Chapter III Examination and Approval of Application for Patent

Article 37 Where any of the following events occurs, a person who conducts 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 exercising his function:

(1) where he is a near relative of a party concerned or of such party's agent;

(2) where he has an interest in the application for patent or the patent right;

(3) where he has any other kinds of relations with a party concerned or with such party's agent that may influence impartial examination and hearing; or

(4) where he is a member of the Patent Reexamination Board who has taken part in the examination of the same application.

Article 38 Upon the receipt of an application for a patent for invention or utility model consisting of a request, a description (drawings must be included in an application for a utility model) and one or more claims, or an application for a patent for design consisting of a request, one or more drawings or photographs showing the design and a brief explanation, the patent administration department of the State Council shall accord the date of filing, issue a filing number, and notify the applicant.

Article 39 In any of the following circumstances, the patent administration department of the State Council shall refuse to accept the application and notify the applicant accordingly:

(1) where the application for a patent for invention or utility model does not contain a request, a description (the description of a utility model does not contain drawings) or claims, or the application for a patent for design does not contain a request, drawings or photographs, or a brief explanation;

(2) where the application is not writen in Chinese;

(3) where the application is not in conformity with the provisions of the first paragraph of Article 121 of these Rules;

(4) where the request does not contain the name or title, or address of the applicant;

(5) where the application is obviously not in conformity with the provisions of Article 18 or of the first paragraph of Article 19 of the Patent Law; or

(6) where the type of the application for a patent (patent for invention, utility model or design) is not clear and definite or cannot be ascertained.

Article 40 Where there are explanatory notes to the drawings in a description, but the drawings or part of the drawings are omitted, the applicant shall, within the time limit specified by the patent administration department of the State Council, either fumish the drawings or make a declaration for the deletion of the explanatory notes to the drawings. If the drawings are submitted by the applicant at a later date, the date of their submission or mailing to the patent administration department of the State Council shall be the date of filing of the application; if the explanatory notes to the drawings are deleted, the initial date of filing shall be retained.

Article 41 Where two or more applicants respectively file, on the same day (which means the date of filing or, where priority is claimed, the priority date), applications for patent for the identical invention-creation, they shall, after receipt of a notification from the patent administration department of the State Council, hold consultations among themselves to decide the person or persons who shall be entitled to file the application.

Where an applicant files on the same day (which means the date of filing) applications for both a patent for utility model and a patent for invention for the identical invention-creation, he or it shall, when filing the applications, state respectively that another patent application for the identical invention-creation has been filed by him or it; if the applicant fails to do so, the issue shall be handled in accordance with the provisions of the first paragraph of Article 9 of the Patent Law whereby only one patent right shall be granted for any identical invention-creation.

Where the patent administration department of the State Council announces the grant of a patent for utility model, it shall announce the statement made by the applicant in accordance with the provision of the second paragraph of this Article that he or it has simultaneously filed an application for a patent for invention.

Where it is found after examination that there is no ground for rejecting the application for patent for invention, the patent administration department of the State Council shall notify the applicant that he or it is required to declare, within a specified time limit, the abandonment of his or its patent for utility model. If the applicant so declares, the patent administration department of the State Council shall make a decision to grant a patent for invention, and announce at the same time both the grant of the patent for invention and the declaration of the applicant to abandon his or its patent for utility model. If the applicant refuses to abandon his or its patent for utility model, the patent administration department of the State Council shall reject the application for patent for invention; if the applicant fails to respond within the specified time limit, the application for patent for invention shall be deemed to have been withdrawn.

The patent right for utility model ceases from the date of the announcement of grant of the patent for invention.

Article 42 Where an application for a patent contains two or more inventions, utility models or designs, the applicant may, before the expiration of the time limit provided for in the first paragraph of Article 54 of these Rules, submit to the patent administration department of the State Council a divisional application; however, where an application for patent has been rejected, withdrawn or is deemed to have been withdrawn, no divisional application may be filed.

