Rules for the Implementation of the Patent Law of the Peoples Republic of China 2010 Revision English versionRules for the Implementation of the Patent Law of the Peoples Republic of China Promulgated

artment of the State Council may require a Chinese translation to be submitted within a specified time limit. Article 4 Any patent agency or patent attorney engaging in patent agency services shall comply with the Patent Law and these Rules, and shall be subject to supervision and administration by the patent administration department of the State Council. Article 5 The patent administration department of the State Council shall be responsible for the implementation of the Patent Law and these Rules, and shall exercise the following functions and powers: (1) to examine and approve patent applications; (2) to grant or reject patents; (3) to register patent licensing contracts and make announcements thereof; (4) to handle patent disputes; (5) to carry out publicity and education on patent laws and regulations; (6) to supervise and administer patent agencies and patent attorneys; (7) to conduct other functions and powers as prescribed by laws, regulations and rules. Chapter II Patent Application Article 6 The applicant for a patent shall submit a written application to the patent administration department of the State Council, and shall provide the following documents and materials: (1) a request for patent; (2) a description of the invention or utility model; (3) claims; (4) abstract; (5) drawings necessary for understanding the invention or utility model; (6) where the invention or utility model involves a biological material which is disclosed in the description, a deposit certificate issued by a depository institution recognized by the State shall be submitted; (7) where priority is claimed, a certified copy of the earlier application document shall be submitted; (8) where a patent agency is appointed, a power of attorney shall be submitted. Article 7 The request for patent shall contain the title of the invention or utility model, the name of the inventor or creator, the name and address of the applicant, and the signature or seal of the applicant or his agent. Article 8 The description of the invention or utility model shall disclose the invention or utility model in a manner sufficiently clear and complete so as to enable a person skilled in the relevant field to carry it out. Article 9 The claims shall define the scope of protection sought for the invention or utility model. Article 10 The abstract shall provide a brief technical disclosure of the invention or utility model. Article 11 The drawings shall be clear in texture and shall not contain any text matter. Article 12 Where an applicant claims priority according to an agreement concluded between the People's Republic of China and a foreign country, or an international treaty to which both countries are parties, the patent administration department of the State Council may, within the prescribed time limit, request the applicant to submit a certified copy of the earlier application document and a Chinese translation thereof. Article 13 Where an applicant appoints a patent agency, the power of attorney shall specify the matters entrusted to the agency and shall be signed or sealed by the applicant or his agent. Article 14 Where an applicant is a foreigner or a foreign enterprise or other organization that has no habitual residence or business office in China, he shall appoint a patent agency. Article 15 The patent administration department of the State Council shall, within three months from the date of receipt of the patent application, examine whether the formalities have been complied with. Where the formalities have not been complied with or where any document is incomplete, the applicant shall be notified to make corrections within the prescribed time limit. Where the applicant fails to make corrections within the prescribed time limit, the application shall be deemed withdrawn. Article 16 Where the patent administration department of the State Council finds that the patent application complies with the requirements of the Patent Law and these Rules, it shall grant a patent right for the invention or utility model and register the same, and shall issue a certificate of patent right. Article 17 Where the patent administration department of the State Council finds that the patent application does not comply with the requirements of the Patent Law and these Rules, it shall notify the applicant in writing of the reasons for rejection, and shall give the applicant an opportunity to make a statement and to provide evidence. Where the applicant makes no statement and provides no evidence, or where the statement and evidence provided are not sufficient to overcome the reasons for rejection, the patent administration department of the State Council shall reject the patent application. Where the applicant is dissatisfied with the decision of rejection, he may, within three months from the date of receipt of the notification of rejection, request the patent administration department of the State Council to make a re-examination. Article 18 Where the patent administration department of the State Council finds that the patent application involves state secrets, it shall not grant a patent right and shall notify the applicant in writing. Where the applicant is dissatisfied with the notification, he may, within three months from the date of receipt thereof, apply for a review to the patent re-examination board of the State Council. Where the patent re-examination board of the State Council finds that the patent application does not involve state secrets, it shall order the patent administration department of the State Council to grant a patent right and register the same, and to issue a certificate of patent right. Article 19 Where the patent administration department of the State Council finds that the invention or utility model for which a patent right is applied for is not new, does not involve inventive step, or is not industrially applicable, it shall reject the patent application. Article 20 Where the invention or utility model for which a patent