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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)

Application for Patent

Rule 15. Anyone who applies for a patent in written form shall file with the patent administration department under the State Council application documents in two copies.

Anyone who applies for a patent in other forms as provided by the patent administration department under the State Council shall comply with the relevant provisions.

Any applicant who appoints a patent agency for applying for a patent, or for having other patent matters to attend to before the patent administration department under the State Council, shall submit at the same time a power of attorney indicating the scope of the power entrusted.

Where there are two or more applicants and no patent agency is appointed, unless otherwise stated in the request, the applicant named first in the request shall be the representative.

Rule 16. The request of application for patent for invention, utility model or design, shall state the following:

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

(2) where the applicant is a Chinese entity or individual, its or his title or name, address, postal code, the code of the organization or the citizen identification card number; where the applicant is a foreigner, a foreign enterprise or other foreign organization, his or its name or title, the nationality or the country or region in which the applicant is registered;

(3) the name of the inventor or creator;

(4) where the applicant has appointed a patent agency, the name of the appointed agency, the agency's organizational code and the name, the professional certificate number and the telephone number of the patent agent assigned by the agency;

(5) where the right of priority is claimed, the filing date on which the applicant filed the application the first time (hereinafter referred to as the earlier application), the filing number of the application and the title of the authority with which the application was first filed;

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

(7) a list of the documents constituting the application;

(8) a list of the documents appending the application; and

(9) any other related matters which needs to be indicated.

Rule 17. The description of an application for a patent for invention or a patent for utility model shall state the title of the invention or utility model, which shall be the same as it appears in the request. The description shall include the following:

(1) technical field: specifying the technical field to which the technical solution for which protection is sought pertains;

(2) background art: indicating the background art which can be regarded as useful for the understanding, searching and examination of the invention or utility model, and when possible, citing the documents reflecting such art;

(3) contents of the invention: disclosing the technical problem the invention or utility model aims to settle and the technical solution adopted to resolve the problem; and stating, with reference to the prior art, the advantageous effects of the invention or utility model;

(4) description of figures: briefly describing each figure in the drawings, if any;

(5) mode of carrying out the invention or utility model: describing in detail the optimally selected mode contemplated by the applicant for carrying out the invention or utility model; where appropriate, this shall be done in terms of examples, and with reference to the drawings, if any;

The manner and order referred to in the preceding paragraph shall be followed by the applicant for a patent for invention or a patent for utility model, and each of the parts shall be preceded by a heading, unless, because of the nature of the invention or utility model, a different manner or order would result in a better understanding and a more economical presentation.

The description of the invention or utility model shall use standard terms and be in clear wording, and shall not contain such references to the claims as: "as described in claim ...", nor shall it contain commercial advertising.

Where an application for a patent for invention contains disclosure of one or more nucleotide and/or amino acid sequences, the description shall contain a sequence listing in compliance with the standard prescribed by the patent administration department under the State Council. The sequence listing shall be submitted as a separate part of the description, and a copy of the said sequence listing in machine-readable form shall also be submitted in accordance with the provisions of the patent administration department under the State Council.

The description of an application for patent for utility model shall include the drawings showing the shape, structure or their combination of the product for which protection is sought.

Rule 18. The figures of drawings of the invention or utility model shall be numbered and arranged in numerical order consecutively as "Figure 1, Figure 2, ...".

Reference signs not mentioned in the text of the description of the invention or utility model shall not appear in the drawings. Reference signs not mentioned in the drawings shall not appear in the text of the description. Reference signs for the same composite part shall be used consistently throughout the application document.

The drawings shall not contain any other explanatory notes, except words which are indispensable.

Rule 19. The claims shall specify the technical features of the invention or utility model.

If there are several claims, they shall be numbered consecutively in Arabic numerals.

The scientific and technical terms used in the claims shall be consistent with that used in the description. The claims may contain chemical or mathematical formulae but no drawings. They shall not, except where absolutely necessary, contain such references to the de-scription or drawings as: "as described in part... of the description", or "as illustrated in Figure... of the drawings".

