Implementing Rules for the PRC Patent Law (2nd Revision)

Article 2: The various procedures specified in the Patent Law and these Rules shall be carried out in writing or in such other form as specified by the State Council's patent administrative department.

Article  3:The various documents submitted pursuant to the Patent Law and these Rules shall be in Chinese. If the state has specified standard technical terms, such standard terms shall be used. Where no standard Chinese translation exists for the name of a foreigner, foreign place name or technical term, the name or term shall be indicated in the original language.

If a certificate or supporting document submitted pursuant to the Patent Law and these Rules is in a foreign language and the State Council's patent administrative department deems it necessary, the concerned party may be required to provide a Chinese translation thereof by the specified time limit. If it fails to do so, it shall be deemed as not having submitted the certificate or supporting document.

Article  4:Where a document is sent to the State Council's patent administrative department by post, the postmark date shall be the submission date. If the postmark date is unclear, the date of receipt by the State Council's patent administrative department shall be the submission date, unless the concerned party can submit proof otherwise.

Documents from the State Council's patent administrative department may be served on concerned parties by post, by hand or otherwise. If a concerned party has appointed a patent agency, documents shall be delivered to the patent agency. If no patent agency has been appointed, documents shall be delivered to the contact person designated in the request.

For a document sent by the State Council's patent administrative department by post, the 16th day following the date on which the document was dispatched shall be presumed to be the date of receipt of the document by the concerned party.

For a document which, pursuant to the regulations of the State Council's patent administrative department, is required to be delivered by hand, the date of delivery shall be the date of service.

If the address for the delivery of documents is unclear, making the posting of such documents impossible, the same may be served on the concerned party by way of an announcement. Such documents shall be deemed served one month following the announcement date.

Article 5: For the various time limits specified in the Patent Law and these Rules, the first day shall not be counted as part of such time limit. Where a time limit is counted in years or months, the corresponding day in the last month of such time limit shall be the expiration date. In the absence of a corresponding day in that month, the last day of such month shall be the expiration date. If an expiration date falls on a statutory holiday, the expiration date shall be the first working day following the holiday.

Article 6: If a concerned party misses a time limit specified in the Patent Law or these Rules or one specified by the State Council's patent administrative department due to an event of force majeure, resulting in the extinguishing of such party's rights, it/he/she may make a request to the State Council's patent administrative department for the restoration of its/his/her rights within two months from the date of the elimination of the impediment, but no later than within two years from the date of expiration of the time limit.

If a concerned party misses a time limit specified in the Patent Law or these Rules or one specified by the State Council's patent administrative department for a legitimate reason other than the one specified in the preceding paragraph, resulting in the extinguishing of such party's rights, it/he/she may make a request to the State Council's patent administrative department for the restoration of its/his/her rights within two months from the date of receipt of the notice from the State Council's patent administrative department.

If a concerned party is to make a request for the restoration of its/his/her rights pursuant to the first or second paragraph of this Article, it/he/she shall submit a written request for the restoration of its/his/her rights, give the reason, provide, when necessary, the relevant supporting documentation and carry out the relevant procedures that it/he/she would have been required to carry out before the extinguishing of its/his/her rights. If a request for the restoration of rights is made pursuant to the second paragraph of this Article, the party shall additionally pay a fee for the rights restoration request.

If a concerned party wishes to request an extension of a time limit specified by the State Council's patent administrative department, it/he/she shall give the reason therefor to, and carry out the relevant procedures with, the State Council's patent administrative department before the expiration of the time limit.

The first and second paragraphs of this Article shall not apply to the time limits specified in Articles 24, 29, 42 and 68 of the Patent Law.

Article 7: If a patent application involves national defence interests, requiring confidentiality, it shall be accepted and reviewed by the national defence patent administrative department. A patent application involving national defence interests and requiring confidentiality that is accepted by the State Council's patent administrative department shall be transferred to the national defence patent administrative department for review in a timely manner. If, following its review, the national defence patent administrative department does not find any grounds for rejecting the patent application, the State Council's patent administrative department shall render a decision granting a national defence patent.

If the State Council's patent administrative department deems that an application for an invention patent or utility model patent that it has accepted involves state security or material interests, other than national defence interests, and requires confidentiality, it shall render a decision to treat the same as a confidential patent application in a timely manner and notify the applicant. The special procedures for the review and re-examination of confidential patent applications and for the declaration of confidential patents as invalid shall be specified by the State Council's patent administrative department.

Article 8: For the purposes of Article 20 of the Patent Law, the term “invention or utility model completed in China” means an invention or utility model for which the substantive contents of the technical solution were completed in China.

Any work unit or individual wishing to apply for a foreign patent for an invention or utility model completed in China shall request, by one of the means set forth below, that the State Council's patent administrative department conduct a confidentiality review:

(1) if the application for a patent is to be filed directly in a foreign country, or if an international patent application is to be filed with a relevant foreign organisation, a request shall be submitted in advance and a detailed description of the technical solution shall be given to the State Council's patent administrative department;

(2) if the work unit or individual intends to apply for a patent in a foreign country, or file an international patent application with a relevant foreign organisation after applying to the State Council's patent administrative department for a patent, it/he/she shall submit a request to the State Council's patent administrative department before applying for the patent in the foreign country, or filing the international patent application with the relevant foreign organisation.

The submission to the State Council's patent administrative department of an international patent application shall be deemed as the simultaneous submission of a request for a confidentiality review.

Article 9: If the State Council's patent administrative department, after receipt of a request submitted pursuant to Article 8 hereof, deems, following review, that the invention or utility model could involve state security or material interests and require confidentiality, it shall give the applicant a confidentiality review notice in a timely manner. If the applicant does not receive a confidentiality review notice within four months from the date of submission of its/his/her request, it/he/she may apply to the foreign country for a patent or file an international patent application with the relevant foreign organisation in respect of the relevant invention or utility model.

If, pursuant to the preceding paragraph, the State Council's patent administrative department gives notice that it is to conduct a confidentiality review, it shall render a decision on whether confidentiality is required in a timely manner and notify the applicant. If the applicant does not receive a decision that confidentiality is required within six months from the date of submission of its/his/her request, it/he/she may apply to the foreign country for a patent or file an international patent application with the relevant foreign organisation in respect of the relevant invention or utility model.

Article 10: Inventions or creations that violate the law as specified in Article 5 of the Patent Law, shall not include inventions or creations of which only the exploitation is prohibited by law.

Article 11: With the exception of the circumstances set forth in Articles 28 and 42 of the Patent Law, a filing date mentioned in the Patent Law shall, if a right of priority is involved, mean the date of right of priority.

For the purposes of these Rules, the term “filing date” means the filing date specified in Article 28 of the Patent Law, unless otherwise provided.

Article 12: For the purposes of Article 6 of the Patent Law, the term “invention or creation completed while carrying out a task assigned by one's work unit” means:

(1) an invention or creation produced in the course of one's duties;

(2) an invention or creation produced in the course of performing a task assigned by one's work unit outside one's work; or

(3) an invention or creation produced within one year after retirement, being transferred from the original work unit or termination of the employment or public personnel relationship, and that is related to the duties done for the original work unit or the tasks assigned by the original work unit.

For the purposes of Article 6 of the Patent Law, the term “work unit” includes temporary work units. For the purposes of Article 6 of the Patent Law, the term “material and technical resources of one's work unit”, means the work unit's funds, equipment, parts, components, raw materials and/or technical information not publicly available.

Article 13: For the purposes of the Patent Law, the term “inventor or designer”, means the person that made the creative contributions to the substantive features of an invention or creation. Persons who, in the course of the completion of an invention or creation, were only responsible for organising the work, facilitated utilisation of the material and technical resources or engaged in other such support work are not inventors or designers.

Article  14:In addition to patent assignments effected in accordance with Article 10 of the Patent Law, where a patent is assigned in other circumstances, the concerned party shall carry out patent assignment procedures with the State Council's patent administrative department on the strength of the relevant supporting document or legal document.

A patent licensing contract entered into by the patentee and a third party shall be submitted to the State Council's patent administrative department for the record within three months from the effective date of the contract.

Where a patent is pledged, the pledgor and the pledgee shall jointly carry out pledge registration procedures with the State Council's patent administrative department.

Part Two: Patent applications

Article 15: Where a patent is applied for in writing, the application documents shall be submitted to the State Council's patent administrative department in duplicate.

Where a patent is applied for in another manner specified by the State Council's patent administrative department, the specified requirements shall be complied with.

Where an applicant appoints a patent agency to apply for a patent and carry out other patent matters with the State Council's patent administrative department, it/he/she shall additionally submit a power of attorney that specifies the limits of the agency's authority.

