PATENT LAW OF THE PEOPLE'S REPUBLIC OF CHINA

(Adopted at the Fourth Meeting of the Standing Committee of the Sixth National People's Congress on March 12, 1984 and amended in accordance with the Decision by the 27th Meeting of the Standing Committee of the Seventh National People's Congress on Amending the Patent Law of the People's Republic of China on September 4, 1992)

　Contents

Article 1 This law is formulated in order to protect patent rights for invention-creations, encourage invention-creations and facilitate their popularization and application, promote the development of science and technology and meet the ends of the socialist modernization.

Article 2 For the purpose of the Law,  invention-creation   means inventions, utility models and designs.

Article 3 The Patent Office of the People's Republic of China shall accept and examine patent applications and grant patent rights for invention-creations that conform to the provisions of the Law.

Article 4 If an invention-creation for which a patent is applied involves national security or other vital interests of the State that require secrecy, the matter shall be treated in accordance with the relevant provisions of the State.

Article 5 No patent right shall be granted for any invention-creation that violates the laws of the State, goes against social morals or is detrimental to the public interest.

Article 6 For a job-related invention-creation made by any person in execution of the tasks of the entity to which he belongs or by primarily using the material resources of the entity, the right to apply for a patent shall belong to the entity. For an invention-creation that is not job-related, the right to apply for a patent shall belong to the inventor or designer. After an application is approved, if it was filed by an entity owned by the whole people, the patent right shall be held by such entity; if it was filed by a collectively owned entity or an individual, the patent right shall be owned by such entity or individual.

For a job-related invention-creation made by any staff member or worker of a foreign-owned enterprise or a Chinese-foreign equity joint venture within the territory of China, the right to apply for a patent shall belong to the enterrprise or joint venture. For an invention-creation that is not job-related, the right to apply for a patent shall belong to the inventor or designer. After the application is approved, the patent right shall be owned by the enterprise, joint venture or individual that applied for it.

The owners and holders of patent rights are uniformly referred to herein as patentees.

Article 7 No entity or individual may suppress the application of an inventor or designer for a patent in respect of a invention-creation that is not job-related.

Article 8 For an invention-creation made jointly by two or more entities, or made by an entity in execution of a commission for research or design given to it by another entity, the right to apply for a patent shall belong, unless otherwise agreed upon, to the entity which made or the entities which jointly made the invention-creation. After the application is approved, the patent right shall be owned or held by the entity or entities that applied for it.

Article 9 If two or more applicants apply separately for a patent on the same invention-creation, the patent right shall be granted to the person who applied first.

Article 10 The right of patent application and the patent right itself may be assigned.

If an entity owned by the whole people wishes to assign a right of patent application or a patent right, it must obtain the approval of the competent authorities at the next higher level.

If a Chinese entity or individual wishes to assign a right of patent application or a patent right to a foreigner, it or he must obtain the approval of the relevant competent department under the State Council.

In cases where a right of patent application or a patent right is assigned, the parties must conclude a written contract, which shall come into force after it is registered with and publicly announced by the patent office.

Article 11 After the grant of the patent right for an invention or a utility model, except as otherwise provided for in the law, no entity or individual may, without the authorization of the patentee, make, use or sell the patented product, or use the patented process and use or sell the product directly obtained by the patented process, for production or business purposes.

After the grant of the patent right for a design, no entity or individual may, without the authorization of the patentee, make or sell the product incorporating its or his patented design, for production or business purposes.

After the grant of the patent right, except as otherwise provided for in the law, the patentee shall have the right to prevent any other person from importing, without its or his authorization, the patented product, or the product directly obtained by its or his patented process, for the uses mentioned in the preceding two paragraphs.

Article 12 Except as provided for in Article 14 of this law, any entity or indivdual exploiting the patent of another must conclude a written licensing contract with the patentee and pay the patentee a fee for the exploitation of its or his patent. The Licensee shall not have the right to authorize any entity or individual other than that referred to in the contract to exploit the patent.

Article 13 After the application for an invention patent has been publicly announced, the applicant may require the entities or individuals exploiting the invention to pay an appropriate fee.

Article 14 The relevant competent departments under the State Council and the people's governments of provinces, autonomous regions and municipalities directly under the Central Government shall, in accordance with the State plan , have the power to permit designated entities to exploit important invention-creation patents held by entities owned by the whole people under the organizational system or jurisdiction of these departments and governments. The entities exploiting such patents shall, in accordance with State provisions, pay an exploitation fee to the entity holding the patent right.