If the patent administration department of the State Council finds that an application for a patent is not in conformity with the provisions of Article 31 of the Patent Law or of Article 34 or 35 of these Rules, it shall notify the applicant that he or it is required to amend the application within a specified time limit; if the applicant fails to make any response after the expiration of the specified time limit, the application shall be deemed to have been withdrawn.

The type of the divisional application shall be the same as that of the initial application.

Article 43 A divisional application filed in accordance with the provisions of Article 42 of these Rules shall be entitled to the date of filing and, if priority is claimed, the priority date of the initial application, provided that the divisional application does not go beyond the seope of disclosure contained in the initial application.

For any divisional application the relevant formalities shall be performed as required in the Patent Law and these Rules.

The filing number and the date of filing of the initial application shall be indicated in the request of the divisional application. When the divisional application is filed, it shall be accompanied by a copy of the initial application; if priority is claimed for the initial application, a copy of the priority document of the initial application shall also be submitted by the applicant.

Article 44 Preliminary examination referred to in Articles 34 and 40 of the Patent Law means the check of an application for a patent to see whether or not it contains the documents as provided for in Article 26 or 27 of the Patent Law and other necessary documents, and whether or not those documents are in the preseribed form; such check shall also include the following:

(1) whether or not any application for a patent for invention obviously falls under Article 5 or 25 of the Patent Law, or is not in conformity with the provisions of Article 18, the first paragraph of Article 19 or the first paragraph of Article 20 of the Patent Law, or Article 16 or the second paragraph of Article 26 of these Rules, or is obviously not in conformity with the provisions of the second paragraph of Article 2, the fifth paragraph of Article 26, the first paragraph of Article 31 or Article 33 of the Patent Law, or Articles 17 to 21 of these Rules;

(2) whether or not any application for a patent for utility model obviously falls under Article 5 or 25 of the Patent Law, or is not in conformity with the provisions of Article 18, the first paragraph of Article 19 or the first paragraph of Article 20 of the Patent Law, or Articles 16 to 19 or Articles 21 to 23 of these Rules, or is obviously not in conformity with the provisions of the third paragraph of Article 2, the second or fourth paragraph of Article 22, the third or fourth paragraph of Article 26, the first paragraph of Article 31 or Article 33 of the Patent Law, or Article 20 or the first paragraph of Article 43 of these Rules, or is not entitled to a patent right in accordance with the provisions of Article 9 of the Patent Law;

(3) whether or not any application for a patent for design obviously falls under Article 5 or subparagraph (6) of the first paragraph of Article 25 of the Patent Law, or is not in conformity with the provisions of Article 18 or the first paragraph of Article 19 of the Patent Law, or Article 16, 27 or 28 of these Rules, or is obviously not in conformity with the provisions of the fourth paragraph of Article 2, the first paragraph of Article 23, the second paragraph of Article 27, the second paragraph of Article 31 or Article 33 of the Patent Law, or the first paragraph of Article 43 of these Rules, or is not entitled to a patent right in accordance with the provisions of Article 9 of the Patent Law;and

(4) whether or not any application document is in conformity with the provisions of Article 2 or the first paragraph of Article 3 of these Rules.

The patent administration department of the State Council shall notify the applicant of its opinions after checking his or its application and require him or it to state his or its observations or to rectify his or its application within a specified time limit; if the applicant fails to make any response within the specified time limit, the application shall be deermed to have been withdrawn. Where, after the applicant has made his or its observations or the corrections, the patent administration department of the State Council still finds that the application is not in conformity with the provisions of the articles cited in the preceding paragraph, the application shall be rejected.

Article 45 Apart from an application for patent, any other document relating to the patent application which is submitted by the applicant to the patent administration department of the State Council shall, in any of the following circumstances, be deemed not to have been submitted:

(1) where the document is not presented in the prescribed form or the indications therein are not in conformity with the provisions; or

(2) where a certifying document is not submitted as prescribed.

