CHAPTER I
GENERAL
PROVISIONS
Article 1. This Law is enacted to
protect patent rights for inventions-creations, to encourage
inventions-creations, to foster the spreading and
application of inventions-creations, and to promote the
development of science and technology, for meeting the needs
of the construction of socialist
modernization.
Article 2. In this Law,
"inventions-creations" mean inventions, utility
models and designs.
Article 3. The Patent
Office of the People's Republic of China receives and
examines patent applications and grants patent rights for
inventions-creations that conform with the provisions of
this Law.
Article 4. Where the
invention-creation for which a patent is applied for relates
to the security or other vital interests of the State and is
required to be kept secret, the application shall be treated
in accordance with the relevant prescriptions of the State.
Article 5. No patent right shall be granted
for any invention-creation that is contrary to the laws of
the State or social morality or that is detrimental to
public interest.
Aticle 6. For a service
invention-creation, made by a person in execution of the
tasks of the entity to which he belongs or made by him
mainly by using the material means of the entity, the right
to apply for a patent belongs to the entity. For any
non-service invention-creation, the right to apply for a
patent belongs to the inventor or creator. After the
application is approved, if it was filed by an entity under
ownership by the whole people, the patent right shall be
held by the entity; if it was filed by an entity under
collective ownership or by an individual, the patent right
shall be owned by the entity or individual.
For a service invention-creation made by any
staff member or worker of a foreign enterprise, or of a
Chinese-foreign joint venture enterprise, located in China,
the right to apply for a patent belongs to the enterprise.
For any non-service invention-creation, the right to apply
for a patent belongs to the inventor or creator. After the
application is approved, the patent right shall be owned by
the enterprise or the individual that applied for it.
The owner of the patent right and the holder
of the patent right are referred to as "patentee".
Article 7. No entity or individual shall
prevent the inventor or creator from filing an application
for a patent for a non-service invention-creation.
Article 8. For an invention-creation made in
cooperation by two or more entities, or made by an entity in
execution of a commission for research or designing given to
it by another entity, the right to apply for a patent
belongs, unless otherwise agreed upon, to the entity which
made, or to the entities which jointly made, the
invention-creation. After the application is approved, the
patent right shall be owned or held by the entity or
entities that applied for it .
Article 9.
Where two or more applicants file applications for patent
for the identical invention- creation, the patent right
shall be granted to the applicant whose application was
filed first.
Article 10. The right to apply
for a patent and the patent right may be assigned.
Any assignment, by an entity under ownership
by the whole people, of the right to apply for a patent, or
of the patent right, must be approved by the competent
authority at the higher level.
Any assignment,
by a Chinese entity or individual, of the right to apply for
a patent, or of the patent right, to a foreigner must be
approved by the competent department concerned of the State
Council.
Where the right to apply for a patent
or the patent right is assigned, the parties must conclude a
written contract, which will come into force after it is
registered with and announced by the Patent
Office.
Article 11. After the grant of the
patent right for an invention or utility model, except as
otherwise provided for in the law, no entity or individual
may, without the authorization of the patentee, make, use or
sell the patented product, or use the patented process and
use or sell the product directly obtained by the patented
process, for production or business
purposes.
After the grant of the patent right
for a design, no entity or individual may, without the
authorization of the patentee, make or sell the product,
incorporating its or his patented design, for production or
business purposes.
After the grant of the
patent right, except as otherwise provided for in the law,
the patentee has the right to prevent any other person from
importing, without its or his authorization, the patented
product, or the product directly obtained by its or his
patented process, for the uses mentioned in the preceding
two paragraphs.
Article 12. Any entity or
individual exploiting the patent of another must, except as
provided for in Article 14 of this Law, conclude with the
patentee a written license contract for exploitation and pay
the patentee a fee for the exploitation of the patent. The
licensee has no right to authorize any entity or individual,
other than that referred to in the contract for
exploitation, to exploit the patent.
Article
13. After the publication of the application for a patent
for invention, the applicant may require the entity or
individual exploiting the invention to pay an appropriate
fee.