If patents held by Chinese individuals or collectively owned entites are of great significance to the interests of the State or the public and need to be applied on an extended scale, the matter shall be handled by the relevant competent department under the State Council according to the provisions of the preceding paragraph after reporting to the State Council and obtaining its approval.

Article 15 The patentee shall have the right to affix a patent marking and indicate the patent number on the patented product or on the packaging of that product.

Article 16 The entity owning or holding the patent right on a jon-related invention-creation shall reward the inventor or designer and shall, upon exploitation of the patented invention-creation, reward the inventor or designer in accordance with the scope of its application and the economic benefits derived form it.

Article 17 An inventor or designer shall have the right to name himself as such in the patent document.

Article 18 If a foreigner, foreign enterprise or other foreign organization having no regular residence or place of business in China files an application for a patent in China, the appliaction shall be handled under this Law in accordance with any agreement concluded between the country to which the applicant belongs and China, or any international treaty to which both countries are party, or on the basis of the principle of reciprocity.

Article 19 If a foreigner, foreign enterprise or other foreign organization having no regular residence or place of business in China applies for a patent or has other patent matters to attend to in China, he or it shall entrust a patent agency designated by the state Council of the People's Republic of China to act on his or its behalf.

If any Chinese entity or individual applies for a patent or has other patent matters to attend to in the country, it or he may entrust a patent agency to act on its or his behalf.

Article 20 If a Chinese entity or individual intends to file an application in a foreign country for a patent on a invention creation completed in China, it or he shall first file at application for patent with the Patent Office and shall, consent with the consent of the relevant competent department under the State Council entrust a patent agency designated by the State Council to act on its or his behalf.

Article 21 Until the publication or public announcement of a patent application, staff members of the Patent Office and persons involved shall have the duty to keep the contents of the patent application confidential.

Article 22 Any invention or utility model for which a patent right may be granted must possess the characteristics of novelty, inventiveness and usefulness.

Novelty  means that, before the filing date of the application, no identical invention or utility model has been publicly disclosed in domestic or foreign publications or has been publicly used or made known to the public by any other means in the country, nor has any other person previously filed with the Patent Office an application deseribing an identical invention or utility model which was recorded in patent application documents published after the said date of filing.

Inventiveness means that, compared whith the technolgy existing before the filing date of the application, the invention has prominent and substantive distinguishing features and represents a marked improvement, or the utility model possesses substantive distinguishing features and represents an improvement.

Usefulness means that the invention or utility model can be made or used and can produce positive results.

Article 23 Any design for which a patent right may be granted must not be identical with or similar to any design which, before the filing date of the application, has been publicly disclosed in domestic or foreign publications or has been publicly used within the country.

Article 24 Any invention-creation for which a patent is applied shall not lose its novelty if , within six months before the filing date of the application, one of the following events has occurred:

(1) It was exhibited for the first time at an international exhibition sponsored or recognized by the Chinese Government;

(2) It was made public for the first time at a prescribed academic or technical conferences; or

(3) It was disclosed by any person without the consent of the applicant.

Article 25 For any of the following, no patent right shall be granted:

(1) Scientific discoveries;

(2) Rules and methods for mental activities;

(3) Methods for the diagnosis or for the treatment of diseases;

(4) Animal and plant varieties;

(5) Substances obtained by means of nuclear transformation.

For processes used in producing products referred to in item (4) of the preceding paragraph, patent right may be granted in accordance with the provisions of this Law.

Article 26 When a patent application is filed for an invention or a utility model, relevant documents shall be submitted, including a writter request, a specification and an abstract thereof, and a patent claim.

The written request shall state the title of the invention or utility model, the name of the inventor or designer, the name and address of the applicant and other related matters.

The specification shall describe the invention or utility model in a manner sufficiently clear and complete so that a person skilled in the relevant field of technology can accurately produce it; where necessary, drawings shall be appended. The abstract shall describe briefly the technical essentials of the invention or utility model.

The patent claim shall, on the basis of the specification, state the scope of the patent protection requested

Article 27 When a patent application is filed for a design, relevant documents shall be submitted, including a written request and drawings or photographs of the design; the product on which the design is to be used and the category of that product shall also be indicated.

