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Implementing Regulations of the Patent Law of the People's Republic of China (2010)

(Promulgated by Decree No. 306 of the State Council of the People's Republic of China on June 15, 2001, amended the first time on December 28, 2002 according to the Decision of the State Council on Amending the Implementing Regulations of the Patent Law of the People's Republic of China, and amended the second time on January 9, 2010 according to the Decision of the State Council on Amending the Implementing Regulations of the Patent Law of the People's Republic of China)

General Provisions

Rule 1. These Implementing Regulations are formulated in accordance with the Patent Law of the People's Republic of China (hereinafter referred to as the Patent Law).

Rule 2. Any formalities prescribed by the Patent Law and these Implementing Regulations shall be complied with in a written form or in any other form prescribed by the patent administration department under the State Council.

Rule 3. Any document submitted in accordance with the provisions of the Patent Law and these Implementing Regulations shall be in Chinese; the standard scientific and technical terms shall be used if there is a prescribed one set forth by the State; where no generally accepted translation in Chinese can be found for a foreign name or scientific or technical term, the one in the original language shall be also indicated.

Where any certificate or certifying document submitted in accordance with the provisions of the Patent Law and these Implementing Regulations is in a foreign language, the patent administration department under the State Council may, when it deems necessary, request a Chinese translation of the certificate or the certifying document be submitted within a specified time limit; where the translation is not submitted within the specified time limit, the certificate or certifying document shall be deemed not to have been submitted.

Rule 4. Where any document is sent by mail to the patent administration department under the State Council, the date of mailing indicated by the postmark on the envelope shall be deemed to be the date of filing; where the date of mailing indicated by the postmark on the envelope is illegible, the date on which the patent administration department under the State Council receives the document shall be the date of filing, except where the date of mailing is proved by the party concerned.

Any document of the patent administration department under the State Council may be served by mail, by personal delivery or by other forms. Where any party concerned appoints a patent agency, the document shall be sent to the patent agency; where no patent agency is appointed, the document shall be sent to the contacting person named in the request.

Where any document is sent by mail by the patent administration department under the State Council, the 16th day from the date of mailing shall be presumed to be the date on which the party concerned receives the document.

Where any document is delivered personally in accordance with the provisions of the patent administration department under the State Council, the date of delivery is the date on which the party concerned receives the document.

Where the address of any document is not clear and it cannot be sent by mail, the document may be served by making an announcement. At the expiration of one month from the date of the announcement, the document shall be deemed to have been served.

Rule 5. The first day of any time limit prescribed in the Patent Law and these Implementing Regulations shall not be counted in the time limit. Where the time limit is counted by year or by month, it shall expire on the corresponding day of the last month; if there is no corresponding day in that month, the time limit shall expire on the last day of that month; if a time limit expires on an official holiday, it shall expire on the first working day following that official holiday.

Rule 6. Where a time limit prescribed in the Patent Law or these Implementing Regulations or specified by the patent administration department under the State Council is not observed by a party concerned because of force majeure, resulting in loss of his or its rights, he or it may, within two months from the date on which the impediment is removed, at the latest within two years immediately following the expiration of that time limit request the patent administration department under the State Council to restore his or its rights.

Except for circumstances prescribed in preceding paragraph, where a time limit prescribed in the Patent Law or these Implementing Regulations or specified by the patent administration department under the State Council is not observed by a party concerned because of any other justified reason, resulting in loss of his or its rights, he or it may, within two months from the date of receipt of a notification from the patent administration department under the State Council, request the patent administration department under the State Council to restore his or its rights.

Where any party concerned requests to restore his or its right according to paragraph one or paragraph two of this Rule, he or it shall submit a request for restoration of his or its right, stating the reasons, attaching, if necessary, the relevant certifying documents, and go through the relevant formalities which should have been complied with before the loss of his or its right. Where the party concerned requests for restoration of his or its right according to paragraph two of this Rule, he or it shall pay the fee for request for restoration of right.

Where the party concerned makes a request for an extension of a time limit specified by the patent administration department under the State Council, he or it shall, before the time limit expires, state the reasons to the patent administration department under the State Council and go through the relevant formalities.

The provisions of paragraphs one and two of this Rule shall not be applicable to the time limit referred to in Articles 24, 29, 42 and 68 of the Patent Law.

Rule 7. Where an application for a patent relates to the interests of national defense and is required to be kept secret, the application for patent shall be filed with and examined by the patent department of national defense. Where an application for patent received by the patent administration department under the State Council relates to the interests of national defense and is required to be kept secret, the application shall be promptly forwarded to the patent department of national defence to carry out the examination. Where it is found after examination by the patent department of national defence there is no cause for rejection of the application, the patent administration department under the State Council shall make a decision to grant the patent right concerning national defense.