Article 14. The competent departments
concerned of the State Council and the people's governments
of provinces, autonomous regions or municipalities directly
under the Central Government have the power to decide, in
accordance with the State plan, that any entity under
ownership by the whole people that is within their system or
directly under their administration and that holds the
patent right to an important invention-creation is to allow
designated entities to exploit that invention- creation; and
the exploiting entity shall, according to the prescriptions
of the State, pay a fee for exploitation to the entity
holding the patent right.
Any patent of a
Chinese individual or entity under collective ownership,
which is of great significance to the interests of the State
or to the public interest and is in need of spreading and
application, may, after approval by the State Council at the
solicitation of its competent department concerned, be
treated alike by making reference to the provisions of the
preceding paragraph.
Article 15. The patentee
has the right to affix a patent marking and to indicate the
number of the patent on the patented product or on the
packing of that product.
Article 16. The
entity owning or holding the patent right shall award to the
inventor or creator of a service invention-creation a reward
and, upon exploitation of the patented invention-creation,
shall award to the inventor or creator a reward based on the
extent of spreading and application and the economic
benefits yielded.
Article 17. The inventor or
creator has the right to be named as such in the patent
document.
Article 18. Where any foreigner,
foreign enterprise or other foreign organization having no
habitual residence or business office in China files an
application for a patent in China, the application shall be
treated under this Law in accordance with any agreement
concluded between the country to which the applicant belongs
and China, or in accordance with any international treaty to
which both countries are party, or on the basis of the
principle of reciprocity.
Article 19. Where
any foreigner, foreign enterprise or other foreign
organization having no habitual residence or business office
in China applies for a patent, or has other patent matters
to attend to, in China, he or it shall appoint a patent
agency designated by the State Council of the People's
Republic of China to act as his or its
agent.
Where any Chinese entity or individual
applies for a patent or has other patent matters to attend
to in the country, it or he may appoint a patent agency to
act as its or his agent.
Article 20. Where any
Chinese entity or individual intends to file an application
in a foreign country for a patent for invention-creation
made in the country, it or he shall file first an
application for patent with the Patent Office and, with the
sanction of the competent department concerned of the State
Council, shall appoint a patent agency designated by the
State Council to act as its or his agent.
Article 21. Until the publication or
announcement of the application for a patent, staff members
of the Patent Office and persons involved have the duty to
keep its content secret.
CHAPTER
II
REQUIREMENTS FOR GRANT OF PATENT
RIGHT
Article 22. Any invention or utility
model for which patent right may be granted must possess
novelty, inventiveness and practical
applicability.
Novelty means that, before the
date of filing, no identical invention or utility model has
been publicly disclosed in publications in the country or
abroad or has been publicly used or made known to the public
by any other means in the country, nor has any other person
filed previously with the Patent Office an application which
described the identical invention or utility model and was
published after the said date of
filing.
Inventiveness means that, as compared
with the technology existing before the date of filing the
invention has prominent substantive features and represents
a notable progress and that the utility model has
substantive features and represents
progress.
Practical applicability means that
the invention or utility model can be made or used and can
produce effective results.
Article 23. Any
design for which patent right may be granted must not be
identical with or similar to any design which, before the
date of filing, has been publicly disclosed in publications
in the country or abroad or has been publicly used in the
country.
Article 24. An invention-creation for
which a patent is applied for does not lose its novelty
where, within six months before the date of filing, one of
the following events occurred:
(1)where it was
first exhibited at an international exhibition sponsored or
recognized by the Chinese Government;
(2)where
it was first made public at a prescribed academic or
technological meeting;
(3)where it was
disclosed by any person without the consent of the
applicant.
Article 25. For any of the
following, no patent right shall be
granted:
(1)scientific discoveries;
(2)rules and methods for mental activities;
(3)methods for the diagnosis or for the
treatment of diseases;
(4)animal and plant
varieties;
(5)substances obtained by means of
nuclear transformation.
For processes used in
producing products referred to in items (4) of the preceding
paragraph, patent right may be granted in accordance with
the provisions of this Law.
