PRC Patent Law Implementing Rules (Revised)

ORIGINAL VERSION

REVISION

I. Amendments Made to Keep Consistency with the Revisions of the Patent Law

Article 55: The grounds on which revocation may be requested under Article 41 of the Patent Law of the patent right, announced and granted by the Patent Office, shall comprise the following:

(1) where the invention or utility model for which the patent right is granted does not conform to the provisions of Article 22 of the Patent Law;

(2) where the design for which the patent right is granted does not conform to the provisions of Article 23 of the Patent Law.

Article 56: Anyone requesting revocation of the patent right in accordance with the provisions of Article 41 of the Patent Law shall submit to the Patent Office a request and the relevant documents in duplicate, stating the facts and reasons on which the request is based.

The person requesting revocation may withdraw his request before the Patent Office makes a decision on it.

Article 57: On receipt of a request for revocation of the patent right, the Patent Office shall proceed to examine it. Where the request does not conform to the prescribed requirements, the Patent Office shall notify the requester to correct it within a specified time limit. If the time limit for making corrections is not met, the request for revocation shall be deemed not to have been filed.

Where, in the request for revocation of the patent right, no facts and reasons have been given to support the request or the reasons given do not conform to the provisions of Article 55 of these Implementing Regulations, the request shall be declared to be unacceptable.

The Patent Office shall send a copy of the request for revocation of the patent right and copies of the relevant documents to the patentee and invite it or him to present its or his observations within a specified time limit. The patentee may amend its or his patent specification, but may not broaden the scope of patent protection. If no response is made within the time limit, the examination procedure of the Patent Office will not be affected.

B. Increasing the Reward and Remuneration of Inventors or Designers of Service Inventions and Creations

PART SIX: REWARDS TO INVENTORS OR DESIGNERS OF SERVICE INVENTION/CREATION

Article 70: "Rewards" mentioned in Article 16 of the Patent Law includes money prizes and other remuneration that are to be given to inventors and designers.

Article 71: After the grant of a patent, the entity holding the patent right shall award to the inventor or designer a sum of money as a prize. The bonus for a patent for invention shall not be less than Rmb200; the prize for a patent for utility model or design shall not be less than Rmb50.

Where an invention/creation is made on the basis of an inventor's or designer's proposal adopted by the entity to which he belongs, after the grant of the patent right, the entity holding the patent right shall award to him a generous money prize.

Any enterprise holding the patent right may include the said money prize given to the inventor or designer into its production cost; any institution holding the patent right may disburse the said money prize out of its operating expenses.

Article 72: After exploiting a patent for an invention/creation within the duration of the patent, the entity holding the patent right shall each year deduct, after taxation, between 0.5% and 2% from the profits gained from exploiting the invention or utility model, or between 0.05% and 0.2% from the profits gained from exploiting the design, and give it to the inventor or designer as remuneration; or the entity shall, in the light of the above-mentioned percentages give a lump sum of money to the inventor or designer as remuneration.

Article 73: Where any entity holding the patent right for an invention/creation authorizes other entitles or individuals to exploit its patent, it shall, after taxation, deduct between 5% and 10% from the exploitation fees it has received and give it to the inventor or designer as remuneration.

Article 74: The remuneration provided for in these Implementing Regulations shall be disbursed out of the profits derived from the making of the patented product or the use of the patented process and out of the fees charged for the exploitation of the patent. The remuneration shall not be included in the total amount of the normal bonuses of the entity, nor subject to the bonus tax. However, the inventor or designer shall pay tax for his personal income according to law.

Article 75: Chinese entities under collective ownership and other enterprises may give money prizes and make remuneration to inventors or designers by making reference to the provisions in this part.

PART SIX: REWARD AND REMUNERATION OF INVENTORS OR DESIGNERS OF SERVICE INVENTIONS AND CREATIONS

Article 74: A State-owned enterprise or institution granted a patent right shall give the inventor or designer a money award within three months from the date on which the patent right is gazetted. The money award for an invention patent shall not be less than Rmb2000. The money award for a utility model or design patent shall not be less than Rmb500.

After the granting of a patent right for an invention or creation that was completed because the work unit to which the inventor or designer belongs accepted his proposal, the State-owned enterprise or institution granted the patent right shall give a generous money award.

Enterprises may enter money awards paid to inventors or designers under costs. Institutions may enter such money
awards under operating expenses.

Article 75: After working a patent for an invention or creation within the term of the validity of the patent right, the State-owned enterprise or institution granted the patent right shall pay the inventor or designer remuneration at a rate of not less than 2% of the annual after-tax profit obtained from working the patent for the invention or utility model or not less than 0.2% of the annual after-tax profit obtained from working the design patent, or pay the designer or inventor a lump sum remuneration by reference to the above percentages.

Article 76: If the State-owned enterprise or institution granted the patent right for an invention or creation licenses another work unit or an individual to work its patent, it shall pay the inventor or designer remuneration at the rate of not less than 10% of the after-tax royalty received by it from such licence.

Article 77: Other work units in China may refer to the provisions of this part regarding money awards and remuneration.

C. Improving Patent Protection

PART SEVEN: ADMINISTRATIVE AUTHORITY FOR PATENT AFFAIRS

Article 76: The "administrative authorities for patent affairs" mentioned in the Patent Law and these Implementing Regulations refers to the administrative authorities for patent affairs set up by the competent departments concerned of the State Council and the local people's governments.

Article 77: Where, after the publication of an application for a patent for invention and before the grant of the patent right, any entity or individual has exploited the invention without paying an appropriate fee, the patentee may, after the grant of the patent right, request the administrative authority for patent affairs to handle the matter, or may directly institute legal proceedings in the people's court. The administrative authority handling the matter shall have the power to decide that the entity or individual shall pay an appropriate fee within the specified time limit. Where any of the parties concerned is not satisfied with the decision of the said authority, it or he may institute legal proceedings in the people's court.

Where a dispute arises between an inventor or creator and the entity to which he belongs as to whether an invention/creation is a service invention/creation, or whether an application for a patent is to be filed in respect of a service invention/creation, or where the entity owning or holding the patent right has not awarded according to law a money prize or made remuneration to the inventor or creator of a service invention/creation, the inventor or creator may request the competent department at the higher level or the administrative authority for patent affairs of the region in which the entity is located to handle the matter.