Article 28 The date on which the Patent Office receives the patent application documents shall be the filing date of the application. If the application documents are sent by mail, the postmark date shall be the filing date of the application

Article 29 Where, within twelve months from the date on which any applicant first filed in a foreign country an application for a patent for invention or utility model, or within six months form the date on which any applicant first filed in a foreign country an application for a patent for design, he or it files in China an application for a patent for the same subject matter, he or it may, in accordance with any agreement concluded between the said foreign country and China, or in accordance with any international treaty to which both countries are party, or on the basis of the principle of mutual recognition of the right of priotity, enjoy a right of priority.

Where, within twelve months from the date on which any applicant first filed in China an application for a patent for invention or utility model he or it files with the Patent Office an application for a patent for the same subject matter, he or it may enjoy a right of priority.

Article 30 Any applicant who claims the right of priority shall make a written declaration when the application is filed, and submit, within three months, a copy of the patent application documents that was first filed; if the applicant fails to make the written declaration or fails to submit a copy of the patent application documents within the time limt, the claim to the right of priority shall be deemed not to have been made.

Article 31 Each patent application for invention or utility model shall be limited to a single invention or utility model. Two or more inventions or utility models belonging to a single inventive concent may be submitted together in one application.

Each patent application for design shall be limited to a single design used on one type of product. Two or more designs incorporated in products belonging to the same category and sold or used in sets may be submitted together in one application.

Article 32 An applicant may withdraw his or its patent application at any time before the patent right is grantded.

Article 33 An applicant may amend his or its application for a patent, but the amendment to the application for a patent for invention or utility model may not go beyond the scope of the discolsure contained in the initial description and the claims, and the amendment to the application for a patent for design may not go beyond the scope of the disclosure as shown in the initial drawings or photographs.

Article 34 Where, after receiving an application for a patent for invention, the Patent Office, upon preliminary examination, finds the application to be in conformity with the requiremtns of this law, it shall publish the application promptly after the expiration of eighteen months from the date of filing. Upon the request of the applicant, the Patent Office may publish the application earlier.

Article 35 Upon the applicants request for an invention patent made at any time within three years from the filing date of an application, the Patent Office may carry out substantive examination of the application. If, without any justified reason, the applicant fails to meet the time limit for requesting such substantive examination, the application shall be deemed to have been withdrawn.

The Patent Office may of its own accord carry out substantive examination of an application for an invention patent when it deems it necessary.

Article 36 When requesting substantive examination of an invention patent application, the applicant shall furnish reference materials concerning the invention that were available prior to the filing date of the application.

When an applicant requests substantive examination of his or its application for an invention patent after he or it has applied in a foreign country for a patent on the same invention, he or it shall furnish documents from any investigations made in the foreign country for the purpose of examining that application, or documents stating the results of that examination, if without any justified reason, the said documents are not furnished, the application shall be deemed to have been witherawn.

Article 37 If, after completing the substantive examination of an invention patent application, the Patent Office finds that the application does not conform with the provisions of this law, it shall notify the applicant and ask him or it to state his or its observations or amend the application within a specified time limit. If, without any justified reason, the applicant fails to respond within the time limit, the application shall be deemed to have been withdrawn.

Article 38 If, after the applicant has stated his or its observations or made amendments, the Patent Office still finds that the invention patent application does not conform with the provisions of this law, it shall reject the application.

Article 39 Where it is found after examination as to substance that there is no cause for rejection of the application for a patent for invention, the Patent Office shall made a decision granting the patent right for invention, issue the certificate of patent for invention, and register and announce it.

Article 40 Where it is found after preliminary examination that there is no cause for rejection of the application for a patent for utility model or design, the Patent Office shall make a decision granting the patent right for utility model or the patent right for design, issue the relevant patent certificate, and register and announce it.

Article 41 Where, within six months from the date of the announcement of the grant of the patent right by the Patent Office, any entity or individual considers that the grant of the said patent right is not in conformity with the relevant provisions of this Law, it or he may request the Patent Office to revoke the patent right.

Article 42 The Patent Office shall examine the request for revocation of a patent right, made a decision revoking or upholding the patent right, and notify the person who made the request and the patentee. The decision revoking the patent right shall be registered and announced by the Patent Office.