The technical features mentioned in the claims may, in order to facilitate quicker understanding of the claim, make reference to the corresponding reference signs in the drawings. Such reference signs shall follow the corresponding technical features and be placed in parentheses. The reference signs shall not be construed as limiting the claims.

Rule 20. The claims shall have an independent claim, and may also contain dependent claims.

The independent claim shall outline the technical solution of an invention or utility model and state the essential technical features necessary for the solution of its technical problem.

The dependent claim shall, by additional technical features, further define the claim which it refers to.

Rule 21. An independent claim of an invention or utility model shall contain a preamble portion and a characterizing portion, and be presented in the following form:

(1) a preamble portion: indicating the title of the claimed subject matter of the technical solution of the invention or utility model, and those technical features which are necessary for the definition of the claimed subject matter but which, in combination, are part of the most related prior art;

(2) a characterizing portion: stating, in such words as "characterized in that... "or in similar expressions, the technical features of the invention or utility model, which distinguish it from the most related prior art. Those features, in combination with the features stated in the preamble portion, serve to define the extent of protection of the invention or utility model.

Where the manner specified in the preceding paragraphs is not appropriate to be followed because of the nature of the invention or utility model, an independent claim may be presented in a different manner.

An invention or utility model shall have only one independent claim, which shall precede all the dependent claims relating to the same invention or utility model.

Rule 22. Any dependent claim of an invention or utility model shall contain a reference portion and a characterizing portion, and be presented in the following manner:

(1) a reference portion: indicating the serial number( s) of the claim( s) referred to, and the title of the subject matter;

(2) a characterizing portion: stating the additional technical features of the invention or utility model.

Any dependent claim shall only refer to the preceding claim or claims. Any multiple dependent claims, which refers to two or more claims, shall refer to the preceding claims in the alternative only, and shall not serve as a basis for any other multiple dependent claims.

Rule 23. The abstract shall consist of a summary of the disclosure as contained in the application for patent for invention or utility model. The summary shall indicate the title of the invention or utility model, and the technical field to which the invention or utility model pertains, and shall be drafted in a way which allows the clear understanding of the technical problem, the gist of the technical solution to that problem, and the principal use or uses of the invention or utility model.

The abstract may contain the chemical formula which best characterizes the invention. In an application for a patent which contains drawings, the applicant shall provide a figure which best characterizes the technical features of the invention or utility model. The scale and the distinctness of the figure shall be as such that a reproduction with a linear reduction in size to 4cm x 6cm would still enable all details to be clearly distinguished. The whole text of the abstract shall contain not more than 300 words. There shall be no commercial advertising in the abstract.

Rule 24. Where an invention for which a patent is applied for concerns a new biological material which is not available to the public and which cannot be described in the application in such a manner as to enable the invention to be carried out by a person skilled in the art, the applicant shall, in addition to the other requirements provided for in the Patent Law and these Implementing Regulations, go through the following formalities:

(1) depositing a sample of the biological material with a depositary institution designated by the patent administration department under the State Council before, or at the latest, on the date of filing (or the priority date where priority is claimed), and submit at the time of filing or at the latest, within four months from the date of filing, a receipt of deposit and the viability proof from the depository institution; where they are not submitted within the specified time limit, the sample of the biological material shall be deemed not to have been deposited;

(2) giving in the application document relevant information of the characteristics of the biological material;

(3) indicating, where the application relates to the deposit of a sample of the biological material, in the request and the description the scientific name (with its Latin name) and the title and address of the depositary institution, the date on which the sample of the biological material was deposited and the accession number of the deposit; where, at the time of filing, they are not indicated, they shall be supplied within four months from the date of filing; where after the expiration of the time limit they are not supplied, the sample of the biological material shall be deemed not to have been deposited.

