. After the application is approved, the entity or individual that applied for it shall be the patentee.

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 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 and should register it with the patent administrative organ under the State Council. The patent administrative organ shall announce the registration .The assignment will come into force upon the date of registration.

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, exploit the patent, that is, make, use, offer to sell, sell or import the patented product; or use the patented process or use, offer to sell, sell or import 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, exploit the design, that is, make, sell or import the product incorporating its or his patented design, for production or business purposes.

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. For any patent for invention belonging to state-owned enterprises or entities, which is of great significance to national or public interests, the competent departments concerned of the State Council as well as the people's governments of provinces, autonomous regions or municipalities directly under the Central Government have the power to decide, after approved by the State Council, the said patented invention be spread and exploited within the prescribed scope and to allow designated entities to exploit it. The entities that exploit it shall, according to the prescriptions of the State, pay exploitation fees to the patentee.
Making reference to the provisions of the preceding paragraph may treat any patent for invention belonging to a Chinese entity under collective ownership or an individual, which is of great significance to national or public interests and is in need of spreading and exploitation, alike.

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 that is granted the patent right shall award to the inventor or creator of a service invention-creation a reward and, upon the exploitation of the patented invention-creation, shall award to the inventor or creator an appropriate remuneration based on the extent of exploitation 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 a 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 patent administrative organ under the State Council 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.
The patent agencies should abide by the laws and administrative regulations and should deal with patent applications and other patent matters according to the commissions of the clients. Except for those applications that have been published or announced, the agencies should bear the responsibility for keeping confidential the content of its clients' inventions-creations. The administrative regulations for administering the patent agencies shall be formulated by the State Council.

Article 20. Where any Chinese entity or individual intends to file an application in a foreign country for a patent for its or his domestic invention-creation, it or he shall file first an application for patent with the patent administrative organ under the State Council and, shall appoint a patent agency designated by the said organ to act as its or his agent, and shall abide by the prescriptions of Article 4 in this law. 
Any Chinese entity of individual may, according to the international treaties concerned to which China is a party, file an international application for patent for its or his invention-creation. The applicant for the international application should abide by the provisions of the preceding paragraph.
The patent administrative organ under the State Council shall handle the international application for patent in line with the international treaty to which China is a party, this law and the administrative regulations concerned made by the State Council.

Article 21. The patent administrative organ under the State Council and the patent reexamination board subordinated to it shall handle patent applications and requests concerned according to law and in the spirit of objectiveness, justice, precision and punctuality.
Until the publication or announcement of the application for a patent, staff members of the patent administrative organ and other personnel involved have the duty to keep its content confidential.

Chapter II Requirements For Grant of Patent Right

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 any person without the consent of the applicant disclosed it.

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 items of the preceding paragraph, patent right may be granted in accordance with the provisions of this Law.

Chapter III Application For Patent

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 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 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.

Chapter IV Examination And Approval of Application For Patent

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 he 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 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 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 ut
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