Article 43 The Patent Office shall set up a Patent Reexamination Board. Where any party is not satisfied with the decision of the Patent Office rejecting the application, or the decision of the Patent Office revoking or upholding the patent right, such party may, within three months from the date of recepit of the notification, request the Patent Reexamination Board to make a reexamination. The Patent Reexamination Board shall, after reexamination, make a decision and notify the applicant, the patentee or the person who made the request for revocation of the patent right.

Where the applicant for a patent for invention, or the patentee of an invention, the person who made the request for revocation of the patent right for invention is not satisfied with the decision of the Patent Reexamination Board, he or it may within three months from the date of receipt of the notification institute legal proceedings in the people's court.

The decision of the Patent Reexamination Board in respect of any request made by the applicant, the patentee or the person who made the request for revocation of the patent right, for reexamination concerning a utility model or design shall be final.

Article 44 Any patent right which bas been revoked shall be deemed to be non-existent from the beginning.

　
Article 45 The duration of patent right for inventions shall be twenty years, and the duration of the patent right for utility models and patent right for designs shall be ten years, counted from the date of filing.

Article 46 The patentee shall pay an annual fee beginning with the year in which his or its patent right is granted.

Article 47 In either of the following cases, the patent right shall be terminated prior to the expiration of its term:

(1) If the annual fee is not paid as prescribed; or

(2) If the patentee renounces his or its patent right by a written declaration.

The termination of a patent right shall be registered and publicly announced by the Patent Office.

Article 48 Where, after the expiration of six months from the date of the announcement of the grant of the patent right by the Patent Office, any entity or individual considers that the grant of the said patent right is not in conformity with the relevant provisions of this law, it or he may request the Patent Reexamination Board to declare the patent right invalid.

Article 49 The Patent Reexamination Board shall examine the request for invalidation of a patent right, make a decision and notify the party who made the request and the patentee. Any decision declaring a patent right invalid shall be registered and publicly announced by the Patent Office.

Where any party is not satisfied with the decision of the Patent Reexamination Board either invalidating or upholding the patent right for an invention, it may, within three months after receiving notification of the decision, file a suit in the people's court.

The decision of the Patent Reexamination Board on a request to invalidate the patent right for a utility model or design shall be final.

Article 50 Any patent right which has been declared invalid shall be deemed to be non-existent from the beginning.

The decision invalidating a patent right shall have no retroactive effect on any judgement or order on patent infringement which has been pronounced and enforced by the people's court, on any decision concerning the handling of patent infringement which has been made and enforced by the administrative authouities for patent affairs, and on any contract of license for exploitation of the patent and any contract of assignment of the patent right which have been perpormed, prior to the decision invalidating the patent right; however, the damages caused to any other person in bad faith on the part of the patentee shall be compensted.

If, pursuant to the provisions of the prcecding paragraph, no repayment of the fee for the exploitation of the patent or the price for the assignment of the patent right is made by the patentee or the assignor of the patent right to the licensee or the assignee of the patent right, which is obviously contrary to the principle of equity, the patentee or the assignor of the patent right shall repay the whole or part of the fee for the exploitation of the patent or the price for the assignment of the patent right to the licensee or the assignee of the patent right.

The provisions of the second and third paragraphs of this Article shall be applicable to any patent right which has been revoked.

Article 51 Where any entity which is qualified to exploit the invention or utility model has made a request for authorization from the patentee of an invention or a utility model to exploit its or his patent on reasonable terms and has been unable to obtain such authorization whithin a reasonable period of time, the Patent Office may, upon the application of that entity, grant a compulsory license to exploit the patent for the invention or utility model.

Article 52 Where a national emergency or an extraordinary state of affairs occurs, or where the public interest so requires, the Patent Office may grant a compulsory license to exploit the patent of invention or utility model.

Article 53 Where a patented invention or utility model is technically more advanced than another invention or utility model that was patented earlier and the exploitation of the later invention or utility model is dependent on the exploitation of the earlier invention or utility model, the Patent Office may, upon the application of the later patentee, grant a compulsory licence to exploit the earlier invention or utility model.

Where a compulsory licence has been granted in accordance with the provisions of the preceding paragraph, the Patent Office may, upon the application of the earlier patentee, also grant a compulsory licence to exploit the later invention or utility model.

Article 54 Any entity or individual applying for a compulsory licence in accordance with the provisions of this Law shall furnish proof that it or he has not been able to conclude a licensing contract on reasonable terms with the patentee.

