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Laws & Topics / Laws & Regulations

  • Interpretation by the Supreme People’s Court on Some Issues Concerning the Application of Laws in the Trial of Patent Infringement Dispute Cases (II) (Judicial Interpretation (2016) No. 1)

    2016-04-18

    For Reference Only

     (Adopted at the 1676th Session of the Judicial Committee of the Supreme People’s Court on January 25, 2016, Effective as of April 1, 2016)

    In order to facilitate correct trial of patent infringement disputes, the present interpretation is made in accordance with the Patent Law of the People’s Republic of China, the Tort Law of the People’s Republic of China, the Civil Procedure Law of the People’s Republic of China and so on, and in combination with judicial practice.

    Article 1

    Where there are two or more claims, the right owner shall specify in the complaint the claim(s) based on which he or it prosecutes the accused infringer for infringing his or its patent right. Where this is not described, or described unclearly in the complaint, the People’s Court shall require the patentee to make clarification; if after elucidation, the patentee makes no clarification, the People’s Court may rule rejecting the lawsuit.

    Article 2

    Where the claim(s) asserted by the right owner in a patent infringement litigation are declared invalid by the Patent Reexamination Board, the People’s Court trying patent infringement disputes may reject the lawsuit filed by the right owner based on the invalidated claim(s).

    If there is evidence to prove that the decision declaring the above claim(s) invalid is revoked by effective administrative judgment, the right owner may bring a separate lawsuit.

    If the patentee brings a separate lawsuit, the limitation of action shall be counted from the date of service of the administrative judgment in paragraph 2 of the present article.

    Article 3

    Where it is impossible to use the specification for interpreting the claims due to apparent violation of Paragraphs 3 and 4, Article 26 of the Patent Law, and it does not belong to circumstances as provided in Article 4 of the present interpretation, if the patent right is thereby requested for invalidation, the People’s Court trying patent infringement disputes shall generally rule stay of action; if the patent right is not requested for invalidation within a reasonable time limit, the People’s Court may determine the extent of protection of the patent right based on the content defined in the claims.

    Article 4

    Where grammar, character, punctuation, figure, symbol and the like in the claims, specification and drawings are ambiguous, but those skilled in the art can obtain the only understanding by reading the claims, specification and drawings, the People’s Court shall determine them based on the only understanding.

    Article 5

    In the People’s Court’s determination of the extent of protection of a patent right, the technical features defined in the preamble and characterizing portions of the independent claims and those defined in the reference and defining portions of the dependent claims all function as limitations.

    Article 6

    The People’s Court may apply other patents that have divisional application relationship with the patent in dispute, as well as their prosecution history and effective judgment documents concerning patent prosecution and validation, to interpret the claims of the patent in dispute.

    The prosecution history includes written materials submitted by the patent applicant or the patentee in the process of patent examination, reexamination and invalidation procedures; office actions, meeting records, oral hearing records, effective examination decision on a request for patent reexamination and examination decision on a request for declaring invalidation of the patent, issued by the patent administration department under the State Council and the Patent Reexamination Board.

    Article 7

    Where the accused infringing technical solution has other technical features in addition to comprising all the technical features of a composition claim in closed format, the People’s Court shall determine that the accused infringing technical solution doesn’t fall within the extent of protection of the patent right, unless the additional technical feature(s) belong to inevitable impurities in a conventional amount.

    The composition claim in closed format in the preceding paragraph generally does not include claim of traditional Chinese medicine compositions.

    Article 8

    Functional feature is such a technical feature that is defined by the function or effect achieved in the invention-creation for structure, component, step, condition or the relationship between them, with the exception of the feature of which the specific implementation for the above function or effect can be determined directly and unambiguously by those skilled in the art from reading just the claim.

    Where compared with the technical feature defined in the specification and drawings which is indispensable for achieving the asserted function or effect in the preceding paragraph, the corresponding technical feature in the accused infringing technical solution uses substantially the same means to implement the same function and achieves the same effect, and can be conceived by those skilled in the art without inventive endeavor at the time of occurrence of the accused infringing action, the People’s Court shall determine that the corresponding technical feature is identical with or equivalent to the functional feature.

    Article 9

    Where the accused infringing technical solution cannot be applied to the environment defined by environmental features in a claim, the People’s Court shall determine that the accused infringing technical solution does not fall within the extent of protection of the patent right.

    Article 10

    With regard to technical features in a claim defining a product with its preparation method, where the preparation method of the accused infringing product is neither identical with nor equivalent to said preparation method, the People’s Court shall determine that the accused infringing technical solution does not fall within the extent of protection of the patent right.

    Article 11

    Where a method claim does not explicitly specify the sequence of technical steps, but those skilled in the art, after reading the claims, specification and drawings, are directly and clearly aware that the technical steps shall be performed in a particular order, the People’s Court shall determine that the sequence for the steps functions as limitation for the extent of protection of the patent right.

    Article 12

    Where a claim uses an expression such as “at least”, “no more than”, or the like to define a feature of numerical value, and those skilled in the art, after reading the claims, specification and drawings, are aware that the patented technical solution particularly emphasizes the limiting effect of that expression on the technical feature, if the patentee asserts that a different numerical feature is equivalent to the above technical feature, the People’s Court shall deny.

    Article 13

    Where the right owner proves that a narrowing amendment or argument made by the patent applicant or patentee to the claims, specification and drawings in the procedure of patent prosecution and validation is explicitly rejected, the People’s Court shall determine that the amendment or argument does not cause the abandonment of technical solution.

    Article 14

    The People’s Court, in determining the knowledge level and cognitive ability of the ordinary consumers for a design, generally shall consider the design space of the same or similar type of products to which the patented design belong at the time of the occurrence of the accused infringement action. Where the design space is large, the People’s Court may determine that it is typically less easy for the ordinary consumers to notice minor differences between different designs; where the design space is small, the People’s Court may determine that it is typically easier for the ordinary consumers to notice the minor differences between different designs.

    Article 15

    With regard to a design patent of a whole set of products, where an accused infringing design is identical with or similar to one of the designs, the People’s Court shall determine that the accused infringing design falls within the extent of protection of the patent right.

    Article 16

    With regard to a design patent of a combination product with only one option of assembly, where an accused infringing design is identical with or similar to the  design of the combination product in its composite state, the People’s Court shall determine that the accused infringing design falls within the extent of protection of the patent right.

    With regard to a design patent of combination product without the need to assemble its components or with more than one option of assembly, where an accused infringing design is identical with or similar to the design of all the individual components, the People’s Court shall determine that the accused infringing design falls within the extent of protection of the patent right; where the accused infringing design lacks the design of a certain individual component, or is neither identical with nor similar to the design of the individual components, the People’s Court shall determine that the accused infringing design does not fall within the extent of protection of the patent right.

    Article 17

    With regard to a design patent of a product with variable states, if an accused infringing design is identical with or similar to each design under various using states shown by a figure for varying states, the People’s Court shall determine that the accused infringing design falls within the extent of protection of the patent right; if the accused infringing design lacks design under one of the using states or is not identical with or similar to it, the People’s Court shall determine that the accused infringing design does not fall within the extent of protection of the patent right.

    Article 18

    Where a right owner sues an entity or individual that exploited the invention during the period from the publication date of the invention patent application to the date of announcement of the grant for paying an appropriate fee according to Article 13 of the Patent Law, the People’s Court may determine properly by reference to the amount of the exploitation fee of that patent under a contractual license.

    Where extent of protection claimed by the applicant when the invention patent application was published is different from that when the invention patent is announced for grant, if the accused technical solution falls within both of the above extents, the People’s Court shall determine that the defendant exploits the invention within the period mentioned in the previous paragraph; if the accused technical solution only falls within one of the extents, the People’s Court shall determine that the defendant does not exploit the invention within the period mentioned in the previous paragraph.

    Where after an invention patent is announced for grant, an entity or individual, for production or business purposes and without authorization of the patentee, uses, offers to sell, or sells the product that was manufactured, sold, or imported by another party within the period mentioned in the first paragraph of this Article, and said another party has paid, or promised in writing to pay, the appropriate fee prescribed in Article 13 of the Patent Law, the People’s Court shall deny the assertion of the right owner that the above action of using, offering to sell, or selling causes infringement of the patent right.

    Article 19

    Where a sales contract for product is formed lawfully, the People’s Court shall determine that “sell” provided in Article 11 of the Patent Law is established.

    Article 20

    Where process or treatment is made to a follow-up product, which was obtained by further processing or treating a product directly obtained by a patented process, the People’s Court shall determine the action does not belong to “using the product directly obtained by the patented process” prescribed in Article 11 of the Patent Law.

    Article 21

    Where a provider provides, for production or business purposes and without authorization of the patentee, a product to another party to commit a patent infringement action, with the knowledge that the product is material, device, component, intermediate and so on specialized for exploiting a patent, the People’s Court shall support the right owner if he or it assets that the action of the provider belongs to assisting another party to commit a tort provided in Article 9 of the Tort Law.

    Where an inducer actively induces, for production or business purposes and without authorization of the patentee, another party to commit a patent infringement action, with the knowledge that the relevant product or method has been granted a patent right, the People’s Court shall support the right owner if he or it assets that the action of the inducer belongs to abetting another party to commit a tort provided in Article 9 of the Tort Law.

    Article 22

    Where an accused infringer raises prior art defense or prior design defense, the People’s Court shall define prior art or prior design according to the Patent Law effective on the application date of the patent.

    Article 23

    Where an accused infringing technical solution or design falls within the extent of protection of an involved previous patent right, the accused infringer defends that no patent infringement is established with a reason that his or its technical solution or design was granted a patent right, the People’s Court shall not support.

    Article 24

    Where a recommendatory national, industrial or local standard expresses the information of involved essential patents, if an accused infringer makes defensive argument that there is no infringement of patent right because authorization of the patentee is not required for exploiting the standard, the People’s Court generally shall not support.

    Where a recommendatory national, industrial or local standard expresses the information of involved essential patents, if the patentee, in negotiation with an accused infringer for licensing terms  for exploitation of the patent, willfully violates the licensing obligation of fair, reasonable, and non-discriminatory principles promised in the formulation of the standard resulting in failure to reach a licensing contract of patent exploitation, and the accused infringer makes no obvious fault during the negotiation, the People’s Court generally shall not support the patentee’s assertion to stop the action of exploiting the standard.

    Licensing terms for exploitation of the patent as mentioned in the second paragraph of this Article shall be determined through negotiation by the patentee and the accused infringer. Where an agreement still cannot be reached after sufficient negotiation, the People’s Court may be requested for determination. The People’s Court shall make overall consideration about factors such as innovation degree of the patent and its function in the standard, technical field the standard belongs to, nature of the standard, scope in which the standard is exploited, relevant licensing terms and so on, according to the fair, reasonable, and non-discriminatory principles, to determine the above licensing terms for exploitation.

    Where exploitation of patents in the standard are otherwise provided in laws and administrative regulations, the provisions shall apply.

    Article 25

    Where products infringing a patent right are used, offered to sell, or sold for production or business purposes without knowing said products were manufactured and sold without the authorization of the patentee, and evidences are provided showing a legitimate channel of the products, the People’s court shall support the right owner’s request to stop the above actions of using, offering to sell, or selling, with an exception that a user of the accused infringing products provide evidences to prove that the user has paid a proper consideration for the product.

     “Without knowing” mentioned in the first paragraph of this Article shall mean actually not knowing and should not have known.

    “Legitimate channel” mentioned in the first paragraph of this Article shall mean obtaining the products via a normal commercial manner like a legal sales channel, a normal sales contract and so on. Regarding legitimate channel, user, people offering to sell or seller shall provide relevant evidence that is in accordance with trading customs.

    Article 26

    Where defendant constitutes a patent right infringement, the People’s Court shall support the patentee if he or it requests to rule stopping the action of infringement; however, based on a consideration for national interest, public interest, the People’s Court may rule that the defendant is not to stop the accused action, but to pay corresponding appropriate fee instead.

    Article 27

    Where it is hard to determine a right owner’s actual loss caused by infringement, the People’s Court shall request the right owner to provide evidence regarding benefit that the infringer has obtained from the infringement according to Article 65, Paragraph 1 of the Patent Law; under a situation that the right owner has provided preliminary evidence of benefit obtained by the infringer, while the account book or material relevant to the patent infringing action are mainly owned by the infringer, the People’s Court may order the infringer to provide the account book, material; where the infringer refuses to provide the account book, material without justified reasons, or provides fake account book, material, the Peoples’ Court may determine the benefit obtained by the infringer due to the infringement with reference to assertion and evidence provided by the right owner.

    Article 28

    Where a right owner lawfully agrees with an infringer on the amount of damages or a calculation method for the damages, the People’s Court shall support the right owner if he or it asserts to determine the amount of damages according to the agreement in patent infringement lawsuit.

    Article 29

    After a decision declaring a patent right invalid is made, if a party applies for retrial based on the decision lawfully, requesting to withdraw a judgment or mediation on patent infringement which a People’s Court has made prior to the declaration of patent invalidation but has not enforced, the People’s Court may rule suspending the retrial, and suspending the enforcement of the original judgement and mediation.

    Where the patentee provides sufficient and valid guarantee to the People’s Court and requests to continue the enforcement of the judgement and mediation mentioned in the previous paragraph, the Peoples’ Court shall continue the enforcement; where the infringer provides sufficient and valid counter guarantee to the People’s Court and requests to suspend the enforcement, the People’s Court shall approve. Where an effective judgment of the People’s Court does not withdraw the decision declaring the patent right invalid, the patentee shall compensate the other party for the loss caused by continuing the enforcement; where the decision declaring the patent right invalid is withdrawn by  an effective judgment of a People’s Court and the patent right is still valid, the People’s Court may execute the above counter guarantee asset directly according to the judgment, mediation mentioned in the previous paragraph.

    Article 30

    Where no prosecution is instituted to the People’s Court against a decision declaring a patent invalid within statutory period or the decision is not withdrawn by an effective judgment after the prosecution, if a party applies for retrial based on the decision lawfully, requesting to withdraw the judgment or mediation on patent infringement that a People’s Court has made prior to the patent being declared invalid but has not enforced, the People’s Court shall retry the case. Where a party, according to the above decision, applies to conclude the enforcement of the judgment or mediation on patent infringement which the People’s Court has made prior to the patent being declared invalid but has not enforced, the People’s Court shall rule concluding the enforcement.

    Article 31

    The interpretation shall come into effect as of April 01, 2016. Where contents in relevant judicial interpretations issued by the Supreme People’s Court previously are not consistent with those in the present interpretation, the present interpretation shall prevail.

  • Implementing Regulations of the Patent Law of the People’s Republic of China(2010)

    2013-04-23

    (Promulgated by Decree No. 306 of the State Council of the People’s Republic ofChinaon June 15, 2001, and effective as of July 1, 2001)

    (Translated by the Patent Administration Department under the State Council of the People’s Republic ofChina. In case of discrepancy, the original version shall prevail.)

    Chapter I General Provisions

    Rule 1 These Implementing Regulations are formulated in accordance with the Patent Law of the People’s Republic ofChina(hereinafter referred to as the Patent Law).

