You are here

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)

Special Provisions Concerning International Application

Rule 101. The patent administration department under the State Council receives international patent applications filed under the Patent Cooperation Treaty in accordance with the provisions of Article 20 of the Patent Law.

For any international application filed under the Patent Cooperation Treaty designating China (hereinafter referred to as the international application), the requirements and procedures for entering the phase of process conducted by the patent administration department under the State Council (hereinafter referred to as entering the Chinese national phase), the provisions prescribed in this chapter shall apply. Where no provisions are made in this chapter, the relevant provisions in the Patent Law and in any other chapters of these Implementing Regulations shall apply.

Rule 102. Any international application which has been accorded an international filling date in accordance with the Patent Cooperation Treaty and which has designated China shall be deemed as an application for patent filed with the patent administration department under the State Council, and the said international filing date shall be deemed as the filing date referred to in Article 28 of the Patent Law.

Rule 103. Any applicant for an international application entering the Chinese national phase shall, within 30 months from the priority date as referred to in Article 2 of the Patent Cooperation Treaty (referred to as "the priority date" in this chapter), go through the formalities for entering the Chinese national phase before the patent administration department under the State Council. If the applicant fails to go through the said formalities within the prescribed time limit, he or it may, after paying a surcharge for the late entry, go through the formalities for entering the Chinese national phase within the 32 months from the priority date.

Rule 104. When the applicant goes through the formalities for entering the Chinese national phase in accordance with the provisions of Rule 103 of these Implementing Regulations, it or he shall fulfill the following requirements:

(1) submitting in Chinese a written statement for entering the Chinese national phase, indicating the international application number and the type of patent right sought;

(2) paying the filing fee and the printing fee for the publication of the application as provided in Rule 93, paragraph one of these Implementing Regulations, and where necessary, the surcharge for the late entry as provided in Rule 103 of these Implementing Regulations;

(3) submitting the Chinese translation of the description and the claims of the initial international application where an international application is filed in a foreign language;

(4) indicating in the written statement for entering the Chinese national phase the title of the invention-creation, the name or title of the applicant, the address of the applicant and the name of the inventor, all of which should be in conformity with those recorded with the International Bureau under the World Intellectual Property Organization (hereafter referred to as the International Bureau). Where the inventor is not indicated in the international application, the name of the inventor shall be indicated in the said statement;

(5) where the international application is filed in a foreign language, submitting the Chinese translation of the abstract; submitting a copy of the drawings and a copy of the drawing of the abstract where there are drawings and the drawing of the abstract; the text matter in the drawings, if any, shall be replaced by the corresponding text matter in Chinese; where the international application is filed in Chinese, submitting a copy of the abstract and the drawing of the abstract as appeared in the documents of international publication;

(6) where the applicant has gone through the formalities of changing the applicant before the International Bureau in the international phase, certifying documents shall be furnished to prove the right of the applicant after the change to the international application;

(7) payment of the additional fee for application when necessary, as provided in Rule 93, subparagraph (1) of these Implementing regulations.

Where the requirements set forth in subparagraphs (1) to (3), paragraph one of this Rule are met, the patent administration department under the State Council shall issue the filing number, indicate clearly the date of entry of the international application into the Chinese national phase (hereafter referred to as the date of entry), and notify the applicant that its or his international application has entered into the Chinese national phase.

Where, after entering the Chinese national phase, it is found that an international application does not meet the requirements as set forth in subparagraphs (4) to (7), paragraph one of this Rule, the patent administration department under the State Council shall notify the applicant to make rectification within the specified time limit. If the applicant fails to do so, the application shall be deemed to have been withdrawn.

Rule 105. Where an international application has any of the following circumstances, the effect of the application in China shall cease:

(1) where in the international phase, the international application has been withdrawn or was deemed to have been withdrawn, or the designation of China of the international application has been withdrawn;

(2) where the applicant fails to go through the formalities for entry into the Chinese national phase within 32 months from the priority date in accordance with the provision of Rule 103 of these Implementing Regulations;

(3) while going through the formalities for entry into the Chinese national phase, the applicant fails to fulfill the requirements of Rule 104, subparagraphs (1) to (3) of these Implementing Regulations at the expiration of the time limit of 32 months from the date of priority.

