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(Adopted
at the 4th Session of the Standing Committee of the Sixth National
People's Congress on March 12, 1984, Amended by 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)
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.
Article
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 departmentconcerned 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.
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)
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.
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