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

Article 16: The request in an application for an invention, utility model or design patent shall provide the following:

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

(2) if the applicant is a Chinese work unit or individual, its/his/her name, address, postal code and organisation code or resident ID card number; if the applicant is a foreigner, a foreign enterprise or another foreign organisation, his/her/its name, nationality or country or region of registration;

(3) the name of the inventor or designer;

(4) if the applicant has appointed a patent agency, the name of the appointed agency, its organisation code and the names, practice certificate numbers and contact telephone numbers of the patent agents assigned by the agency;

(5) if a claim for right of priority is made, the filing date and application number of the patent application first filed by the applicant (Earlier Application) and the name of the authority that originally accepted the application;

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

(7) a list of the application documents;

(8) a list of auxiliary documents; and

(9) other relevant information that needs to be provided.

Article 17: The description in an application for an invention or utility model patent shall specify the name of the invention or utility model, which name shall be consistent with the name provided in the request. The description shall contain the following:

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

(2) background art: the background art useful in understanding, searching and reviewing the invention or utility model shall be specified; if possible, the documents that reflect such background art shall be cited;

(3) details of the invention: the technical problem that is to be solved by the invention or utility model and the technical solution adopted to solve the problem shall be specified, and the advantages offered by the invention or utility model as compared to the prior art shall be specified;

(4) explanation of drawings: if the description includes drawings, a brief description of each drawing shall be given; and

(5) the specific exploitation method: the method that the applicant deems optimal for realisation of the invention or utility model shall be specified in detail; if necessary, examples can be given; if the description includes drawings, reference shall be made to such drawings.

The applicant for an invention or utility model patent shall prepare the description in the manner and in the sequence specified in the preceding paragraph and add a heading at the beginning of each section unless, due to the nature of its/his/her invention or utility model, preparation of the description in another manner or in another sequence would reduce the length of the description and enable others to accurately understand its/his/her invention or utility model.

The description for an invention or utility model shall use standardised wording, be written clearly and may not use references such as “as described in the claim …” or commercial advertising language.

If an application for an invention patent contains one or more nucleotide acid or amino acid sequences, the description shall include a sequence table complying with the provisions of the State Council's patent administrative department. The applicant shall submit such sequence table as a standalone part of the description and, in accordance with the provisions of the State Council's patent administrative department, submit a computer readable copy of such sequence table.

The description in an application for a utility model patent shall include drawings that illustrate the shape or structure of the product for which protection is requested or a combination of both.

Article 18: The drawings for an invention or utility model shall be arranged in numerical order as “Figure 1, Figure 2, …”.

Reference numbers or symbols not referred to in the text of the description of an invention or utility model may not appear on the drawings, and reference numbers or symbols not appearing in the drawings may not be referred to in the text of the description. The drawing reference numbers or symbols that indicate the same constituent part in the application documents shall be consistent.

The drawings shall not contain any explanatory notes other than the necessary words.

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

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

The technical terms used in the claims shall be consistent with the technical terms used in the description. The claims may contain chemical formulas or mathematical formulas, but may not contain illustrations. Unless absolutely necessary, expressions such as “as described in the … of the description” or “as shown in Figure …” may not be used.

For the technical features in a claim, the corresponding reference signs on the drawings accompanying the description may be referred to and shall be placed in parentheses after the corresponding technical characteristic to facilitate understanding of the claim. The reference signs on the drawings may not be construed as a restriction on the claims.

Article  20:The claims shall contain an independent claim and may contain dependent claims.

The independent claim shall reflect the technical solution offered by the invention or utility model as a whole and specify the technical features necessary to solve the technical problem.

Dependent claims shall use additional technical features to further restrict the cited claim.

Article 21: The independent claim for an invention or utility model shall contain a preamble and a features section that shall be prepared in accordance with the following provisions:

(1) preamble: the title of the subject matter of the technical solution offered by the invention or utility model for which protection is requested and the necessary technical features shared in common by the subject matter of the invention or utility model and the closest prior art shall be specified; and

(2) features section: by using “it is characterised by …” or other similar expression, the technical features that distinguish the invention or utility model from the closest prior art shall be specified. These features, in combination with the features specified in the preamble, shall serve to delimit the scope of protection requested for the invention or utility model.

If, by its nature, the invention or utility model does not lend itself to being described in the manner specified in the preceding paragraph, the independent claim may be prepared in another manner.

Only one independent claim shall be made for an invention or utility model and it shall be specified before the dependent claims for such invention or utility model.

Article 22: The dependent claims for an invention or utility model shall contain a citation section and a limitation section that shall be prepared in accordance with the following provisions:

(1) citation section: the number(s) of the claim(s) cited and the title(s) of its/their subject matter shall be specified; and

(2) limitation section: the additional technical features of the invention or utility model shall be specified.

A dependent claim may only cite preceding claims. A multiple dependent claim that cites two or more claims may cite preceding claims only in a manner that indicates that they are alternatives, and may not serve as the basis for another multiple dependent claim.

Article 23: The abstract of the description shall give a summary of the contents disclosed in the application for the invention or utility model patent, namely the name of the invention or utility model and the technical field to which it pertains, and clearly reflect the technical problem to be solved, the key points of the technical solution offered to solve the problem and the principal uses thereof.

The abstract of the description may contain the chemical formula that best explains the invention; if the patent application contains drawings, the drawing that best illustrates the technical features of the invention or utility model shall be provided. The size and resolution of the drawing shall be such that when the drawing is reduced to a size of 4 cm x 6 cm, all of its details will remain clearly discernible. The text portion of the abstract may not exceed 300 Chinese characters. Commercial advertising language may not be used in the abstract.

Article 24: If the invention for which a patent application is filed involves a new biological material, such biological material is not available to the public and a description of such biological material would be insufficient to enable a person skilled in the art to exploit the invention, the applicant shall, in addition to complying with the relevant provisions of the Patent Law and these Rules, carry out the following procedures:

(1) deposit, before and no later than on the filing date (where a right of priority applies, the priority date), a sample of the biological material with a depositary work unit recognised by the State Council's patent administrative department, and, at the time of filing and no later than within four months from the filing date, submit the proof of deposit and the proof of survival issued by the depositary work unit; if the applicant fails to do so, the sample shall be deemed as not having been deposited;

(2) together with the application documents, provide documentation on the features of the biological material; and

(3) where a patent application involves the deposition of a sample of a biological material, specify in the request and description the taxonomic description of the biological material (indicating its Latin name), the name and address of the work unit with which the sample of the biological material is deposited, the deposit date and the deposit number; if the same is not specified at the time of filing, the same shall be rectified within four months from the filing date; if the applicant fails to do so, the sample shall be deemed as not having been deposited.

Article 25: If an applicant for an invention patent deposits a sample of a biological material in accordance with Article 24 hereof and any work unit or individual needs to use such biological material for experimental purposes after publication of the application for the invention patent, it/he shall submit a request to the State Council's patent administrative department providing the following:

(1) the name and address of the requesting party;

(2) a warranty that it/he will not provide the biological material to any other person; and

(3) a warranty that it/he will use the biological material only for experimental purposes until the patent has been granted.

Article 26: For the purposes of the Patent Law, the term “genetic resource” means a material containing functional units of heredity derived from the human body, an animal, plant or micro-organism, and having actual or potential value. For the purposes of the Patent Law, the term “invention or creation completed based on genetic resources” means an invention or creation completed using the genetic function of a genetic resource.

Where an application for a patent for an invention or creation completed based on genetic resources is made, the applicant shall state the same in the request and fill out the form prepared by the State Council's patent administrative department.

Article 27: If an applicant requests protection of a colour, it/he/she shall provide a colour drawing or colour photograph.

An applicant shall provide relevant drawings or photographs of the elements of each product incorporating the design for which protection is requested.

Article  28:The brief description of a design shall specify the name and purpose of the product incorporating the design and the key design elements of the design, and designate one drawing or photograph that best illustrates the key design elements. If views are omitted or a request is made for the protection of a colour, the same shall be specified in the brief description.

If one design patent application is filed for several similar designs for one and the same product, one of the designs shall be designated in the brief description as the basic design.

Commercial advertising language may not be used in the brief description, and the brief description may not be used to explain the function of the product.

Article 29: When it deems it necessary, the State Council's patent administrative department may require an applicant for a design patent to submit a specimen or model of the product incorporating the design. The specimen or model may not exceed 30 cm × 30 cm × 30 cm in size or 15 kg in weight. Perishable, easily damaged and hazardous products may not be submitted as a specimen or model.

Article 30: For the purposes of Item (1) of Article 24 of the Patent Law, the term “international exhibition recognised by the Chinese government” means an international exhibition registered with or recognised by the Bureau of International Expositions as specified in the Convention Relating to International Exhibitions.

For the purposes of Item (2) of Article 24 of the Patent Law, the term “academic conference or technology conference” means an academic conference or technology conference organised and held by a relevant competent department of the State Council or a national academic body.