right is applied for involves a solution for a problem in a technical field, and the solution is not obvious to a person skilled in the relevant field, it shall be deemed as involving an inventive step. Article 21 The invention or utility model for which a patent right is applied for shall be industrially applicable if it can be made or used and can produce effective results. Article 22 Where the applicant for a patent has made an invention or created a utility model and has obtained a patent right for the same invention or utility model in a foreign country, he shall apply for a patent within twelve months from the date of the first application in a foreign country; where priority is claimed, the time limit shall be twelve months from the date of the first application from which priority is claimed. Article 23 Where two or more applicants apply for a patent for the same invention or utility model, the patent administration department of the State Council shall grant a patent right to the applicant who first filed the application. Where two or more applicants file patent applications for the same invention or utility model on the same day, the patent administration department of the State Council shall grant a patent right to the applicant who has the right to do so in accordance with an agreement concluded between the applicants. Where no agreement is reached, none of the applicants shall be granted a patent right. Where a dispute arises over the right to apply for or own a patent, it shall be settled in accordance with the relevant laws and regulations. Chapter III Patent Examination Article 24 The patent administration department of the State Council shall examine the patent application for compliance with the requirements of the Patent Law and these Rules. Article 25 The examination of a patent application shall include formal examination and substantive examination. Article 26 The formal examination of a patent application shall be conducted to determine whether the application documents comply with the requirements of the Patent Law and these Rules. Article 27 The substantive examination of a patent application shall be conducted to determine whether the invention or utility model for which a patent right is applied for complies with the requirements of the Patent Law and these Rules. Article 28 In conducting the substantive examination of a patent application, the patent administration department of the State Council shall examine whether the invention or utility model is new, involves an inventive step, and is industrially applicable. Article 29 In conducting the substantive examination of a patent application, the patent administration department of the State Council may consult any relevant department or expert; where necessary, it may also request the applicant to provide further explanations or to provide experimental data. Article 30 If the patent administration department of the State Council finds that the invention or utility model for which a patent right is applied for does not comply with the requirements of the Patent Law and these Rules, it shall notify the applicant in writing of the reasons for rejection, and shall give the applicant an opportunity to make a statement and to provide evidence. Where the applicant makes no statement and provides no evidence, or where the statement and evidence provided are not sufficient to overcome the reasons for rejection, the patent administration department of the State Council shall reject the patent application. Where the applicant is dissatisfied with the decision of rejection, he may, within three months from the date of receipt of the notification of rejection, request the patent administration department of the State Council to make a re-examination. Article 31 The patent administration department of the State Council shall, within three years from the date of receipt of the patent application, complete the substantive examination and make a decision on granting or rejecting the patent right. Where the patent administration department of the State Council fails to make a decision within the prescribed time limit, the applicant may request the patent administration department of the State Council to make a decision; where the applicant fails to make such a request, the patent application shall be deemed withdrawn. Article 32 Where the patent administration department of the State Council decides to grant a patent right for the invention or utility model, it shall register the same and issue a certificate of patent right. Article 33 The patent administration department of the State Council shall make an announcement of the grant of a patent right and register the same. The announcement shall include the title of the invention or utility model, the name of the inventor or creator, the name and address of the patentee, the date of grant of the patent right, the number of the patent, and the scope of protection. Article 34 Where the patent administration department of the State Council rejects the patent application, it shall notify the applicant in writing of the reasons for rejection and the legal basis thereof, and shall give the applicant an opportunity to make a statement and to provide evidence. Where the applicant makes no statement and provides no evidence, or where the statement and evidence provided are not sufficient to overcome the reasons for rejection, the patent application shall be deemed rejected. Where the applicant is dissatisfied with the decision of rejection, he may, within three months from the date of receipt of the notification of rejection, request the patent administration department of the State Council to make a re-examination. Article 35 Where the patent administration department of the State Council grants a patent right in error, any entity or individual may request the patent re-examination board of the State Council to declare the patent right invalid. Chapter IV Patent Re-examination and Invalidation Article 36 Any entity or individual may, within three months from the date of the announcement of the grant of a patent right, request the patent re-examination board of the State Council to re-examine the patent