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PATENT LAW OF THE PEOPLE'S REPUBLIC
OF CHINA
TABLE OF CONTENTS The Patent Laws Research Institute of the Chinese Patent Office establishes this Table of Contents for the convenience of the readers. The text of the Patent Law adopted by the Standing Committee of the National People's Congress does not contain such a table and the Articles have no titles in the Law. Chapter I General Provisions 1 Purpose of the Law
22 Inventions and Utility Models: Substantive Requirements of Patentability
Chapter III Application for Patent 26 Inventions and Utility Models: Documents Required for Filing
Patent Application Chapter IV Examination and Approval of Application for Patent 34 Inventions: Publication of Application Chapter V Duration, Cessation and Invalidation of Patent Right 42 Duration Chapter VI Compulsory License for Exploitation of Patent 48 Inventions and Utility Models: Compulsory Licenses in Case of
Failure to Obtain Authorization from Patentee Chapter VII Protection of Patent Right 56 Determination of Extent of Protection Chapter VIII Supplementary Provisions 68 Fees 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 progress and innovation 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 Executive Branch under the State Council is in charge of the national patents affairs; and receives and examines patent applications and grants patent rights for inventions-creations that conform with the provisions of this Law. The administrative authority for patent affairs under the people's governments of provinces, autonomous regions and municipality directly under the Central Government is in charge of the patent affair within its own administrative area. Article 4. Where the invention-creation for which a patent is applied 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 and technological means of the entity, the right to apply for a patent belongs to the entity. After the application is approved, the patent right shall be held by 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, the patent right shall be held by the inventor or creator. For an invention-creation made by using the material and technological means of the entity, the entity and the inventor or creator has concluded a contract, which appoints the right to apply for a patent and the ownership of the patent right, shall abide by the appointment. 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 individuals, or made by an entity or individual 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 or individual which made, or to the entities or individuals which jointly made the invention-creation. After the application is approved, the patent right shall be owned or held by the entity or person 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 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 shall conclude a written contract, and register in the Executive Branch under the State Council, and the Executive Branch shall announce it. The right to apply a patent or the ownership of the patent will enter into force on the date of registration. Article 11. After the grant of the patent right for an invention or utility model, except as provided for in the law, no entity or individual may, without the authorization of the patentee, exploit the patent, namely, make, use, promise a sale, sell or import the patented product, or use the patented process and use, promise a sale, sell or import 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, exploit the patent, namely, make, sell or import the product, incorporating its or his patented design, for production or business purposes. Article 12. Any entity or individual exploiting the patent of another must 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. Any patent for invention of government-owned enterprises and institutions, which is of great significance to the interests of the State or to the public interests, after approval by the States Council at the solicitation of its competent departments concerned and the people's governments of provinces, autonomous regions or municipalities directly under the Central Government, which have the right to spread and apply the patent within the approved region, and 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 patentee. Any patent for invention 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 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 granted 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 reasonable 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 Patent Executive Branch under the State Council 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. The patent agents shall comply with the laws and administrative provisions, and handle the application of a patent and other patent matters in accordance with the authorization of the applicant. For the content of the invention-creation of the applicant, except as the application for a patent was announced or published, the attorney has the duty of keeping secret. The State Council shall fix the concrete management process of the patent agents. 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 Executive Branch under the State Council, and shall appoint a patent agency designated by the State Council to act as its or his agent. and it or he shall comply with the above Article 4. According to the relevant international treaties to which the PRC is party, this law and the relevant regulations of the State Council, the Patent Executive Branch under the State Council can handle the filing of international applications. Article 21. The Patent Executive Branch under the State Council and its Board of Appeal shall handle the filing and request of international applications in accordance with the requirement of objective, impartial, accurate and timely. Until the publication or announcement of the application for a patent, staff members of the Patent Executive Branch under the State Council 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 Executive Branch under the State Council 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 and must not conflict with others' prior art. 