If a circumstance specified in Item (1) or (2) of Article 24 of the Patent Law applies to an invention or creation for which a patent application is filed, the applicant shall declare the same when filing its/his/her patent application and, within two months from the filing date, submit the document issued by the organiser of the international exhibition, academic conference or technology conference evidencing that the relevant invention or creation was exhibited or published and evidencing the date of exhibition or publication.

If the circumstance specified in Item (3) of Article 24 of the Patent Law applies to an invention or creation for which a patent application is filed, the State Council's patent administrative department may, if it deems it necessary, require the applicant to submit supporting documentation within the specified time limit.

If an applicant fails to make a declaration or submit supporting documentation in accordance with the third paragraph of this Article, or fails to submit supporting documentation by the specified time limit in accordance with the fourth paragraph of this Article, Article 24 of the Patent Law shall not apply to its/his/her application.

Article 31: If an applicant claims a foreign right of priority pursuant to Article 30 of the Patent Law, the duplicate of the Earlier Application submitted by it/him/her shall be authenticated by the original accepting authority. If, pursuant to the agreement executed by the State Council's patent administrative department and such accepting authority, the State Council's patent administrative department has obtained the duplicate of the Earlier Application through electronic exchange or other such means, the applicant shall be deemed as having submitted the duplicate of the Earlier Application authenticated by the accepting authority. If an applicant claims a domestic right of priority, it/he/she shall specify in the request the filing date and application number of the Earlier Application and by so doing shall be deemed to have submitted the duplicate of the Earlier Application.

If a right of priority is claimed, and the filing date or application number of the Earlier Application or the name of the original accepting authority or any two of the above are/is inadvertently omitted from or erroneously written on the request, the State Council's patent administrative department shall notify the applicant to rectify the same within a specified time limit. If it/he/she fails to do so, it/he/she shall be deemed as not having claimed a right of priority.

In the event that the name of the applicant claiming a right of priority is inconsistent with the name of the applicant indicated on the duplicate of the Earlier Application, the applicant shall provide the documentation evidencing the transfer of the right of priority. If it/he/she fails to do so, it/he/she shall be deemed as not having claimed a right of priority.

If an applicant for a design patent claims a foreign right of priority and its/his/her Earlier Application does not include a brief description and the brief description that it/he/she submits pursuant to Article 28 hereof does not exceed the scope indicated by the drawings or photographs in the Earlier Application documents, its/his/her eligibility for the right of priority shall not be affected.

Article 32: An applicant may claim one or multiple priorities in a patent application. If it/he/she claims multiple rights of priority, the terms of the priorities applied for shall count from the earliest priority date.

If an applicant claims domestic right of priority and the Earlier Application is an application for an invention patent, it/he/she may apply for either an invention patent or utility model patent in respect of the same subject matter. If the Earlier Application is an application for a utility model patent, it/he/she may apply for either a utility model patent or an invention patent in respect of the same subject matter. However, if it/he/she files the latter application and any of the following circumstances applies to the subject matter of the Earlier Application, it may not serve as the basis for claiming domestic right of priority:

(1) a claim for foreign right of priority or for domestic right of priority has already been made;

(2) a patent has already been granted; or

(3) it is a divisional application filed in accordance with provisions.

If an applicant claims domestic right of priority, its/his/her Earlier Application shall be deemed withdrawn from the date of filing of the later application.

Article 33: If an applicant that does not have a permanent residence or business establishment in China applies for a patent or claims foreign right of priority, the State Council's patent administrative department may, if it deems it necessary, require him/her/it to provide the following documents:

(1) if the applicant is an individual, proof of his/her nationality;

(2) if the applicant is an enterprise or other organisation, an evidencing document issued by the country or region in which it is registered; and

(3) a document evidencing that the applicant's home country recognises that Chinese work units and individuals are eligible for patent rights, right of priority and other patent-related rights in that country on conditions equivalent to those applicable to its own citizens.

Article 34: Two or more inventions or utility models that, pursuant to the first paragraph of Article 31 of the Patent Law, fall within a single overall inventive concept and for which a single invention or utility model patent application may be filed shall be technically interrelated and contain one or more identical or corresponding specific technical features. The term “specific technical feature” means a technical feature of each invention or utility model, as a whole, that makes a contribution to the prior art.

Article 35: Where, pursuant to the second paragraph of Article 31 of the Patent Law, a single design patent application is filed for multiple similar designs used for a single product, the other designs for that product shall be similar to the basic design designated in the brief description. The number of similar designs in an application for a design patent may not exceed 10.

For the purposes of the second paragraph of Article 31 of the Patent Law, the term “two or more designs used on a single category of products that are sold or used as a set” means that all of the products belong to the same class of the classification, are customarily sold or used contemporaneously and the designs of each of the products have the same design concept.

Where one application is filed for two or more designs, the sequential number of each design shall be placed before the caption of the drawing(s) or photograph(s) of each of the products incorporating the design.

Article 36: If an applicant wishes to withdraw a patent application, it/he/she shall make a declaration to the State Council's patent administrative department specifying the name of the invention or creation, the application number and the filing date.

If a declaration of withdrawal of a patent application is made after the State Council's patent administrative department has duly completed the printing preparations for the publication of the patent application documents, the application documents shall still be published. However, the declaration of withdrawal of the patent application shall be gazetted in the subsequently published patent gazette.

Part Three: Review and approval of patent applications

Article 37: If, during a procedure for preliminary review, substantive review, re-examination or declaration of invalidity, any of the following circumstances applies to a person conducting such review or hearing, he/she shall recuse himself/herself, or a concerned party or materially interested party may demand that he/she recuse himself/herself:

(1) he/she is a close family member of a concerned party or of the concerned party's agent;

(2) he/she has a material interest in the patent application or patent;

(3) he/she is otherwise connected with a concerned party or the concerned party's agent, and such connection could affect the impartial conduct of the review or hearing; or

(4) he/she is a member of the Patent Re-examination Board and he/she was involved in the original review of the application.

Article 38: Once the State Council's patent administrative department has received the request, description (which, for a utility model, must include drawings) and claims for an application for an invention or utility model patent, or the request, design drawings or photographs and the brief description for an application for a design patent, it shall determine the filing date, assign an application number and notify the applicant.

Article 39: The State Council's patent administrative department shall not accept patent application documents and shall notify the applicant thereof if:

(1) the request, description (or, in the case of a utility model, the drawings in the description) or claims is missing, in the case of an application for an invention or utility model patent, or the request, drawings or photographs or the brief description is missing, in the case of an application for a design patent;

(2) they are not written in Chinese;

(3) they do not comply with the first paragraph of Article 121 hereof;

(4) the applicant's name or address does not appear in the request;

(5) they are clearly not in compliance with Article 18 or the first paragraph of Article 19 of the Patent Law; or

(6) the type of patent applied for (invention, utility model or design) is unclear or very difficult to determine.

Article 40: If the request gives an explanation of drawings but there are no drawings or a portion of the drawings is missing, the applicant shall, within the time limit set by the State Council's patent administrative department, provide the missing drawings or make a declaration that it/he/she is removing the explanation of the drawings. If the applicant provides the missing drawings, the date on which it/he/she submits or sends by post the drawings to the State Council's patent administrative department shall be the filing date. If it/he/she removes the explanation of the drawings, the original filing date shall be retained.

Article 41:If two or more applicants file patent applications for the  same invention or creation on the same day (i.e. the filing date; where a right of priority applies, the right of priority date), they shall themselves hold consultations to determine the applicant after receipt of the notice from the State Council's patent administrative department.

Where one applicant applies for both a utility model patent and an invention patent in respect of the same invention or creation on the same day (i.e. the filing date), it/he/she shall respectively state at the time of filing of each that it/he/she has applied for another patent in respect of the same invention or creation. If it/he/she fails to do so, the matter shall be handled in accordance with the first paragraph of Article 9 of the Patent Law specifying that only one patent may be granted for one and the same invention or creation.

When the State Council's patent administrative department gazettes the granting of the utility model patent, it shall announce that the applicant has stated pursuant to the second paragraph of this Article that it/he/she applied for an invention patent at the same time.

If, following review of the invention patent application, no grounds are found for rejection, the State Council's patent administrative department shall notify the applicant to make a declaration relinquishing the utility model patent within the specified time limit. If the applicant makes such declaration, the State Council's patent administrative department shall render a decision granting the invention patent, and when gazetting the granting of the invention patent, it shall additionally gazette the declaration by the applicant that it/he/she has relinquished the utility model patent. If the applicant does not agree to relinquishing the utility model patent, the State Council's patent administrative department shall reject the invention patent application; and if the applicant has not given a response before the expiration of the time limit, it/he/she shall be deemed as having withdrawn the invention patent application.

The utility model patent rights shall be terminated on the date the granting of the invention patent is gazetted.