    Rule 2 “Invention” in the Patent Law means any new technical solution relating to a product, a process or improvement thereof.
    “Utility model” in the Patent Law means any new technical solution relating to the shape, the structure, or their combination, of a product, which is fit for practical use.
    “Design” in the Patent Law means any new design of the shape, the pattern or their combination, or the combination of the color with shape or pattern, of a product, which creates an aesthetic feeling and is fit for industrial application.

    Rule 3 Any formalities prescribed by the Patent Law and these Implementing Regulations shall be complied with in a written form or in any other form prescribed by the Patent Administration Department under the State Council .

    Rule 4 Any document submitted in accordance with the provisions of the Patent Law and these Implementing Regulations shall be in Chinese; the standard scientific and technical terms shall be used if there is a prescribed one set forth by the State; where no generally accepted translation in Chinese can be found for a foreign name or scientific or technical term, the one in the original language shall be also indicated.
    Where any certificate or certifying document submitted in accordance with the provisions of the Patent Law and these Implementing Regulations is in a foreign language, the Patent Administration Department under the State Council may, when it deems necessary, request a Chinese translation of the certificate or the certifying document be submitted within a specified time limit; where the translation is not submitted within the specified time limit, the certificate or certifying document shall be deemed not to have been submitted.

    Rule 5 Where any document is sent by mail to the Patent Administration Department under the State Council , the date of mailing indicated by the postmark on the envelope shall be deemed to be the date of filing; where the date of mailing indicated by the postmark on the envelope is illegible, the date on which the Patent Administration Department under the State Council receives the document shall be the date of filing, except where the date of mailing is proved by the party concerned.
    Any document of the Patent Administration Department under the State Council may be served by mail, by personal delivery or by other forms. Where any party concerned appoints a patent agency, the document shall be sent to the patent agency; where no patent agency is appointed, the document shall be sent to the liaison person named in the request.
    Where any document is sent by mail by the Patent Administration Department under the State Council , the 16th day from the date of mailing shall be presumed to be the date on which the party concerned receives the document.
    Where any document is delivered personally in accordance with the provisions of the Patent Administration Department under the State Council , the date of delivery is the date on which the party concerned receives the document.
    Where the address of any document is not clear and it cannot be sent by mail, the document may be served by making an announcement. At the expiration of one month from the date of the announcement, the document shall be deemed to be served.

    Rule 6 The first day of any time limit prescribed in the Patent Law and these Implementing Regulations shall not be counted in the time limit. Where the time limit is counted by year or by month, it shall expire on the corresponding day of the last month; if there is no corresponding day in that month, the time limit shall expire on the last day of that month; if a time limit expires on an official holiday, it shall expire on the first working day following that official holiday.

    Rule 7 Where a time limit prescribed in the Patent Law or these Implementing Regulations or specified by the Patent Administration Department under the State Council is not observed by a party concerned because of force majeure, resulting in loss of his or its rights, he or it may, within two months from the date on which the impediment is removed, at the latest within two years immediately following the expiration of that time limit, state the reasons, together with relevant supporting documents, and request the Patent Administration Department under the State Council to restore his or its rights.
    Where a time limit prescribed in the Patent Law or these Implementing Regulations or specified by the Patent Administration Department under the State Council is not observed by a party concerned because of any justified reason, resulting in loss of his or its rights, he or it may, within two months from the date of receipt of a notification from the Patent Administration Department under the State Council , state the reasons and request the Patent Administration Department under the State Council to restore his or its rights.
    Where the party concerned makes a request for an extension of a time limit specified by the Patent Administration Department under the State Council , he or it shall, before the time limit expires, state the reasons to the Patent Administration Department under the State Council and go through the relevant formalities.
    The provisions of paragraphs one and two of this Rule shall not be applicable to the time limit referred to in Articles 24, 29, 42 and 62 of the Patent Law.

    Rule 8 Where an application for a patent for invention relates to the secrets of the State concerning national defense and requires to be kept secret, the application for patent shall be filed with the patent department of national defense. Where any application for patent for invention relating to the secrets of the State concerning national defense and requiring to be kept secret is received by the Patent Administration Department under the State Council , the application shall be forwarded to the patent department of national defense for examination, and the Patent Administration Department under the State Council shall make a decision on the basis of the observations of the examination made by the patent department of national defense.
    Subject to the preceding paragraph, the Patent Administration Department under the State Council shall, after receipt of an application for patent for invention which is required to be examined for the purpose of security, send it to the relevant competent department under the State Council for examination. The relevant competent department shall, within four months from the date of receipt of the application, notify the Patent Administration Department under the State Council of the results of the examination. Where the invention for which a patent is applied for is required to be kept secret, the Patent Administration Department under the State Council shall handle it as an application for secret patent and notify the applicant accordingly.

    Rule 9 Any invention-creation that is contrary to the laws of the State referred to in Article 5 of the Patent Law shall not include the invention-creation merely because the exploitation of which is prohibited by the laws of the State.

    Rule 10 The date of filing referred to in the Patent Law, except for those referred to in Articles 28 and 42, means the priority date where priority is claimed.
    The date of filing referred to in these Implementing Regulations, except as otherwise prescribed, means the date of filing prescribed in Article 28 of the Patent Law.

    Rule 11 “A service invention-creation made by a person in execution of the tasks of the entity to which he belongs” referred to in Article 6 of the Patent Law means any invention-creation made:
    (1) in the course of performing his own duty;
    (2) in execution of any task, other than his own duty, which was entrusted to him by the entity to which he belongs;
    (3) within one year from his resignation, retirement or change of work, where the invention-creation relates to his own duty or the other task entrusted to him by the entity to which he previously belonged.
    “The entity to which he belongs” referred to in Article 6 of the Patent Law includes the entity in which the person concerned is a temporary staff member. “Material and technical means of the entity” referred to in Article 6 of the Patent Law mean the entity’s money, equipment, spare parts, raw materials or technical materials which are not disclosed to the public.

    Rule 12 “Inventor” or “creator” referred to in the Patent Law means any person who makes creative contributions to the substantive features of an invention-creation. Any person who, during the course of accomplishing the invention-creation, is responsible only for organizational work, or who offers facilities for making use of material and technical means, or who takes part in other auxiliary functions, shall not be considered as inventor or creator.

    Rule 13 For any identical invention-creation, only one patent right shall be granted.
    Two or more applicants who respectively file, on the same day, applications for patent for the identical invention-creation, as provided for in Article 9 of the Patent Law, shall, after receipt of a notification from the Patent Administration Department under the State Council , hold consultations among themselves to decide the person or persons who shall be entitled to file the application.

    Rule 14 Any assignment of the right to apply for a patent or of the patent right, by a Chinese entity or individual, to a foreigner shall be approved by the competent department for foreign trade and economic affairs of the State Council in conjunction with the science and technology administration department of the State Council.

    Rule 15 Except for the assignment of the patent right in accordance with Article 10 of the Patent Law, where the patent right is transferred because of any other reason, the person or persons concerned shall, accompanied by relevant certified documents or legal papers, request the Patent Administration Department under the State Council to make a registration of change in the owner of the patent right.
    Any license contract for exploitation of the patent which has been concluded by the patentee with an entity or individual shall, within three months from the date of entry into force of the contract, be submitted to the Patent Administration Department under the State Council for the record.

    Chapter II Application for Patent

    Rule 16 Anyone who applies for a patent in written form shall file with the Patent Administration Department under the State Council application documents in two copies.
    Anyone who applies for a patent in other forms as provided by the Patent Administration Department under the State Council shall comply with the relevant provisions.
    Any applicant who appoints a patent agency for applying for a patent, or for having other patent matters to attend to before the Patent Administration Department under the State Council , shall submit at the same time a power of attorney indicating the scope of the power entrusted.
    Where there are two or more applicants and no patent agency is appointed, unless otherwise stated in the request, the applicant named first in the request shall be the representative.

    Rule 17 “Other related matters” in the request referred to in Article 26, paragraph two of the Patent Law means:
    (1) the nationality of the applicant;
    (2) where the applicant is an enterprise or other organization, the name of the country in which the applicant has the principal business office;
    (3) where the applicant has appointed a patent agency, the relevant matters which shall be indicated; where no patent agency is appointed, the name, address, postcode and telephone number of the liaison person;
    (4) where the priority of an earlier application is claimed, the relevant matters which shall be indicated;
    (5) the signature or seal of the applicant or the patent agency;
    (6) a list of the documents constituting the application;
    (7) a list of the documents appending the application; and
    (8) any other related matter which needs to be indicated.

    Rule 18 The description of an application for a patent for invention or utility model shall state the title of the invention or utility model, which shall be the same as it appears in the request. The description shall include the following:
    (1) technical field: specifying the technical field to which the technical solution for which protection is sought pertains;
    (2) background art: indicating the background art which can be regarded as useful for the understanding, searching and examination of the invention or utility model, and when possible, citing the documents reflecting such art;
    (3) contents of the invention: disclosing the technical problem the invention or utility model aims to settle and the technical solution adopted to resolve the problem; and stating, with reference to the prior art, the advantageous effects of the invention or utility model;
    (4) description of figures: briefly describing each figure in the drawings, if any;
    (5) mode of carrying out the invention or utility model: describing in detail the optimally selected mode contemplated by the applicant for carrying out the invention or utility model; where appropriate, this shall be done in terms of examples, and with reference to the drawings, if any;
    The manner and order referred to in the preceding paragraph shall be followed by the applicant for a patent for invention or for utility model, and each of the parts shall be preceded by a heading, unless, because of the nature of the invention or utility model, a different manner or order would result in a better understanding and a more economical presentation.
    The description of the invention or utility model shall use standard terms and be in clear wording, and shall not contain such references to the claims as: “as described in claim ?­”, nor shall it contain commercial advertising.
    Where an application for a patent for invention contains disclosure of one or more nucleotide and/or amino acid sequences, the description shall contain a sequence listing in compliance with the standard prescribed by the Patent Administration Department under the State Council . The sequence listing shall be submitted as a separate part of the description, and a copy of the said sequence listing in machine-readable form shall also be submitted in accordance with the provisions of the Patent Administration Department under the State Council .

    Rule 19 The same sheet of drawings may contain several figures of the invention or utility model, and the figures shall be numbered and arranged in numerical order consecutively as “Figure l, Figure 2, ?­”.
    The scale and the distinctness of the drawings shall be as such that a reproduction with a linear reduction in size to two-thirds would still enable all details to be clearly distinguished.
    Reference signs not mentioned in the text of the description of the invention or utility model shall not appear in the drawings. Reference signs not mentioned in the drawings shall not appear in the text of the description. Reference signs for the same composite part shall be used consistently throughout the application document.
    The drawings shall not contain any other explanatory notes, except words which are indispensable.

    Rule 20 The claims shall define clearly and concisely the matter for which protection is sought in terms of the technical features of the invention or utility model.
    If there are several claims, they shall be numbered consecutively in Arabic numerals.
    The technical terminology used in the claims shall be consistent with that used in the description. The claims may contain chemical or mathematical formulae but no drawings. They shall not, except where absolutely necessary, contain such references to the description or drawings as: “as described in part ?­of the description”, or “as illustrated in Figure ?­of the drawings”.
    The technical features mentioned in the claims may, in order to facilitate quicker understanding of the claim, make reference to the corresponding reference signs in the drawings of the description. Such reference signs shall follow the corresponding technical features and be placed in parentheses. They shall not be construed as limiting the claims.

    Rule 21 The claims shall have an independent claim, and may also contain dependent claims.
    The independent claim shall outline the technical solution of an invention or utility model and state the essential technical features necessary for the solution of its technical problem.
    The dependent claim shall, by additional technical features, further define the claim which it refers to.

    Rule 22 An independent claim of an invention or utility model shall contain a preamble portion and a characterizing portion, and be presented in the following form:
    (1) a preamble portion: indicating the title of the claimed subject matter of the technical solution of the invention or utility model, and those technical features which are necessary for the definition of the claimed subject matter but which, in combination, are part of the most related prior art;
    (2) a characterizing portion: stating, in such words as “characterized in that…” or in similar expressions, the technical features of the invention or utility model, which distinguish it from the most related prior art. Those features, in combination with the features stated in the preamble portion, serve to define the scope of protection of the invention or utility model.
    Where the manner specified in the preceding paragraphs is not appropriate to be followed because of the nature of the invention or utility model, an independent claim may be presented in a different manner.
    An invention or utility model shall have only one independent claim, which shall precede all the dependent claims relating to the same invention or utility model.

    Rule 23 Any dependent claim of an invention or utility model shall contain a reference portion and a characterizing portion, and be presented in the following manner:
    (l) a reference portion: indicating the serial number(s) of the claim(s) referred to, and the title of the subject matter;
    (2) a characterizing portion: stating the additional technical features of the invention or utility model.
    Any dependent claim shall only refer to the preceding claim or claims. Any multiple dependent claims, which refers to two or more claims, shall refer to the preceding one in the alternative only, and shall not serve as a basis for any other multiple dependent claims.

    Rule 24 The abstract shall consist of a summary of the disclosure as contained in the application for patent for invention or utility model. The summary shall indicate the title of the invention or utility model, and the technical field to which the invention or utility model pertains, and shall be drafted in a way which allows the clear understanding of the technical problem, the gist of the technical solution of that problem, and the principal use or uses of the invention or utility model.
    The abstract may contain the chemical formula which best characterizes the invention. In an application for a patent which contains drawings, the applicant shall provide a figure which best characterizes the technical features of the invention or utility model. The scale and the distinctness of the figure shall be as such that a reproduction with a linear reduction in size to4cmx6cmwould still enable all details to be clearly distinguished. The whole text of the abstract shall contain not more than 300 words. There shall be no commercial advertising in the abstract.

    Rule 25 Where an invention for which a patent is applied for concerns a new biological material which is not available to the public and which cannot be described in the application in such a manner as to enable the invention to be carried out by a person skilled in the art, the applicant shall, in addition to the other requirements provided for in the Patent Law and these Implementing Regulations, go through the following formalities:
    (1) depositing a sample of the biological material with a depositary institution designated by the Patent Administration Department under the State Council before, or at the latest, on the date of filing (or the priority date where priority is claimed), and submit at the time of filing or at the latest, within four months from the filing date, a receipt of deposit and the viability proof from the depository institution; where they are not submitted within the specified time limit, the sample of the biological material shall be deemed not to have been deposited;
    (2) giving in the application document relevant information of the characteristics of the biological material;
    (3) indicating, where the application relates to the deposit of the biological material, in the request and the description the scientific name (with its Latin name) and the title and address of the depositary institution, the date on which the sample of the biological material was deposited and the accession number of the deposit; where, at the time of filing, they are not indicated, they shall be supplied within four months from the date of filing; where after the expiration of the time limit they are not supplied, the sample of the biological material shall be deemed not to have been deposited.

    Rule 26 Where the applicant for a patent for invention has deposited a sample of the biological material in accordance with the provisions of Rule 25 of these Implementing Regulations, and after the application for patent for invention is published, any entity or individual that intends to make use of the biological material to which the application relates, for the purpose of experiment, shall make a request to the Patent Administration Department under the State Council , containing the following items:
    (1) the name and address of the requesting person;
    (2) an undertaking not to make the biological material available to any other person;
    (3) an undertaking to use the biological material for experimental purpose only before the grant of the patent right.