The prescription for requesting the administrative authority for patent affairs to handle a patent dispute is two years counted from the date on which the patentee or any interested party obtained or should have obtained knowledge of the relevant fact.

Article 78: Pursuant to the provisions of Article 63, Section 2 of the Patent Law, where any person passes an unpatented product off as a patented product or passes an unpatented process off as a patented process, the administrative authority for patent affairs may, according to the circumstances, order such person to stop the act of passing off, to eliminate the adverse effects and, in addition, to pay a fine of Rmb1,000 to 5,000 or a fine equal to between 100% and 300% of the amount of his illegal income.

Article 79: Where a party to a trans-departmental or transregional infringement dispute requests the administrative authority for patent affairs to handle the matter, the said dispute shall be handled by the administrative authority for patent affairs of the region in which the infringement has taken place, or by the administrative authority for patent affairs of the higher competent department of the infringing entity.

PART SEVEN: PATENT PROTECTION

Article 78: For the purposes of the Patent Law and these Rules, the term "Patent Administration Authorities" shall mean the patent administration authorities established by the people's governments of the provinces, autonomous regions and municipalities directly under the central government and the people's governments of municipalities divided into districts that have both a large volume of and the actual capability to handle patent administration work.

Article 79: In addition to that provided for in Article 57 of the Patent Law, Patent Administration Authorities may mediate in the following types of patent disputes at the request of the parties:

(1) disputes over patent application rights and ownership of patent rights;

(2) disputes over the qualifications of inventors and designers;

(3) disputes over the rewarding and remuneration of the inventors and designers of service inventions; and

(4) disputes concerning the inadequacy of royalties for the use of an invention after the invention patent application has been published and before the patent has been granted.

Requests to the Patent Administration Authorities by patentees for mediation in the disputes specified in Item (4) of the preceding paragraph shall be submitted after the patent right has been granted.

Article 80: The State Council's patent administration authority shall provide professional guidance to the Patent Administration Authorities in the handling and mediation of patent disputes.

Article 81: When a party requests the handling or mediation of a patent dispute, the Patent Administration Authority of the place where the respondent is located or in which the infringement occurred shall have jurisdiction.

In patent disputes where two or more Patent Administration Authorities have jurisdictional authority, the party concerned may submit his request to any one of the Patent Administration Authorities; if the party concerned submits his request to two or more Patent Administration Authorities with jurisdictional authority, the Patent Administration Authority that first accepted the request shall have jurisdiction.

If a conflict over jurisdictional authority arises between Patent Administration Authorities, the Patent Administration Authority of the people's government to which they are all subordinate shall determine jurisdiction. In cases where there is no Patent Administration Authority of a people's government to which all the Patent Administration Authorities concerned are subordinate, the State Council's patent administration authority shall determine jurisdiction.

Article 82: If, during the handling of a patent infringement dispute, the respondent submits an invalidation request and the request is accepted by the Patent Re-examination Board, a request may be made to the Patent Administration Authority to suspend its handling of the dispute.

If the Patent Administration Authority is of the opinion that the grounds for suspension submitted by the respondent clearly cannot be sustained, it may refuse to suspend its handling of the dispute.

Article 83: If a patentee affixes its patent marking on its patented product or on the packaging of such product pursuant to Article 15 of the Patent Law, it shall do so in the manner prescribed by the State Council's patent administration authority.

Article 84: The following acts constitute passing off a third party's patent:

(1) affixing, without a licence, a third party's patent number on products or the packaging of products one manufactures or sells;

(2) using, without a licence, a third party's patent number in advertising or other publicity materials, thereby causing people to confuse the technology involved with the patented technology of such third party;

(3) using, without a licence, a third party's patent number in a contract, thereby causing people to confuse the technology under the contract with the patented technology of such third party;

(4) forging or altering a third party's patent certificate, patent documents or patent application documents.

Article 85: The following acts constitute the passing off of non-patented products as patented products or the passing off of a non-patented process as a patented process:

(1) the manufacture or sale of non-patented products bearing a patent marking;

(2) continuing to affix a patent marking on products that one manufactures or sells after a patent right has been invalidated;

(3) referring to non-patented technology as patented technology in advertisements or other publicity materials;

(4) referring to non-patented technology as patented technology in a contract;

(5) forging or altering patent certificates, patent documents or patent application documents.

Article 86: If a dispute over the ownership of a patent application right or patent right arises and a party has requested a Patent Administration Authority to handle the matter or instituted an action in a people's court, a request may be made to the State Council's patent administration authority to suspend the relevant procedure.

If a request is made to suspend the relevant procedure pursuant to the preceding paragraph, a written request accompanied by a duplicate of the acceptance document issued by the Patent Administration Authority or people's court shall be submitted to the State Council's patent administration authority.

After the handling decision of the Patent Administration Authority or the judgment of the people's court has entered into effect, the concerned party shall carry out formalities with the State Council's patent administration authority for resumption of the relevant procedure. If the dispute over the ownership of the patent application right or patent right cannot be resolved within one year of the date of the suspension request and it is necessary to continue the suspension of the relevant procedure, the party making the request shall request an extension of the suspension within the said time limit. If at the expiration of the time limit no request for extension has been made, the State Council's patent administration authority shall automatically resume the relevant procedure.

D. Addition of Provisions Concerning Utility Model Patent Search Reports

Article 55: After a decision to grant a patent right for a utility model has been gazetted, the patentee of a utility model may make a request to the State Council's patent administration authority to issue a utility model patent search report.

Anyone who makes a request for a utility model patent search report shall submit a written request and indicate the patent number of the utility model patent. Each request shall be limited to one utility model patent.

After the State Council's patent administration authority receives a request to issue a utility model patent search report, it shall examine the same. If the request is found not to conform to the specified requirements, it shall notify the party making the request to correct the same within a prescribed time limit.

Article 56: If, upon examination, the request for a utility model patent search report is found to conform with regulations, the State Council's patent administration authority shall promptly issue a utility model patent search report.

If, after searching, the State Council's patent administration authority is of the opinion that the relevant utility model patent does not comply with the provision on novelty or creativeness of Article 22 of the Patent Law, it shall cite the relevant documents, explain its reasons and attach photocopies of the documents cited by it.

II. Amendments Made to Facilitate Procedures
A. Legal Basis for Electronic Applications

Article 3: Any proceedings provided for by the Patent Law and these Implementing Regulations shall be conducted in written form.