Article 42:If a patent application covers two or more inventions,  utility models or designs, the applicant may, before the expiration of the time limit specified in the first paragraph of Article 54 hereof, file a divisional application with the State Council's patent administrative department, unless the patent application has already been rejected, been withdrawn or deemed to have been withdrawn, in which case it/he/she may not file a divisional application.

If the State Council's patent administrative department deems that a patent application does not comply with Article 31 of the Patent Law and Article 34 or Article 35 hereof, it shall notify the applicant to revise its/his/her application within the specified time limit. If the applicant fails to respond by the expiration of the time limit, such application shall be deemed to have been withdrawn.

A divisional application may not change the type of patent originally applied for.

Article 43: If a divisional application is filed in accordance with Article 42 hereof, the original filing date may be retained, and if a right of priority applies, the right of priority date may be retained, but the scope specified in the parent application may not be exceeded.

Relevant procedures for a divisional application shall be carried out in accordance with the Patent Law and these Rules.

The application number and filing date of the parent application shall be specified in the request of a divisional application. When filing the divisional application, the applicant shall submit a duplicate of the parent application documents. If a right of priority applies to the parent application, the applicant shall additionally provide a duplicate of the priority document for the parent application.

Article 44:For the purposes of Articles 34 and 40 of the Patent Law,  the term “preliminary review” means reviewing whether the patent application contains the documents specified in Article 26 or 27 of the Patent Law and other necessary documents, whether these documents are in the prescribed format, and reviewing the following:

(1) whether, for an application for an invention patent, any of the circumstances set forth in Articles 5 and 25 of the Patent Law clearly applies thereto; whether it does not comply with Article 18, the first paragraph of Article 19 or the first paragraph of Article 20 of the Patent Law or Article 16 or the second paragraph of Article 26 hereof; and whether it clearly does not comply with the second paragraph of Article 2, the fifth paragraph of Article 26, the first paragraph of Article 31, or Article 33 of the Patent Law or Articles 17 to 21 hereof;

(2) whether, for an application for a utility model patent, any of the circumstances set forth in Articles 5 and 25 of the Patent Law clearly applies thereto; whether it does not comply with Article 18, the first paragraph of Article 19 or the first paragraph of Article 20 of the Patent Law or Articles 16 to 19 or Articles 21 to 23 hereof; whether it clearly does not comply with the third paragraph of Article 2, the second or fourth paragraph of Article 22, the third or fourth paragraph of Article 26, the first paragraph of Article 31, or Article 33 of the Patent Law or Article 20 or the first paragraph of Article 43 hereof; and whether, pursuant to Article 9 of the Patent Law, the utility model is not patentable;

(3) whether, for an application for a design patent, any of the circumstances set forth in Articles 5 and item (6) of the first paragraph of Article 25 of the Patent Law clearly applies thereto; whether it does not comply with Article 18 or the first paragraph of Article 19 of the Patent Law or Article 16, 27 or 28 hereof; whether it clearly does not comply with the fourth paragraph of Article 2, the first paragraph of Article 23, the second paragraph of Article 27, the second paragraph of Article 31, or Article 33 of the Patent Law or the first paragraph of Article 43 hereof; and whether, pursuant to Article 9 of the Patent Law, the design is not patentable; and

(4) whether the application documents comply with Article 2 and the first paragraph of Article 3 hereof.

The State Council's patent administrative department shall notify the applicant of its opinion upon review, and require it/him/her to state its/his/her opinions or make corrections within the specified time limit. If the applicant fails to respond before the expiration of the time limit, its/his/her application shall be deemed to have been withdrawn. If the State Council's patent administrative department still deems the application not to be in compliance with the provisions set forth above after the applicant has stated its/his/her opinions or made corrections, it shall reject the same.

Article 45:With the exception of the patent application documents,  other patent application-related documents submitted to the State Council's patent administrative department by an applicant shall be deemed not to have been submitted if:

(1) they are not in the specified format or the preparation thereof fails to comply with provisions; or

(2) supporting documentation is not submitted in accordance with provisions.

If the State Council's patent administrative department renders an opinion upon review that the documents are deemed not to have been submitted, it shall notify the applicant thereof.

Article 46:If an applicant wishes to have its/his/her application for  an invention patent published as soon as possible, it/he/she shall declare the same to the State Council's patent administrative department. After conducting its preliminary review of the application, the State Council's patent administrative department shall promptly publish the same, unless it has rejected it.

Article 47:If an applicant specifies the product that incorporates  its/his/her design and the class to which it belongs, it/he/she shall use the classification of products incorporating designs published by the State Council's patent administrative department. If the class to which the product incorporating the design belongs is not specified or if the specified class is not precise, the State Council's patent administrative department may supplement or revise the same.

Article 48:Between the date of publication of an application for an  invention patent and the date of gazetting of the granting of the patent, any party may submit its/his/her opinion to the State Council's patent administrative department on a patent application that does not comply with the Patent Law and give its/his/her reasons therefor.

Article 49: If an applicant for an invention patent has a legitimate reason for not being able to submit the search information or review outcome information specified in Article 36 of the Patent Law, it/he/she shall declare the same to the State Council's patent administrative department and submit such information once it/he/she obtains it.

Article 50:If the State Council's patent administrative department is  to conduct a review of a patent application at its own discretion in accordance with the second paragraph of Article 35 of the Patent Law, it shall notify the applicant thereof.

Article 51:An applicant for an invention patent may, at the time of  submitting the request for substantive review or within three months from the date of receipt of the notice from the State Council's patent administrative department informing it/him/her that its/his/her application has entered the substantive review stage, propose revisions to its/his/her application on its/his/her own initiative.

An applicant for a utility model patent or a design patent may, within two months from the filing date, propose revisions to its/his/her application on its/his/her own initiative.

When an applicant makes revisions to its/his/her patent application documents after receipt of the notice from the State Council's patent administrative department on its opinion upon review, it/he/she shall correct the defects pointed out in the notice.

The State Council's patent administrative department may itself correct obvious errors in the characters and symbols in patent application documents. If it itself makes such corrections, the State Council's patent administrative department shall notify the applicant.

Article 52:Except in the case of corrections, additions or deletions of  certain characters, a replacement page in the prescribed format shall be provided for revisions made to the description or claims in an application for an invention or utility model patent. For revisions made to the drawings or photographs in an application for a design patent, a replacement page shall be submitted in accordance with provisions.

Article 53: The circumstances under which an application for an invention patent shall, following the substantive review, be rejected pursuant to Article 38 of the Patent Law are as follows:

(1) a circumstance set forth in Article 5 or 25 of the Patent Law applies to the application or, pursuant to Article 9 of the Patent Law, the invention is not patentable;

(2) the application does not comply with the second paragraph of Article 2, the first paragraph of Article 20, Article 22, the third, fourth or fifth paragraph of Article 26 or the first paragraph of Article 31 of the Patent Law, or the second paragraph of Article 20 hereof;

(3) the revisions made to the application do not comply with Article 33 of the Patent Law or the divisional application does not comply with the first paragraph of Article 43 hereof.

Article 54:Once the State Council's patent administrative department  issues a notice of the granting of a patent, the applicant shall carry out the registration procedures within two months from the date of receipt of the notice. If the applicant punctually carries out the registration procedures, the State Council's patent administrative department shall grant it/him/her the patent, issue it/him/her a patent certificate and gazette the same.

If the applicant fails to carry out the registration procedures before the expiration of the time limit, it/he/she shall be deemed to have waived its/his/her right to obtain the patent.

Article 55:If, following the review, the State Council's patent  administrative department finds no grounds for rejecting an application for a confidential patent, it shall render a decision to grant a confidential patent, issue a confidential patent certificate and register relevant particulars of the confidential patent.

Article 56:Once a decision granting a utility model or design patent  has been gazetted, the patentee or a materially interested party specified in Article 60 of the Patent Law may request that the State Council's patent administrative department issue a patent assessment report.

If a request is made for the issuance of a patent assessment report, a written request for a patent assessment report, specifying the patent number, shall be submitted. Each request shall be limited to one patent.

If the written request for a patent assessment report does not comply with provisions, the State Council's patent administrative department shall notify the requesting party to rectify the same within a specified time limit. If the requesting party fails to do so, it/he/she shall be deemed as not having submitted a request.

Article 57: The State Council's patent administrative department shall issue a patent assessment report within two months after receipt of the written request for a such report. If multiple requesting parties request the issuance of a patent assessment report for one and the same utility model or design patent, the State Council's patent administrative department shall issue only one patent assessment report. Any work unit or individual may review or take copies of such patent assessment report.

Article 58:If the State Council's patent administrative department  discovers an error in a patent gazette or a standalone patent booklet, it shall correct the same in a timely manner and gazette such correction.