    Rule 27 The size of drawings or photographs of a design submitted in accordance with the provisions of Article 27 of the Patent Law shall not be smaller than3cm x8cm, nor larger than l5cm x22cm.
    Where an application for a patent for design seeking concurrent protection of colors is filed, a drawing or photograph in color shall be submitted in two copies.
    The applicant shall, in respect of the subject matter of the product incorporating the design which is in need of protection, submit the relevant views and stereoscopic drawings or photographs, so as to clearly show the subject matter for which protection is sought.

    Rule 28 Where an application for a patent for design is filed, a brief explanation of the design shall, when necessary, be made.
    The brief explanation of the design shall include the essential portion of the design, the colors for which protection is sought and the omission of the view of the product incorporating the design. The brief explanation shall not contain any commercial advertising and shall not be used to indicate the function of the product.

    Rule 29 Where the Patent Administration Department under the State Council deems necessary, it may require the applicant for a patent for design to submit a sample or model of the product incorporating the design. The volume of the sample or model submitted shall not exceed30cmx30cmx30cm, and its weight shall not surpass l5 kilograms. Articles that are easy to get rotten or broken or articles that are dangerous shall not be submitted as sample or model.

    Rule 30 The existing technology referred to in Article 22, paragraph three of the Patent Law means any technology which 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, before the date of filing (or the priority date where priority is claimed), that is, prior art.

    Rule 31 The academic or technological meeting referred to in Article 24, subparagraph (2) of the Patent Law means any academic or technological meeting organized by a competent department concerned of the State Council or by a national academic or technological association.
    Where any invention-creation for which a patent is applied falls under the provisions of Article 24, subparagraph (l) or (2) of the Patent Law, the applicant shall, when filing the application, make a declaration and, within a time limit of two months from the date of filing, submit certifying documents issued by the entity which organized the international exhibition or academic or technological meeting, stating the fact that the invention-creation was exhibited or published and with the date of its exhibition or publication.
    Where any invention-creation for which a patent is applied falls under the provisions of Article 24, subparagraph (3) of the Patent Law, the Patent Administration Department under the State Council may, when it deems necessary, require the applicant to submit the relevant certifying documents within the specified time limit.
    Where the applicant fails to make a declaration and submit certifying documents as required in paragraph two of this Rule, or fails to submit certifying documents within the specified time limit as required in paragraph three of this Rule, the provisions of Article 24 of the Patent Law shall not apply to the application.

    Rule 32 Where any applicant goes through the formalities of claims priority in accordance with the provisions of Article 30 of the Patent Law, he or it shall, in his or its written declaration, indicate the date and the number of the application which was first filed (hereinafter referred to as the earlier application) and the country in which the application was filed. If the written declaration does not contain the filing date of the earlier application and the name of the country in which the application was filed, the declaration shall be deemed not to have been made.
    Where the foreign priority is claimed, the copy of the earlier application documents submitted by the applicant shall be certified by the competent authority of the foreign country in which the application was filed. Where in the certifying material submitted, the name of the earlier applicant is not the same as that of the later one, the applicant shall submit document certifying the assignment of priority. Where the domestic priority is claimed, the copy of the earlier application document shall be prepared by the Patent Administration Department under the State Council .

    Rule 33 An applicant may claim one or more priorities for an application for a patent; where multiple priorities are claimed, the priority period for the application shall be calculated from the earliest priority date.
    Where an applicant claims the right of domestic priority, if the earlier application is one for a patent for invention, he or it may file an application for a patent for invention or utility model for the same subject matter; if the earlier application is one for a patent for utility model, he or it may file an application for a patent for utility model or invention for the same subject matter. However, when the later application is filed, if the subject matter of the earlier application falls under any of the following, it may not be taken as the basis for claiming domestic priority:
    (1) where the applicant has claimed foreign or domestic priority;
    (2) where it has been granted a patent right;
    (3) where it is the subject matter of a divisional application filed as prescribed.
    Where the domestic priority is claimed, the earlier application shall be deemed to be withdrawn from the date on which the later application is filed.

    Rule 34 Where an application for a patent is filed or the right of foreign priority is claimed by an applicant having no habitual residence or business office in China, the Patent Administration Department under the State Council may, when it deems necessary, require the applicant to submit the following documents:
    (1) a certificate concerning the nationality of the applicant;
    (2) a document certifying the seat of the business office or the headquarters, if the applicant is an enterprise or other organization;
    (3) a document certifying that the country, to which the foreigner, foreign enterprise or other foreign organization belongs, recognizes that Chinese entities and individuals are, under the same conditions as those applied to its nationals, entitled to the patent right, the right of priority and other related rights in that country.

    Rule 35 Two or more inventions or utility models belonging to a single general inventive concept which may be filed as one application in accordance with the provision of Article3l, paragraph one of the Patent Law shall be technically inter-related and contain one or more of the same or corresponding special technical features. The expression “special technical features” shall mean those technical features that define a contribution which each of those inventions or utility models, considered as a whole, makes over the prior art.

    Rule 36 The expression “the same class” referred to in Article3l, paragraph two of the Patent Law means that the product incorporating the designs belongs to the same subclass in the classification of products for designs. The expression “be sold or used in sets” means that the products incorporating the designs have the same designing concept and are customarily sold and used at the same time.
    Where two or more designs are filed as one application in accordance with the provision of Article3l, paragraph two of the Patent Law, they shall be numbered consecutively and the numbers shall precede the titles of the view of the product incorporating the design.

    Rule 37 When withdrawing an application for a patent, the applicant shall submit to the Patent Administration Department under the State Council a declaration to that effect stating the title of the invention-creation, the filing number and the date of filing.
    Where a declaration to withdraw an application for a patent is submitted after the preparations for the publication of the application document has been completed by the Patent Administration Department under the State Council , the application document shall be published as scheduled. However, the declaration withdrawing the application for patent shall be published in the next issue of the Patent Gazette.

    Chapter III Examination and Approval of Application for Patent

    Rule 38 Where any of the following events occurs, a person who makes examination or hears a case in the procedures of preliminary examination, examination as to substance, reexamination or invalidation shall, on his own initiative or upon the request of the parties concerned or any other interested person, be excluded from excising his function:
    (1) where he is a near relative of the party concerned or the agent of the party concerned;
    (2) where he has an interest in the application for patent or the patent right;
    (3) where he has any other kinds of relations with the party concerned or with the agent of the party concerned that may influence impartial examination and hearing.
    (4) where a member of the Patent Reexamination Board who has taken part in the examination of the same application.

    Rule 39 Upon the receipt of an application for a patent for invention or utility model consisting of a request, a description (drawings must be included in an application for utility model) and one or more claims, or an application for a patent for design consisting of a request and one or more drawings or photographs showing the design, the Patent Administration Department under the State Council shall accord the date of filing, issue a filing number, and notify the applicant.

    Rule 40 Inany of the following circumstances, the Patent Administration Department under the State Council shall refuse to accept the application and notify the applicant accordingly:
    (1) where the application for a patent for invention or utility model does not contain a request, a description (the description of utility model does not contain drawings) or claims, or the application for a patent for design does not contain a request, drawings or photographs;
    (2) where the application is not written in Chinese;
    (3) where the application is not in conformity with the provisions of Rule120, paragraph one of these Implementing Regulations;
    (4) where the request does not contain the name and address of the applicant;
    (5) where the application is obviously not in conformity with the provisions of Article 18, or of Article l9, paragraph one of the Patent Law;
    (6) where the kind of protection (patent for invention, utility model or design) of the application for a patent is not clear and definite or cannot be ascertained.

    Rule 41 Where the description states that it contains explanatory notes to the drawings but the drawings or part of them are missing, the applicant shall, within the time limit specified by the Patent Administration Department under the State Council , either furnish the drawings or make a declaration for the deletion of the explanatory notes to the drawings. If the drawings are submitted later, the date of their delivery at, or mailing to, the Patent Administration Department under the State Council shall be the date of filing of the application; if the explanatory notes to the drawings are to be deleted, the initial date of filing shall be retained.

    Rule 42 Where an application for a patent contains two or more inventions, utility models or designs, the applicant may, before the expiration of the time limit provided for in Rule 54, paragraph one of these Implementing Regulations, submit to the Patent Administration Department under the State Council a divisional application. However, where an application for patent has been rejected, withdrawn or is deemed to have been withdrawn, no divisional application may be filed.
    If the Patent Administration Department under the State Council finds that an application for a patent is not in conformity with the provisions of Article3lof the Patent Law or of Rule 35 or 36 of these Implementing Regulations, it shall invite the applicant to amend the application within a specified time limit; if the applicant fails to make any response after the expiration of the specified time limit, the application shall be deemed to have been withdrawn.
    The divisional application may not change the kind of protection of the initial application.

    Rule 43 Adivisional application filed in accordance with the provisions of Rule 42 of these Implementing Regulations shall be entitled to the filing date and, if priority is claimed, the priority date of the initial application, provided that the divisional application does not go beyond the scope of disclosure contained in the initial application.
    The divisional application shall go through all the formalities in accordance with the provisions of the Patent Law and these Implementing Regulations.
    The filing number and the date of filing of the initial application shall be indicated in the request of the divisional application. When the divisional application is filed, it shall be accompanied by a copy of the initial application; if priority is claimed for the initial application, a copy of the priority document of the initial application shall also be submitted.

    Rule 44 “Preliminary examination” referred to in Articles 34 and 40 of the Patent Law means the check of an application for a patent to see whether or not it contains the documents as provided for in Articles 26 or 27 of the Patent Law and other necessary documents, and whether or not those documents are in the prescribed form; such check shall also include the following:
    (1) whether or not any application for a patent for invention obviously falls under Articles 5 or 25 of the Patent Law, or is not in conformity with the provisions of Article l8 or of Article l9, paragraph one of the Patent Law, or is obviously not in conformity with the provisions of Article3l, paragraph one, or Article 33 of the Patent Law, or of Rule 2, paragraph one, or Rule 18, or Rule 20 of these Implementing Regulations;
    (2) whether or not any application for a patent for utility model obviously falls under Article 5 or 25 of the Patent Law, or is not in conformity with the provisions of Article l8 or of Article l9, paragraph one of the Patent Law, or is obviously not in conformity with the provisions of Article 26, paragraph three or four, or of Article3l, paragraph one, or of Article 33 of the Patent Law, or of Rule 2, paragraph two, or of Rule l3, paragraph one, or of Rule l8 to 23, or of Rule 43, paragraph one of these Implementing Regulations, or is not entitled to a patent right in accordance with the provisions of Article 9 of the Patent Law;
    (3) whether or not any application for a patent for design obviously falls under Article 5 of the Patent Law, or is not in conformity with the provisions of Article l8 or of Article l9, paragraph one of the Patent Law, or is obviously not in conformity with the provisions of Article3l, paragraph two, or of Article 33 of the Patent Law, or of Rule 2, paragraph three, or of Rule l3, paragraph one, or of Rule 43, paragraph one of these Implementing Regulations, or is not entitled to a patent right in accordance with the provisions of Article 9 of the Patent Law.
    The Patent Administration Department under the State Council shall notify the applicant of its opinions after checking his or its application and invite him or it to state his or its observations or to correct his or its application within the specified time limit. If the applicant fails to make any response within the specified time limit, the application shall be deemed to have been withdrawn. Where, after the applicant has made his or its observations or the corrections, the Patent Administration Department under the State Council still finds that the application is not in conformity with the provisions of the Articles and the Rules cited in the preceding subparagraphs, the application shall be rejected.

    Rule 45 Apart from the application for patent, any document relating to the patent application which is submitted to the Patent Administration Department under the State Council , shall, in any of the following circumstances, be deemed not to have been submitted:
    (1) where the document is not presented in the prescribed form or the indications therein are not in conformity with the prescriptions;
    (2) where no certifying document is submitted as prescribed.
    The Patent Administration Department under the State Council shall notify the applicant of its opinion after checking that the document is deemed not to have been submitted.

    Rule 46 Where the applicant requests an earlier publication of its or his application for a patent for invention, a statement shall be made to the Patent Administration Department under the State Council . The Patent Administration Department under the State Council shall, after preliminary examination of the application, publish it immediately, unless it is to be rejected.

    Rule 47 The applicant shall, when indicating in accordance with Article 27 of the Patent Law the product incorporating the design and the class to which that product belongs, refer to the classification of products for designs published by the Patent Administration Department under the State Council . Where no indication, or an incorrect indication, of the class to which the product incorporating the design belongs is made, the Patent Administration Department under the State Council shall supply the indication or correct it.

    Rule 48 Any person may, from the date of publication of an application for a patent for invention till the date of announcing the grant of the patent right, submit to the Patent Administration Department under the State Council his observations, with reasons therefor, on the application which is not in conformity with the provisions of the Patent Law.

    Rule 49 Where the applicant for a patent for invention cannot furnish, for justified reasons, the documents concerning any search or results of any examination specified in Article 36 of the Patent Law, it or he shall make a statement to the Patent Administration Department under the State Council and submit them when the said documents are available.

    Rule 50 The Patent Administration Department under the State Council shall, when proceeding on its own initiative to examine an application for a patent in accordance with the provisions of Article 35, paragraph two of the Patent Law, notify the applicant accordingly.

    Rule 51 When a request for examination as to substance is made, and that, within the time limit of three months after the receipt of the notification of the Patent Administration Department under the State Council, the application has entered into examination as to substance, the applicant for a patent for invention may amend the application for a patent for invention on its or his own initiative.
    Within two months from the date of filing, the applicant for a patent for utility model or design may amend the application for a patent for utility model or design on its or his own initiative.
    Where the applicant amends the application after receiving the notification of opinions of the examination as to substance of the Patent Administration Department under the State Council , he or it shall make the amendment as required by the notification.
    The Patent Administration Department under the State Council may, on its own initiative, correct the obvious clerical mistakes and symbol mistakes in the documents of application for a patent. Where the Patent Administration Department under the State Council corrects mistakes on its own initiative, it shall notify the applicant.

    Rule 52 When an amendment to the description or the claims in an application for a patent for invention or utility model is made, a replacement sheet in prescribed form shall be submitted, unless the amendment concerns only the alteration, insertion or deletion of a few words. Where an amendment to the drawings or photographs of an application for a patent for design is made, a replacement sheet shall be submitted as prescribed.

    Rule 53 Inaccordance with the provisions of Article 38 of the Patent Law, the circumstances where an application for a patent for invention shall be rejected by the Patent Administration Department under the State Council after examination as to substance are as follows:
    (1) where the application does not comply with the provisions of Rule 2, paragraph one of these Implementing Regulations;
    (2) where the application falls under the provisions of Article 5 or 25 of the Patent Law, or it does not comply with the provisions of Article 22 of the Patent Law or of Rule l3, paragraph one, or of Rule 20, paragraph one, or of Rule 21, paragraph two of these Implementing Regulations, or the applicant is not entitled to a patent right in accordance with the provisions of Article 9 of the Patent Law;
    (3) where the application does not comply with the provisions of Article 26, paragraph three or four, or of Article3l, paragraph one of the Patent Law;
    (4) where the amendment to the application does not comply with the provisions of Article 33 of the Patent Law, or the divisional application does not comply with the provisions of Rule 43, paragraph one of these Implementing Regulations.