Article 16: Anyone who applies for a patent shall submit application documents in duplicate.

Any applicant who appoints a patent agency for filing an application for a patent with, or for dealing with other patent matters before, the Patent Office, shall submit a power of attorney indicating the scope of the power entrusted.

Article 3: The various procedures provided for in the Patent Law and these Rules shall be carried out in writing or in another form prescribed by the State Council's patent administration authority.

Article 16: When an application for a patent is made in writing, the application documents shall be filed with the State Council's patent administration authority in duplicate.

When an application for a patent is made in another form specified by the State Council's patent administration authority, such application shall comply with the specified requirements.

If an applicant has appointed a patent agency to apply to the State Council's patent administration authority for a patent and handle other patent matters, the power of attorney specifying the scope of the power entrusted shall be submitted at the same time.

If there are two or more applicants and they have not appointed a patent agency, the first applicant indicated on the request shall be their representative, unless otherwise stated in the request.

B. Simplifying the Conditions for Divisional Applications

Article 42: Where an application for a patent contains two or more inventions, utility models or designs, the applicant may, at any time before he or it receives the notification of the grant of the patent right from the Patent Office, submit to the Patent Office a divisional application.

If the Patent Office finds that an application for a patent is not in conformity with the provisions of Article 31 of the Patent Law and Article 35 of these Implementing Regulations, it shall invite the applicant to amend the application within a specified time limit; if the applicant does not reply within the time limit, the application shall be deemed to have been withdrawn.

Divisional applications may not change the category of the parent applications.

Article 42: If one patent application covers two or more inventions, utility models or designs, the applicant may file a divisional application with the State Council's patent administration authority before the expiration of the time limit prescribed in the first paragraph of Article 54 hereof. However, a divisional application may not be filed if a patent application has already been rejected, withdrawn or deemed to be withdrawn.

If the State Council's patent administration authority considers that a patent application does not conform to Article 31 of the Patent Law or Articles 35 or 36 hereof, it shall notify the applicant to amend the application within a prescribed time limit. If the applicant does not reply within the time limit, the application shall be deemed to have been withdrawn.

Divisional applications may not change the category of the parent applications.

C. Specifying the Scope of Preliminary Examination

Article 44: "Preliminary examinations" mentioned in Articles 34 and 40 of the Patent Law means examining 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 examination also includes the following:

(1) whether or not an application for a patent for invention obviously falls under Article 5 or 25 of the Patent Law, or is obviously not in conformity with the provisions of Article 18 or Article 19, Section 1, or is obviously not in conformity with the provisions of Article 31, Section 1, or Article 33 of the Patent Law, or Article 2, Section 1, of these Implementing Regulations;

(2) whether or not an application for a patent for utility model obviously falls under Article 5 or 25 of the Patent Law, or is obviously not in conformity with the provisions of Article 18 or Article 19, Section One, or is obviously not in conformity with the provisions of Article 31, Section One, or Article 33 of the Patent Law, or Article 2, Section Two, or Article 12, Section One, or Articles 18 to 23 of these Implementing Regulations, or cannot obtain a patent right according to the provisions of Article 9 of the Patent Law;

3. whether or not an application for a patent for design obviously falls under Article 5 or the Patent Law, or is obviously not in conformity with the provisions of Article 18 or Article 19, Section One, or is obviously not in conformity with the provisions of Article 31, Section Two, or Article 33 of the Patent law, or Article 2, Section Three, or Article 12, Section One, of these Implementing Regulations, or cannot obtain a patent right according to the provisions of Article 9 of the Patent Law.

The Patent Office shall communicate its comments after examination of the application to the applicant and invite him or it to submit his or its observations or to correct his or its application within the time limit. If the applicant fails to respond on expiration of the time limit, the application shall be deemed to have been withdrawn. Where, after the applicant has made its or his observations or corrections, the Patent Office still finds that the applications is not in conformity with the provisions of the Articles and the Articles cited in the relevant preceding sections, the application shall be rejected.

Article 44: For the purposes of Articles 34 and 40 of the Patent Law, the term "preliminary examination" shall mean examination of whether or not a patent application contains the documents specified in Article 26 or 27 of the Patent Law and other necessary documents, whether or not such documents are in the required format, and an examination of the following:

(1) whether or not an application for an invention patent clearly comes under Article 5 or 25 of the Patent Law, or does not conform to Article 18 or the first paragraph of Article 19 of the Patent Law, or clearly does not conform to the first paragraph of Article 31 or Article 33 of the Patent Law or the first paragraph of Article 2, or Article 18 or Article 20 of these Rules;

(2) whether or not an application for a utility model patent clearly comes under Article 5 or 25 of the Patent Law, or does not conform to Article 18 or the first paragraph of Article 19 of the Patent Law, or clearly does not conform to the third or fourth paragraphs of Article 26, the first
paragraph of Article 31 or Article 33 of the Patent Law or the second paragraph of Article 2, the first paragraph of Article 13, Articles 18 to 23 or the first paragraph of Article 43 of these Rules, or is not patentable pursuant to Article 9 of the Patent Law; and

(3) whether or not an application for a design patent clearly comes under Article 5 of the Patent Law, or does not conform to Article 18 or the first paragraph of Article 19 of the Patent Law, or clearly does not conform to the second paragraph of Article 31 or Article 33 of the Patent Law or the third paragraph of Article 2, the first paragraph of Article 13 or the first paragraph of Article 43 of these Rules, or is not patentable pursuant to Article 9 of the Patent Law.

The State Council's patent administration authority shall notify the applicant of the opinion reached by it upon examination, and request him to state his comments or to make corrections within the prescribed time limit. If the applicant does not reply within the time limit, his application shall be deemed to have been withdrawn. If, after the applicant states his comments or makes corrections, the State Council's patent administration authority still considers that the application does not conform to the provisions of the preceding paragraph, the application shall be rejected.

D. Specifying the Time Limits for Amendments to Patent Applications

Article 51: When a request for examination as to substance is made, or when a response is made in regard to the first Office Action of the Patent Office after examination as to substance, the applicant may amend the application on its or his own initiative.

Within three months from the date of filing, the applicant for a patent for utility model or design may amend the application for a utility model or design on its or his own initiative.

Article 51: At the time an applicant for an invention patent submits a request for substantive examination and within three months after the date of receipt of the notice issued by the State Council's patent administration authority stating that the invention patent application has entered the stage of substantive examination, he may amend the patent application on his own initiative.