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; Article 25. For any of the following, no patent right shall be granted: (1) Scientific discoveries; For processes used in producing products referred to in item (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 Executive Branch under the State Council 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 Executive Branch under the State Council 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 Executive Branch under the State Council, 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 Executive Branch under the State Council 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 Executive Branch under the State Council 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 Executive Branch under the State Council 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. To the applicant for a patent for invention who has filed in a foreign country an application for a patent for the same invention, the Patent Executive Branch under the State Council can require him furnish documents concerning any search made for the purpose of examining that application, or concerning the results of any examination made, in that country in a time limit. If, without any justified reason, the time limit for furnishing is not met, the application shall be deemed to have been withdrawn. Article 37. Where the Patent Executive Branch under the State Council, 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 Executive Branch under the State Council 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 Executive Branch under the State Council shall make a decision to grant the patent right for invention, issue the certificate of patent for invention, and register and announce it. The patent right for an invention shall enter into force on the date of announcement. 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 Executive Branch under the State Council 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. The patent right for utility model or the patent right for design shall enter into force on the date of announcement. Article 41. The Patent Executive Branch under the State Council shall set up a Patent Reexamination Board. Where any applicant is not satisfied with the decision of the Patent Executive Branch under the State Council rejecting the application, such applicant 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. Where any applicant is not satisfied with the appeal of the Patent Executive Branch under the State Council, such applicant may, within three months from the date of receipt of the notification, institute legal proceedings in the people's court. CHAPTER V DURATION, CESSATION AND INVALIDATION OF PATENT RIGHTS Article 42. 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 43. The patentee shall pay an annual fee beginning with the year in which the patent right is granted. Article 44. In any of the following cases, the patent right shall cease before the expiration of its duration: (1) Where annual fee is not paid as prescribed; Article 45. Where, after the expiration of the date of the announcement of the grant of the patent right by the Patent Executive Branch under the State Council, 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 46. The Patent Reexamination Board shall examine the request for invalidation of the patent right promptly, 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 Executive Branch under the State Council. Where any party is not satisfied with the decision of the Patent Reexamination Board declaring the patent right invalid or upholding the patent right, such party may, within three months from receipt of the notification of the decision, institute legal proceedings in the people's court. And the people's court shall notify the party which declares the patent right invalid to attend the prosecution as a third party. Article 47. Any patent right that 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 dispute which have been performed and enforced, 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. CHAPTER VI COMPULSORY LICENSE FOR EXPLOITATION OF THE PATENT Article 48. 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 Executive Branch under the State Council, may, upon the application of that entity, grant a compulsory license to exploit the patent for invention or utility model. Article 49. Where a national emergency or any extraordinary state of affairs occurs, or where the public interest so requires, the Patent Executive Branch under the State Council may grant a compulsory license exploiting the patent for invention or utility model. Article 50. Where the invention or utility model for which the patent right was granted is of greater technological progress and significant economic interests 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 Executive Branch under the State Council, 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 Executive Branch under the State Council may, upon the request of the earlier patentee, also grant a compulsory license to exploit the later invention or utility model. Article 51. 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 52. The decision made by the Patent Executive Branch under the State Council granting a compulsory license for exploitation shall be informed promptly the patentee timely, and be registered and announced. For the decision granting a compulsory license for exploitation shall be prescribed the limit and time of exploitation in accordance with the reasons of a compulsory license. When the reasons of a compulsory license is eliminate and does not occurs any more, upon the require of the patentee, , the Patent Executive Branch under the State Council shall, after examination, make a decision of terminating the exploitation of the compulsory license. Article 53. 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 54. 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 Executive Branch under the State Council shall adjudicate. Article 55. Where the patentee is not satisfied with the decision of the Patent Executive Branch under the State Council granting a compulsory license for exploitation, or the patentee, the individual or entity that get the compulsory license 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 56. 