    Rule 54 After the Patent Administration Department under the State Council issues the notification to grant the patent right, the applicant shall go through the formalities of registration within two months from the date of receipt of the notification. If the applicant completes the formalities of registration within the said time limit, the Patent Administration Department under the State Council shall grant the patent right, issue the patent certificate and announce it.
    If the applicant does not go through the formalities of registration within the time limit, he or it shall be deemed to have abandoned its or his right to obtain the patent right.

    Rule 55 After the announcement of the decision to grant a patent for utility model, the patentee of the said patent for utility model may request the Patent Administration Department under the State Council to make a search report on the utility model patent.
    Where such person requests for a search report on a utility model patent, he shall submit a request, indicating the patent number of the said patent for utility model. Each request shall be limited for one patent for utility model.
    After receiving a request for a search report on a utility model patent, the Patent Administration Department under the State Council shall proceed to make an examination of the request. Where the request does not comply with the requirements as prescribed, the said department shall notify the requesting person to amend the request within a specified time limit.

    Rule 56 Where, after examination, the request for a search report on a utility model patent complies with the provisions, the Patent Administration Department under the State Council shall promptly make a search report on the utility model patent.
    Where the Patent Administration Department under the State Council finds, after search, that the patent for utility model concerned does not comply with the provisions of Article 22 of the Patent Law concerning novelty or inventiveness, it shall cite the documents considered to be relevant, state the reasons therefor and send the copies of the cited relevant documents together with the report.

    Rule 57 The Patent Administration Department under the State Council shall correct promptly the mistakes in the patent announcements and documents issued by it once they are discovered, and the corrections shall be announced.

    Chapter IV Reexamination of Patent Application and Invalidation of Patent Right

    Rule 58 The Patent Reexamination Board shall consist of technical and legal experts appointed by the Patent Administration Department under the State Council . The person responsible for the Patent Administration Department under the State Council shall be the Director of the Board.

    Rule 59 Where the applicant requests the Patent Reexamination Board to make a reexamination in accordance with the provisions of Article 41 of the Patent Law, it or he shall file a request for reexamination, state the reasons and, when necessary, attach the relevant supporting documents.
    Where the request for reexamination does not comply with the prescribed form, the person making the request shall rectify it within the time limit fixed by the Patent Reexamination Board. If the requesting person fails to meet the time limit for making rectification, the request for reexamination shall be deemed not to have been filed.

    Rule 60 The person making the request may amend its or his application at the time when it or he requests reexamination or makes responses to the notification of reexamination of the Patent Reexamination Board. However, the amendments shall be limited only to remove the defects pointed out in the decision of rejection of the application, or in the notification of reexamination.
    The amendments to the application for patent shall be in two copies.

    Rule 61 The Patent Reexamination Board shall remit the request for reexamination which the Board has received to the examination department of the Patent Administration Department under the State Council which has made the examination of the application concerned to make an examination. Where that examination department agrees to revoke its former decision upon the request of the person requesting reexamination, the Patent Reexamination Board shall make a decision accordingly and notify the requesting person.

    Rule 62 Where, after reexamination, the Patent Reexamination Board finds that the request does not comply with the provisions of the Patent Law and these Implementing Regulations, it shall invite the person requesting reexamination to submit his observations within a specified time limit. If the time limit for making response is not met, the request for reexamination shall be deemed to have been withdrawn. Where, after the requesting person has made its observations and amendments, the Patent Reexamination Board still finds that the request does not comply with the provisions of the Patent Law and these Implementing Regulations, it shall make a decision of reexamination to maintain the earlier decision rejecting the application.
    Where, after reexamination, the Patent Reexamination Board finds that the decision rejecting the application does not comply with the provisions of the Patent Law and these Implementing Regulations, or that the amended application has removed the defects as pointed out by the decision rejecting the application, it shall make a decision to revoke the decision rejecting the application, and ask the examination department which has made the examination to continue the examination procedure.

    Rule 63 At any time before the Patent Reexamination Board makes its decision on the request for reexamination, the requesting person may withdraw his request for reexamination.
    Where the requesting person withdraws his request for reexamination before the Patent Reexamination Board makes its decision, the procedure of reexamination is terminated.

    Rule 64 Anyone requesting invalidation or part invalidation of a patent right in accordance with the provisions of Article 45 of the Patent Law shall submit a request and the necessary evidence in two copies. The request for invalidation shall state in detail the grounds for filing the request, making reference to all the evidence as submitted, and indicate the piece of evidence on which each ground is based.
    The grounds on which the request for invalidation is based, referred to in the preceding paragraph, mean that the invention-creation for which the patent right is granted does not comply with the provisions of Article 22, Article 23, or of Article 26, paragraph three or four, or of Article 33 of the Patent Law, or of Rule 2, or of Rule l3, paragraph one, or of Rule 20, paragraph one, or of Rule 21, paragraph two of these Implementing Regulations; or the invention-creation falls under the provisions of Articles 5 or 25 of the Patent Law; or the applicant is not entitled to be granted the patent right in accordance with the provisions of Article 9 of the Patent Law.

    Rule 65 Where the request for invalidation does not comply with the provisions of Rule 64 of these Implementing Regulations, the Patent Reexamination Board shall not accept it.
    Where, after a decision on any request for invalidation of the patent right is made, invalidation based on the same facts and evidence is requested once again, the Patent Reexamination Board shall not accept it.
    Where a request for invalidation of a patent for design is based on the ground that the patent for design is in conflict with a prior right of another person, but no effective ruling or judgement is submitted to prove such conflict of rights , the Patent Reexamination Board shall not accept it.
    Where the request for invalidation of the patent right does not comply with the prescribed form, the person making the request shall rectify it within the time limit specified by the Patent Reexamination Board. If the rectification fails to be made within the time limit, the request for invalidation shall be deemed not to have been made.

    Rule 66 After a request for invalidation is accepted by the Patent Reexamination Board, the person making the request may add reasons or supplement evidence within one month from the date when the request for invalidation is filed. Additional reasons or evidence which are submitted after the specified time limit may be disregarded by the Patent Reexamination Board.

    Rule 67 The Patent Reexamination Board shall send a copy of the request for invalidation of the patent right and copies of the relevant documents to the patentee and invite it or him to present its or his observations within a specified time limit.
    The patentee and the person making request for invalidation shall, within the specified time limit, make responses to the notification concerning transmitted documents or the notification concerning the examination of the request for invalidation sent by the Patent Reexamination Board. Where no response is made within the specified time limit, the examination of the Patent Reexamination Board will not be affected.

    Rule 68 Inthe course of the examination of the request for invalidation, the patentee for the patent for invention or utility model concerned may amend its or his claims, but may not broaden the scope of patent protection.
    The patentee for the patent for invention or utility model concerned may not amend its or his description or drawings. The patentee for the patent for design concerned may not amend its or his drawings, photographs or the brief explanation of the design.

    Rule 69 The Patent Reexamination Board may, at the request of the parties concerned or in accordance with the needs of the case, decide to hold an oral procedure in respect of a request for invalidation.
    Where the Patent Reexamination Board decides to hold an oral procedure in respect of a request for invalidation, it shall send notifications to the parties concerned, indicating the date and place of the oral procedure to be held. The parties concerned shall make response to the notification within the specified time limit.
    Where the person requesting invalidation fails to make response to the notification of the oral procedure sent by the Patent Reexamination Board within the specified time limit, and fails to take part in the oral procedure, the request for invalidation shall be deemed to have been withdrawn. Where the patentee fails to take part in the oral procedure, the Patent Reexamination Board may proceed to examine by default.

    Rule 70 Inthe course of the examination of a request for invalidation, the time limit specified by the Patent Reexamination Board shall not be extended.

    Rule 71 The person requesting invalidation may withdraw his request before the Patent Reexamination Board makes a decision on it.
    Where the person requesting invalidation withdraws his request before the Patent Reexamination Board makes a decision on it, the examination of the request for invalidation is terminated.

    Chapter V Compulsory License for Exploitation of Patent

    Rule 72 After the expiration of three years from the date of the grant of the patent right, any entity may, in accordance with the provisions of Article 48 of the Patent Law, request the Patent Administration Department under the State Council to grant a compulsory license.
    Any entity requesting a compulsory license shall submit to the Patent Administration Department under the State Council a request for compulsory license, state the reasons therefor, and attach relevant certifying documents each in two copies.
    The Patent Administration Department under the State Council shall send a copy of the request for compulsory license to the patentee, who shall make his or its observations within the time limit specified by the Patent Administration Department under the State Council . Where no response is made within the time limit, the Patent Administration Department under the State Council will not be affected in making a decision concerning a compulsory license.
    The decision of the Patent Administration Department under the State Council granting a compulsory license for exploitation shall limit the exploitation of the compulsory license to be predominately for the supply of the domestic market. Where the invention-creation involved in the compulsory license relates to the semi-conductor technology, the exploitation of the compulsory license shall be limited only for public non-commercial use or to remedy a practice determined after judicial or administrative process to be anti-competitive.

    Rule 73 Where any entity or individual requests, in accordance with the provisions of Article 54 of the Patent Law, the Patent Administration Department under the State Council to adjudicate the fees for exploitation, it or he shall submit a request for adjudication and furnish documents showing that the parties concerned have not been able to conclude an agreement in respect of the amount of the exploitation fee. The Patent Administration Department under the State Council shall make an adjudication within three months from the date of receipt of the request and notify the parties concerned accordingly.

    Chapter VI Reward and Remuneration of Inventors or Creators of Service Inventions-Creations

    Rule 74 The State-owned enterprise or institution to which a patent right is granted shall, within three months from the date of the announcement of the grant of the patent right, award to the inventor or creator of a service invention-creation a sum of money as prize. The sum of money prize for a patent for invention shall not be less than RMB 2000 yuan; the sum of money prize for a patent for utility model or design shall not be less than RMB 500 yuan.
    Where an invention-creation is made on the basis of an inventor’s or creator’s proposal adopted by the entity to which he belongs, the State-owned enterprise or institution to which a patent right is granted shall award to him a money prize on favorable terms.
    For the money prize awarded to the inventor or creator, the enterprise may have it included into its production cost, and the institution may have it disbursed out of its operating expenses.

    Rule 75 The State-owned enterprise or institution to which a patent right is granted shall, after exploiting the patent for invention-creation within the duration of the patent right, draw each year from the profits after taxation earned from exploitation of the invention or utility model a percentage of not less than 2%, or from the profits after taxation earned from exploitation of the design a percentage of not less than 0.2%, and award it to the inventor or creator as remuneration. The entity may, as an alternative, by making reference to the said percentage, award a lump sum of money to the inventor or creator as remuneration once and for all.

    Rule 76 Where any State-owned enterprise or institution to which a patent right is granted authorizes any other entity or individual to exploit its patent, it shall draw from the profits it receives for exploitation of the said patent after taxation a percentage of not less than 10% and award it to the inventor or creator as remuneration.

    Rule 77 The provisions of this Chapter may be implemented by any other Chinese entity by making reference thereto.

    Chapter VII Protection of Patent Right

    Rule 78 The administrative authority for patent affairs referred to in the Patent Law and these Implementing Regulations means the department responsible for the administrative work concerning patent affairs set up by the people’s government of any province, autonomous region, or municipality directly under the Central Government, or by the people’s government of any city which consists of districts, has a large amount of patent administration work to attend to and has the ability to deal with the matter.

    Rule79 Inaddition to the provisions of Article 57 of the Patent Law, the administrative authority for patent affairs may also mediate in the following patent disputes at the request of the parties concerned:
    (1) any dispute over the ownership of the right to apply for patent and the patent right;
    (2) any dispute over the qualification of the inventor or creator;
    (3) any dispute over the award and remuneration of the inventor or creator of a service invention-creation;
    (4) any dispute over the appropriate fee to be paid for the exploitation of an invention after the publication of the application for patent but before the grant of patent right.
    In respect of the dispute referred to in subparagraph (4), where the patentee requests the administrative authority for patent affairs to mediate, the request shall be made after the grant of the patent right.

    Rule 80 The Patent Administration Department under the State Council shall provide professional guidance to the administrative authorities for patent affairs in handling and mediating patent disputes.

    Rule 81 Where any party concerned requests handling or mediation of a patent dispute, it shall fall under the jurisdiction of the administrative authority for patent affairs where the requested party has his location or where the act of infringement has taken place.
    Where two or more administrative authorities for patent affairs all have jurisdiction over a patent dispute, any party concerned may file his or its request with one of them to handle or mediate the matter. Where requests are filed with two or more administrative authorities for patent affairs, the administrative authority for patent affairs that first accepts the request shall have jurisdiction.
    Where administrative authorities for patent affairs have a dispute over their jurisdiction, the administrative authority for patent affairs of their common higher level people’s government shall designate the administrative authority for patent affairs to exercise the jurisdiction; if there is no such administrative authority for patent affairs of their common higher level people’s government, the Patent Administration Department under the State Council shall designate the administrative authority for patent affairs to exercise the jurisdiction.

    Rule 82 Where, in the course of handling a patent infringement dispute, the defendant requests invalidation of the patent right and his request is accepted by the Patent Reexamination Board, he may request the administrative authority for patent affairs concerned to suspend the handling of the matter.
    If the administrative authority for patent affairs considers that the reasons set forth by the defendant for the suspension are obviously untenable, it may not suspend the handling of the matter..

    Rule 83 Where any patentee affixes a patent marking on the patented product or on the package of that product in accordance with the provisions of Article 15 of the Patent Law, he or it shall make the affixation in the manner as prescribed by the Patent Administration Department under the State Council .

    Rule 84 Any of the following is an act of passing off the patent of another person as one’s own:
    (1) without authorization, indicating the patent number of another person on the product or on the package of that product made or sold by him or it;
    (2) without authorization, using the patent number of another person in the advertisement or in any other promotional materials of his or its product, so as to mislead other persons to regard the technology concerned as the patented technology of another person;
    (3) without authorization, using the patent number of another person in the contract entered into by him or it , so as to mislead other persons to regard the technology referred to in the contract as the patented technology of another person;
    (4) counterfeiting or transforming any patent certificate, patent document or patent application document of another person.

    Rule 85 Any of the following is an act of passing a non-patented product off as patented product or passing a non-patented process off as patented process:
    (1) making or selling non-patented products which are affixed with patent marking;
    (2) continuing to affix patent marking on the products that are made or sold after the patent right concerned has been declared invalid;
    (3) passing any non-patented technology off as patented technology in the advertisements or in any other promotional materials;
    (4) stating any non-patented technology as patented technology in any contract entered into by him or it;
    (5) counterfeiting or transforming any patent certificate, patent document or patent application document.