Applicants for utility model or design patents may amend their applications on their own initiative during a period of two months from the date of application.

If an applicant amends his patent application documents after receipt of the notice giving the opinion upon examination issued by the State Council's patent administration authority, he shall do so in accordance with the requirements of the notice.

The State Council's patent administration authority may itself correct obvious typographical and symbol errors in patent application documents. If the State Council's patent administration authority makes such corrections itself, it shall notify the applicant thereof.

E. Improving the Procedures for Re-examination and Invalidation

Article 58: The Patent Re-examination Board shall consist of experienced technical and legal experts designated by the Patent Office. The Director General of the Patent Office shall concurrently be the Chairman of the Board.

Article 59: Where the applicant requests the Patent Re-examination Board to make a re-examination in accordance with the provisions of Article 43, Section 1 of the Patent Law, it or he shall file a request for re-examination and state the reasons therefor, together with the relevant supporting documents. The request and the supporting documents shall be in duplicate.

The applicant or the patentee may amend its or his patent application that has been rejected or its or his patent that has been revoked at the time when it or he requests re-examination, but the amendments shall be limited only to the part to which the decision on rejection of the application or the decision on revocation of the patent right relates.

Article 60: Where a request for re-examination does not follow the prescribed form, the requester for re-examination shall correct it within the time limit prescribed by the Patent Re-examination Board. If the time limit for making corrections is not met, the request for re-examination shall be deemed not to have been filed.

Article 61: The Patent Re-examination Board shall send the request for re-examination that the Board has accepted to the initial examination department of the Patent Office for examination. Where the initial examination department agrees to revoke its former decision upon the request of the requester for re-examination, the Patent Re-examination Board shall make a decision on re-examination accordingly and notify the requester for re-examination.

Article 62: Where the Patent Re-examination Board finds after re-examination that the request does not conform to the provisions of the Patent Law, it shall invite the requester for re-examination to submit his observations within the prescribed time limit. If the time limit for making a response is not met, the request for re-examination shall be deemed to have been withdrawn.

Article 63: Before the Patent Re-examination Board makes a decision on a request for re-examination, the requester may withdraw his request for re-examination.

Article 64: The Patent Office may correct obvious mistakes in the title of the invention/creation, the abstract or the request in the application, and notify the applicant.

The Patent Office shall promptly correct mistakes in the Patent Gazette and in the documents issued by it once they are discovered.

PART FOUR: INVALIDATION OF PATENT RIGHT

Article 65: Anyone requesting invalidation or partial invalidation of the patent right according to the provisions of Article 48 of the Patent Law shall submit the request and the relevant documents in duplicate, stating the facts and reasons on which the request is based, to the Patent Re-examination Board.

A requester for invalidation may withdraw his request before the Patent Re-examination Board makes a decision on the request for invalidation.

Article 66: Where a request for invalidation of the patent right does not follow the prescribed form, the requester shall correct it within the time limit fixed by the Patent Re-examination Board. If the corrections fail to be made within the time limit, the request for invalidation shall be deemed not to have been filed.

The grounds on which a request for invalidation are based refer to the events where the invention/creation for which the patent right is granted does not conform to the provisions of Articles 22, 23, 26, Section 3 or 4 or Article 33 of the Patent Law, or Article 2 or 12, Section 1 of these Implementing Regulations; or it falls under the provisions of Article 5 or 25 of the Patent Law; or the person to whom the patent was granted cannot obtain the patent right according to the provisions of Article 9 of the Patent Law.

Where, in a request for invalidation, no facts and reasons have been given to support the request or the reasons given do not conform to the provisions of the preceding section, or where the invalidation is requested after a request for revocation is made but no decision on that request has yet been rendered, or where, after a decision on a request for revocation or invalidation of the patent right was made, invalidation based on the same facts and reasons is requested again, the request shall be declared to be unacceptable by the Patent Re-examination Board.

Article 67: The Patent Re-examination Board shall send a copy of the request for invalidation of the patent right and copies of the relevant documents to the patentee and invite it or him to present its or his observation within a specified time limit. The patentee may amend its or his patent specification, but may not broaden the scope of patent protection. Where no response is made within the time limit, the hearing of the Patent Re-examination Board will not be affected.

PART FOUR. RE-EXAMINATION OF PATENT APPLICATIONS AND INVALIDATION OF PATENT RIGHTS

Article 58: The Patent Re-examination Board shall be composed of technical and legal experts designated by the State Council's patent administration authority. The person in charge of the State Council's patent administration authority shall concurrently serve as the chairman of the Patent Re-examination Board.

Article 59: To submit a request for re-examination to the Patent Re-examination Board in accordance with Article 41 of the Patent Law, a written request for re-examination, stating the reasons therefor shall be submitted accompanied, if necessary, by the relevant evidence.

If a request for re-examination is not in the prescribed format, the party requesting re-examination shall correct it within the time limit prescribed by the Patent Re-examination Board. If correction is not made within the time limit, the request for re-examination shall be deemed not to have been submitted.

Article 60: When submitting the request for re-examination or responding to the re-examination notice issued by the Patent Re-examination Board, the party making the request may amend his patent application documents provided that the amendments are limited to eliminating the defects indicated in the rejection decision or the re-examination notice.

The amended patent application documents shall be submitted in duplicate.

Article 61: The Patent Re-examination Board shall forward accepted requests for re-examination to the original examination department of the State Council's patent administration authority for examination. If the original examination department agrees to cancel the original decision on the basis of the request for re-examination, the Patent Re-examination Board shall make a corresponding decision upon re-examination and notify the requesting party.

Article 62: If, after re-examination, the Patent Re-examination Board considers that a request for re-examination does not conform to the relevant provisions of the Patent Law and these Rules, it shall notify the requesting party and require him to state his comments within a prescribed time limit. If no response is made within the time limit, the request for re-examination shall be deemed to have been withdrawn. If, after comments have been stated or amendments made, the Patent Re-examination Board still considers that the request for re-examination does not conform to the relevant provisions of the Patent Law and these Rules, it shall render a re-examination decision sustaining its original rejection decision.

If, after re-examination, the Patent Re-examination Board considers that the original rejection decision does not conform to the relevant provisions of the Patent Law and these Rules or that the amendments made to the patent application documents have eliminated the defects indicated in the original rejection decision, it shall revoke the original rejection decision and the original examination authority shall continue the examination procedure.