Article 55 Any decision made by the Patent Office granting a compulsory licence shall be registered and publicly announced.

Article 56 Any entity or individual that is granted a compulsory licence shall not have an exclusive right to exploit the patent in question, nor shall it or he have the right to authorize exploitation of the patent by others.

Article 57 Any entity or individual that is granted a compulsory licence shall pay the patentee a reasonable exploitation fee. The amount of the fee shall be decided by both parties through consultation. Where the parties fail to reach an agreement, the Patent Office shall make a ruling.

Article 58 Where the patentee is not satisfied with the decision of the Patent Office granting a compulsory licence or with its ruling regarding the exploitation fee, he or it may, within three months from receiving notification of the decision, file a suit in the people's court.

Article 59 The scope of protection in the patent right for an invention or a utility model shall be determined by the contents of the patent claim. The specification and appended drawings may be used to interpret the patent claim.

The scope of protection in the patent right for a design shall be determined by the product incorporating the patented design as shown in the drawings or photographs.

Article 60 If any acts of infringement arise from the exploitation of a patent without the authorization of the patentee, the patentee or interested parties may request the administrative authorities for patent affairs to handle the matter or may directly file a suit in the people's court. In handling the matter, the administrative authorities for patent affairs shall have the power to order the infringer to stop the acts of infringement and compensate for the losses. Any party dissatisfied with the order may, within three months from receiving notification of it, file a suit in the people's court. If, at the expiration of such perild, the party has neither filed a suit nor complied with the order, the administrative authouities for patent affairs may approach the people's court for compulsory enforcement of the order.

When any infringement dispute arises, if the patent for invention is a process for the manufacture of a new product, any entity or individual manufacturing the identical product shall furnish proof of the process used in the manufacture of its or his product.

Article 61 The period of limitation for filing a suit concerning the infringement of a patent right shall be two years, counted from the day on which the patentee or the interested parties became aware or should have become aware of the act of infringement.

Article 62 None of the following shall be deemed an infringement of a patent right:

(1) Use or sale of a patented product after it has been made by the patentee or with the authorization of the patentee and subsequently sold;

(2) Use or sale of a patented product without knowledge of its having been made and sold without the authorization of the patentee;

(3) Continued making or use of a similar product, only within its original scope, by a party that, prior to the date of application for the patent in question, had already made that similay product, used the same process or made the necessary preparations for such making or use;

(4) Use of the patent in qestion by a foreign means of transport which temporarily passes through the territorial land, water or airspace of China for its own needs, in its devices and installation, in accordance with any agreement concluded between China and the country to which the foreign means of transport belongs, or an international treaty to which both countries are party, or on the basis of the principle of reciprocity; or

(5) Use of the patent in question solely for the purposes of scientific research and experimentation.

Article 63 Where any person passes off the patent of another person, such passing off shall be dealt with in accordance with Article 60 of this Law. If the circumstances are serious, the person directly responsible shall be investigated for criminal liability by applying mutatis mutandis Article 127 of the Criminal Law.

Where any person passes any unpatented product off as patented product or passes any unpatented process off as patented process, such person shall be ordered by the administrative authorities for patent affairs to stop the passing off, correct it publicly, and shall also be subjected to a fine.

Article 64 Where any person, in violation of the provisions of Article 20 of this Law, files in a foreign country without authorization an application for a patent divulging an important state secret, he shall be given administrative sanctions by the entity to which he belongs or by the competent authorities at the next higher level. If the circumstances of the case are serious, he shall be investigated for criminal liability in accordance with the law.

Article 65 Where any person usurps the right of an inventor or designer to apply for a patent on an invention-creation that is not job-related, or usurps any other right or interest of an inventor or designer prescribed by this law, he shall be given administrative sanctions by the entity to which he belongs or by the competent authorities at the next higher level.

Article 66 Where any staff member of the Patent Office or any of the relevant State functionaries engages in malpractices for private gains, he shall be given administrative sanctions by the Patent Office or the competent authorities concerned. If the circumstances are serious, he shall be investigated for criminal liability by applying mutatis mutandis Article 188 of the Criminal Law.

Article 67 For patent applications filed with the Patent Office and other procedures carried out there, fees shall be paid as prescribed.

Article 68 Rules for the implementation of this Law shall be formulated by the Patent Office and submitted to the State Council for approval before they are put into effect.

Article 69 This Law shall go into effect on April 1, 1985.

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