Where the patent administration department under the State Council finds that an application for patent for invention or patent for utility model filed with it relates to national security or other vital interests other than interests concerning national defense and is re-quired to be kept secret, it shall promptly make a decision on handling it as an application for secret patent and notify the applicant accordingly. The special procedures for the examination and reexamination of application for secret patent as well as the invalidation of secret patent shall be provided for by the patent administration department under the State Council.

Rule 8. The invention or utility model developed in China as mentioned in Article 20 of the Patent Law refers to an invention or utility model of which the substantive contents of the technical solution were made within the territory of China.

Where any entity or individual intends to file an application for patent abroad for the invention or utility model developed in China, it or he shall request, by one of the following manner, the patent administration department under the State Council to conduct confidentiality examination:

(1) where any entity or individual intends to file an application for patent directly in a foreign country or an international patent application with a relevant foreign organization, it or he shall file a request for confidentiality examination in advance with the patent administration department under the State Council and describe the related technical solution in detail;

(2) where after having filed an application for patent with the patent administration department under the State Council, the applicant intends to file an application for patent in a foreign country or an international patent application with a relevant foreign organization, it or he shall file the request for confidentiality examination with the patent administration department under the State Council before filing of the application for patent in a foreign country or the international patent application with the relevant foreign organization.

Where the applicant files an international patent application with the patent administration department under the State Council, it or he shall be deemed to have simultaneously filed the request for confidentiality examination.

Rule 9. Where the patent administration department under the State Council receives a request filed under Rule 8 of these Implementing Regulations and finds, upon examination, that the invention or utility model may relate to the security or vital interest of the State and is required to be kept secret, it shall promptly issue a notification of confidentiality examination to the applicant. If the applicant fails to receive the notification of confidentiality examination within four months from the date of filing its or his request, it or he may file, in respect of the invention or utility model, an application for patent in a foreign coun-try or an international patent application with the relevant foreign organization.

Where the patent administration department under the State Council carries out a confidentiality examination in accordance with the notification prescribed in the preceding paragraph, it shall promptly make a decision on whether the invention or utility mode is required to be kept secret and notify the applicant accordingly. If the applicant fails to receive such a decision within six months from the date of filing its or his request, it or he may file, in respect of the invention or utility model, an application for patent in a foreign coun-try or an international patent application with the relevant foreign organization.

Rule 10. Any invention-creation that is contrary to the laws referred to in Article 5 of the Patent Law shall not include the invention-creation merely because the exploitation of which is prohibited by the laws.

Rule 11. The date of filing referred to in the Patent Law, except for those referred to in Articles 28 and 42, means the priority date where priority is claimed.

The date of filing referred to in these Implementing Regulations, except as otherwise prescribed, means the date of filing prescribed in Article 28 of the Patent Law.

Rule 12. "A service invention-creation made by a person in execution of the tasks of the entity to which he belongs" referred to in Article 6 of the Patent Law means any invention-creation made:

(1) in the course of performing his own duty;

(2) in execution of any task, other than his own duty, which was entrusted to him by the entity to which he belongs;

(3) within one year from his retirement, resignation or from termination of his employment or personnel relationship with the entity to which he previously belonged, where the invention-creation relates to his own duty or the other task entrusted to him by the entity to which he previously belonged.

"The entity to which he belongs" referred to in Article 6 of the Patent Law includes the entity in which the person concerned is a temporary staff member. "Material and technical means of the entity" referred to in Article 6 of the Patent Law mean the entity's money, equipment, spare parts, raw materials or technical materials which are not disclosed to the public, etc.

Rule 13. "Inventor" or "creator" referred to in the Patent Law means any person who makes creative contributions to the substantive features of an invention-creation. Any person who, during the course of accomplishing the invention-creation, is responsible only for organizational work, or who only offers facilities for making use of material and technical means, or who only takes part in other auxiliary functions, shall not be considered as inventor or creator.

Rule 14. Except for the assignment of the patent right in accordance with Article 10 of the Patent Law, where the patent right is transferred because of any other reason, the person or persons concerned shall, accompanied by relevant certified documents or legal papers, request the patent administration department under the State Council to register the change in the owner of the patent right.

Any license contract for exploitation of a patent which has been concluded by the patentee with an entity or individual shall, within three months from the date of entry into force of the contract, be submitted to the patent administration department under the State Council for the record.

Where any patent right is pledged, both the pledger and the pledgee shall jointly register the contract of pledge with the patent administration department under the State Council.