    Rule 86 Any party concerned to a dispute over the ownership of the right to apply for a patent or the patent right, which is pending before the administrative authority for patent affairs or the people’s court, may request the Patent Administration Department under the State Council to suspend the relevant procedures.
    Any party requesting the suspension of the relevant procedures in accordance with the preceding paragraph, shall submit a written request to the Patent Administration Department under the State Council , and attach a copy of the document acknowledging the receipt of the relevant request from the administrative authority for patent affairs or the people’s court.
    After the decision made by the administrative authority for patent affairs or the judgment rendered by the people’s court enters into force, the parties concerned shall request the Patent Administration Department under the State Council to resume the suspended procedure. If, within one year from the date when the request for suspension is filed, no decision is made on the dispute relating to the ownership of the right to apply for a patent or the patent right, and it is necessary to continue the suspension, the party who or that the request shall, within the said time limit, request to extend the suspension. If, at the expiration of the said time limit, no such request for extension is filed, the Patent Administration Department under the State Council shall resume the procedure on its own initiative.

    Rule 87 Where, in hearing civil cases, the people’s court has ordered the adoption of measures for a patent right preservation, the Patent Administration Department under the State Council , for the purpose of assisting the execution of the order, shall suspend the relevant procedure concerning the preserved patent right. At the expiration of the time limit for preservation, if there is no order of the people’s court to continue the preservation, the Patent Administration Department under the State Council shall resume the relevant procedure on its own initiative.

    Chapter VIII Patent Registration and Patent Gazette

    Rule 88 The Patent Administration Department under the State Council shall keep a Patent Register in which the registration of the following matters relating to patent application or patent right shall be made:
    (1) any grant of the patent right;
    (2) any transfer of the right of patent application or the patent right;
    (3) any pledge and preservation of the patent right and their discharge;
    (4) any patent license contract for exploitation submitted for the record;
    (5) any invalidation of the patent right;
    (6) any cessation of the patent right;
    (7) any restoration of the patent right;
    (8) any compulsory license for exploitation of the patent;
    (9) any change in the name, nationality and address of the patentee.

    Rule 89 The Patent Administration Department under the State Council shall publish the Patent Gazette at regular intervals, publishing or announcing the following:
    (1) the bibliographic data contained in patent applications;
    (2) the abstract of the description of an invention or utility model, the drawings or photographs of a design and its brief explanation;
    (3) any request for examination as to substance of an application for a patent for invention and any decision made by the Patent Administration Department under the State Council to proceed on its own initiative to examine as to substance an application for a patent for invention;
    (4) any declassification of secret patents;
    (5) any rejection, withdrawal and deemed withdrawal of an application for a patent for invention after its publication;
    (6) any grant of the patent right;
    (7) any invalidation of the patent right;
    (8) any cessation of the patent right;
    (9) any transfer of the patent application or the patent right;
    (10) any patent license contract for exploitation submitted for the record;
    (11) any pledge and preservation of the patent right and their discharge;
    (12) any grant of compulsory license for exploitation of the patent;
    (13) any restoration of a patent application or patent right;
    (14) any change in the name or address of the patentee;
    (15) any notification to a party whose address is not known;
    (16) any correction made by the Patent Administration Department under the State Council ; and
    (17) any other related matters.
    The description and its drawings, and the claims of an application for a patent for invention or utility model shall be separately published in full in pamphlet form by the Patent Administration Department under the State Council .

    Chapter IX Fees

    Rule 90 When any person files an application for a patent with, or has other formalities to go through at, the Patent Administration Department under the State Council , he or it shall pay the following fees:
    (1) filing fee, additional fee for filing application, and printing fee for publishing the application;
    (2) substantive examination fee for an application for patent for invention, and reexamination fee;
    (3) registration fee for the grant of patent right, printing fee for the announcement of grant of patent right, maintenance fee for application, and annual fee;
    (4) fee for a change in the bibliographic data, fee for claiming priority, fee for requesting restoration of rights, fee for requesting extension of a time limit, and fee for establishing a search report on a utility model patent;
    (5) fee for requesting invalidation, fee for requesting suspension of the patent procedure, fee for requesting a compulsory license, fee for requesting adjudication on exploitation fee of a compulsory license.
    The amount of the fees referred to in the preceding paragraph shall be prescribed by the price administration department under the State Council in conjunction with the Patent Administration Department under the State Council .

    Rule 91 The fees provided for in the Patent Law and in these Implementing Regulations may be paid directly to the Patent Administration Department under the State Council or paid by way of bank or postal remittance, or by way of any other means as prescribed by the Patent Administration Department under the State Council .
    Where any fee is paid by way of bank or postal remittance, the applicant or the patentee shall indicate on the money order at least the correct filing number or the patent number and the name of the fee paid. If the requirements as prescribed in this paragraph are not complied with, the payment of the fee shall be deemed not to have been made.
    Where any fee is paid directly to the Patent Administration Department under the State Council , the date on which the fee is paid shall be the date of payment; where any fee is paid by way of postal remittance, the date of remittance indicated by the postmark shall be the date of payment; where any fee is paid by way of bank transfer, the date on which the transfer of the fee is done shall be the date of payment. Where, however, the time between such a date and the date of receipt of the order by the Patent Administration Department under the State Council lasts more than fifteen days, unless the date of remittance or transfer is proved by the bank or the post office, the date of receipt by the Patent Administration Department under the State Council shall be the date of payment.
    Where any patent fee is paid in excess of the amount as prescribed, paid repeatedly or wrongly, the party making the payment may, within one year from the date of payment, request a refund from the Patent Administration Department under the State Council .

    Rule 92 The applicant shall, after receipt of the notification of acceptance of the application from the Patent Administration Department under the State Council , pay the filing fee, the printing fee for the publication of the application and the necessary additional fees at the latest within two months from the filing date. If the fees are not paid or not paid in full within the time limit, the application shall be deemed to be withdrawn.
    Where the applicant claims priority, he or it shall pay the fee for claiming priority at the same time with the payment of the filing fee. If the fee is not paid or not paid in full within the time limit, the claim for priority shall be deemed not to have been made.

    Rule 93 Where the party concerned makes a request for an examination as to substance, a restoration of right or a reexamination, the relevant fee shall be paid within the time limit as prescribed respectively for such requests by the Patent Law. If the fee is not paid or not paid in full within the time limit, the request is deemed not to have been made.

    Rule 94 Where the applicant for a patent for invention has not been granted a patent right within two years from the date of filing, it or he shall pay a fee for the maintenance of the application from the third year.

    Rule 95 When the applicant goes through the formalities of registration of the grant of patent right, it or he shall pay a registration fee for the grant of patent right, printing fee for the announcement of grant of patent right and the annual fee of the year in which the patent right is granted. The applicant for a patent for invention shall pay the application maintenance fee for all the years, with the exception of the year in which the patent right is granted. If such fees are not paid within the prescribed time limit, the registration of the grant of patent right shall be deemed not to have been made. The subsequent annual fees shall be paid in advance within the month before the expiration of the preceding year.

    Rule 96 Where the annual fee of the patent right after the year in which the patent is granted is not paid in due time by the patentee, or the fee is not paid in full, the Patent Administration Department under the State Council shall notify the patentee to pay the fee or to make up the insufficiency within six months from the expiration of the time limit within which the annual fee is due to be paid, and at the same time pay a surcharge. The amount of the surcharge shall be, for each month of late payment, 5% of the whole amount of the annual fee of the year within which the annual fee is due to be paid. Where the fee and the surcharge are not paid within the time limit, the patent right shall lapse from the expiration of the time limit within which the annual fee should be paid.

    Rule 97 The fee for a change in the bibliographic data, fee for establishing a search report on a utility model patent, fee for requesting suspension of the patent procedure, fee for requesting a compulsory license, fee for requesting adjudication on exploitation fee of a compulsory license and fee for requesting invalidation shall be paid as prescribed within one month from the date on which such request is filed. The fee for requesting extension of a time limit shall be paid before the expiration of the said time limit. If the fee is not paid or not paid in full within the time limit, the request shall be deemed not to have been made.

    Rule 98 Where any applicant or patentee has difficulties in paying the various fees prescribed in these Implementing Regulations, he may, in accordance with the prescriptions, submit a request to the Patent Administration Department under the State Council for a reduction or postponement of the payment. Measures for the reduction and postponement of the payment shall be prescribed by the Patent Administration Department under the State Council in consultation with the finance administration department and the price administration department under the State Council.

    Chapter X Special Provisions Concerning International Application

    Rule 99 The Patent Administration Department under the State Council receives international patent applications filed under the Patent Cooperation Treaty in accordance with the provisions of Article 20 of the Patent Law.
    Where any international application filed under the Patent Cooperation Treaty designatingChina(hereinafter referred to as the international application) enters the Chinese national phase, the requirements and procedures prescribed in this Chapter shall apply. Where no provisions are made in this Chapter, the relevant provisions in the Patent Law and in any other chapters of these Implementing Regulations shall apply.

    Rule 100 Any international application which has been accorded an international filling date in accordance with the Patent Cooperation Treaty and which has designated China shall be deemed as an application for patent filed with the Patent Administration Department under the State Council , and the said filing date shall be deemed as the filing date referred to in Article 28 of the Patent Law.
    Where, in the international phase, an international application or its designation ofChinais withdrawn or deemed to be withdrawn, the effect of the said international application inChinashall cease.

    Rule 101 Any applicant for an international application entering the Chinese national phase shall, within 20 months from the priority date as referred to in Article 2 of the Patent Cooperation Treaty (referred to as “the priority date” in this chapter), go through the following formalities at the Patent Administration Department under the State Council ; where an international application elects China within 19 months from “the priority date”, and where the election remains valid, the applicant of the said application entering the Chinese national phase shall go through the following formalities at the Patent Administration Department under the State Council within 30 months from “the priority date”:
    (1) submitting a written statement concerning the entry of his or its international application into the Chinese national phase. The statement shall indicate the international application number, and also indicate in Chinese the kind of patent protection sought, the title of the invention-creation, the name or title of the applicant, the address of the applicant and the name of the inventor. Such indications shall be the same as those recorded by the International Bureau;
    (2) paying the filing fee, the additional fee for filing application and the printing fee for publishing the application as provided in Rule 90, paragraph one of these Implementing Regulations;
    (3) where an international application is filed in a language other than Chinese, the Chinese translation of the description, the claims, the text matter of the drawings, and the abstract of the initial international application shall be furnished; where an international application is filed in Chinese, a copy of the abstract published in the international publication shall be furnished.
    (4) where an international application contains drawings, a copy of the drawings shall be furnished. Where an international application is filed in Chinese, a copy of the figure of the drawings in the abstract as published in the international publication shall be furnished.
    If the applicant fails to go through the relevant formalities for entering the Chinese national phase within the time limit prescribed in the preceding paragraph, he or it may, after paying a surcharge for the late entry, go through these formalities before the expiration of the respective time limit of 22 months or 32 months respectively from “the priority date”.

    Rule 102 Where the applicant fails to go through the formalities for entering the Chinese national phase, within the time limit prescribed in Rule 101, paragraph two of these Implementing Regulations or any of the following circumstance occurs at the expiration of the said time limit, the effect of his or its international application shall cease in China:
    (1) where the international application number is not indicated in the statement concerning entry into the Chinese national phase;
    (2) where the filing fee, the printing fee for publishing the application prescribed in Rule 90, paragraph one of these Implementing Regulations, or the surcharge for the late entry as prescribed in Rule 101, paragraph two of these Implementing Regulations is not paid;
    (3) where the international application is filed in a language other than Chinese, the Chinese translation of the description and the claims of the initial international application are not furnished.
    Where the effect of an international application has ceased inChina, the provisions of Rule 7, paragraph two of these Implementing Regulations shall not apply.

    Rule 103 Where any of the following circumstances occur at the time when the applicant goes through the formalities for entering the Chinese national phase, the Patent Administration Department under the State Council shall notify the applicant to make corrections within the specified time limit:
    (1) where the Chinese translation of the abstract or a copy of the abstract is not furnished;
    (2) where a copy of the drawings or a copy of the figure of the drawings in the abstract is not furnished;
    (3) where the title of the invention-creation, the name of the applicant, the address of the applicant and the name of the inventor are not indicated in Chinese in the statement concerning entry into the Chinese national phase;
    (4) where the content or the form of the statement concerning entry into the Chinese national phase is not in conformity with the provisions.
    If, at the expiration of the time limit, the applicant fails to make the corrections, his or its application shall be deemed to be withdrawn.

    Rule 104 Where an international application is amended in the international phase and the applicant requests that the examination be based on the amended application, the Chinese translation of the amendments shall be prescribed by the applicant before completion of the technical preparations for national publication of the application by the Patent Administration Department under the State Council . Where the Chinese translation is not furnished within the said time limit, the amendments made in the international phase shall not be taken into consideration by the Patent Administration Department under the State Council .

    Rule 105 When the applicant goes through the formalities for entering the Chinese national phase, he or it shall also fulfill the following requirements:
    (1) where the inventor is not indicated in the international application, the name of the inventor shall be indicated in the statement concerning entry into the Chinese national phase;
    (2) where the applicant has gone through the formalities for the change in the applicant before the International Bureau in the international phase, the document certifying the right of the new applicant to the international application shall be furnished;
    (3) where the applicant is not the same person as the applicant of the earlier application which is the basis of the priority claimed, or where the applicant has changed his or its name after filing the earlier application, the document certifying the right of the applicant to claim priority shall be furnished when necessary;
    (4) Where any invention-creation to which the international application relates has one of the events referred to in Article 24, subparagraph (1) or (2) of the Patent Law and where statements have been made in this respect when the international application was filed, the applicant shall indicate it in the statement concerning entry into the Chinese national phase, and furnish the relevant certificates prescribed in Rule 31, paragraph two of these Implementing Regulations within two months from the date of going through the formalities for entering the Chinese national phase.
    Where the applicant fails to satisfy the requirements provided for in subparagraph (1), (2) or (3) of the preceding paragraph, the Patent Administration Department under the State Council shall notify the applicant to make corrections within the specified time limit. Where, within the time limit, no correction is made in respect of the requirement provided for in subparagraph (1) or (2), the application shall be deemed to be withdrawn; Where, within the time limit, no correction is made in respect of the requirement provided for in subparagraph (3), the claim for priority shall be deemed not to have been made.
    Where the applicant fails to fulfill the requirement provided for in subparagraph (4) of paragraph one of this Rule, the provisions of Article 24 of the Patent Law shall not apply to his or its international application.

    Rule 106 Where the applicant has made indications concerning deposited biological materials in accordance with the provisions of the Patent Cooperation Treaty, the requirements provided for in Rule 25, subparagraph (3) of these Implementing Regulations shall be deemed to have been fulfilled. In the statement concerning entry into the Chinese national phase, the applicant shall indicate the documents recording the particulars of the deposit of the biological materials, and the exact location of the record in the documents.
    Where particulars concerning the deposit of the biological materials are contained in the description of the international application as initially filed, but there is no such indication in the statement concerning the entry into the Chinese national phase, the applicant shall make correction within four months from the date of going through the formalities for entering the Chinese national phase. If the correction is not made at the expiration of the time limit, the biological materials shall be deemed not to have been deposited.
    Where the applicant submits the certificates of the deposit and the viability of the biological materials to the Patent Administration Department under the State Council within four months from the date of going through the formalities for entering the Chinese national phase, the deposit of biological materials shall be deemed to have been made within the time limit as provided for in Rule 25, subparagraph (1) of these Implementing Regulations.

