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Table of Contents:
Chapter I General Provisions
Chapter II Requirements For Grant of Patent Right
Chapter III Application For Patent
Chapter IV Examination And Approval of Application
For Patent
Chapter V Duration, Cessation And Invalidation
of Patent Right
Chapter VI Compulsory License for Exploitation
of the Patent
Chapter VII Protection of Patent Right
Chapter VIII Supplementary
Extract from the Decision Regarding the Revision
of the Patent Law
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 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 judgment 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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