CHAPTER
III
APPLICATION FOR PATENT
Article
26. Where an application for a patent for invention or
utility model is filed, a request, a description and its
abstract, and claims shall be submitted.
The
request shall state the title of the invention or utility
model, the name of the inventor or creator, the name and the
address of the applicant and other related
matters.
The description shall set forth the
invention or utility model in a manner sufficiently clear
and complete so as to enable a person skilled in the
relevant field of technology to carry it out; where
necessary, drawings are required. The abstract shall state
briefly the main technical points of the invention or
utility model.
The claims shall be supported by
the description and shall state the extent of the patent
protection asked for .
Article 27. Where an
application for a patent for design is filed, a request,
drawings or photographs of the design shall be submitted,
and the product incorporating the design and the class to
which that product belongs shall be
indicated.
Article 28. The date on which the
Patent Office receives the application shall be the date of
filing. If the application is sent by mail, the date of
mailing indicated by the postmark shall be the date of
filing.
Article 29. Where, within twelve months
from the date on which any applicant first filed in a
foreign country an application for a patent for invention or
utility model, or within six months from the date on which
any applicant first filed in a foreign country an
application for a patent for design, he or it files in China
an application for a patent for the same subject matter, he
or it may, in accordance with any agreement concluded
between the said foreign country and China, or in accordance
with any international treaty to which both countries are
party, or on the basis of the principle of mutual
recognition of the right of priority, enjoy a right of
priority.
Where, within twelve months from the
date on which any applicant first filed in China an
application for a patent for invention or utility model, he
or it files with the Patent Office an application for a
patent for the same subject matter, he or it may enjoy a
right of priority.
Article 30. Any applicant
who claims the right of priority shall make a written
declaration when the application is filed, and submit,
within three months, a copy of the patent application
document which was first filed; if the applicant fails to
make the written declaration or to meet the time limit for
submitting the patent application document, the claim to the
right of priority shall be deemed not to have been
made.
Article 31. An application for a patent
for invention or utility model shall be limited to one
invention or utility model. Two or more inventions or
utility models belonging to a single general inventive
concept may be filed as one application.
An
application for a patent for design shall be limited to one
design incorporated in one product. Two or more designs
which are incorporated in products belonging to the same
class and are sold or used in sets may be filed as one
application.
Article 32. An applicant may
withdraw his or its application for a patent at any time
before the patent right is granted.
Article 33.
An applicant may amend his or its application for a patent,
but the amendment to the application for a patent for
invention or utility model may not go beyond the scope of
the disclosure contained in the initial description and
claims, and the amendment to the application for a patent
for design may not go beyond the scope of the disclosure as
shown in the initial drawings or
photographs.
CHAPTER
IV
EXAMINATION AND APPROVAL OF APPLICATION FOR
PATENT
Article 34. Where, after receiving an
application for a patent for invention, the Patent Office,
upon preliminary examination, finds the application to be in
conformity with the requirements of this Law, it shall
publish the application promptly after the expiration of
eighteen months from the date of filing. Upon the request of
the applicant, the Patent Office publishes the application
earlier.
Article 35. Upon the request of the
applicant for a patent for invention, made at any time
within three years from the date of filing, the Patent
Office will proceed to examine the application as to its
substance. If, without any justified reason, the applicant
fails to meet the time limit for requesting examination as
to substance, the application shall be deemed to have been
withdrawn.
The Patent Office may, on its own
initiative, proceed to examine any application for a patent
for invention as to its substance when it deems it
necessary.
Article 36. When the applicant for
a patent for invention requests examination as to substance,
he or it shall furnish pre-filing date reference materials
concerning the invention.
The applicant for a
patent for invention who has filed in a foreign country an
application for a patent for the same invention shall, at
the time of requesting examination as to substance, furnish
documents concerning any search made for the purpose of
examining that application, or concerning the results of any
examination made, in that country. If, without any justified
reason, the said documents are not furnished, the
application shall be deemed to have been
withdrawn.