Where the effect of an international application cease in China in accordance with the provision of the preceding paragraph, subparagraph (1), the provisions of Rule 6 of these Implementing Regulations shall not apply. Where the effect of an international application cease in China in accordance with the provision of the preceding paragraph, subparagraph (2) or (3), the provisions of Rule 6, paragraph two of these Implementing Regulations shall not apply.

Rule 106. Where an international application was amended in the international phase and the applicant requests that the examination be based on the amended application, the Chinese translation of the amendments shall be furnished within two months from the date of entry. Where the Chinese translation is not furnished within the said time limit, the a-mendments made in the international phase shall not be taken into consideration by the patent administration department under the State Council.

Rule 107. Where any invention-creation to which the international application relates has one of the events referred to in Article 24, subparagraph (1) or (2) of the Patent Law and where statements have been made in this respect when the international application was filed, the applicant shall indicate it in the written statement concerning entry into the Chinese national phase, and furnish the relevant certifying documents prescribed in Rule 30, paragraph three of these Implementing Regulations within two months from the date of entry. If the applicant fails to indicate it or furnish the relevant certifying documents within the time limit, the provisions of Article 24 of the Patent Law shall not apply to its or his application.

Rule 108. Where the applicant has made indications concerning deposited biological materials in accordance with the provisions of the Patent Cooperation Treaty, the requirements provided for in Rule 24, subparagraph (3) of these Implementing Regulations shall be deemed to have been fulfilled. In the statement concerning entry into the Chinese national phase, the applicant shall indicate the documents recording the particulars of the deposit of the biological materials, and the exact location of the record in the documents.

Where particulars concerning the deposit of the biological materials are contained in the description of the international application as initially filed, but there is no such indication in the statement concerning the entry into the Chinese national phase, the applicant shall make corrections within four months from the date of entry. If the correction is not made at the expiration of the time limit, the biological materials shall be deemed not to have been deposited.

Where, within four months from the date of entry, the applicant has submitted the certificates of the deposit and the viability of the biological materials to the patent administration department under the State Council, the deposit of biological materials shall be deemed to have been furnished within the time limit as provided for in Rule 24, subparagraph (1) of these Implementing Regulations.

Rule 109. Where an invention-creation has been developed relying on the use of genetic resources for which the international application is filed, the applicant shall indicate the fact in the written statement for entering the Chinese national phase, and fill in the forms provided by the patent administration department under the State Council.

Rule 110. Where the applicant claims one or multiple priorities in the international phase and such claims remain valid at the time when the application enters the Chinese national phase, the applicant shall be deemed to have submitted the written declaration in accordance with the provisions of Article 30 of the Patent Law.

The applicant shall pay a fee for the claim of priority within two months from the date of entry. If the fee is not paid or not paid in full within the time limit, the priority shall be deemed not to have been claimed.

Where the applicant has submitted a copy of the earlier application in the international phase in accordance with the provisions of the Patent Cooperation Treaty, he or it shall be exempted from submitting a copy of the earlier application to the patent administration department under the State Council at the time of going through the formalities for entering the Chinese national phase. Where the applicant has not submitted a copy of the earlier application in the international phase, and if the patent administration department under the State Council deems necessary, it may notify the applicant to submit a copy of the earlier application within the specified time limit. If no copy is submitted at the expiration of the time limit, his or its claim for priority shall be deemed not to have been made.

Rule 111. Where, before the expiration of 30 months from the priority date, the applicant files a request with the patent administration department under the State Council for early processing and examination of his or its international application, he or it shall, in addition to going through the formalities for entering the Chinese national phase, submit a re-quest in accordance with the provisions in Article 23, paragraph two of the Patent Cooperation Treaty. Where the international application has not been transmitted by the International Bureau to the patent administration department under the State Council, the applicant shall submit a certified copy of the international application.