    Rule 107 Where the applicant claims one or multiple priorities in the international phase and such claims remain valid at the time when the application enters the Chinese national phase, the applicant shall be deemed to have submitted the written declaration in accordance with the provisions of Article 30 of the Patent Law.
    Where there are clerical mistakes or the application number of the earlier application is missing in the written declaration claiming the priority made in the international phase, the applicant may request to make corrections or to fill in the missing application number of the earlier application at the time of going through the formalities for entering the Chinese national phase. Where a request for making corrections is made, the applicant shall pay the fee for correcting the claim for priority.
    Where the applicant has submitted a copy of the earlier application in the international phase in accordance with the provisions of the Patent Cooperation Treaty, he or it shall be exempted form submitting a copy of the earlier application to the Patent Administration Department under the State Council at the time of going through the formalities for entering the Chinese national phase. Where the applicant has not submitted a copy of the earlier application in the international phase, and if the Patent Administration Department under the State Council deems necessary, it may notify the applicant to submit a copy of the earlier application within the specified time limit. If no copy is submitted at the expiration of the time limit, his or its claim for priority shall be deemed not to have been made.
    Where the claim for priority is deemed not to have been made in the international phase and the information is already published by the International Bureau, the applicant may, if he has justified reasons, request the Patent Administration Department under the State Council to restore his or its claim for priority at the time of going through the formalities for entering the Chinese national phase.

    Rule 108 Where, before the expiration of 20 months from “the priority date”, the applicant files a request with the Patent Administration Department under the State Council for early processing and examination of his or its international application, he or it shall, in addition to going through the formalities for entering the Chinese national phase, submit a request in accordance with the provisions in Article 23, paragraph two of the Patent Cooperation Treaty. Where the international application has not been transmitted by the International Bureau to the Patent Administration Department under the State Council , the applicant shall submit a confirmed copy of the international application.

    Rule 109 With regard to an international application for a patent for utility model, the applicant may file a request with the Patent Administration Department under the State Council to amend the description, the drawings and the claims within one month from the date of going through the formalities for entering the Chinese national phase.
    With regard to an international application for a patent for invention, the provisions of Rule 51, paragraph one of these Implementing Regulations shall apply.

    Rule 110 Where the applicant finds that there are mistakes in the Chinese translation of the description, the claims or the text matter of the drawings as filed, he or it may correct the translation in accordance with the international application as filed within the following time limits:
    (1) before the completion of technical preparations for national publication by the Patent Administration Department under the State Council ;
    (2) within three months from the date of receipt of the notification sent by the Patent Administration Department under the State Council , stating that the application for a patent for invention has entered into the substantive examination phase.
    Where the applicant intends to correct the mistakes in the translation, he or it shall file a written request, furnish a replace sheet of the translation and pay the prescribed fee for the correction of the translation.
    Where the applicant makes correction of the translation in accordance with the notification of the Patent Administration Department under the State Council , he or it shall, within the specified time limit, go through the formalities prescribed in paragraph two of this Rule. If the prescribed formalities are not gone through at the expiration of the time limit, the international application shall be deemed to be withdrawn.

    Rule 111 With regard to any international application for a patent for invention, if the Patent Administration Department under the State Council , after preliminary examination, considers it in compliance with the provisions of the Patent Law and these Implementing Regulations, it shall publish it in the Patent Gazette; where the international application is filed in a language other than Chinese, the Chinese translation of the international application shall be published.
    Where the international publication of an international application for a patent for invention by the International Bureau is in Chinese, the provisions of Article 13 of the Patent Law shall apply from the date of the international publication. If the international publication by the International Bureau is in a language other than Chinese, the provisions of Article 13 of the Patent Law shall apply from the date of the publication of the Chinese translation by the Patent Administration Department under the State Council .
    With regard to an international application, the publication referred to in Articles 21 and 22 of the Patent Law means the publication referred to in paragraph one of this Article.

    Rule 112 Where two or more inventions or utility models are contained in an international application, the applicant may, after going through the formalities for entering the Chinese national phase, submit a divisional application in accordance with the provisions in Rule 42, paragraph one of these Implementing Regulations.
    Where, in the international phase, some parts of the international application have not been the subject of international search or international preliminary examination because the International Searching Authority or the International Preliminary Examination Authority considers that the international application does not comply with the requirement of unity of invention prescribed in the Patent Cooperation Treaty, and the applicant fails to pay the additional fee, whereas at the time of going through the formalities for entering the Chinese national phase, the applicant requests that the said parts be the basis of examination, the Patent Administration Department under the State Council , finding that the decision concerning unity of invention made by the International Searching Authority or the International Preliminary Examination Authority is justified, shall notify the applicant to pay the restoration fee for unity of invention within the specified time limit. Where the fee is not paid or not paid in full at the expiration of the prescribed time limit, those parts of the international application which have not been searched or have not been the subject of international preliminary examination shall be deemed to be withdrawn.

    Rule 113 Where the applicant furnishes the documents and pays the fees in accordance with the provisions of Rule 101 of these Implementing Regulations, the date on which the Patent Administration Department under the State Council receives the documents shall be the date of submitting, and the date on which it receives the fees shall be the date of payment.
    Where there is delay in the mailing of the documents and the applicant proves, within one month from the date on which he finds the delay, that the documents have been mailed five days prior to the expiration of the time limit prescribed in Rule 101 of these Implementing Regulations, the documents shall be deemed to have been received on the date on which the time limit expires. However, the time for the applicant to furnish evidence may not be later than six months after the expiration of the time limit prescribed in Rule 101 of these Implementing Regulations.
    Where documents are to be submitted to the Patent Administration Department under the State Council in accordance with the provisions of Rule 101 of these Implementing Regulations, the applicant may send them by fax. Where the applicant submits the documents by fax, the date on which the Patent Administration Department under the State Council receives the fax shall be the date of submitting. The applicant shall submit to the Patent Administration Department under the State Council the original copy within 14 days from the date of the transmission by fax. Where the original copy is not submitted within the time limit, the documents shall be deemed not to have been submitted.

    Rule 114 Where an international application claims the priority, the applicant shall, at the time of going through the formalities for entering the Chinese national phase, pay the fee for claiming the priority; if the fee is not paid or not paid in full, the Patent Administration Department under the State Council shall notify the applicant to pay it within the specified time limit; if the fee is still not paid or not paid in full at the expiration of the time limit, the claim for priority shall be deemed not to have been made.

    Rule 115 Where an international application in the international phase has been refused to be accorded an international filling date or has been declared to be deemed withdrawn by an international authority concerned, the applicant may, within two months from the date on which he or it receives the notification, request the International Bureau to send the copy of any document in the file of the international application to the Patent Administration Department under the State Council , and shall go through the formalities prescribed in Rule 101 of these Implementing Regulations within the said time limit at the Patent Administration Department under the State Council . After receiving the documents sent by the International Bureau, the Patent Administration Department under the State Council shall review the decision made by the international authority concerned to find whether it is correct.

    Rule 116 With regard to a patent right granted on the basis of an international application, if the scope of protection determined in accordance with the provisions of Article 56 of the Patent Law exceeds the scope of the international application in its original language because of incorrect translation, the scope of protection granted on the international application shall be limited according to the original language of the application; if the scope of protection granted on the international application is narrower than the scope of the application in its original language, the scope of protection shall be determined according to the patent in the language when it is granted.

    Chapter X Supplementary Provisions

    Rule 117 Any person may, after approval by the Patent Administration Department under the State Council , consult or copy the files of the published or announced patent applications and the Patent Register. Any person may request the Patent Administration Department under the State Council to issue a copy of extracts from the Patent Register.
    The files of the patent applications which have been withdrawn or deemed to be withdrawn or which have been rejected, shall not be preserved after expiration of two years from the date on which the applications cease to be valid.
    Where the patent right has been abandoned, wholly invalidated or ceased, the files shall not be preserved after expiration of three years from the date on which the patent right ceases to be valid.

    Rule 118 Any patent application which is filed with, or any formality which is gone through at, the Patent Administration Department under the State Council shall comply with the unified form prescribed by the Patent Administration Department under the State Council, and signed or sealed by the applicant, the patentee, any other interested person or his or its representative. Where any patent agency is appointed, it shall be sealed by such agency.
    Where a change in the name of the inventor, or in the name, nationality and address of the applicant or the patentee, or in the name and address of the patent agency and the name of patent agent is requested, a request for a change in the bibliographic data shall be made to the Patent Administration Department under the State Council , together with the relevant certifying documents.

    Rule 119 The document relating to a patent application or patent right which is mailed to the Patent Administration Department under the State Council shall be mailed by registered letter, not by parcel.
    Except for any patent application filed for the first time, any document which is submitted to and any formality which is gone through at the Patent Administration Department under the State Council , the filing number or the patent number, the title of the invention-creation and the name of the applicant or the patentee shall be indicated.
    Only documents relating to the same application shall be included in one letter.

    Rule 120 Various kinds of application documents shall be typed or printed. All the characters shall be in black ink, neat and clear. They shall be free from any alterations. The drawings shall be made in black ink with the aid of drafting instruments. The lines shall be uniformly thick and well defined, and free from alterations.
    The request, description, claims, drawings and abstract shall be numbered separately in Arabic numerals and arranged in numerical order.
    The written language of the application shall run from left to right. Only one side of each sheet shall be used.

    Rule 121 The Patent Administration Department under the State Council shall formulate Guidelines for Examination in accordance with the Patent Law and these Implementing Regulations.

    Rule 122 These Implementing Regulations shall enter into force on July 1, 2001. The Implementing Regulations of the Patent Law of the People’s Republic ofChinaapproved by the State Council on December 12, 1992 and promulgated by the Patent Office of the People’s Republic ofChinaon December 21, 1992 shall be repealed at the same time.

  • Copyright Law of the People’s Republic of China

    2013-04-23

    (Adopted at the Fifteenth Session of the Standing Committee of the Seventh National People’s Congress on 7 September 1990, and revised in accordance with the Decision on the Amendment of the Copyright Law of the People’s Republic of China adopted at the 24th Session of the Standing Committee of the Ninth National People’s Congress on 27 October 2001.)

    Chapter I General Provisions

    Article 1 This Law is enacted, in accordance with the Constitution, for the purposes of protecting the copyright of authors in their literary, artistic and scientific works and the copyright-related rights and interests, of encouraging the creation and dissemination of works which would contribute to the construction of socialist spiritual and material civilization, and of promoting the development and prosperity of the socialist culture and science.

    Article 2 Works of Chinese citizens, legal entities or other organizations, whether published or not, shall enjoy copyright in accordance with this Law.
    Any work of a foreigner or stateless person which is eligible to enjoy copyright under an agreement concluded between the country to which the foreigner belongs or in which he has habitual residence and China, or under an internationa1 treaty to which both countries are party, shall be protected in accordance with this Law.
    Works of foreigners or stateless persons first published in the territory of the People’s Republic ofChinashall enjoy copyright in accordance with this Law.
    Any work of a foreigner who belongs to a country which has not concluded an agreement with China, or which is not a party to an international treaty with China or a stateless person first published in an country which is a party to an international treaty with China, or in such a member state or nonmember state, shall be protected in accordance with this Law.

    Article 3 For the purposes of this Law, the term “works” includes works of literature, art, natural science, social science, engineering technology and the like which are expressed in the following forms:
    (1) written works;
    (2) oral works;
    (3) musical, dramatic, quyi’, choreographic and acrobatic works;
    (4) works of fine art and architecture;
    (5) photographic works;
    (6) cinematographic works and works created by virtue of an analogous method of film production;
    (7) drawings of engineering designs, and product designs; maps, sketches and other graphic works and model works;
    (8) computer software;
    (9) other works as provided for in laws and administrative regulations.

    Article 4 Works the publication or distribution of which is prohibited by law shall not be protected by this Law.
    Copyright owners, in exercising their copyright, shall not violate the Constitution or laws or prejudice the public interests.

    Article 5 This Law shal1 not be applicable to:
    (l) laws; regulations; resolutions, decisions and orders of State organs; other documents of a legislative, administrative or judicial nature; and their official translations;
    (2) news on current affairs; and
    (3) calendars, numerical tables and forms of general use, and formulas.

    Article 6 Regulations for the protection of copyright in expressions of folklore shall be established separately by the State Council.

    Article 7 The copyright administration department under the State Council shall be responsible for the nationwide administration of copyright. The copyright administration department of the People’s Government of each province, autonomous region and municipality directly under the Central Government shall be responsible for the administration of copyright in its administrative region.

    Article 8 The copyright owners and copyright-related right holders may authorize an organization for collective administration of copyright to exercise the copyright or any copyright-related right. After authorization, the organization for collective administration of copyright may, in its own name, claim the right for the copyright owners and copyright-related right holders, and participate, as an interested party, in litigation or arbitration relating to the copyright or copyright-related right.
    The organization for collective administration of copyright is a non-profit organization. Provisions for the mode of its establishment, rights and obligations, collection and distribution of the royalties of copyright licensing, and supervision and administration thereof shall be separately established by the State Council.

    Chapter II Copyright

    Section 1 Copyright Owners and Their Right

    Article 9 The term “copyright owners” shall include:
    (1) authors;
    (2) other citizens, legal entities and other organizations enjoying copyright in accordance with this Law.

    Article 10 The term “copyright” shall include the following personality rights and property rights:
    (l) the right of publication, that is, the right to decide whether to make a work available to the public;
    (2) the right of authorship, that is, the right to claim authorship and to have the author’s name mentioned in connection with the work;
    (3) the right of alteration, that is, the right to alter or authorize others to alter one’s work;
    (4) the right of integrity, that is, the right to protect one’s work against distortion and mutilation;
    (5) the right of reproduction, that is, the right to produce one or more copies of a work by printing, photocopying, lithographing, making a sound recording or video recording, duplicating a recording, or duplicating a photographic work or by any other means;
    (6) the right of distribution, that is, the right to make available to the public the original or reproductions of a work though sale or other transfer of ownership;
    (7) the right of rental, that is, the right to authorize, with payment, others to temporarily use cinematographic works, works created by virtue of an analogous method of film production, and computer software, except any computer software that is not the main subject matter of rental;
    (8) the right of exhibition, that is, the right to publicly display the original or reproduction of a work of fine art and photography;
    (9) the right of performance, that is, the right to publicly perform a work and publicly broadcast the performance of a work by various means;
    (10) the right of showing, that is, the right to show to the public a work, of fine art, photography, cinematography and any work created by analogous methods of film production through film projectors, over-head projectors or any other technical devices;
    (11) the right of broadcast, that is, the right to publicly broadcast or communicate to the public a work by wireless means, to communicate to the public a broadcast work by wire or relay means, and to communicate to the public a broadcast work by a loudspeaker or by any other analogous tool used to transmit symbols, sounds or pictures;
    (12) the right of communication of information on networks, that is, the right to communicate to the public a work, by wire or wireless means in such a way that members of the public may access these works from a place and at a time individually chosen by them;
    (13) the right of making cinematographic work, that is, the right to fixate a work on a carrier by way of film production or by virtue of an analogous method of film production;
    (14) the right of adaptation, that is, the right to change a work to create a new work of originality;
    (15) the right of translation, that is, the right to translate a work in one language into one in another language;
    (16) the right of compilation, that is, the right to compile works or parts of works into a new work by reason of the selection or arrangement; and
    (17) any other rights a copyright owner is entitled to enjoy.
    A copyright owner may authorize another person to exercise the rights under the preceding paragraphs (5) to (17), and receive remuneration pursuant to an agreement or this Law.
    A copyright owner may assign, in part or in whole, the rights under the preceding paragraphs (5) to (17), and receive remuneration pursuant to an agreement or this Law.