Article 63: A party requesting re-examination may withdraw such request before the Patent Re-examination Board renders its decision.

The re-examination procedure shall terminate if the party requesting re-examination withdraws its request before the Patent Re-examination Board renders its decision.

Article 64: To request that a patent right be invalidated or partially invalidated pursuant to Article 45 of the Patent Law, a written request for invalidation of a patent right, accompanied by the necessary evidence, shall be submitted in duplicate to the Patent Re-examination Board. The request for invalidation of the patent shall integrate all the evidence submitted therewith, explain the specific reasons for the invalidation request and state the evidence on which each reason is based.

For the purposes of the preceding paragraph, the "reason for an invalidation request" shall mean that the patented invention or creation does not conform to Article 22, 23, the third or fourth paragraph of Article 26 or Article 33 of the Patent Law or Article 2, the first paragraph of Article 13, the first paragraph of Article 20 or the second paragraph of Article 21 hereof, or falls under Article 5 or Article 25 of the Patent Law or is not patentable pursuant to Article 9 of the Patent Law.

Article 65: If a request for the invalidation of a patent right does not conform to Article 64 hereof, the Patent Re-examination Board shall not accept it.

If another invalidation request is made on the same grounds and with the same evidence after the Patent Re-examination Board has rendered a decision on an invalidation request, the Patent Re-examination Board shall not accept it.

If a request for invalidation of a design patent right is made on the grounds that the patented design conflicts with the legally obtained prior right of a third party and the party making the request fails to submit a valid handling decision or judgment evidencing the conflict of rights, the Patent Re-examination Board shall not accept the request.

If a request for invalidation of a patent right is not in the prescribed format, the requesting party shall correct it within the time limit prescribed by the Patent Re-examination Board. If correction is not made within the time limit, the invalidation request shall be deemed not to have been submitted.

Article 66: After the Patent Re-examination Board accepts an invalidation request, the party making the request may add to the reasons or supplement the evidence for the request for one month commencing from the date of submission. The Patent Re-examination Board may refuse to consider additional reasons or supplementary evidence submitted after this time limit.

Article 67: The Patent Re-examination Board shall send duplicates of the request for invalidation of a patent right and the relevant documents to the patentee and require the patentee to state his comments within a prescribed time limit.

The patentee and the party requesting the invalidation shall respond within the prescribed time limit to the notice of service of documents or the notice of examination of an invalidation request issued by the Patent Re-examination Board. Failure to respond within the time limit shall not affect the hearing by the Patent Re-examination Board.

Article 68: The patentee of an invention or utility model patent may amend his written claim during the examination procedure for the invalidation request provided that he does not broaden the original scope of patent protection.

The patentee of an invention or utility model patent may not amend his patent description or drawings and the patentee of a design patent may not amend the drawings, photographs or brief description of the design.

Article 69: At the request of the parties or if required by the case, the Patent Re-examination Board may decide to conduct an oral hearing in respect of the invalidation request.

If the Patent Re-examination Board decides to conduct an oral hearing in respect of the invalidation request, it shall issue a notice for an oral hearing to the parties informing them of the date and place of the oral hearing. The parties shall respond within the time limit prescribed in the notice.

If the party requesting invalidation fails to respond within the prescribed time limit to the notice for an oral hearing issued by the Patent Re-examination Board and fails to attend the oral hearing, its invalidation request shall be deemed to have been withdrawn. If the patentee fails to attend the oral hearing, such hearing may be conducted ex parte.

Article 70: The time limits prescribed by the Patent Re-examination Board in the course of the examination procedure for an invalidation request may not be extended.

Article 71: A party requesting invalidation may withdraw such request before the Patent Re-examination Board renders its decision on the invalidation request.

The re-examination procedure shall terminate if the party requesting invalidation withdraws his request before the Patent Re-examination Board renders its decision.

F. Assignment of Patent Application Rights or Patent Rights to a Foreign National

G. Specifying the Preservation Measures

III. Amendments Made to Cope with International Trends
A. Consistency with the Agreement on Trade-related Intellectual Property Rights (TRIPS)

Article 9: For the purposes of Article 5 of the Patent Law, inventions or creations that violate State law do not include inventions or creations only the working of which is prohibited under State law.

Article 72: (Paragraph Four) Decisions by the State Council's patent administration authority to grant compulsory licences shall restrict the working of the patent under the compulsory licence chiefly to meeting domestic market demand. If the invention or creation covered by the compulsory licence is semiconductor technology, the working of the patent under the compulsory licence shall be restricted to non-commercial use in the public interest or be granted as a remedy against anti-competitive behaviour as determined in legal or administrative procedures.

B. Consistency with the Patent Cooperation Treaty

Article 18: The description of an application for a patent for invention or utility model shall be presented in the following manner and order:

1. state the title of the invention or utility model as it appears in the request;

2. specify the technical field to which the invention or utility model relates;

3. indicate the background art that, as far as known to the applicant, can be regarded as useful for the
understanding, searching and examination of the invention or utility model, and cite the documents reflecting such art;

4. specify the purpose that the invention or utility model is designed to fulfil;

5. disclose the technical solution of the invention or utility model, as claimed, in such terms that a person having ordinary skill in the art can understand it and the task of the invention or utility model may be fulfilled;

6. state the advantageous effects of the invention or utility model, with reference to the background art;

7. briefly describe the figures in the drawings, if any;

8. describe in detail the best mode contemplated by the applicant for carrying out the invention or utility model; this shall be done in terms of examples, where appropriate, and with reference to the drawings, if any.

The manner and order mentioned in the preceding paragraph shall be observed by the applicant of a patent for invention or a patent for utility model, unless, because of the nature of the invention or utility, a different manner or order would afford a better understanding and a more economical presentation.

The description of the invention or utility model shall not contain such references to the claims as "as described in part........ of the claim", nor shall it contain commercial advertising.

Article 24: The abstract shall indicate the technical field to which the invention or utility model pertains, the technical problems to be solved, the essential technical features and the use or uses of the invention or utility model. The abstract may contain the chemical formula that best characterizes the invention. In an application for a patent that contains drawings, the applicant shall indicate and provide a drawing that best characterizes the invention or utility model. The scale and the distinctness of the drawings shall be 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 200 Chinese characters. There shall be no commercial advertising in the abstract.