The patent administration department of the State Council shall notify the applicant of its opinion that the document is deemed not to have been submitted after being checked.

Article 46 Where the applicant requests an earlier publication of his or its application for a patent for invention, a statement shall be made to the patent administration department of the State Council. The patent administration department of the State Council shall, after preliminary examination of the application, publish it immediately, unless it is to be rejected.

Article 47 The applicant shall, when indicating a product incorporating the design and the class to which that product belongs, refer to the classification of products for designs published by the patent administration department of the State Council. Where no indication, or an incorrect indication, of the class to which the product incorporating the design belongs is made, the patent administration department of the State Council may supply the indication or correct it.

Article 48 Any person may, from the date of publication of an application for a patent for invention till the date of announcing the grant of the patent right, submit to the patent administration department of the State Council his or its observation, with reasons therefor, on the application which is not in conformity with the provisions of the Patent Law.

Article 49 Where the applicant for a patent for invention cannot furnish, for justified reasons, the documents concerning any search or results of any examination specified in Article 36 of the Patent Law, he or it shall make a statement to the patent administration department of the State Council and submit them when the said documents are available.

Article 50 The patent administration department of the State Council shall, when proceeding on its own initiative to examine an application for a patent in accordance with the provisions of the second paragraph of Article 35 of the Patent Law, notify the applicant accordingly.

Article 51 When requesting for examination as to substance, or within three months from the date of receipt of the notification from the patent administration department of the State Council that the application has entered into examination as to substance, the applicant for a patent for invention may amend the application for a patent for invention on his or its own initiative.

Within two months from the date of filing, the applicant for a patent for utility model or design may amend the application for a patent for utility model or design on his or its own initiative.

Where the applicant amends the application after receiving the notification of opinions of examination from the patent administration department of the State Council, he or it shall make the amendment to the defects pointed out by the notification.

The patent administration department of the State Council may, on its own initiative, correct the obvious clerical mistakes and symbol mistakes in the documents of application for a patent. Where the patent administration department of the State Council corrects mistakes on its own initiative, it shall notify the applicant accordingly.

Article 52 When any amendment is made to the description or the claims in an application for a patent for invention or utility model, a replacement sheet in prescribed form shall be submitted, unless the amendment concerns only the alteration, insertion or deletion of a few words. Where an amendment to the drawings or photographs of an application for a patent for design is made, a replacement sheet shall be submitted as prescribed.

Article 53 In accordance with the provisions of Article 38 of the Patent Law, the circumstances where an application for a patent for invention shall be rejected after examination as to substance are as follows:

(1) where the application falls under Article 5 or 25 of the Patent Law, or the applicant is not entitled to a patent right in accordance with the provisions of Article 9 of the Patent Law;

(2)where the application does not comply with the provisions of the second paragraph of Article 2, the first paragraph of Article 20, Article 22, the third, fourth or fifth paragraph of Article 26 or the first paragraph of Article 31 of the Patent Law, or the second paragraph of Article 20 of these Rules; or

(3) where the amendment to the application does not comply with the provisions of Article 33 of the Patent Law, or the divisional application does not comply with the provisions of the first paragraph of Article 43 of these Rules.

Article 54 After the patent administration department of the State Council issues a notification to grant the patent right, the applicant shall go through the formalities of registration within two months from the date of receipt of the notification. If the applicant completes the formalities of registration within the said time limit, the patent administration department of the State Council shall grant the patent right, issue the patent certificate and make an announcement thereon.

If the applicant does not go through the formalities of registration within the time limit, he or it shall be deemed to have abandoned his or its right to obtain the patent right.

Article 55 Where it is found after examination that there is no ground for rejecting an application for a secret patent, the patent administration department of the State Council shall make a decision to grant a secret patent, issue the certificate of the secret patent, and register the matters relating to the secret patent.