Article 37. Where the Patent Office,
after it has made the examination as to substance of the
application for a patent for invention, finds that the
application is not in conformity with the provisions of this
Law, it shall notify the applicant and request him or it to
submit, within a specified time limit, his or its
observations or to amend the application. If, without any
justified reason, the time limit for making response is not
met, the application shall be deemed to have been withdrawn.
Article 38. Where, after the applicant has
made the observations or amendments, the Patent Office finds
that the application for a patent for invention is still not
in conformity with the provisions of this Law, the
application shall be rejected.
Article 39.
Where it is found after examination as to substance that
there is no cause for rejection of the application for a
patent for invention, the Patent Office shall make a
decision to grant the patent right for invention, issue the
certificate of patent for invention, and register and
announce it.
Article 40. Where it is found
after preliminary examination that there is no cause for
rejection of the application for a patent for utility model
or design, the Patent Office shall make a decision to grant
the patent right for utility model or the patent right for
design, issue the relevant patent certificate, and register
and announce it.
Article 41. Where, within six
months from the date of the announcement of the grant of the
patent right by the Patent Office, any entity or individual
considers that the grant of the said patent right is not in
conformity with the relevant provisions of this Law, it or
he may request the Patent Office to revoke the patent
right.
Article 42. The Patent Office shall
examine the request for revocation of the patent right, make
a decision revoking or upholding the patent right, and
notify the person who made the request and the patentee. The
decision revoking the patent right shall be registered and
announced by the Patent Office.
Article 43. The
Patent Office shall set up a Patent Reexamination Board.
Where any party is not satisfied with the decision of the
Patent Office rejecting the application, or the decision of
the Patent Office revoking or upholding the patent right,
such party may, within three months from the date of receipt
of the notification, request the Patent Reexamination Board
to make a reexamination. The Patent Reexamination Board
shall, after reexamination, make a decision and notify the
applicant, the patentee or the person who made the request
for revocation of the patent right.
Where the
applicant for a patent for invention, the patentee of an
invention or the person who made the request for revocation
of the patent right for invention is not satisfied with the
decision of the Patent Reexamination Board, he or it may,
within three months from the date of receipt of the
notification, institute legal proceedings in the people's
court.
The decision of the Patent Reexamination
Board in respect of any request, made by the applicant, the
patentee or the person who made the request for revocation
of the patent right, for reexamination concerning a utility
model or design is final.
Article 44. Any
patent right which has been revoked shall be deemed to be
non-existent from the beginning.
CHAPTER
V
DURATION, CESSATION AND INVALIDATION OF
PATENT RIGHT
Article 45. The duration of patent
right for inventions shall be twenty years, the duration of
patent right for utility models and patent right for designs
shall be ten years, counted from the date of
filing.
Article 46. The patentee shall pay an
annual fee beginning with the year in which the patent right
was granted.
Article 47. In any of the
following cases, the patent right shall cease before the
expiration of its duration:
(1)where an annual
fee is not paid as prescribed;
(2)where the
patentee abandons his or its patent right by a written
declaration.
Any cessation of the patent right
shall be registered and announced by the Patent
Office.
Article 48. Where, after the expiration
of six months from the date of the announcement of the grant
of the patent right by the Patent Office, any entity or
individual considers that the grant of the said patent right
is not in conformity with the relevant provisions of this
Law, it or he may request the Patent Reexamination Board to
declare the patent right invalid.
Article 49.
The Patent Reexamination Board shall examine the request for
invalidation of the patent right, make a decision and notify
the person who made the request and the patentee. The
decision declaring the patent right invalid shall be
registered and announced by the Patent Office.
Where any party is not satisfied with the
decision of the Patent Reexamination Board declaring the
patent right for invention invalid or upholding the patent
right for invention, such party may, within three months
from receipt of the notification of the decision, institute
legal proceedings in the people's court.
The
decision of the Patent Reexamination Board in respect of a
request to declare invalid the patent right for utility
model or design is final.
Article 50. Any
patent right which has been declared invalid shall be deemed
to be non-existent from the beginning.