Article 18: The description in an application for a patent for an invention or utility model shall indicate the title of the invention or utility model, which shall be consistent with the title stated in the request. The description shall include the following particulars:

(1) technical field: the technical field to which the technical solution for which protection is requested pertains shall be specified;

(2) background art: the background art useful for the understanding, searching and examination of the
invention or utility model shall be specified and, where possible, the documents reflecting such background art shall be cited;

(3) disclosure of the invention: the technical problem(s) to be solved by the invention or utility model, the technical solution adopted to resolve such technical problem(s) and the advantageous effects of the invention or utility model in comparison with prior art shall be specified;

(4) description of the drawings: if the description contains drawings, a brief description shall accompany each drawing; and

(5) the specific mode for carrying out the invention or utility model: a detailed description of the best mode contemplated by the applicant for carrying out the invention or utility model shall be indicated; where appropriate, such description shall be done in terms of examples with reference to the drawings, if any.

Applicants for patents for inventions or utility models shall write a description in the manner and sequence provided above, with each part thereof preceded by a heading, unless, because of the nature of the invention or utility model, a different manner or different sequence can reduce the length of the description and enable others to accurately understand the invention or utility model.

The description of an invention or utility model shall be worded in standard Chinese and be written clearly, and may not contain such references as "as described in claim ..." or contain commercial advertising terms.

If an invention patent application contains one or more nucleotide or amino acid sequences, the description shall include a sequence listing complying with the regulations of the State Council's patent administration authority. The applicant shall submit such sequence listing as a separate part of the description and a duplicate of such sequence listing in computer readable form in accordance with the regulations of the State Council's patent administration authority.

Article 24: A description abstract shall consist of a summary of the disclosure as contained in the patent application for the invention or utility model, i.e. it shall specify the title of the invention or utility model and the technical field to which it pertains, and clearly reflect the technical problem to be solved, the gist of the technical solution to such problem and the principal use(s) of the invention or utility model.

Description abstracts may include the chemical formula that best characterizes the invention. For a patent application with drawings, the drawing that best characterizes the technical features of the invention or utility model shall be provided as well. The scale and clarity of drawings shall be such as to ensure that all details of the drawings are still clearly distinguishable when the drawings are reduced in size to 4 cm x 6 cm. The textual portion of the abstract may not exceed 300 Chinese characters. No commercial advertising terminology may be used in the abstract.

Article 70: The time limits prescribed by the Patent Re-examination Board in the course of the examination procedure for an invalidation request may not be extended.

PART TEN: SPECIAL PROVISIONS FOR INTERNATIONAL APPLICATIONS

Article 99: Pursuant to Article 20 of the Patent Law, the State Council's patent administration authority shall accept international patent applications submitted in accordance with the Patent Cooperation Treaty.

The provisions of this part shall apply to the conditions and procedures when an international patent application (International Application) that is filed under, and that designates China in accordance with, the Patent Cooperation Treaty enters the national phase in China. If this part is silent on any matter, the relevant regulations of the Patent Law and the other parts hereof shall apply.

Article 100: International Applications for which the international application date has been determined and which designate China in accordance with the Patent Cooperation Treaty shall be treated as patent applications filed with the State Council's patent administration authority and the said international application date shall deemed to be the date of application specified in Article 28 of the Patent Law.

If, during the international phase, the International Application or the designation of China in the International Application is withdrawn or deemed to have been withdrawn, the validity of such International Application in China shall terminate.

Article 101: The applicant in an International Application shall carry out the following procedures associated with the International Application entering the national phase in China with the State Council's patent administration authority within 20 months after the priority date defined in Article 2 of the Patent Cooperation Treaty (the "Priority Date"); if an International Application elects China within 19 months after the Priority Date and the said election continues in effect, the applicant in the International Application shall carry out the following procedures associated with the International Application entering the national phase in China with the State Council's patent administration authority within 30 months after the Priority Date:

(1) submitting a written statement that his International Application has entered the national phase in China; such statement shall specify the international application number, and specify in Chinese the type of patent right sought, the title of the invention or creation, the name and address of the applicant and the name of the inventor; the aforementioned particulars shall be consistent with those recorded by the International Bureau;

(2) payment of the application fee, application surcharges and publication printing fee specified in the first paragraph of Article 90 hereof;

(3) if the International Application was filed in a language other than Chinese, the applicant shall submit a Chinese translation of the original International Application's description, claim(s), text of the drawing(s) and abstract; if the International Application was filed in Chinese, a duplicate of the abstract of the international published documents shall be submitted;

(4) if the International Application was accompanied by drawings, duplicates of such drawings shall be submitted; if the International Application was filed in Chinese, a duplicate of the drawings accompanying the abstract of the international published documents shall be submitted.

If an applicant fails to carry out the procedures associated with entry into the national phase in China within the time limit prescribed in the preceding paragraph, he may do so prior to the expiration of a period of 22 months or 32 months from the Priority Date, whichever is appropriate, after payment of a grace period fee.

Article 102: If an applicant fails to carry out the procedures associated with entry into the national phase in China within the time limit prescribed in the second paragraph of Article 101 hereof or if he is characterized by any of the circumstances set forth below, the validity of his International Application in China shall terminate:

(1) his international application number was not indicated in the statement of entry into the national phase in China;

(2) he has failed to pay the application fee and publication printing fee specified in the first paragraph of Article 90 hereof and the grace period fee specified in the second paragraph of Article 101 hereof; or

(3) his International Application was filed in a language other than Chinese and he has failed to provide a Chinese translation of the description and claim(s) of the original International Application.

If the validity in China of an International Application has already terminated, the second paragraph of Article 7 hereof shall not apply.

Article 103: If, when carrying out the procedures associated with entry into the national phase in China, an applicant is characterized by any of the circumstances set forth below, the State Council's patent administration authority shall notify the applicant to correct the same within a prescribed time limit:

(1) he has failed to provide a Chinese translation or duplicate of the abstract;

(2) he has failed to provide a duplicate of the drawing(s) or the abstract drawing;

(3) he has failed to indicate the title of the invention or creation, the applicant's name or address or the inventor's name in Chinese in the statement of entry into the national phase in China; or

(4) the contents or format of the statement of entry into the national phase in China do not comply with regulations.