Rule 25. Where the applicant for a patent for invention has deposited a sample of the biological material in accordance with the provisions of Rule 24 of these Implementing Regulations, and after the application for patent for invention is published, any entity or individual that intends to make use of the biological material to which the application relates, for the purpose of experiment, shall make a request to the patent administration department under the State Council, containing the following items:

(1) the title or name and address of the requesting person;

(2) an undertaking not to make the biological material available to any other person;

(3) an undertaking to use the biological material for experimental purpose only before the grant of the patent right.

Rule 26. The genetic resources refered to in the Patent Law mean the material obtained from such as human body, animal, plant, or microorganism which contains functional units of heredity and is of actual or potential value. The invention-creation is developed relying on the genetic resources refered to in the Patent Law means that the invention-creation is developed relying on the use of the heredity function of the genetic resources.

Where an application for patent is filed for an invention-creation the development of which relies on the use of genetic resources, the applicant shall state that fact in the request, and fill in the forms provided by the patent administration department under the State Council.

Rule 27. Where an application for a patent for design seeking concurrent protection of colors is filed, drawings or photographs in color shall be submitted.

The applicant shall, in respect of the subject matter of the product incorporating the design which is in need of protection, submit the relevant drawings or photographs.

Rule 28. The brief explanation of application for patent for design shall indicate the title and the use of the product incorporating the design, the essential feature of the design, and designate a drawing or photograph capable of best showing the essential feature of the design. Where a view of the product incorporating the design is omitted or where concurrent protection for color is claimed, it shall be indicated in the brief explanation.

Where an application for patent for design is filed for two or more similar designs incorporated in the same product, one of these designs shall be indicated as the main design in the brief explanation.

The brief explanation shall not contain any commercial advertising and shall not be used to indicate the function of the product.

Rule 29. Where the patent administration department under the State Council deems necessary, it may require the applicant for a patent for design to submit a sample or model of the product incorporating the design. The volume of the sample or model submitted shall not exceed 30cm x 30cm x 30cm, and its weight shall not surpass 15 kilograms. Articles that are easy to get rotten or broken or articles that are dangerous shall not be submitted as sample or model.

Rule 30. The international exhibition recognized by the Chinese Government refered to in Article 24, subparagraph (1) of the Patent Law means the international exhibition that is registered with or recognized by the International Exhibitions Bureau as stipulated by the International Exhibitions Convention.

The academic or technological meeting referred to in Article 24, subparagraph (2) of the Patent Law means any academic or technological meeting organized by a competent department concerned of the State Council or by a national academic or technological associa-tion.

Where any invention-creation for which a patent is applied falls under the provisions of Article 24, subparagraph (1) or (2) of the Patent Law, the applicant shall, when filing the application, make a declaration and, within a time limit of two months from the date of filing, submit certifying documents issued by the entity which organized the international exhibition or academic or technological meeting, stating the fact that the invention-creation was exhibited or published and with the date of its exhibition or publication.

Where any invention-creation for which a patent is applied falls under the provisions of Article 24, subparagraph (3) of the Patent Law, the patent administration department under the State Council may, when it deems necessary, require the applicant to submit the relevant certifying documents within the specified time limit.

Where the applicant fails to make a declaration and submit certifying documents as required in paragraph three of this Rule, or fails to submit certifying documents within the specified time limit as required in paragraph four of this Rule, the provisions of Article 24 of the Patent Law shall not apply to the application.

Rule 31. Where an applicant claims the right of foreign priority in accordance with the provisions of Article 30 of the Patent Law, the copy of the earlier application documents submitted by the applicant shall be certified by the authority with which the earlier application was filed. Where, in accordance with the agreement between the patent administration department under the State Council and the said authority, the patent administration department under the State Council obtains a copy of the earlier application documents through electronic transmission or in any other manner, the copy of the earlier application documents certified by the authority shall be deemed to have been submitted by the applicant. Where the right of domestic priority is claimed, if the date of filing and the filing number of the earlier application are indicated in the request by the applicant, the copy of the earlier application documents shall be deemed to have been submitted.