Article 56 After the announcement of the decision to grant a patent for utility model or a patent for design, the patentee or the interested party referred to in Article 60 of the Patent Law may request the patent administration department of the State Council to make a patent right assessment report.

Any person that requests a patent right assessment report shall submit a request therefor, indicating the patent number. Each request shall be limited for one patent.

Where the request for a patent right assessment report does not comply with the provisions, the patent administration department of the State Council shall notify the requesting party that he or it is required to rectify the request within a specified time limit; if the requesting party fails to do so within the time limit, the request shall be deemed not to have been submitted.

Article 57 The patent administration department of the State Council shall issue a patent right assessment report within two months after receipt of the request for the patent right assessment report. Where two or more persons request a patent right assessment report in respect of the same patent for utility model or design, the patent administration department of the State Council shall make one patent right assessment report only. Any entity or individual may consult or copy the patent right assessment report.

Article 58 The patent administration department of the State Council shall correct promptly the mistakes in the patent announcements and patent pamphlets once they are discovered, and the corrections shall be announced accordingly.

Chapter IV Reexamination of Patent Application and Invalidation of Patent Right

Article 59 The Patent Reexamination Board shall consist of technical and legal experts appointed by the patent administration department of the State Council, and the responsible person of the patent administration department of the State Council shall be the Director of the Board.

Article 60 Where the applicant requests the Patent Reexamination Board to make a reexamination in accordance with the provisions of Article 41 of the Patent Law, he or it shall file a request for reexamination, state the reasons and, when necessary, attach the relevant supporting documents.

Where the request for reexamination does not comply with the provisions of the first paragraph of Article 19 or the first paragraph of Article 41 of the Patent Law, the Patent Reexamination Board shall refuse to accept it, notify the applicant in writing and give the reasons therefor.

Where the request for reexamination does not comply with the prescribed form, the person making the request shall rectify it within the time limit specified by the Patent Reexamination Board; if the person making the request fails to do so, the request for reexamination shall be deemed not to have been filed.

Article 61 The person making the request may amend his or its patent application when he or it requests reexamination or makes responses to the notification of reexamination issued by the Patent Reexamination Board; however, the amendments shall be limited only to remove the defects pointed out in the decision of rejection of the application or in the notification of reexamination.

The amendments to the application for patent shall be in two copies.

Article 62 The Patent Reexamination Board shall remit the request for reexamination which it accepts to the original examination department of the patent administration department of the State Council for reexamination. Where the original examination department agrees to revoke its original decision based on the request of the person requesting reexamination, the Patent Reexamination Board shall make a decision accordingly and notify the person requesting reexamination.

Article  63 Where,  after  reexamination,  the  Patent  Reexamination  Board  finds that the request for reexamination does not comply with the relevant provisions of the Patent Law and these Rules, it shall notify the person requesting reexamination and require him or it to submit his or its observation within a specified time limit. If the time limit for making a response is not met, the request for reexamination shall be deemed to have been withdrawn; where, after the person making the request has made his or its observations or amendments, the Patent Reexamination Board still finds that the request does not comply with the relevant provisions of the Patent Law and these Rules, it shall make a decision of reexamination to maintain the earlier decision rejecting the application.

Where, after reexamination, the Patent Reexamination Board finds that the decision rejecting the application does not comply with the relevant provisions of the Patent Law and these Rules, or that the amended application has removed the defects as pointed out by the decision rejecting the application, it shall revoke the decision rejecting the application, and allow the original examination department to resume the examination procedure.

Article 64 At any time before the Patent Reexamination Board makes its decision on a request for reexamination, the person making the request may withdraw his or its request for reexamination.

Where the person requesting reexamination withdraws his or its request for reexamination  before  the  Patent  Reexamination  Board  makes  its  decision,  the procedure of reexamination terminates.

Article 65 Any person requesting invalidation or part invalidation of a patent right in accordance with the provisions of Article 45 of the Patent Law shall submit a request for invalidation and the necessary evidence in two copies to the Patent Reexamination Board. The request for invalidation shall state in detail the grounds for filing the request, making reference to all the evidence as submitted, and indicate the piece of evidence on which each ground is based.