If the applicant fails to make the corrections within the time limit, his application shall be deemed to have been withdrawn.

Article 104: If an International Application was amended at the international phase and the applicant requests that examination be conducted on the basis of the amended application documents, the applicant shall provide the amended Chinese translation before the State Council's patent administration authority has completed the preparations for national publication. If he fails to submit the Chinese translation within the said time limit, the State Council's patent administration authority shall not consider the amendments made by the applicant at the international phase.

Article 105: When carrying out the procedures associated with entry into the national phase in China, the applicant shall additionally satisfy the following requirements:

(1) if the inventor was not indicated in the International Application, he shall indicate the name of the inventor in the statement of entry into the national phase in China;

(2) if procedures for changing the applicant were carried out with the International Bureau at the international phase, evidence that the post-change applicant has the application right shall be submitted;

(3) if the applicant is different from the person who made the prior application on which the right of priority is based or if such person changed his name after filing the prior application, when necessary, evidence that the applicant has right of priority shall be submitted;

(4) if an invention or creation covered by an International Application is characterized by the circumstance specified in Item (1) or (2) of Article 24 of the Patent Law and a declaration of the same was made when filing the International Application, a description of the same shall be included in the statement of entry into the national phase in China and within two months from the date of carrying out the procedures associated with entry into the national phase in China the relevant certificate specified in the second paragraph of Article 31 hereof shall be submitted.

If an applicant fails to satisfy the requirements of Item (1), (2) or (3) of the preceding paragraph, the State Council's patent administration authority shall notify the applicant to correct the same within a prescribed time limit. If the missing information under Item (1) or the missing evidence under Item (2) is not provided within the prescribed time limit, the application shall be deemed to have been withdrawn; if the missing evidence under Item (3) is not provided within the prescribed time limit, the request for right of priority shall be deemed not to have been submitted.

If an applicant fails to satisfy the requirements of Item (4) of the first paragraph of this Article, Article 24 of the Patent law shall not apply to his application.

Article 106: If an applicant has provided a description concerning the deposit of samples of biological material in accordance with the Patent Cooperation Treaty, he shall be deemed to have satisfied the requirements of Item (3) of Article 25 hereof. In his statement of entry into the national phase in China, the applicant shall indicate the documents in which matters concerning the deposit of samples of the biological material are recorded and the specific location(s) of such passage(s) in the said documents.

If an applicant has recorded matters concerning the deposit of samples of biological material in the description accompanying the original International Application but has failed to do so in the statement of entry into the national phase in China, he shall provide the same within four months after the date on which he carried out the procedures associated with entry into the national phase in China. If he fails to provide the same within the time limit, the said biological material shall be deemed not to have been deposited.

If an applicant provides to the State Council's patent administration authority a certificate of deposit and a certificate of survival for the samples of the biological material within four months after the date on which he carried out the procedures associated with entry into the national phase in China, he shall be deemed to have submitted the same within the time limit prescribed in Item (1) of Article 25 hereof.

Article 107: If an applicant has claimed one or more rights of priority at the international phase and such claim continues in effect upon entry into the national phase in China, he shall be deemed to have submitted a written statement in accordance with Article 30 of the Patent Law.

If his written statement of right of priority submitted at the international phase contains typographical errors or does not indicate the prior application number, an applicant may, when carrying out the procedures associated with entry into the national phase in China, submit a request for correction or indicate the prior application number. If an applicant submits a request for correction, he shall pay the fee for requesting the correction of a claim of right of priority.

If an applicant has provided duplicates of prior application documents at the international phase in accordance with the Patent Cooperation Treaty, he shall not be required to submit such duplicates to the State Council' patent administration authority when he carries out the procedures associated with entry into the national phase in China. If the applicant did not submit such duplicates at the international phase, the State Council' patent administration authority may, when it deems it necessary, notify the applicant to provide the same within a prescribed time limit. If the applicant fails to submit the same within the prescribed time limit, his claim for right of priority shall be deemed not to have been submitted.

If a claim of right of priority is deemed to not have been submitted at the international phase and the International Bureau has published this information but the applicant has a legitimate reason, he may request that the State Council's patent administration authority restore his claim of right of priority when carrying out the procedures associated with entry into the national phase in China.

Article 108: If an applicant requests that the State Council's patent administration authority process and examine his International Application before the expiration of the 20 month period after the Priority Date, he shall not only carry out the procedures associated with entry into the national phase in China, but also submit a request pursuant to the second paragraph of Article 23 of the Patent Cooperation Treaty. If the International Bureau has not yet forwarded the International Application to the State Council's patent administration authority, the applicant shall submit a certified duplicate of such application.

Article 109: The applicant in an International Application claiming a patent right for a utility model may submit a request to the State Council's patent administration authority to amend his description, drawing(s) and/or claim(s) within one month from the date on which he carried out the procedures associated with entry into the national phase in China.

The first paragraph of Article 51 hereof shall apply to International Applications claiming a patent right for an invention.

Article 110: If an applicant discovers that the Chinese translation of the description, claim(s) or the text of the drawing(s) that he submitted contains errors, he may submit corrections in conformity with the text of his original International Application within the following prescribed time limits:

(1) before the State Council's patent administration authority completes preparations for national publication; or

(2) within three months of the date of receipt of the notice issued by the State Council's patent administration authority stating that the invention patent application has entered the substantive examination stage.

If an applicant wishes to correct errors in his translation, he shall submit a written request, the corrected page(s) of his translation and pay the specified translation correction fee.

If an applicant corrects a translation pursuant to the request of the State Council's patent administration authority contained in a notice, he shall carry out the procedures specified in the second paragraph of this Article within the prescribed time limit. If he fails to carry out the specified procedures within the prescribed time limit, his application shall be deemed to have been withdrawn.

Article 111: If, after preliminary examination, the State Council's patent administration authority is of the opinion that an International Application for an invention patent right claim conforms with the relevant regulations of the Patent Law and these Rules, it shall publish such application in the Patent Gazette. If the International Application was filed in a language other than Chinese, the Chinese translations of the application documents shall be published.

If international publication of an International Application for an invention patent right claim was effected in Chinese by the International Bureau, Article 13 of the Patent Law shall apply thereto from the date of international publication. If international publication was effected by the International Bureau in a language other than Chinese, Article 13 of the Patent Law shall apply thereto from the date of publication by the State Council's patent administration authority.