Part Four: Re-examination of patent applications and declaration of the invalidity of patents

Article 59:The Patent Re-examination Board shall consist of technical  experts and legal experts designated by the State Council's patent administrative department and the person in charge of the State Council's patent administrative department shall serve concurrently as the chairman of such board.

Article 60:When a request for re-examination is to be made to the  Patent Re-examination Board in accordance with Article 41 of the Patent Law, a written request for re-examination shall be submitted, the reasons given and, when necessary, the relevant evidence shall additionally be provided.

If a request for re-examination does not comply with the first paragraph of Article 19 or the first paragraph of Article 41 of the Patent Law, the Patent Re-examination Board shall not accept such request, shall notify in writing the party requesting the re-examination and shall give the reasons therefor.

If a written request for re-examination is not in the prescribed format, the party requesting the re-examination shall rectify the same within the time limit specified by the Patent Re-examination Board. If it/he/she fails to do so, its/his/her request for re-examination shall be deemed as not having been submitted.

Article 61: A requesting party may amend its/his/her patent application documents at the time it/he/she submits a re-examination request or when responding to a notice of re-examination from the Patent Re-examination Board; however, such revisions shall be limited to eliminating the defects pointed out in the rejection decision or re-examination notice.

A revised patent application document shall be submitted in duplicate.

Article 62:The Patent Re-examination Board shall forward a  re-examination request that it has accepted to the original review department of the State Council's patent administrative department for review. If the original review department agrees, based on the request by the party requesting the re-examination, to revoke its original decision, the Patent Re-examination Board shall render its re-examination decision on such basis and notify the party requesting the re-examination.

Article 63:If, after conducting its re-examination, the Patent  Re-examination Board deems the re-examination request not to be in compliance with the relevant provisions of the Patent Law and these Rules, it shall notify the party requesting the re-examination and require it/him/her to state its/his/her opinions within the specified time limit. If it/he/she fails to do so, its/his/her re-examination request shall be deemed withdrawn. If, after it/he/she states its/his/her opinions or makes revisions, the Patent Re-examination Board still deems its/his/her request not to be in compliance with the relevant provisions of the Patent Law and these Rules, it shall render a re-examination decision upholding the original rejection decision.

If, after conducting its re-examination, the Patent Re-examination Board deems the original rejection decision not to be in compliance with the relevant provisions of the Patent Law and these Rules, or deems that the revised patent application documents have eliminated the defects pointed out in the original rejection decision, it shall revoke the original rejection decision and the original review department shall continue the review procedure.

Article 64:A party requesting a re-examination may withdraw its/his/her  re-examination request before the Patent Re-examination Board renders its decision.

If a party requesting a re-examination withdraws its/his/her re-examination request before the Patent Re-examination Board renders its decision, the re-examination procedure shall terminate.

Article 65:If, pursuant to Article 45 of the Patent Law, a request is  to be made to have a patent declared invalid or partially invalid, a written request to have the patent declared invalid and the necessary evidence shall be submitted to the Patent Re-examination Board in duplicate. The request for a declaration of invalidity shall, in combination with all of the submitted evidence, specifically explain the grounds for the request for declaration of invalidity, and designate the evidence on which each grounds is based.

For the purposes of the preceding paragraph, the term “grounds for the request for declaration of invalidity” means that the invention or creation for which a patent has been granted does not comply with Article 2, the first paragraph of Article 20, Article 22, Article 23, the third or fourth paragraph of Article 26, the second paragraph of Article 27, or Article 33 of the Patent Law, or the second paragraph of Article 20 or the first paragraph of Article 43 hereof; or Article 5 or Article 25 of the Patent Law applies thereto; or it is not patentable pursuant to Article 9 of the Patent Law.

Article 66: If a request to have a patent declared invalid does not comply with the first paragraph of Article 19 of the Patent Law or Article 65 hereof, the Patent Re-examination Board shall not accept it.

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

If a request is made to have a design patent declared invalid on the grounds that it does not comply with the third paragraph of Article 23 of the Patent Law but no evidence substantiating the conflict of rights is submitted, the Patent Re-examination Board shall not accept it.

If the written request to have a patent declared invalid is not in the prescribed format, the party requesting declaration of invalidity shall rectify the same within the time limit specified by the Patent Re-examination Board. If it/he/she fails to do so, its/his/her request for declaration of invalidity shall be deemed as not having been submitted.

Article 67: After the Patent Re-examination Board has accepted a request for a declaration of invalidity, the requesting party may provide additional grounds or supplementary evidence within one month from the date on which it/he/she submitted its/his/her request. The Patent Re-examination Board may refuse to consider additional grounds or supplementary evidence submitted after the expiration of the time limit.

Article  68:The Patent Re-examination Board shall send duplicates of the written request to have the patent declared invalid and the relevant documentation to the patentee and require it/him/her to state its/his/her opinions within a specified time limit.

The patentee and the party requesting declaration of invalidity shall respond to the document forwarding notice or the notice of review of a request for a declaration of invalidity given by the Patent Re-examination Board within the specified time limit. A failure to respond before the expiration of the time limit shall not affect the hearing by the Patent Re-examination Board.

Article 69: During the review for a request for a declaration of invalidity, the patentee of the invention or utility model patent may revise its/his/her claims, provided that it/he/she does not expand the original scope of protection of the patent.

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

Article 70: The Patent Re-examination Board may, pursuant to a request by a concerned party or as required by the case, decide to conduct an oral hearing in respect of the request for a declaration of invalidity.

If the Patent Re-examination Board decides to conduct an oral hearing in respect of the request for a declaration of invalidity, it shall give notice of the oral hearing to the concerned parties, informing them of the date and place of the oral hearing. The concerned parties shall respond by the time limit specified in the notice.

If the party requesting declaration of invalidity fails to respond within the specified time limit to the oral hearing notice given by the Patent Re-examination Board, and fails to attend the oral hearing, its/his/her request for the declaration of invalidity shall be deemed withdrawn. If the patentee fails to attend the oral hearing, it may be conducted ex parte.

Article 71: A time limit specified by the Patent Re-examination Board during the review of a request for a declaration of invalidity may not be extended.

Article 72: A party requesting declaration of invalidity may withdraw its/his/her request before the Patent Re-examination Board renders its decision.

If a party requesting declaration of invalidity withdraws its/his/her request before the Patent Re-examination Board renders its decision or if its/his/her request is deemed as having been withdrawn, the review process of the request shall be terminated. However, if, based on the review work it had done to that point, the Patent Re-examination Board deems that it can render a decision declaring the patent invalid or partially invalid, the review procedure shall not be terminated.

Part Five: Compulsory licences for the exploitation of patents

Article 73: For the purposes of Item (1) of Article 48 of the Patent Law, the phrase “has failed to fully exploit its/his/her patent” means that the method or scale of exploitation of the patent by the patentee and/or its/his/her licencee(s) fails to satisfy domestic demand for the patented product or patented process.

For the purposes of Article 50 of the Patent Law, the term “patented pharmaceutical” means any patented product or product directly derived from a patented process in the medical field, including the patented active ingredient required to manufacture such product as well as the diagnostic aids required to use such product, required to solve a public health issue.

Article 74: If a request for a compulsory licence is to be made, a written request for a compulsory licence, stating the reason therefor, and the relevant supporting documentation shall be submitted to the State Council's patent administrative department.

The State Council's patent administrative department shall send a duplicate of the request for the compulsory licence to the patentee, and the patentee shall state its/his/her opinions within the time limit specified by the State Council's patent administrative department. Its/his/her failure to do so shall not affect the State Council's patent administrative department's rendering of a decision.

Before it renders its decision to reject the request for a compulsory licence or grant the compulsory licence, the State Council's patent administrative department shall notify the requesting party and the patentee of the decision it intends to render and the reasons therefor.

A decision by the State Council's patent administrative department to grant a compulsory licence pursuant to Article 50 of the Patent Law shall additionally comply with the provisions on the granting of a compulsory licence in order to solve public health issues of the relevant international treaties to which China is a party or has acceded, unless China has taken a reservation.

Article 75: If, pursuant to Article 57 of the Patent Law, a request is to be made to the State Council's patent administrative department to issue a ruling on the amount of the royalty, the concerned party shall submit a written request for a ruling and a document evidencing that the parties have failed to reach agreement. The State Council's patent administrative department shall render its ruling and notify the parties thereof within three months from the date of receipt of the request.

Part Six: Reward and remuneration of inventors or designers of service inventions and creations

Article 76: A work unit that has been granted a patent may agree with the inventor or designer on, or specify in its rules and regulations formulated in accordance with the law, the method of giving and the amount of the rewards and remuneration provided for in Article 16 of the Patent Law.

The rewards and remuneration given to inventors and designers by enterprises and public institutions shall be treated in accordance with relevant state financial and accounting systems.

