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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)

Examination and Approval of Application for Patent

Rule 37. Where any of the following events occurs, a person who makes 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 the party concerned or the agent of the party concerned;

(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 the party concerned or with the agent of the party concerned that may influence impartial examination and hearing;

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

Rule 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 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 under the State Council shall accord the date of filing, issue a filing number, and notify the applicant.

Rule 39. In any of the following circumstances, the patent administration department under 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 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 written in Chinese;

(3) where the application is not in conformity with the provisions of Rule 121, paragraph one of these Implementing Regulations;

(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 Article 19, paragraph one of the Patent Law;

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

Rule 40. Where the description states that it contains explanatory notes to the drawings but the drawings or part of them are missing, the applicant shall, within the time limit specified by the patent administration department under the State Council, either furnish the drawings or make a declaration for the deletion of the explanatory notes to the drawings. If the drawings are submitted later, the date of their delivery at, or mailing to, the patent administration department under the State Council shall be the date of filing of the application; if the explanatory notes to the drawings are to be deleted, the initial date of filing shall be retained.

Rule 41. Two or more applicants who respectively file, on the same day (means the date of filing or the priority date where priority is claimed), applications for patent for the identical invention-creation, shall, after receipt of a notification from the patent administration department under 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 (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 state respectively upon filing the application 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 according to the provisions of Article 9, paragraph one of the Patent Law, only one patent right shall be granted for any identical invention-creation.

Where the patent administration department under the State Council makes an announcement of the grant of patent for utility model, the statement of the applicant in accordance with the provision of paragraph two of this Rule that he has simultaneously filed an application for a patent for invention shall be announced.

Where it is found after examination that there is no cause for rejection of the application for patent for invention, the patent administration department under the State Council shall notify the applicant to declare, within the specified time limit, the abandonment of his or its patent for utility model. If the applicant so declares, the patent administration department under the State Council shall make the 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 under the State Council shall reject the application for patent for invention. If the applicant fails to respond within the 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.

Rule 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 Rule 54, paragraph one of these Implementing Regulations, submit to the patent administration department under 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 under 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 Rule 34 or 35 of these Implementing Regulations, it shall invite the applicant 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 divisional application may not change the kind of protection of the initial application.

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

The divisional application shall go through all the formalities in accordance with the provisions of the Patent Law and these Implementing Regulations.

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.

Rule 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 prescribed 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, Article 19, paragraph one or Article 20, paragraph one of the Patent Law or Rule 16 or Rule 26, paragraph two of these Implementing Regulations, or is obviously not in conformity with the provisions of Article 2, paragraph two, Article 26, paragraph five, Article 31, paragraph one, or Article 33 of the Patent Law, or of Rules 17 to 21 of these Implementing Regulations;

(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, Article 19, paragraph one or Article 20, paragraph one of the Patent Law or Rules 16 to 19 or Rules 21 to 23 of these Implementing Regulations, or is obviously not in conformity with the provisions of Article 2, paragraph three, Article 22, paragraph two or four, Article 26, paragraph three or four, or of Article 31, paragraph one, or of Article 33 of the Patent Law, or of Rule 20 or Rule 43, paragraph one of these Implementing Regulations, 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 Article 25, paragraph one (6) of the Patent Law, or is not in conformity with the provisions of Article 18, Article 19, paragraph one of the Patent Law, or of Rule 16, Rule 27 or Rule 28 of these Implementing Regulations, or is obviously not in conformity with the provisions of Article 2, paragraph four, Article 23, paragraph one, Article 27, paragraph two, Article 31, paragraph two, or of Article 33 of the Patent Law, or of Rule 43, paragraph one of these Implementing Regulations, or is not entitled to a patent right in accordance with the provisions of Article 9 of the Patent Law;

(4) whether or not any application document is in conformity with the provisions of rule 2 or Rule 3, paragraph one of these Implementing Regulations.

The patent administration department under the State Council shall notify the applicant of its opinions after checking his or its application and invite him or it to state his or its observations or to rectify his or its application within the specified time limit. If the applicant fails to make any response within the specified time limit, the application shall be deemed to have been withdrawn. Where, after the applicant has made his or its observations or he corrections, the patent administration department under the State Council still finds that the application is not in conformity with the provisions of the Articles and the Rules cited in the preceding subparagraphs, the application shall be rejected.

Rule 45. Apart from the application for patent, any document relating to the patent application which is submitted to the patent administration department under 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 prescriptions;

(2) where no certifying document is submitted as prescribed.

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

Rule 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 under the State Council. The patent administration department under the State Council shall, after preliminary examination of the application, publish it immediately, unless it is to be rejected.

Rule 47. The applicant shall, when indicating the 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 under 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 under the State Council shall supply the indication or correct it.

Rule 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 under the State Council his observations, with reasons therefor, on the application which is not in conformity with the provisions of the Patent Law.

Rule 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 under the State Council and submit them when the said documents are available.

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

Rule 51. At the time when a request for examination as to substance is made, and when, within the time limit of three months after the receipt of the notification of the patent administration department under the State Council on the entry into examination as to substance of the application, 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 its or his own initiative.

Where the applicant amends the application after receiving the notification of opinions of the examination as to substance of the patent administration department under the State Council, he or it shall make the amendment directed to the defects pointed out by the notifi-cation.

The patent administration department under 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 under the State Council corrects mistakes on its own initiative, it shall notify the applicant.

Rule 52. When an amendment to the description or the claims in an application for a patent for invention or utility model is made, 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.

Rule 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 by the patent administration department under the State Council 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 Article 2, paragraph two, Article 20, paragraph one, Article 22, Article 26, paragraph three, four or five, or Article 31, paragraph one of the Patent Law, or of Rule 20, paragraph two of these Implementing Regulations;

(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 Rule 43, paragraph one of these Implementing Regulations.

Rule 54. After the patent administration department under the State Council issues the 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 de-partment under the State Council shall grant the patent right, issue the patent certificate and announce it.

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.

Rule 55. Where it is found after examination that there is no cause for rejection of the application for a secret patent, the patent administration department under 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.

Rule 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 prescribed in Article 60 of the Patent Law may request the patent administration department under the State Council to make an evaluation report of patent.

Where such person requests for an evaluation report of patent, he shall submit a request for the evaluation report of patent, indicating the patent number. Each request shall be limited for one patent.

Where the request for the evaluation report of patent does not comply with the requirements as prescribed, the patent administration department under the State Council shall notify the requesting party 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.

Rule 57. The patent administration department under the State Council shall make the evaluation report of patent within two months from receiving of the request for the evaluation report of patent. Where two or more persons request for the evaluation report of patent in respect of a same patent for utility model or patent for design, the patent administration department under the State Council shall make one evaluation report only. Any entity or individual may view or copy the evaluation report of patent.

Rule 58. The patent administration department under the State Council shall correct promptly the mistakes in the patent announcements and patent pamphlets issued by it once they are discovered, and the corrections shall be announced.