For the purposes of International Applications, the term "publication" as used in Articles 21 and 22 of the Patent Law shall mean the term "publication" as used in the first paragraph of this Article.

Article 112: If an International Application covers two or more inventions or utility models, the applicant may, pursuant to the first paragraph of Article 42 hereof, file a divisional application after carrying out the procedures associated with entry into the national phase in China.

If at the international phase the International Searching Authority or the International Preliminary Examining Authority is of the opinion that an International Application does not conform with the requirement of unity of the Patent Cooperation Treaty and the applicant failed to pay the surcharge in accordance with regulations resulting in a certain part of the International Application not being subjected to preliminary examination by the International Searching Authority or the International Preliminary Examining Authority, and the applicant then requests that the aforementioned part be made the basis for examination after the application enters the national phase in China and the State Council's patent administration authority is of the opinion that the judgment of the International Searching Authority or the International Preliminary Examining Authority on the unity of the invention was correct, it shall notify the applicant to pay a unity restoration fee within a prescribed time limit. If the applicant fails to pay or pay in full such fee within the prescribed time limit, that part of the International Application that was not subjected to a search or a preliminary international examination shall be deemed to have been withdrawn.

Article 113: If an applicant submits documents and pays fees pursuant to Article 101 hereof, the submission date shall be the date on which the State Council's patent administration authority receives the documents and the payment date shall be the date on which it receives payment.

If any submitted document is delayed in the mail and the applicant provides, within one month after the date of discovering the delay, evidence that such document was mailed five days before the expiration of the time limit prescribed in Article 101 hereof, such document shall be deemed to have been received on the date of expiration of the time limit. However, the time at which the applicant provides the evidence may not be later than six months after the expiration of the time limit prescribed in Article 101 hereof.

When submitting documents to the State Council's patent administration authority pursuant to Article 101 hereof, an applicant may do so by facsimile. If an applicant submits a document by facsimile, the date on which the State Council's patent administration authority receives the facsimile shall be the submission date. The applicant shall submit the original of the facsimile to the State Council's patent administration authority within 14 days after the facsimile transmission date. If the applicant fails to submit the original within the time limit, he shall be deemed not to have submitted the document.

Article 114: If an International Application contains a claim for a right of priority, the applicant shall pay a right of priority claim fee when carrying out the procedures associated with entry into the national phase in China. If the applicant fails to make payment or to make payment in full, the State Council's patent administration authority shall notify the applicant to make payment within a prescribed time limit. If the applicant fails to make payment or to make payment in full by the expiration of the prescribed time limit, he shall be deemed not to have made a claim for right of priority.

Article 115: If at the international phase the relevant international authority refuses to accord an international application date to an International Application or declares that such application has been deemed to be withdrawn, the applicant may, within two months of the date of receipt of the notice to such effect, request that the International Bureau forward a duplicate of any document in the file for the International Application to the State Council's patent administration authority and, within the said time limit, carry out the procedures specified in Article 101 hereof with the State Council's patent administration authority. The State Council's patent administration authority shall re-examine the decision rendered by the international authority to determine whether the same was correct after it has received the document(s) forwarded by the International Bureau.

Article 116: If due to a translation error the scope of protection for a patent right granted on the basis of an International Application as determined pursuant to Article 56 of the Patent Law is greater than the scope indicated in the original of the International Application, the scope of protection as limited by the original shall prevail. If the scope of protection is narrower than that indicated in the original of the International Application, the scope of protection at the time of the grant of the patent right shall prevail.

C. Consistency with the Budapest Treaty

Article 25: Where an application for a patent for invention concerns a new micro-organism, microbiological process or a product thereof and involves the use of a micro-organism that is not available to the public, the applicant shall in addition to the other requirements provided for in the Patent Law and these Implementing Regulations, complete the following procedures:

(1) deposit a sample of the micro-organism with a depository institution designated by the Patent Office before the date of filing or, at the latest, on the date of filing, and submit at the time of filing, or at the latest within three months from the filing date, 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 micro-organism shall be deemed not to have been deposited;

(2) give, in the application document, relevant information of the characteristics of the micro-organism;

(3) indicate, where the application relates to the deposit of the micro-organism, in the request and the description the scientific name (with its Latin name) and the name of the depository institution, the date on which the sample of the micro-organism was deposited and the accession number of the deposit; where, at the time of filing, they are not indicated, they shall be supplied within three months from the date of filing; where they are not supplied after the expiration of the time limit, the sample of the micro-organism shall be deemed not to have been deposited.

Article 26: After the publication of an application for a patent for invention relating to a micro-organism, any entity or individual that or who intends to make use of the micro-organism mentioned in the application for the purpose of
experiment shall make a request to the Patent Office containing the following:

(1) the name and address of the entity or individual making the request;

(2) an undertaking not to make the micro-organism available to any other person;

(3) an undertaking to use the micro-organism for experimental purpose only before the grant of the patent right.

Article 25: If an invention for which a patent application is made involves a new biological material that is not available to the public and cannot be described in such a manner as to enable the invention to be carried out by a person skilled in the art, the application shall comply with the relevant provisions of the Patent Law and these Rules and, in addition, the applicant shall carry out the following procedures:

(1) deposit, prior to the date of application or at the latest on the date of application (if he has priority, the date of application shall be the date of priority), a sample of the biological material with the depositary institution designated by the State Council's patent administration authority and submit, at the time of application or at the latest within four months of the date of application, the certificate of deposit and certificate of survival issued by the depositary institution; if the certificates are not submitted within the time limit, no sample shall be deemed to have been deposited;

(2) provide, in the application documents, information on the characteristics of the biological material; and

(3) if the patent application involves the deposit of a sample of the biological material, specify in the request and the description the taxonomic description (indicating the Latin name) of the said biological material, the name and address of the institution with which the sample of the biological material was deposited, the date of deposit and the serial number of the deposit; if such particulars are not specified at the time of application, they shall be supplied within four months of the date of application; if they are not supplied within the time limit, no sample shall be deemed to have been deposited.

Article 26: If an invention patent applicant deposits a sample of a biological material pursuant to Article 25 hereof, any work unit or individual that needs to use the biological material involved in the patent application for experimental purposes after the publication of the patent application shall submit a request to the State Council's patent administration authority specifying the following matters:

(1) the name and address of the work unit or individual making the request;

(2) an undertaking not to supply the said biological material to any other person; and

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