Article  77:If a work unit that has been granted a patent has neither agreed with the inventor or designer on, nor specified in its rules and regulations formulated in accordance with the law, the method of giving and the amount of the reward provided for in Article 16 of the Patent Law, it shall pay the inventor or designer a bonus within three months from the date on which the patent was gazetted. The bonus for an invention patent may not be less than Rmb3,000 and that for a utility model patent or design patent may not be less than Rmb1,000.

If an invention or creation is completed as a result of the work unit accepting suggestions made by the inventor or designer, the work unit granted the patent shall pay a generous bonus.

Article 78: If a work unit that has been granted a patent has neither agreed with the inventor or designer on, nor specified in its rules and regulations formulated in accordance with the law, the method of giving and the amount of the remuneration provided for in Article 16 of the Patent Law, it shall, during the term of the patent and after commencement of exploitation of the invention or creation, annually allocate not less than 2% of the operating profit derived from the exploitation of the invention or utility model patent or not less than 0.2% of the operating profit derived from the exploitation of the design patent as remuneration for the inventor or designer or, while referring to the foregoing percentages, give the inventor or designer remuneration in one lump sum. If a work unit that has been granted a patent licenses the exploitation of the patent to another work unit or an individual, it shall allocate not less than 10% of the royalty that it charges as remuneration for the inventor or designer.

Part Seven: Patent protection

Article  79:For the purposes of the Patent Law and these Rules, the term “department in charge of the administration of patent work” means the department in charge of the administration of patent work established by the people's government of a province, autonomous region or municipality directly under the central government or by the people's government of a municipality divided into districts that has a large volume of patent administration work and that has the capacity actually to handle the same.

Article 80: The State Council's patent administrative department shall give professional guidance to departments in charge of the administration of patent work in their handling of patent infringement disputes, investigation and handling of the passing off of patents and the mediation of patent disputes.

Article 81: If a concerned party requests handling of a patent infringement dispute or mediation of a patent dispute, the department in charge of the administration of patent work of the place where the respondent is located or of where the infringement occurred shall have jurisdiction.

In a dispute where two or more departments in charge of the administration of patent work have jurisdiction, the concerned party may submit its/his/her request to any among them. If the concerned party submits its/his/her request to two or more departments in charge of the administration of patent work that have jurisdiction, the department in charge of the administration of patent work that first accepted the request shall have jurisdiction.

If a dispute over jurisdiction arises between departments in charge of the administration of patent work, jurisdiction shall be designated by their common department in charge of the administration of patent work of the people's government at the next higher level. If there is no common department in charge of the administration of patent work of the people's government at the next higher level, jurisdiction shall be designated by the State Council's patent administrative department.

Article 82: If, in the course of the handling of a patent infringement dispute, the respondent submits a request for a declaration of invalidity and the same is accepted by the Patent Re-examination Board, it/he/she may request that the department in charge of the administration of patent work suspend its handling of the dispute.

If the department in charge of the administration of patent work deems that the grounds on which the respondent requests suspension are clearly untenable, it may decide not to suspend its handling of the dispute.

Article 83: If, pursuant to Article 17 of the Patent Law a patentee wishes to place the patent symbol on its/his/her patented product or the packaging thereof, it/he/she shall do so in the manner specified by the State Council's patent administrative department.

If the patent symbol does not comply with the preceding paragraph, the department in charge of the administration of patent work shall order it/him/her to rectify the matter.

Article 84: The following acts shall constitute the passing off of a patent as specified in Article 63 of the Patent Law:

(1) placing the patent symbol on a non-patented product or its packaging, or continuing to place the patent symbol on a product or its packaging after the patent has been declared invalid or the patent rights terminated, or placing, without a licence, a third party's patent number on a product or its packaging;

(2) selling a product mentioned in Item (1);

(3) on the instructions for use of a product or other such documentation, claiming a non-patented technology or design as being a patented technology or design, claiming a patent application as being a patent or using a third party's patent number without a licence, thereby causing the public to mistakenly believe that the technology or design involved is a patented technology or patented design;

(4) forging or altering a patent certificate, patent document or patent application document; or

(5) committing another act that confuses the public, causing it to mistakenly believe that a non-patented technology or design is a patented technology or design.

Placing the patent symbol in accordance with the law on a patented product, a product directly derived from a patented process or on the packaging thereof before termination of the patent rights and offering to sell or selling such product after the termination of the patent rights shall not constitute passing off of a patent.

If a product that incorporates a patent that has been passed off is sold with the seller being unaware that such patent has been passed off and it/he/she can show that the product came from a legitimate source, the department in charge of the administration of patent work shall order that it/he/she halt sale thereof but shall not impose a fine.

Article 85: In addition to the provisions of Article 60 of the Patent Law, the department in charge of the administration of patent work may, at the request of a concerned party, mediate the following patent disputes:

(1) disputes over ownership of rights to applications for patents and patent rights;

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

(3) disputes over the rewards and remuneration given to inventors and designers of service inventions and creations;

(4) disputes over the adequacy of the fee paid for use of an invention during the period between the publication of the application for the invention patent and the granting of the patent; and

(5) other patent disputes.

If a concerned party intends to request the mediation of a dispute as specified in Item (4) above by the department in charge of the administration of patent work, it/he/she shall submit such request after the patent has been granted.

Article 86: If a dispute arises over the ownership of the right to an application for a patent or patent rights and a request for mediation has been made to the department in charge of the administration of patent work or a legal action has been instituted in a people's court, a concerned party may request that the State Council's patent administrative department suspend the relevant procedure.

If a request is to be made to suspend the relevant procedure pursuant to the preceding paragraph, a written request shall be submitted to the State Council's patent administrative department together with a duplicate of the relevant acceptance document issued by the department in charge of the administration of patent work or the people's court specifying the application number or patent number.

Once the written mediation statement rendered by the department in charge of the administration of patent work or the judgment rendered by the people's court enters into effect, the concerned party shall carry out the procedures with the State Council's patent administrative department for resumption of the relevant procedure. If a dispute over ownership of the right to an application for a patent or patent rights has not been settled within one year from the date of the request for suspension and suspension of the relevant procedure needs to be continued, the requesting party shall request an extension of the suspension during the aforementioned time limit. If it/he/she fails to do so, the State Council's patent administrative department shall resume the relevant procedure at its own discretion.

Article 87: If, in the trial of a civil case, a people's court issues a ruling for preservation of the right to an application for a patent or patent rights, the State Council's patent administrative department shall, from the date on which it receives the written ruling specifying the application number or patent number and the notice of assistance in enforcement, suspend the procedure relating to the right to an application for a patent or patent rights. If, at the expiration of the preservation period, the people's court does not rule to continue the preservation measures, the State Council's patent administrative department shall resume the relevant procedure at its own discretion.

Article 88: Suspension of the relevant procedure by the State Council's patent administrative department pursuant to Article 86 or 87 hereof means the suspension of the procedure for the preliminary review, substantive review or re-examination of a patent application, the patent granting procedure, the procedure for declaring a patent invalid, the procedures for relinquishing, modifying or transferring patent rights or the right to an application for a patent, the procedure for the pledge of a patent, the procedure for the termination of patent rights before the expiration of the patent term, etc.

Part Eight: Patent registration and patent gazette

Article 89: The State Council's patent administrative department shall establish a patent register to register the following particulars of patent applications and patents:

(1) the granting of patents;

(2) the transfer of rights to applications for patents and patent rights;

(3) the pledge and preservation of patents and the release thereof;

(4) the filing of patent licensing contracts;

(5) declarations of the invalidity of patents;

(6) the termination of patent rights;

(7) the restoration of patent rights;

(8) compulsory licences for the exploitation of patents; and

(9) changes in the names, nationalities and addresses of patentees.

Article 90: The State Council's patent administrative department shall regularly publish the patent gazette to publish or gazette the following:

(1) the bibliographic items in applications for invention patents and abstracts of descriptions;

(2) requests for substantive reviews of applications for invention patents and decisions by the State Council's patent administrative department to conduct substantive reviews of applications for invention patents at its own discretion;

(3) rejections, withdrawals, deemed withdrawals, deemed relinquishments, resumptions and transfers of applications for invention patents after their publication;

(4) the granting of patents and the bibliographic items of patents;

(5) abstracts of the descriptions of invention patents and utility model patents, and one drawing or photograph of design patents;

(6) the declassification of national defence patents and confidential patents;

(7) declarations of the invalidity of patents;

(8) the termination and restoration of patent rights;

(9) transfers of patent rights;

(10) the filing of patent licensing contracts;

(11) the pledging and preservation of patents and the release thereof;

(12) the granting of compulsory licences to exploit patents;

(13) changes in the names and addresses of patentees;

(14) the service of documents by way of announcement;

(15) corrections made by the State Council's patent administrative department; and

(16) other relevant matters.