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 product shall determine the extent of protection of the patent right for design incorporating the patented design as shown in the drawings or photographs. Article 57. Any exploitation of the patent, without the authorization of the patentee, infringing the patent right and causing dispute, shall be negotiated by both parties in consultation; Where the parties fail to reach an agreement, the patentee or any interested party may directly institute legal proceedings in the people's court, or may request the administrative authority for patent affairs to handle the matter. When the administrative authority for patent affairs handle the matter, and affirm that it constitutes acts of infringement, the authority shall have the power to order the infringer to stop infringing. Any party dissatisfied may, within fifteen days from the receipt of the notification, according to the Law of Administrative Procedure of the PRC, 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. The administrative authority for patent affairs shall, upon the request of the parties concerned, carry out a mediation on the compensation of infringement; Where the parties fail to reach an mediation, the parties concerned may, according to the Law of Administrative Procedure of the PRC, institute legal proceedings in the people's court. Where the infringement of patent dispute is involving the patent for invention of the producing process of a new product, the entity of individual making the same product shall provide a proof that its or his producing process is different from the paten's process. When the infringement of patent is involving patent for utility model, the people's court or the administrative authority for patent affairs may require the patentee furnish documents concerning any search made for the purposes of examining that application by the Patent Executive Branch under the State Council. Article 58. Where any person passes off the patent of another person, such passing off shall, except as his civil duty according to the law, be ordered by the administrative authority for patent affairs to correct and to be announced. The authority may confiscate the illegal earnings and impose a fine, which is less than three times of the illegal earnings; When there is no illegal earnings, the authority may impose a fine less than fifty thousand yuan; When the passing off commits a crime, he shall be prosecuted for his criminal liability according to the law. Article 59. Where any person passes any non-patent product off as patented product or passes any non-patent process off as patented process, such person shall be ordered by the administrative authority for patent affairs to correct, to be announced publicly, and pay a fine less than fifty thousand yuan. Article 60. The compensation of patent infringement shall be affirmed according to the damages of the infringee, or according to the interests of the infringer. For those difficult to identify the damages of the infringee or the interests of the infringer, can be affirmed reasonably in accordance with several times of the fee for the exploitation of the patent. Article 61. Where the patentee or any interested party concerned has the proof that others' acts of exploitation of the patent or being ready to exploit the patent; if such acts can't be stopped promptly, they will do considerable damages to the patentee's legal interests, the patentee or any interested party shall file with the people's court, before prosecution, for stopping such acts and for financial securities. When handling the preceding application, the people's court can apply to provisions of Article 93, Article 94, Article 95, Article 96 and Article 99 of the Law of Administrative Procedure of the PRC. Article 62. 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 shall have obtained knowledge of the infringing act. Where the fee for exploitation of the patent is not paid appropriately from the date on which the application for a patent for invention is announced to the date on which the patent right is granted, prescription for instituting legal proceedings concerning the fee the exploitation of the patent of the patentee is two years counted from the date on which the patentee or any interested party obtains or shall have obtained knowledge of the acts of infringement. However, it will be counted from the date on the grant of the patent, when the patentee obtains or shall have obtained knowledge of acts of infringement before the day of grant of the patent. Article 63. None of the following shall be deemed an infringement of the patent right: (1) Where, after the sale of a patented product or a product obtained
directly from the patent process that is made, imported by the patentee
or with the authorization of the patentee, any other person uses,
promises a sale or sells that product; Article 64. Where any person, in violation of the provisions of Article 20 of this Law, non-authorized files in a foreign country an application for a patent that divulges an important secret of his 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. The administrative authority for patent affairs must not attend the business acts of the sales promotion of the patent products and etc. For those administrative authority for patent affairs against the proceeding provision, shall be order to correct and to remove the effectuation by the supervisors or monitors; and the illegal earnings shall be confiscated; If the circumstances are serious, the direct charger and other direct people shall be prosecuted for his administrative liability according to the law. Article 67. Where any staff member concerned of the administrative authority for patent affairs of the State or any staff member concerned of the State, ignores his duty, abuses his position and acts wrongfully out of personal considerations or commits fraudulent acts, he shall be prosecuted for his criminal liability according to the law; If not commit a crime, he shall be prosecuted for his administrative liability according to the law. CHAPTER VIII SUPPLEMENTARY PROVISIONS Article 68. Any application for a patent filed with and any other proceedings before, the Patent Executive Branch under the State Council shall be subject to the payment of a fee as prescribed. Article 69. This Law shall enter into force on April 1, 1985.
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