The
decision of invalidation shall have no retroactive effect on
any judgement or order on patent infringement which has been
pronounced and enforced by the people's court, on any
decision concerning the handling of patent infringement
which has been made and enforced by the administrative
authority for patent affairs, and on any contract of patent
license and of assignment of patent right which have been
performed, prior to the decision of invalidation; however,
the damages caused to other persons in bad faith on the part
of the patentee shall be compensated.
If,
pursuant to the provisions of the preceding paragraph, no
repayment, by the patentee or the assignor of the patent
right to the licensee or the assignee of the patent right,
of the fee for the exploitation of the patent or the price
for the assignment of the patent right is obviously contrary
to the principle of equity, the patentee or the assignor of
the patent right shall repay the whole or part of the fee
for the exploitation of the patent or the price for the
assignment of the patent right to the licensee or the
assignee of the patent right.
The provisions
of the second and third paragraph of this Article shall
apply to the patent right which has been
revoked.
CHAPTER VI
COMPULSORY
LICENSE FOR EXPLOITATION OF THE PATENT
Article
51. Where any entity which is qualified to exploit the
invention or utility model has made requests for
authorization from the patentee of an invention or utility
model to exploit its or his patent on reasonable terms and
such efforts have not been successful within a reasonable
period of time, the Patent Office may, upon the application
of that entity, grant a compulsory license to exploit the
patent for invention or utility model.
Article
52. Where a national emergency or any extraordinary state of
affairs occurs, or where the public interest so requires,
the Patent Office may grant a compulsory license to exploit
the patent for invention or utility
model.
Article 53. Where the invention or
utility model for which the patent right was granted is
technically more advanced than another invention or utility
model for which a patent right has been granted earlier and
the exploitation of the later invention or utility model
depends on the exploitation of the earlier invention or
utility model, the Patent Office may, upon the request of
the later patentee, grant a compulsory license to exploit
the earlier invention or utility model.
Where,
according to the preceding paragraph, a compulsory license
is granted, the Patent Office may, upon the request of the
earlier patentee, also grant a compulsory license to exploit
the later invention or utility model.
Article
54. The entity or individual requesting, in accordance with
the provisions of this Law, a compulsory license for
exploitation shall furnish proof that it or he has not been
able to conclude with the patentee a license contract for
exploitation on reasonable terms.
Article 55.
The decision made by the Patent Office granting a compulsory
license for exploitation shall be registered and
announced.
Article 56. Any entity or individual
that is granted a compulsory license for exploitation shall
not have an exclusive right to exploit and shall not have
the right to authorize exploitation by any others.
Article 57. The entity or individual that is
granted a compulsory license for exploitation shall pay to
the patentee a reasonable exploitation fee, the amount of
which shall be fixed by both parties in consultations. Where
the parties fail to reach an agreement, the Patent Office
shall adjudicate.
Article 58. Where the
patentee is not satisfied with the decision of the Patent
Office granting a compulsory license for exploitation or
with the adjudication regarding the exploitation fee payable
for exploitation, he or it may, within three months from the
receipt of the notification, institute legal proceedings in
the people's court.
CHAPTER
VII
PROTECTION OF PATENT
RIGHT
Article 59. The extent of protection of
the patent right for invention or utility model shall be
determined by the terms of the claims. The description and
the appended drawings may be used to interpret the claims.
The extent of protection of the patent right
for design shall be determined by the product incorporating
the patented design as shown in the drawings or
photographs.
Article 60. For any exploitation
of the patent, without the authorization of the patentee,
constituting an infringing act, the patentee or any
interested party may request the administrative authority
for patent affairs to handle the matter or may directly
institute legal proceedings in the people's court. The
administrative authority for patent affairs handling the
matter shall have the power to order the infringer to stop
the infringing act and to compensate for the damage. Any
party dissatisfied may, within three months from the receipt
of the notification, institute legal proceedings in the
people's court. If such proceedings are not instituted
within the time limit and if the order is not complied with,
the administrative authority for patent affairs may approach
the people's court for compulsory execution.