Article 91: The State Council's patent administrative department shall make the patent gazette and standalone booklets of applications for invention patents and standalone booklets for invention patents, utility model patents and design patents available for review by the public free of charge.

Article 92: The State Council's patent administrative department shall be responsible for exchanging patent documents with the patent authorities of other countries and regions and regional patent organisations based on the principle of reciprocity.

Part Nine: Charges

Article  93:When applying for patents to, and carrying out other procedures with, the State Council's patent administrative department, the following charges shall be paid:

(1) application fee, application surcharge, publication printing charge and priority claim fee;

(2) fee for the substantive review or re-examination of an application for an invention patent;

(3) patent registration fee, gazette printing fee and annual fee;

(4) rights restoration request fee, time limit extension request fee; and

(5) bibliographic item amendment fee, patent assessment report request fee and invalidation declaration request fee.

The rates for the charges set forth above shall be specified by the State Council's pricing department and finance department in concert with the State Council's patent administrative department.

Article 94: The charges provided for in the Patent Law and these Rules may be paid directly to the State Council's patent administrative department, remitted through the post office or a bank or paid by other means specified by the State Council's patent administrative department.

If a charge is remitted through the post office or a bank, the correct application number or patent number and the name of the charge paid shall be indicated on the remittance slip submitted to the State Council's patent administrative department. If this paragraph is not complied with, the procedure for the payment of a charge shall be deemed as not having been carried out.

If a charge is paid directly to the State Council's patent administrative department, the date of payment shall be the payment date; if paid by post office remittance, the postmark date of the post office remittance shall be the payment date; and if paid by bank remittance, the actual date of remittance by the bank shall be the payment date.

If a patent charge is overpaid, paid twice or paid in error, the concerned party may submit a refund request to the State Council's patent administrative department within three years from the date on which the charge was paid, and the State Council's patent administrative department shall refund the same.

Article 95: An applicant shall pay the application fee, publication printing charge and the necessary application surcharge within two months from the filing date or within 15 days from the date of receipt of the acceptance notice. If the applicant fails to pay the same by the expiration of the time limit or fails to pay the same in full, its/his/her application shall be deemed as having been withdrawn.

If an applicant claims a right of priority, it/he/she shall pay the priority claim fee at the same time it/he/she pays the application fee. If it/he/she fails to pay the same by the expiration of the time limit or fails to pay the same in full, it/he/she shall be deemed as not having claimed a right of priority.

Article 96: When a concerned party requests a substantive review or re-examination, it/he/she shall pay the charge by the relevant time limit specified in the Patent Law and these Rules. If it/he/she fails to pay the same by the expiration of the time limit or fails to pay the same in full, it/he/she shall be deemed as not having submitted the request.

Article 97: When an applicant carries out registration procedures, it/he/she shall pay the patent registration fee, gazette printing fee and the annual fee for the year in which the patent was granted. If the applicant fails to pay the same by the expiration of the time limit or fails to pay the same in full, it/he/she shall be deemed as not having carried out the registration procedures.

Article 98: The annual fee for the years following the year in which a patent is granted shall be paid before the lapse of the preceding year. If the patentee fails to pay the same or fails to pay the same in full, the State Council's patent administrative department shall notify it/him/her to pay the same within six months from the date of the expiration of the time limit for payment of the annual fee, and to additionally pay a late payment fine. The late payment fine shall be charged at the rate of 5% of the full annual fee for the year in question for each month by which the prescribed payment date is exceeded. If the patentee fails to pay by the expiration of the time limit, its/his/her patent rights shall terminate from the date on which the time limit for payment of the annual fee expired.

Article 99: A rights restoration request fee shall be paid by the relevant time limit specified herein. If the requesting party fails to pay the same by the expiration of the time limit or fails to pay the same in full, it/he/she shall be deemed as not having submitted a request.

A time limit extension request fee shall be paid by the date of expiration of the corresponding time limit. If the requesting party fails to pay the same by the expiration of the time limit or fails to pay the same in full, it/he/she shall be deemed as not having submitted a request.

A bibliographic item amendment fee, patent assessment report request fee or invalidation declaration request fee shall be paid within one month from the date on which the request was submitted. If the requesting party fails to pay the same by the expiration of the time limit or fails to pay the same in full, it/he/she shall be deemed as not having submitted a request.

Article 100: If payment of a charge specified in these Rules poses difficulties for an applicant or patentee, it/he/she may submit a request to the State Council's patent administrative department for a reduction or deferment of payment. The measures for reductions and deferments of payment shall be specified by the State Council's finance department in concert with the State Council's pricing department and the State Council's patent administrative department.

Part Ten: Special provisions for international applications

Article 101: The State Council's patent administrative department shall, pursuant to Article 20 of the Patent Law, accept international patent applications filed in accordance with the Patent Co-operation Treaty.

This Part shall apply to the conditions and procedures for entering the phase of handling by the State Council's patent administrative department (the National Phase in China) of international patent applications filed to and designating China in accordance with the Patent Co-operation Treaty (International Applications). Where this Part is silent, relevant provisions of the Patent Law and other Parts of these Rules shall apply.

Article 102: An International Application that, pursuant to the Patent Co-operation Treaty, has had an international filing date determined and designates China shall be deemed a patent application filed with the State Council's patent administrative department, and the international filing date shall be deemed the filing date specified in Article 28 of the Patent Law.

Article 103: An applicant of an International Application shall, within 30 months of the priority date mentioned in Article 2 of the Patent Co-operation Treaty (in this Part, the Priority Date), carry out with the State Council's patent administrative department the procedures for entering the National Phase in China. If it/he/she fails to do so, it/he/she may, after the payment of a grace period fee, carry out the procedures for entering the National Phase in China within 32 months from the Priority Date.

Article 104: An applicant wishing to carry out the procedures for entering the National Phase in China pursuant to Article 103 hereof shall comply with the following requirements:

(1) submitting a written declaration, in Chinese, of entering the National Phase in China, specifying the International Application number and the type of patent requested;

(2) paying the application fee and publication printing fee specified in the first paragraph of Article 93 hereof and, if necessary, the grace period fee specified in Article 103 hereof;

(3) if the International Application is filed in a foreign language, submitting a Chinese translation of the description and claims of the original International Application;

(4) specifying in the written declaration made for entering the National Phase in China the name of the invention or creation, the name and address of the applicant and the name of the inventor (the foregoing information shall be consistent with the records of the International Bureau of the World Intellectual Property Organisation (International Bureau)); if the name of the inventor is not specified in the International Application, specifying its/his/her name in the aforementioned declaration;

(5) if the International Application is filed in a foreign language, submitting a Chinese translation of the abstract; if the International Application contains drawings and/or if the abstract contains a drawing, submitting duplicates of the drawings and/or the drawing contained in the abstract, and if there is text on the drawings, converting the same into the corresponding Chinese text; if the International Application is filed in Chinese, submitting duplicates of the abstract and the drawing in the abstract contained in the international published documents;

(6) if procedures for a change in applicant were carried out with International Bureau at the international phase, providing documentation evidencing that the new applicant has the right to an application; and

(7) when necessary, paying the application surcharge specified in the first paragraph of Article 93 hereof.

If the applicant complies with Items (1) to (3) of the first paragraph of this Article, the State Council's patent administrative department shall assign an application number, determine the date of entry of the International Application into the National Phase in China (Entry Date) and notify the applicant that its/his/her International Application has entered the National Phase in China.

If an International Application has entered the National Phase in China but the applicant has not complied with Items (4) to (7) of the above of this Article, the State Council's patent administrative department shall notify it/him/her to rectify the same within a specified time limit. If it/he/she fails to do so, its/his/her application shall be deemed as having been withdrawn.

Article 105: The validity of an International Application in China shall terminate if:

(1) the International Application is withdrawn or deemed withdrawn at the International Phase or its designation of China is withdrawn;

(2) the applicant fails to carry out the procedures for entering the National Phase in China in accordance with Article 103 hereof within 32 months from the Priority Date; or

(3) the applicant has carried out the procedures for entering the National Phase in China, but fails to comply with the requirements in Items (1) to (3) of Article 104 hereof before the expiration of the 32-month time limit following the Priority Date.

If the validity of an International Application in China terminates pursuant to Item (1) of the above, Article 6 hereof shall not apply; if the validity of an International Application in China terminates pursuant to Item (2) or (3) of the above, the second paragraph of Article 6 hereof shall not apply.

Article 106: If an International Application is revised at the international phase and the applicant requests that the revised application documents serve as the basis for the review, it/he/she shall submit a Chinese translation of the revised parts within two months of the Entry Date. If it/he/she fails to do so, the State Council's patent administrative department shall not consider the revisions submitted by the applicant at the international phase.