The grounds on which a request for invalidation is based, referred to in the preceding paragraph, mean that an invention-creation for which the patent right is granted does not comply with the provisions of Article 2, the first paragraph of Article 20, Article 22, Article 23, the third or fourth paragraph of Article 26, the second paragraph of Article 27 or Article 33 of the Patent Law, or the second paragraph of Article 20 or the first paragraph of Article 43 of these Rules; or the invention-creation falls under the provisions of Article 5 or 25 of the Patent Law; or the applicant is not entitled to be granted the patent right in accordance with the provisions of Article 9 of the Patent Law.

Article 66 Where a request for invalidation does not comply with the provisions of the first paragraph of Article 19 of the Patent Law or Article 65 of these Rules, the Patent Reexamination Board shall refuse to accept it.

Where, after a decision on a request for invalidation of the patent right is made by the Patent Reexamination Board, another request for invalidation based on the same grounds and evidence is raised, the Patent Reexamination Board shall refuse to accept it.

Where a request for invalidation of a patent for design is filed on the ground that the patent for design does not comply with the provisions of the third paragraph of Article 23 of the Patent Law, but no evidence is submitted to prove such conflict of rights, the Patent Reexamination Board shall refuse to accept it.

Where a request for invalidation of the patent right does not comply with the prescribed form, the person making the request shall rectify it within the time limit specified by the Patent Reexamination Board; if the rectification fails to be made within the time limit, the request for invalidation shall be deemed not to have been made.

Article 67 After a request for invalidation is accepted by the Patent Reexamination Board, the person making the request may add grounds or supplement evidence within one month from the date when the request for invalidation is filed. Additional grounds or evidence which is submitted after the said time limit may be disregarded by the Patent Reexamination Board.

Article 68 The Patent Reexamination Board shall send a copy of the request for invalidation of the patent right and copies of the relevant documents to the patentee and require him or it to present his or its observation within a specified time limit.

The patentee and the person making the request for invalidation shall, within the specified time limit, make responses to the notification concerning transmitted documents or the notification concerning the examination of the request for invalidation sent by the Patent Reexamination Board; where no response is made within the specified time limit, the examination of the Patent Reexamination Board shall not be affected.

Article 69 In the course of the examination of a request for invalidation, the patentee for a patent for invention or utility model concermed may amend his or its claims, but he or it may not broaden the scope of protection of the original patent.

The patentee for a patent for invention or utility model concerned shall not amend his or its description or drawings, and the patentee for a patent for design concerned shall not amend his or its drawings, photographs or the brief explanation of the design.

Article 70 The Patent Reexamination Board may, at the request of the parties concerned or in accordance with the needs of the case, decide to hold an oral hearing in respect of a request for invalidation.

Where the Patent Reexamination Board decides to hold an oral hearing in respect of a request for invalidation, it shall send a notification to the parties concerned, indicating the date and place of the oral hearing to be held. The parties concerned shall make a response to the notification within the time limit specified in the notification.

Where the person requesting invalidation fails to make a response to the notification of the oral hearing sent by the Patent Reexamination Board within the specified time limit, and fails to take part in the oral hearing, the request for invalidation shall be deemed to have been withdrawn; where the patentee fails to take part in the oral hearing, the Patent Reexamination Board may proceed to examination by default.

Article 71 In the procedure of the examination of a request for invalidation, the time limit specified by the Patent Reexamination Board shall not be extended.

Article 72 The person requesting invalidation may withdraw his request before the Patent Reexamination Board makes a decision on it.

Where the person requesting invalidation withdraws his or its request or where his or its request for invalidation is deemed to have been withdrawn before the Patent Reexamination Board makes a decision thereon, the procedure of the examination of the request for invalidation terminates. However, where the Patent Reexamination Board, based on the examination work it has done, finds that a decision could be made on invalidation or invalidation in part of the patent right, it shall not terminate the examination procedure.