Rule 112. With regard to an international application for a patent for utility model, the applicant may amend the patent application documents on its or his own initiative within two months from the date of entry.

With regard to an international application for a patent for invention, the provisions of Rule 51, paragraph one of these Implementing Regulations shall apply.

Rule 113. Where the applicant finds that there are mistakes in the Chinese translation of the description, the claims or the text matter in the drawings as filed, he or it may correct the translation in accordance with the international application as filed within the following time limits:

(1) before the completion of technical preparations for publication of an application for a patent for invention or announcement of patent right for utility model by the patent administration department under the State Council;

(2) within three months from the date of receipt of the notification sent by the patent administration department under the State Council, stating that the application for a patent for invention has entered into the substantive examination phase.

Where the applicant intends to correct the mistakes in the translation, he or it shall file a written request and pay the prescribed fee for the correction of the translation.

Where the applicant makes correction of the translation in accordance with the notification of the patent administration department under the State Council, he or it shall, within the specified time limit, go through the formalities prescribed in paragraph two of this Rule. If the prescribed formalities are not gone through at the expiration of the time limit, the international application shall be deemed to be withdrawn.

Rule 114. With regard to any international application for a patent for invention, if the patent administration department under the State Council, after preliminary examination, considers it in compliance with relevant provisions of the Patent Law and these Implementing Regulations, it shall publish it in the Patent Gazette; where the international appli-cation is filed in a language other than Chinese, the Chinese translation of the international application shall be published.

Where the international publication of an international application for a patent for invention by the International Bureau is in Chinese, the provisions of Article 13 of the Patent Law shall apply from the date of the international publication. If the international publication by the International Bureau is in a language other than Chinese, the provisions of Article 13 of the Patent Law shall apply from the date of the publication of the Chinese translation by the patent administration department under the State Council.

With regard to an international application, the publication referred to in Articles 21 and 22 of the Patent Law means the publication referred to in paragraph one of this Rule.

Rule 115. Where two or more inventions or utility models are contained in an international application, the applicant may, from the date of entry, submit a divisional application in accordance with the provisions in Rule 42, paragraph one of these Implementing Regulations.

Where, in the international phase, some parts of the international application have not been the subject of international search or international preliminary examination because the International Searching Authority or the International Preliminary Examination Authority considers that the international application does not comply with the requirement of unity of invention prescribed in the Patent Cooperation Treaty, and the applicant fails to pay the additional fee, whereas at the time of going through the formalities for entering the Chinese national phase, the applicant requests that the said parts be the basis of examination, the patent administration department under the State Council, finding that the decision concerning unity of invention made by the International Searching Authority or the International Pre-liminary Examination Authority is justified, shall notify the applicant to pay the restoration fee for unity of invention within the specified time limit. Where the fee is not paid or not paid in full at the expiration of the prescribed time limit, those parts of the international application which have not been searched or have not been the subject of international preliminary examination shall be deemed to be withdrawn.

Rule 116. Where an international application in the international phase has been refused to be accorded an international filling date or has been declared to be deemed withdrawn by an international authority concerned, the applicant may, within two months from the date on which he or it receives the notification, request the International Bureau to send the copy of any document in the file of the international application to the patent administration department under the State Council, and shall go through the formalities prescribed in Rule 103 of these Implementing Regulations within the said time limit before the patent administration department under the State Council. After receiving the documents sent by the International Bureau, the patent administration department under the State Council shall review the decision made by the international authority concerned to find whether it is correct.

Rule 117. With regard to a patent right granted on the basis of an international application, if the extent of protection determined in accordance with the provisions of Article 59 of the Patent Law exceeds the scope of the international application in its original language because of incorrect translation, the extent of protection granted on the international application shall be determined according to what is limited in the original language of the application; if the extent of protection granted on the international application is narrower than the scope of the application in its original language, the extent of protection shall be determined according to the patent when it is granted.