right. Article 37 The patent re-examination board of the State Council shall re-examine the patent right within twelve months from the date of receipt of the request for re-examination. Where the patent re-examination board of the State Council finds that the patent right does not comply with the requirements of the Patent Law and these Rules, it shall declare the patent right invalid. Article 38 Any entity or individual may request the patent re-examination board of the State Council to declare a patent right invalid on any of the following grounds: (1) the invention or utility model for which the patent right is granted is not a patentable subject matter as prescribed by the Patent Law; (2) the patent right is granted in violation of the provisions of Article 22 of the Patent Law; (3) the patent right is granted in violation of the provisions of Article 24 of the Patent Law; (4) the invention or utility model for which the patent right is granted is not new, does not involve inventive step, or is not industrially applicable; (5) the patent right is granted in violation of the provisions of Article 26 of the Patent Law; (6) the patent application documents contain contents that exceed the scope of the disclosure of the description and claims originally filed, or contain contents that are not originally disclosed; (7) where priority is claimed, the priority is not established; (8) the patentee has no right to apply for a patent or to own the patent right. Article 39 Where the patent re-examination board of the State Council declares a patent right invalid in accordance with the provisions of Article 37 or Article 38 of these Rules, it shall make an announcement thereof. Article 40 Any entity or individual may, within three months from the date of the announcement of the grant of a patent right, request the patent administration department of the State Council to declare the patent right invalid if the patent right falls under any of the circumstances prescribed in Items (2) to (4) and Item (8) of Article 38 of these Rules. Article 41 The patent administration department of the State Council shall examine the request for invalidation of a patent right within six months from the date of receipt of the request. Where the patent administration department of the State Council finds that the patent right is invalid, it shall declare the patent right invalid and make an announcement thereof. Article 42 Where the patent administration department of the State Council rejects the request for invalidation of a patent right, the requester may, within three months from the date of receipt of the notification of rejection, request the patent re-examination board of the State Council to declare the patent right invalid. Article 43 Where any entity or individual applies to the patent re-examination board of the State Council for a declaration of invalidation of a patent right, the patentee shall be notified thereof and shall be given an opportunity to make a statement and to provide evidence within a prescribed time limit. Where the patentee makes no statement and provides no evidence, or where the statement and evidence provided are not sufficient to overcome the reasons for invalidation, the patent re-examination board of the State Council shall declare the patent right invalid. Chapter V Patent Infringement and Dispute Resolution Article 44 Any entity or individual that, without the consent of the patentee, exploits the patentee's patent for production or business purposes shall be liable for infringement, and shall bear civil liability for the infringement. Article 45 Any entity or individual that, without the consent of the patentee, offers to sell, sells, or imports the product directly obtained by the exploitation of the patentee's patent for production or business purposes shall be liable for infringement, and shall bear civil liability for the infringement. Article 46 Where the patentee or any interested party has evidence to prove that his patent is being infringed or is about to be infringed, he may request the people's court to order the infringer to stop the infringing act, to eliminate the adverse effects, and to compensate for the losses suffered. Where the patentee or any interested party can provide preliminary evidence to prove that his patent is being infringed or is about to be infringed, he may request the people's court to take preservation measures. Article 47 Where the patentee or any interested party has evidence to prove that his patent is being infringed or is about to be infringed, he may request the patent administration department of the State Council to handle the matter. The patent administration department of the State Council shall, after examination, handle the matter by ordering the infringer to stop the infringing act, to eliminate the adverse effects, and to compensate for the losses suffered. Where the patent administration department of the State Council finds that the infringement is serious, it may transfer the case to the people's court for handling in accordance with the law. Article 48 Where a dispute arises over the right to apply for or own a patent, or over determination of the scope of protection of a patent right, it shall be settled in accordance with the relevant laws and regulations. Chapter VI Supplementary Provisions Article 49 Where any certificate or document submitted in accordance with the provisions of the Patent Law and these Rules contains any false material or is forged or altered, the patent administration department of the State Council shall reject the patent application or shall declare the patent right invalid, and shall investigate the legal liability of the parties concerned. Article 50 Where any entity or individual has any objection to the decision made by the patent administration department of the State Council, he may apply for administrative review or bring an administrative lawsuit in accordance with the law. Article 51 These Rules shall come into force as of July 1, 2001. The Rules for the Implementation of the Patent Law of the People's Republic of China (promulgated by the State Council on February 7, 1995) shall be repealed simultaneously