    Section 2 Ownership of Copyright

    Article 11 Except where otherwise provided in this Law, the copyright in a work shall belong to its author.
    The author of a work is the citizen who has created the Work.
    Where a work is created according to the intention and under the supervision and responsibility of a legal entity or other organization, such legal entity or organization shall be deemed to be the author of the work.
    The citizen, legal entity or other organization whose name is mentioned in connection with a work shall, in the absence of proof to the contrary, be deemed to be the author of the work.

    Article 12 Where a work is created by adaptation, translation, annotation or arrangement of a preexisting work, the copyright in the work thus created shall be enjoyed by the adapter, translator, annotator or arranger, Provided that the exercise of such copyright shall not prejudice the copyright in the original work.

    Article 13 Where a work is created jointly by two or more co-authors, the copyright in the work shall be enjoyed jointly by those co-authors. Co-authorship may not be claimed by anyone who has not participated in the creation of the work.
    If a work of joint authorship can be separated into independent parts and exploited separately, each co-author shall be entitled to independent copyright in the parts that he has created, provided that the exercise of such copyright shall not prejudice the copyright in the joint work as a whole.

    Article 14 Awork created by compilation of several works, parts of works, data that do not constitute a work or other materials and having originality in the selection or arrangement of its contents is a work of compilation. The copyright in a work of compilation shall be enjoyed by the compiler, provided that the exercise of such copyright shall not prejudice the copyright in the preexisting works.

    Article 15 The copyright in a cinematographic work and any work created by an analogous method of fl1mproduction shall be enjoyed by the producer of the work, but the scriptwriter, director, cameraman, lyricist, composer, and other authors thereof shall enjoy the right of authorship in the work, and have the right to receive remuneration pursuant to the contract concluded with the producer.
    The authors of the screenplay, musical works and other works that are incorporated in a cinematographic work and work created by virtue of an analogous method of film production and can be exploited separately shall be entitled to exercise their copyright independently.

    Article 16 Awork created by a citizen in the fulfillment of tasks assigned to him by a legal entity or other organization shall be deemed to be a work created in the course of employment. The copyright in such work shall be enjoyed by the author, subject to the provisions of the second paragraph of this Article, provided that the legal entity or other organization shall have a priority right to exploit the work within the scope of its professional activities. During the two years after the completion of the work, the author shall not, without the consent of the legal entity or other organization, authorize a third party to exploit the work in the same way as the legal entity or other organization does.
    In any of the following cases the author of a work created in the course of employment shall enjoy the right of authorship, while the legal entity or other organization shall enjoy the other rights included in the copyright and may reward the author:
    (1) drawings of engineering designs and product designs and maps, computer software and other works created in the course of employment mainly with the material and technical resource of the legal entity or other organization and under its responsibility;
    (2) works created in the course of employment where the copyright is, in accordance with laws, administrative regulations or contracts, enjoyed by the legal entity or other organization.

    Article 17 The ownership of the copyright in a commissioned work shall be agreed upon in a contract between the commissioning and the commissioned parties. In the absence of a contract or of an explicit agreement in the contract, the copyright in such a work shall belong to the commissioned party.

    Article 18 The transfer of ownership of the original copy of a work of fine art, or other works, shall not be deemed to include the transfer of the copyright in such work, provided that the right to exhibit the original copy of a work of fine art shall be enjoyed by the owner of such original copy.

    Article 19 Where the copyright in a work belongs to a citizen, the right of exploitation and the rights under Article 10, paragraphs (5) to (17), of this Law in respect of the work shall, after his death, during the term of protection provided for in this Law, be transferred in accordance with the provisions of the Inheritance Law.
    Where the copyright in a work belongs to a legal entity or other organization, the rights under Articles l0, paragraphs (5) to (l7), of this Law, shall, after the change or the termination of the status of the legal entity or other organization, during the term of protection provided for in this Law, be enjoyed by the succeeding legal entity or other organization which has taken over the former’s rights and obligations, or, in the absence of such successor entity or other organization, by the State.

    Section 3 Term of Protection for Rights

    Article 20 The rights of authorship, alteration and integrity of an author shall be unlimited in time.

    Article 21 The term of protection for the right of publication and the rights referred to in Article l0, paragraphs (5) to (17), of this Law in respect of a work of a citizen shall be the lifetime of the author and fifty years after his death, and expires on 31 December of the fiftieth year after the death of the author. In the case of a work of joint authorship, such term shall expire on 31 December of the fiftieth year after the death of the last surviving author.
    The term of protection for the right of publication and the rights provided for in Article 10, paragraphs (5) to (17), of this Law in respect of a work where the copyright belongs to a legal entity or other organization or in respect of a work created in the course of employment where the legal entity or other organization enjoys the copyright (except the right of authorship), shall be fifty years, and expires on 31 December of the fiftieth year after the first Publication of such work, provided that any such work that has not been published within t1tty years after the completion of its creation shall no longer be protected under this Law.
    The term of protection for the right of publication or protection for the right of publication or the rights referred to in Article l0, paragraphs (5) to (17), of this Law in respect of a cinematographic work, a work created by virtue of an analogous method of film production or a photographic work shall be fifty years, and expires on3lDecember of the fiftieth year after the first publication of such work, provided that any such work that has not been published within fifty years after the completion of its creation shall no longer be protected under this Law.

    Section 4 Limitations on Rights

    Article 22 Inthe following cases, a work may be exploited without permission from, and without payment of remuneration to, the copyright owner, provided that the name of the author and the title of the work shall be mentioned and the other rights enjoyed by the copyright owner by virtue of this Law shall not be prejudiced:
    (l) use of a published work for the purposes of the user’s own private study, research or self-entertainment;
    (2) appropriate quotation from a published work in one’s own work for the purposes of introduction to, or comments on, a work, or demonstration of a point;
    (3) reuse or citation, for any unavoidable reason, of a published work in newspapers, periodicals, at radio stations, television stations or any other media for the purpose of reporting current events;
    (4) reprinting by newspapers or periodicals, or rebroadcasting by radio stations, television stations, or any other media, of articles on current issues relating to politics, economics or religion published by other newspapers, periodicals, or broadcast by other radio stations, television stations or any other media except where the author has declared that the reprinting and rebroadcasting is not permitted;
    (5) publication in newspapers or periodicals, or broadcasting by radio stations, television stations or any other media, of a speech delivered at a public gathering, except where the author has declared that the publication or broadcasting is not permitted;
    (6) translation, or reproduction in a small quantity of copies, of a published work for use by teachers or scientific researchers, in classroom teaching or scientific research, provided that the translation or reproduction shall not be published or distributed;
    (7) use of a published work, within proper scope, by a State organ for the purpose of fulfilling its official duties;
    (8) reproduction of a work in its collections by a library, archive, memorial hall, museum, art gallery or any similar institution, for the purposes of the display, or preservation of a copy, of the work;
    (9) free-of-charge live performance of a published work and said performance neither collects any fees from the members of the public nor pays remuneration to the performers;
    (10) copying, drawing, photographing or video recording of an artistic work located or on display in an outdoor public place;
    (11) translation of a published work of a Chinese citizen, legal entity or any other organization from the Han language into any minority nationality language for publication and distribution within the country; and
    (12) transliteration of a published work into Braille and publication of the work so transliterated.
    The above limitations on rights shall be applicable also to the rights of publishers, performers, producers of sound recordings and video recordings, radio stations and television stations.

    Article 23 Incompiling and publishing textbooks for implementing the nine-year compulsory education and the national educational program, parts of published works, short written works, music works or single copies of works of painting or photographic works may be compiled into textbooks without the authorization from the authors, except where the authors have declared in advance the use thereof is not permitted, with remuneration paid according to the regulations, the name of the author and the title of the work indicated and without prejudice to other rights enjoyed by the copyright owners according to this Law.
    The above limitations on rights shall be applicable also to the rights of publishers, performers, producers of sound recordings and video recordings, radio stations and television stations.

    Chapter III Copyright Licensing and Assignment Contracts

    Article 24 Subject to provisions in this Law according to which no permission is needed, anyone who exploits a work created by others shall conclude a contract with, or otherwise obtain permission from, the copyright owner.
    A licensing contract shall include the following basic clauses:
    (l) the category of right licensed for exploitation of the work covered by the license;
    (2) the exclusive or non-exclusive nature of the right to exploit the work covered by the license;
    (3) the geographic area and term of the license;
    (4) the standard of remuneration and the method of payment;’
    (5) the liability in case of breach of the contract; and
    (6) any other matter that the contracting parties consider necessary.

    Article 25 Assignment of a right referred to in Article 10, paragraphs (5) to (17), of this Law shall require conclusion of a contract in writing.
    A contract of assignment shall include the following basic clauses:
    (1) title of the work;
    (2) category and geographic area of the assigned right;
    (3) assignment price;
    (4) date and manner of payment of the assignment price;
    (5) liabilities for breach of the contract; and
    (6) any other matters that the contracting parties consider necessary.

    Article 26 The other party shall not, without permission from the copyright owner, exercise any right that the copyright owner has not expressly licensed or assigned in the licensing and assignment contract.

    Article 27 The standard of remuneration for the exploitation of a work may be fixed by the interested parties or may be paid according to the standard established by the copyright administration department under the State Council in collaboration with other departments concerned. Where the interested parties have not expressly fixed it, remuneration may also be paid in accordance with the standard established by the copyright administration department under the State Council in collaboration with other departments concerned.

    Article 28 Publishers, performers, producers of sound recordings and video recordings, radio stations, television stations and other entities who or which have obtained, pursuant to the relevant provisions of this Law, the right to exploit the copyright of others, shall not prejudice the authors’ rights of authorship, alteration or integrity, or their right to remuneration.

    Chapter IV Publication, Performance, Sound Recording, Video Recording and Broadcasting

    Section 1 Publication of Books, Newspapers and Periodicals

    Article 29 Abook publisher who publishes a book shall conclude a publishing contract with, and pay remuneration to, the copyright owner.

    Article 30 Abook publisher shall have the exclusive right to publish the work delivered to him by the copyright owner for publication. The exclusive right to publish a work enjoyed by the book publisher specified in the contract shall be protected by law, and the work may not be published by others.

    Article 31 The copyright owner shall deliver the work within the term specified in the contract. The book publisher shall publish the work in accordance with the quality requirements and within the term specified in the contract.
    The book publisher shall bear the civil liability specified in Article 53 of this Law if he fails to publish the work within the term specified in the contract.
    The book publisher shall notify, and pay remuneration to, the copyright owner when the work is to be reprinted or republished. If the publisher refuses to reprint or republish the work when stocks of the book are exhausted, the copyright owner shall have the right to terminate the contrast.

    Article 32 Where a copyright owner has submitted the manuscript of his work to a newspaper or a periodical publisher for publication and has not received, within 15 days from the newspaper publisher or within 30 days from the periodical publisher, counted from the date of submission of the manuscript, any notification of the said publisher’s decision to publish the work, the copyright owner may submit the manuscript of the same work to another newspaper or periodical publisher for publication, unless the two parties have agreed otherwise.
    Except where the copyright owner has declared that reprinting or excerpting is not permitted, other newspaper or periodical publishers may, after the publication of the work by a newspaper or periodical, reprint the work or print an abstract of it or print it as reference material, but such other publishers shall pay remuneration to the copyright owner as prescribed in regulations.

    Article 33 Abook publisher may alter or abridge a work with the permission of the copyright owner.
    A newspaper or periodical publisher may make editorial modifications and abridgements in a work, but shall not make modifications in the contents of the work unless permission has been obtained from the author.

    Article 34 When publishing works created by adaptation, translation, annotation, arrangement or compilation of preexisting works, the publisher shall both have the permission from, and pay remuneration to, the owners of the copyright in the works created by means of adaptation, translation, annotation, arrangement or compilation and the owners of the copyright in the original works.

    Article 35 Apublisher has the right to license or prohibit any other person to use the typographical arrangement of books or periodicals he has published.
    The term of protection for the right provided for in the preceding paragraph shall be ten years, and expires on3lDecember of the tenth year after the first publication of the books or periodicals using the typographical arrangement.

    Section 2 Performance

    Article 36 Aperformer (an individual performer or a performing entity) who for a performance exploits a work created by another person shall obtain permission from, and pay remuneration to, the copyright owner. Where a performing organizer organizes a performance, the Organizer shall obtain permission from, and pay remuneration to, the copyright owner.
    When exploiting, for performance, works created by adaptation, translation, annotation, arrangement or compilation of preexisting works, the performer shall both have the permission from, and pay remuneration to, the owners of the copyright in the works created by means of adaptation, translation, annotation, arrangement or compilation and the owners of the copyright in the original works.

    Article 37 Aperformer shall, in relation to his performance, enjoy the right
    (l) to claim performer ship;
    (2) to protect the image inherent in his performance from distortion;
    (3) to authorize others to make live broadcasts and public transmission of its or his performance and to receive remuneration;
    (4) to authorize others to make sound recordings and video recordings, and to receive remuneration therefore.
    (5) to authorize others to reproduce or distribute sound recordings and video recordings incorporating his performance, and to receive remuneration therefore; and
    (6) to authorize others to communicate his performance to the public on information network, and to receive remuneration therefore.
    The person so authorized who exploits the work in the way referred to in the preceding paragraphs (3) to (6) shall obtain permission from, and pay remuneration to, the copyright owner.

    Article 38 The term of protection for the rights provided for in Article 37, paragraphs (1) and (2), of this Law shall not be subject to any limitation.
    The term of protection for the rights provided for in Article 37, paragraphs (3) to (6), of this Law shall be fifty years, and expires on 31 December of the fiftieth year after the performance was made.

    Section 3 Sound Recordings and Video Recordings

    Article 39 Aproducer of sound recordings or video recording who, for the production of a sound recording or video recording, exploits a work created by another person, shall obtain permission from, and pay remuneration to, the copyright owner.
    A producer of sound recordings or video recordings who exploits a work created by adaptation, translation, annotation or arrangement of a preexisting work shall both obtain permission from, and pay remuneration to the owner of the copyright in the work created by adaptation, translation, annotation or arrangement and to the owner of the copyright in the original work.
    A producer of sound recordings who exploits a music work another person has duly made into a sound recording to produce sound recordings, may not obtain permission from, but shall pay remuneration to the copyright owner as prescribed by regulat1ons, such Work shall not be exploited where the copyright owner has declared that such exploitation is not permitted.

    Article 40 When producing a sound recording or video recording, the producer shall conclude a contract with, and pay remuneration to, the performers.