Chapter V Compulsory License for Exploitation of Patent

Article 73 The insufficient exploitation of patent referred to in subparagraph (1) of Article 48 of the Patent Law means that the manner or seale of the exploitation of patent by the patentee and/or the licensee authorized by him or it cannot satisfy the demands of the domestic market for the patented product or patented process.

A pharmaceutical product to which the patent right has been granted referred to in Article 50 of the Patent Law means any patented product, or product directly obtained by a patented process, in the pharmaceutical sector which is needed to address public health problems, including the patented active ingredients necessary for the manufacture of the product and the diagnostic kits needed for its use.

Article 74 Any entity or individual requesting a compulsory license shall submit to the patent administration department of the State Council a request for compulsory license, state the reasons thereof, and attach the relevant certifying documents.

The patent administration department of the State Council shall send a copy of the request for compulsory license to the patentee, who shall make his or its observation within the time limit specified by the patent administration department of the State Council; where no response is made within the time limit, the patent administration department of the State Council shall not be affected in making its decision.

Before making a decision to reject a request for compulsory license or to grant a compulsory license, the patent administration department of the State Council shall notify the person making the request and the patentee of the decision to be made and the reasons therefor.

A decision made by the patent administration department of the State Council on granting a compulsory license in accordance with the provisions of Article 50 of the Patent Law shall, at the same time, comply with the provisions of the relevant international treaties on granting compulsory license for the purpose of addressing public health issues, which are concluded or acceded to by China, except for the provisions on which China has made reservation.

Article 75 Where a party concerned requests, in accordance with the provisions of Article 57 of the Patent Law, the patent administration department of the State Council to adjudicate the fees for exploitation, he or it shall submit a request for adjudication and funish documents showing that the parties concerned have not concluded an agreement thereon. The patent administration department of the State Council shall make an adjudication within three months from the date of receipt of the request and notify the parties concerned accordingly.

Chapter VI Rewards and Remuneration for Inventors and Creators of Service Invention-creations

Article 76 An entity to which a patent right is granted may conclude with the inventor or creator an agreement on, or provide in its bylaws formulated in accordance with law, the manner and amount of the rewards and remuneration referred to in Article 16 of the Patent Law.

The rewards and remuneration accorded to an inventor or creator by any enterprise or institution shall be handled in accordance with the provisions of the State on the financial and accounting system.

Article 77 Where an entity to which a patent right is granted fails to conclude with the inventor or creator an agreement on, and fails to provide in its bylaws formulated in accordance with law, the manner and amount of the rewards referred to in Article 16 of the Patent Law, it shall, within three months from the date of the announcement of the grant of the patent right, accord to the inventor or creator a sum of money as prize. The money prize for a patent for invention shall be a minimum of 3,000 yuan; the money prize for a patent for utility model or design shall be a minimum of 1,000 yuan.

Where an invention-creation is made on the basis of an inventor's or creator's proposal adopted by the entity to which he belongs, the entity to which a patent right is granted shall accord to him a money prize on favorable terms.

Article 78 Where an entity to which a patent right is granted fails to conclude with the inventor or creator an agreement on, and fails to provide in its bylaws formulated in accordance with law,the manner and amount of the rewards referred to in Article 16 of the Patent Law, it shall, after the patent for invention-ereation is exploited within the duration of the patent right, draw each year from the profits from exploitation of the patent for the invention or utility model a percentage of not less than 2%, or from the profits from exploitation of the patent for the design a percentage of not less than 0.2%, and award it to the inventor or creator as remuneration. The entity may, as an altenative, by making reference to the said percentage, award a lump sum of money to the inventor or creator as remuneration once and for all.Where an entity to which a patent right is granted authorizes any other entity or individual to exploit its patent, it shall draw from the exploitation fee it receives a percentage of not less than 10% and award it to the inventor or creator as remuneration.