Where such one or two items as the date of filing, the filing number of the earlier application or the title of the authority with which the earlier application was filed are missing or incorrect in the request when claiming for right of priority, the patent administration de-partment under the State Council shall notify the applicant to make rectification within the specified time limit. Where the applicant fails to make the rectification within the time limit, the right of priority shall be deemed not to have been claimed.

Where the name or title of the applicant who claims the right of priority is not the same as the one recorded in the copy of the earlier application, the applicant shall submit document certifying the assignment of right of priority. If no such document is submitted, the right of priority shall be deemed not to have been claimed.

Where any applicant claims a right of foreign priority for patent application for design, and no brief explanation of the design was contained in the earlier application, he or it will not be adversely affected as for enjoying the right of priority if the brief explanation submitted by the applicant in accordance with the provisions of Rule 28 of these Regulations does not go beyond the scope as shown in the drawings or photographs of the earlier application.

Rule 32. An applicant may claim one or more priorities for an application for a patent; where multiple priorities are claimed, the priority period for the application shall be calculated from the earliest priority date.

Where an applicant claims the right of domestic priority, if the earlier application is one for a patent for invention, he or it may file an application for a patent for invention or utility model for the same subject matter; if the earlier application is one for a patent for utility model, he or it may file an application for a patent for utility model or invention for the same subject matter. However, when the later application is filed, if the subject matter of the earlier application falls under any of the following, it may not be taken as the basis for claiming domestic priority:

(1) where the applicant has claimed foreign or domestic priority;

(2) where it has been granted a patent right;

(3) where it is the subject matter of a divisional application filed as prescribed.

Where the domestic priority is claimed, the earlier application shall be deemed to be withdrawn from the date on which the later application is filed.

Rule 33. Where an application for a patent is filed or the right of foreign priority is claimed by an applicant having no habitual residence or business office in China, the patent administration department under the State Council may, when it deems necessary, require the applicant to submit the following documents:

(1) if the applicant is an individual, a certificate concerning his nationality;

(2) if the applicant is an enterprise or other organization, a document certifying the country or region in which it is registered;

(3) a document certifying that the country, to which the foreigner, foreign enterprise or other foreign organization belongs, recognizes that Chinese entities and individuals are, under the same conditions as those applied to its nationals, entitled to the patent right, the right of priority and other related rights in that country.

Rule 34. Two or more inventions or utility models belonging to a single general inventive concept which may be filed as one application in accordance with the provisions of Article 31, paragraph one of the Patent Law shall be technically inter-related and contain one or more of the same or corresponding special technical features. The expression "special technical features" shall mean those technical features that define a contribution which each of those inventions or utility models, considered as a whole, makes over the prior art.

Rule 35. Where two or more similar designs of the same product are filed in one application in accordance with the provisions of Article 31, paragraph two of the Patent Law, the other designs of the product shall be similar to the main design indicated in the brief explanation. The number of similar designs contained in an application for patent for design shall not exceed 10.

The two or more designs belonging to the same class and sold or used in sets as referred to in Article 31, paragraph two of the Patent Law mean that, each product incorporating the design belongs to the same class in the classification of products and is customarily sold or used at the same time, and the designs incorporated in each product have the same concept of design.

Where two or more designs are filed as one application, they shall be numbered consecutively and the numbers shall precede the titles of the drawings or photographs of the product incorporating the design.

Rule 36. When withdrawing an application for a patent, the applicant shall submit to the patent administration department under the State Council a declaration to that effect stating the title of the invention-creation, the filing number and the date of filing.

Where a declaration to withdraw an application for a patent is submitted after the preparations for the publication of the application document has been completed by the patent administration department under the State Council, the application document shall be published as scheduled. However, the declaration withdrawing the application for patent shall be published in the next issue of the Patent Gazette.