When any infringement dispute arises, if the
patent for invention is a process for the manufacture of a
new product, any entity or individual manufacturing the
identical product shall furnish proof of the process used in
the manufacture of its or his product.
Article
61. Prescription for instituting legal proceedings
concerning the infringement of patent right is two years
counted from the date on which the patentee or any
interested party obtains or should have obtained knowledge
of the infringing act.
Article 62. None of the
following shall be deemed an infringement of the patent
right:
(1)Where, after the sale of a patented
product that was made by the patentee or with the
authorization of the patentee, any other person uses or
sells that product;
(2)Where any person uses
or sells a patented product not knowing that it was made and
sold without the authorization of the patentee;
(3)Where, before the date of filing of the
application for patent, any person who has already made the
identical product, used the identical process, or made
necessary preparations for its making or using, continues to
make or use it within the original scope only;
(4)Where any foreign means of transport which
temporarily passes through the territory, territorial waters
or territorial airspace of China uses the patent concerned,
in accordance with any agreement concluded between the
country to which the foreign means of transport belongs and
China, or in accordance with any international treaty to
which both countries are party, or on the basis of the
principle of reciprocity, for its own needs, in its devices
and installations;
(5)Where any person uses
the patent concerned solely for the purposes of scientific
research and experimentation.
Article 63. Where
any person passes off the patent of another person, such
passing off shall be treated in accordance with Article 60
of this Law. If the circumstances are serious, any person
directly responsible shall be prosecuted, for his criminal
liability, by applying mutatis mutandis Article 127 of the
Criminal Law.
Where any person passes any
unpatented product off as patented product or passes any
unpatented process off as patented process, such person
shall be ordered by the administrative authority for patent
affairs to stop the passing off, correct it publicly, and
pay a fine.
Article 64. Where any person, in
violation of the provisions of Article 20 of this Law,
unauthorizedly files in a foreign country an application for
a patent that divulges an important secret of the State, he
shall be subject to disciplinary sanction by the entity to
which he belongs or by the competent authority concerned at
the higher level. If the circumstances are serious, he shall
be prosecuted for his criminal liability according to the
law.
Article 65. Where any person usurps the
right of an inventor or creator to apply for a patent for a
non- service invention-creation, or usurps any other right
or interest of an inventor or creator, prescribed by this
Law, he shall be subject to disciplinary sanction by the
entity to which he belongs or by the competent authority at
the higher level.
Article 66. Where any staff
member of the Patent Office, or any staff member concerned
of the State, acts wrongfully out of personal considerations
or commits fraudulent acts, he shall be subject to
disciplinary sanction by the Patent Office or the competent
authority concerned. If the circumstances are serious, he
shall be prosecuted, for his criminal liability, by applying
mutatis mutandis Article 188 of the Criminal Law.
CHAPTER VIII
SUPPLEMENTARY
PROVISIONS
Article 67. Any application for a
patent filed with, and any other proceedings before, the
Patent Office shall be subject to the payment of a fee as
prescribed.
Article 68. The implementing
Regulations of this Law shall be drawn up by the Patent
Office and shall enter into force after approval by the
State Council.
Article 69. This Law shall
enter into force on April 1, 1985.
This
decision shall enter into force on January 1, 1993. The
applications for patent filed before the entry into force of
this Decision and the patent rights granted on the basis of
the said applications shall continue to be governed by the
provisions of the Patent Law before its amendment. However,
the procedures provided by the amended Articles 39 to 44 and
the amended Article 48 of the Patent Law concerning the
approval of applications for patent, and the revocation and
invalidation of the patent right shall apply to the said
applications which are not announced according to the
provisions of Articles 39 and 40 of the Patent Law before
its amendment. (Extract from the Decision Regarding the
Revision of the Patent Law of the People's Republic of
China, Adopted at the 27th Session of the Standing Committee
of the Seventh National People's Congress on September 4,
1992)
(In case of discrepancy, the original
version in Chinese shall prevail.)
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