Article 107: If any of the circumstances specified in Item (1) or (2) of Article 24 of the Patent Law applies to an invention or creation involved in an International Application and a declaration was made to that effect at the time of filing of the International Application, the applicant shall state the same in the written declaration made at the time of entering the National Phase in China and provide the supporting documentation specified in the third paragraph of Article 30 hereof within two months from the Entry Date. If the applicant fails to state the same or fails to provide the supporting documentation by the expiration of the time limit, Article 24 of the Patent Law shall not apply to its/his/her application.

Article 108: If an applicant has given a statement of deposit of a sample of a biological material pursuant to the Patent Co-operation Treaty, it/he/she shall be deemed as having satisfied Item (3) of Article 24 hereof. The applicant shall indicate in its/his/her declaration for entering the National Phase in China the document that records the details of the deposit of the sample of the biological material and the specific location where the same is recorded in the document.

If an applicant has specified in the description of the originally filed International Application the details of the deposit of the sample of the biological material but fails to indicate the same in its/his/her declaration made for entering the National Phase in China, it/he/she shall rectify the same within four months from the Entry Date. If it/he/she fails to do so, the biological material shall be deemed as not having been deposited.

If an applicant submits to the State Council's patent administrative department a proof of deposit of a biological material specimen and a proof of survival within four months from the Entry Date, it/he/she shall be deemed to have submitted the same by the time limit specified in Item (1) of Article 24 hereof.

Article 109: If an invention or creation involved in an International Application was completed based on genetic resources, the applicant shall state the same in its/his/her written declaration made for entering the National Phase in China, and fill out the form formulated by the State Council's patent administrative department.

Article 110: If an applicant has claimed one or multiple priorities at the international phase and such claim(s) of priority remain(s) valid when entering the National Phase in China, it/he/she shall be deemed to have submitted a written declaration pursuant to Article 30 of the Patent Law.

The applicant shall pay the priority claim fee within two months from the Entry Date. If it/he/she fails to pay the same by the expiration of the time limit or fails to pay the same in full, it/he/she shall be deemed as not having claimed a right of priority.

If an applicant has submitted duplicates of the Earlier Application documents at the international phase in accordance with the Patent Co-operation Treaty, it/he/she shall not be required to submit duplicates of the Earlier Application documents to the State Council's patent administrative department when completing procedures for entering the National Phase in China. If an applicant has not submitted duplicates of the Earlier Application documents at the international phase, the State Council's patent administrative department may, if necessary, notify it/him/her to submit the same within a specified time limit. If it/he/she fails to do so, it/he/she shall be deemed as not having filed a claim of priority.

Article 111: If, before the expiration of the 30-month period following the Priority Date, an applicant wishes to request that the State Council's patent administrative department handle and review its/his/her International Application early, it/he/she shall, in addition to carrying out the procedures for entering the National Phase in China, submit a request in accordance with the second paragraph of Article 23 of the Patent Co-operation Treaty. If the International Bureau has not forwarded the International Application to the State Council's patent administrative department, the applicant shall submit a confirmed duplicate of the International Application.

Article  112:With respect to an International Application requesting the grant of a utility model patent, the applicant may propose revisions to the patent application documents at its/his/her own initiative within two months from the Entry Date.

The first paragraph of Article 51 hereof shall apply to International Applications requesting the grant of invention patents.

Article 113: If an applicant discovers typographical errors in the Chinese translation of the description, claims or drawings that it/he/she has submitted, it/he/she may propose corrections based on the text of the original International Application by the time limits set forth below:

(1) before the State Council's patent administrative department has duly carried out the preparations for publishing the application for an invention patent or for gazetting the utility model patent; and

(2) within three months from the date of receipt of the notice given by the State Council's patent administrative department of the application for an invention patent having entered the substantive review stage.

If an applicant wishes to correct errors in a translation, it/he/she shall submit a written request and pay the prescribed translation correction fee.

If an applicant is to correct a translation as required by the notice of the State Council's patent administrative department, it/he/she shall carry out the procedures specified in the second paragraph of this Article by the specified time limit. If it/he/she fails to do so, such application shall be deemed as having been withdrawn.

Article 114: With respect to an International Application requesting the grant of an invention patent, if the State Council's patent administrative department, after its preliminary review, deems it to comply with the relevant provisions of the Patent Law and these Rules, it shall publish the same in the patent gazette. If the International Application was filed in a language other than Chinese, it shall publish the Chinese translation of the application documents.

If international publication of an International Application for the grant of an invention patent is carried out by the International Bureau in Chinese, Article 13 of the Patent Law shall apply from the date of international publication. If international publication is carried out by the International Bureau in a language other than Chinese, Article 13 of the Patent Law shall apply from the date of publication by the State Council's patent administrative department.

For International Applications, the term “publish” as specified in Article 21 and 22 of the Patent Law means the term “publish” specified in the first paragraph of this Article.

Article 115: If an International Application covers two or more inventions or utility models, the Applicant may file a divisional application in accordance with the first paragraph of Article 42 hereof commencing from the Entry Date.

If, at the international phase, the international search work unit or international preliminary review work unit deems that an International Application fails to comply with the requirement of unity of the Patent Co-operation Treaty and the applicant has failed to pay the surcharge in accordance with regulations, resulting in a certain portion of the International Application not having been subjected to an international search or international preliminary review and if, at the time of entering the National Phase in China, the applicant requests that the aforementioned portion serve as a basis for the review, and the State Council's patent administrative department deems that the judgment on the unity of the inventions rendered by the international search work unit or international preliminary review work unit was correct, it shall notify the applicant to pay a unity restoration fee by the specified time limit. If the applicant fails to pay the same by the expiration of the time limit or fails to pay the same in full, the portion of the International Application that was not subjected to an international search or international preliminary review shall be deemed to have been withdrawn.

Article 116: If the relevant international work unit, at the international phase, refuses to assign an international filing date for an International Application or declares that it is deemed withdrawn, the applicant may, within two months from the date of receipt of the notice, request that the International Bureau forward a duplicate of any document in the international application file to the State Council's patent administrative department and, during the aforementioned time limit, carry out with the State Council's patent administrative department the procedures specified in Article 103 hereof. The State Council's patent administrative department shall, after receipt of the document forwarded by the International Bureau, conduct a re-examination to determine whether the decision rendered by the international work unit was correct.

Article 117: If an error in translation causes the scope of protection determined in accordance with Article 59 of the Patent Law of a patent granted on the basis of an International Application to exceed the scope indicated in the original of the International Application, the scope of protection as restricted by the original shall prevail. If the error causes the scope of protection to be narrower than the scope indicated in the original of the International Application, the scope of protection at the time of granting shall prevail.

Part Eleven: Supplementary provisions

Article 118: With the consent of the State Council's patent administrative department, anyone may review or take copies of the case file or patent register of a published or gazetted patent application, and may request that the State Council's patent administrative department issue a duplicate of the patent register.

The case file for a patent application that is deemed as having been withdrawn, has been rejected or has been voluntarily withdrawn shall cease to be retained after the lapse of two years from the date on which the patent application became invalid.

The case file for a patent that has been relinquished or declared invalid in its entirety, or for a patent of which the rights have terminated shall cease to be retained after the lapse of three years from the date on which the patent became invalid.

Article 119: When application documents are filed or various procedures are carried out with the State Council's patent administrative department, the signature or stamp of the applicant, patentee, other materially interested party or its/his/her representative shall be required. If a patent agency has been appointed, the stamp of such agency shall be required.

If a request is to be made to change the name of the inventor, the name, nationality or address of the patent applicant or the patentee, the name or address of the patent agency or the name of the agent, procedures for an amendment in the bibliographic items shall be carried out with, and documentation evidencing the reason for the amendment provided to, the State Council's patent administrative department.

Article 120: When relevant application or patent documents are sent to the State Council's patent administrative department by post, the same shall be sent by registered post, and may not be sent by parcel service.

Except in the case of the initial filing of patent application documents, the application number or patent number, the name of the invention or creation and the applicant's or patentee's name shall be indicated when submitting documents to, or carrying out procedures with, the State Council's patent administrative department.

One letter shall contain only the documents pertaining to one application.

Article 121: Application documents shall be typed or printed neatly and clearly in black ink, and be free of alterations. Drawings shall be prepared in black ink using drafting instruments, lines shall be even and clear and there shall be no alterations.

The request, description, claims, drawings and abstract shall respectively be numbered sequentially in Arabic numerals.

The text of application documents shall be written horizontally and pages shall be printed on one side only.

Article 122: The State Council's patent administrative department shall formulate the patent review guidelines based on the Patent Law and these Rules.

Article 123: These Rules shall be effective as of July 1 2001. The Implementing Rules for the PRC Patent Law approved and amended by the State Council on December 12 1992 and issued by the China Patent Bureau on December 21 1992 shall be repealed simultaneously.