    Article 41 Aproducer of sound recordings or video recordings shall have the right to authorize others to reproduce, distribute, rent and communicate to the public on an information network such sound recordings or video recordings and the right to obtain remuneration therefore. The term of protection of such rights shall be fifty years, and expires on3lDecember of the fiftieth year after the recording was first produced.
    Any one who is authorized to reproduce, distribute and communicate to the public on an information network a sound recording or video recording shall also obtain permission from, and pay remuneration to, the copyright owner and the performer as presented by regulations.

    Section 4 Broadcasting by Radio Stations or Television Stations

    Article 42 Aradio station or television station that broadcasts an unpublished work created by another person, shall obtain permission from, and pay remuneration to, the copyright owner.
    A radio station or television station that broadcasts a published work created by another person does not need a permission from, but shall pay remuneration to, the copyright owner.

    Article 43 Aradio station or television station that broadcasts a published sound recording, does not need a permission from, but shall pay remuneration to, the copyright owner, except that the interested parties have agreed otherwise. The specific procedures for treating the matter shall be established by the State Council.

    Article 44 Aradio station or television station shall have the right to prohibit the following acts without authorization therefrom:
    (1) to rebroadcast its broadcast radio or television program; and
    (2) to fix its broadcast radio or television program on a sound recording or video recording carrier and to reproduce the sound recording or video recording carrier.
    The term of protection for the right referred to in the preceding paragraph shall be fifty years, and expires on 31 December of the fiftieth year after the radio or television program was first broadcast.

    Article 45 Atelevision station that broadcasts a cinematographic work, a work created by virtue of an analogous method of film production or a video graphic work produced by another person shall obtain permission from, and pay remuneration to, the producer of the cinematographic or video graphic work; the station that broadcasts a video graphic work produced by another person shall obtain permission of, and pay remuneration to, the copyright owner.

    Chapter V Legal Liabilities and Enforcement Measures

    Article 46 Anyone who commits any of the following acts of infringement shall bear civil liability for such remedies as ceasing the infringing act, eliminating the effects of the act, making an apology or paying compensation for damages, depending on the circumstances:
    (1) publishing a work without the permission of the copyright owner;
    (2) publishing a work of joint authorship as a work created solely by oneself, without the permission of the other co-authors;
    (3) having one’s name mentioned in connection with a work created by another, in order to seek personal fame and gain, where one has not taken part in the creation of the work;
    (4) distorting or mutilating a work created by another;
    (5) plagiarizing a work of another person;
    (6) exploiting by exhibition, film production or any analogous method of film production, or by adaptation, translation, annotation, or by other means, without the permission of the copyright owner, unless otherwise provided in this Law;
    (7) exploiting a work created by another person without paying remuneration as prescribed by regulations;
    (8) rending a work, sound recording or video recording, without the permission of the copyright owner of a cinematographic work, a work created by virtue of an analogous method of film production, computer software, sound recording or video recording or the owner of a copyright-related right unless otherwise provided in this Law.
    (9) exploiting the typographic arrangement of a book or periodical without the permission of the publisher.
    (10) broadcasting live a performance or communicating the live performance to the public, or recording his performance without the permission of the performer; or
    (11) committing any other act of infringement of copyright and of other rights and interests relating to copyright.

    Article 47 Anyone who commits any of the following acts of infringement shall bear civil liability for such remedies as ceasing the infringing act, eliminating the effects of the act, making an apology or paying damages, depending on the circumstances’ and may, in addition, be subjected by a copyright administration department to such administrative penalties as ceasing the infringing act, confiscating unlawful income from the act, confiscating and destroying infringing reproductions and imposing a fine; where the circumstances are serious, the copyright administration department may also confiscate the materials, tools, and equipment mainly used for making the infringing reproductions; and if the act constitutes a crime, the infringer shall be prosecuted for his criminal liability:
    (1) reproducing, distributing, performing, showing, broadcasting, compiling or communicating to the public on an information network a work created by another person, without the permission of the copyright owner, unless otherwise provided in this Law;
    (2) publishing a book where the exclusive right of publication belongs to another person;
    (3) reproducing and distributing a sound recording or video recording of a performance, or communicating to the public his performance on an information network without the permission of the performer, unless otherwise provided in the Law;
    (4) reproducing and distributing or communicating to the public on an information network a sound recording or video recording produced by another person, without the permission of the producer, unless otherwise provided in the Law;
    (5) broadcasting and reproducing a radio or television program produced by a radio station or television station without the permission of the radio station or television station, unless otherwise provided in this Law;
    (6) intentionally circumventing or destroying the technological measures taken by a right holder for protecting the copyright or copyright-related rights in his work, sound recording or video recording, without the permission of the copyright owner, or the owner of the copyright-related rights, unless otherwise provided in law or in administrative regulations;
    (7) intentionally deleting or altering the electronic right management information of a work, sound recording or video recording, without the permission of the copyright owner or the owner of a copyright-related right, unless otherwise provided in law or in administrative regulations; or
    (8) producing or selling a work where the signature of another is counterfeited.

    Article 48 Where a copyright or a copyright-re1ated right is infringed, the infringer shall compensate for the actually injury suffered by the right holder; where the actual injury is difficult to compute, the damages shall be paid on the basis of the unlawful income of the infringer. The amount of damages shall also include the appropriate fees paid by the right holder to stop the infringing act.
    Where the right holder’s actual injury or infringer’s Unlawful income cannot be determined, the People’s Court shall Judge the damages not exceeding RMB 500, 00 depending on the circumstances of the infringing act.

    Article 49 Acopyright owner or owner of a copyright-related right who has evidence to establish that another person is committing or will commit an act of infringing his right, which could cause irreparable injury to his legitimate rights and interests if the act is not stopped immediately, may apply to the People’s Court for ordering cessation of the related act and for taking the measures for property preservation before instituting legal proceedings.
    The provisions of Articles 93 to 96 and 99 of the Civil Procedure Law of the People’s Republic ofChinashall apply when the People’s Court handles the application referred to in the preceding paragraph.

    Article 50 For the purpose of preventing an infringing act and under the circumstance where the evidence could be lost or is difficult to obtain at1erwards, the copyright owner or the owner of a copyright-related right may apply to the People’s Court for evidence preservation before initiating legal proceedings.
    The People’s Court must make the decision within forty-eight hours after it accepts an application; the measures of preservation shall be taken without delay if it is decided to do so.
    The People’s Court may order the applicant to provide a guaranty, if the latter fails to do so, the Court shall reject the application.
    Where the applicant fails to institute legal proceedings within fifteen days after the People’s Court adopted the measures of preservation, the latter shall terminate the measures of preservation.

    Article 51 The People’s Court hearing a case may confiscate the unlawful income, infringing reproductions and materials used for committing the illegal act of infringement of copyright or copyright-related rights.

    Article 52 The publisher or producer of a reproduction who cannot prove that his publication or production has been authorized, the distributor of a reproduction or the renter of the reproduction of a cinematographic work, a work created by virtue of an analogous method of film production, computer software, sound recording or video recording who cannot prove that his distributed or rented reproduction has been from a lawful source, shall bear legal liability.

    Article 53 Aparty who fails to fulfill his contractual obligations, or executes them in a manner that is not in conformity with the agreed conditions of the contract, shall bear civil liability in accordance with the relevant provisions of the General Principles of the Civil Law of the People’s Republic of China, the Contract Law of the People’s Republic of China and other relevant laws and regulations.

    Article 54 Adispute over copyright may be settle by mediation. lt may also be submitted for arbitration to a copyright arbitration body under a written arbitration agreement concluded between the parties or under the arbitration clause in the contract.
    Any party may institute proceedings directly in the People’s Court in the absence of a written arbitration agreement or in the absence of an arbitration clause in the contract.

    Article 55 Any party who is not satisfied with an administrative penalty may institute proceedings in the People’s Court within three months from the date of receipt of the written decision on the penalty. If a party neither institutes legal proceedings nor implements the decision within the time limit, the copyright administration department concerned may apply to the People’s Court for enforcement.

    Chapter Vl Supplementary Provisions

    Article 56 For the purposes of this Law, the terms “zhuzuoquan”2 is “banquan”2.

    Article 57 “publication” referred to in Article 2 of this Law means the reproduction and distribution of a work.

    Article 58 Regulations for the protection of computer software and the right of communication of information on network shall be established separately by the State Council.

    Article 59 The rights of copyright owners, publishers, performers, producers of sound recordings and video recordings, radio stations and television’ stations as provided for in this Law, of which the term of protection specified in this Law has not yet expired on the date of this Law’s entry into force, shall be protected in accordance with this Law.
    Any infringements of copyright and the copyright-related rights or breaches of contract committed prior to the entry into force of this Law shall be dealt with under the relevant regulations or policies in force at the time when the act was committed.

    Article 60 This Law shall enter into force on June 1, l99l.

    ———————————-

    1 Quyi refers to such traditional art forms as ballad singing, story telling, comic dialogues, clapper talks and cross talks.

    2 Zhuzuoquan corresponds to “author’s right”, but literally translated as “right in a work”; “banquan” is the literal translation of
    “copyright”.

  • Patent Law of the People’s Republic of China(2008)

    2013-04-23

    (Adopted at the 4th Meeting of the Standing Committee of the Sixth National People’s Congress on March 12,1984, amended for the first time in accordance with the Decision of the Standing Committee of the Seventh National People’s Congress on Amending the Patent Law of the People’s Republic of China at its 27th Meeting on September 4,1992, amended for the second time in accordance with the Decision of the Standing Committee of the Ninth National People’s Congress on Amending the Patent Law of the People’s Republic of China adopted at its 17th Meeting on August 25, 2000, and amended for the third time in accordance with the Decision of the Standing Committee of the Eleventh National People’s Congress on Amending the Patent Law of the People’s Republic of China at its 6th Meeting on December 27, 2008)

    Contents

    Chapter I General Provisions
    Chapter II Conditions for Granting Patent Rights
    Chapter III Patent Application
    Chapter IV Examination and Approval of Patent Applications
    Chapter V Duration, Termination and Invalidation of Patent Rights
    Chapter VI Compulsory License for Exploitation of a Patent
    Chapter VII Protection of Patent Rights
    Chapter VIII Supplementary Provisions

    Chapter I General Provisions

    Article 1 This Law is enacted for the purpose of protecting the lawful rights and interests of patentees, encouraging invention-creation, promoting the application of invention-creation, enhancing innovation capability, promoting the advancement of science and technology and the economic and social development.

    Article 2 For the purposes of this Law, invention-creations mean inventions, utility models and designs.
    Inventions mean new technical solutions proposed for a product, a process or the improvement thereof.
    Utility models mean new technical solutions proposed for the shape and structure of a product, or the combination thereof, which are fit for practical use.
    Designs mean, with respect to a product, new designs of the shape, pattern, or the combination thereof, or the combination of the color with shape and pattern, which are rich in an aesthetic appeal and are fit for industrial application.

    Article 3 The Patent Administration Department under the State Council shall be responsible for the administration of patent-related work nationwide. It shall accept and examine patent applications in a uniform way and grant patent rights in accordance with law.
    The departments in charge of patent-related work of the people’s governments of provinces, autonomous regions and municipalities directly under the Central Government shall be responsible for patent administration within their respective administrative areas.

    Article 4 Where an invention-creation for the patent of which an application is filed involves national security or other major interests of the State and confidentiality needs to be maintained, the application shall be handled in accordance with the relevant regulations of the State.

    Article 5 Patent rights shall not be granted for invention-creations that violate the law or social ethics, or harm public interests.
    Patent rights shall not be granted for inventions that are accomplished by relying on genetic resources which are obtained or used in violation of the provisions of laws and administrative regulations.

    Article 6 An invention-creation that is accomplished in the course of performing the duties of an employee, or mainly by using the material and technical conditions of an employer shall be deemed an employment invention-creation. For an employment invention-creation, the employer has the right to apply for a patent. After such application is granted, the employer shall be the patentee.
    For a non-employment invention-creation, the inventor or designer has the right to apply for a patent. After such application is granted, the said inventor or designer shall be the patentee.
    For an invention-creation that is accomplished by using the material and technical conditions of an employer, if the employer has concluded a contract with the inventor or designer providing the ownership of the right to apply for the patent or the ownership of the patent right, such provision shall prevail.

    Article 7 No unit or individual shall prevent the inventor or designer from filing a patent application for a non-employment invention.

    Article 8 With regard to an invention-creation accomplished by two or more units or individuals in collaboration, or an invention-creation accomplished by an unit or individual under the entrustment of another unit or individual, the right to apply for a patent shall be vested in the units or individuals that have accomplished the invention-creation in collaboration or in the unit or individual that has done so under entrustment, unless it is otherwise agreed upon. After the application is granted, the applying unit(s) or individual(s) shall be deemed the patentee(s).

    Article 9 Only one patent can be granted for the same invention. However, where the same applicant applies for a utility model patent and an invention patent with regard to the same invention on the same day, if the utility model patent acquired earlier is not terminated yet and the applicant declares his waiver of the same, the invention patent may be granted.
    If two or more applicants apply for a patent for the same invention separately, the patent right shall be granted to the first applicant.

    Article 10 The right to apply for a patent and patent rights may be transferred.
    If a Chinese unit or individual intends to transfer the right to apply for a patent or patent rights to a foreigner, foreign enterprise or other foreign organization, it or he shall perform the procedures in accordance with the provisions of relevant laws and administrative regulations.
    For the transfer of the right to apply for a patent or of patent rights, the parties concerned shall conclude a written contract and file for registration at the patent administration department under the State Council, and the latter shall make an announcement thereof. The transfer of the right to apply for a patent or of patent rights shall become effective as of the registration date.

    Article 11 After the patent right is granted for an invention or a utility model, unless otherwise provided for in this Law, no unit or individual may exploit the patent without permission of the patentee, i.e., it or he may not, for production or business purposes, manufacture, use, offer to sell, sell, or import the patented products, use the patented method, or use, offer to sell, sell or import the products that are developed directly through the use of the patented method.
    After a design patent right is granted, no unit or individual may exploit the patent without permission of the patentee, i.e., it or he may not, for production or business purposes, manufacture, offer to sell, sell or import the design patent products.

    Article 12 Any unit or individual that intends to exploit the patent of another unit or individual shall conclude a contract with the patentee for permitted exploitation and pay the royalties. The permittee shall not have the right to allow any unit or individual not specified in the contract to exploit the said patent.

    Article 13 After the application for an invention patent is published, the applicant may require the unit or individual that exploits the said patent to pay an appropriate amount of royalties.

    Article 14 If an invention patent of a State-owned enterprise or institution is of great significance to national or public interests, upon approval by the State Council, the relevant competent department under the State Council or the people’s government of the province, autonomous region, or municipality directly under the Central Government may decide to have the patent widely applied within an approved scope and allow the designated units to exploit the patent, and the said units shall pay royalties to the patentee in accordance with the regulations of the State.

    Article 15 If there are agreements regarding the exercise of rights by the co-owners of the right to apply for the patent or of the patent right, the agreements shall prevail. In the absence of such agreements, the co-owners may separately exploit the patent or may, in an ordinary manner, permit others to exploit the said patent. Where others are permitted to exploit the patent, the royalties received shall be distributed among the co-owners.
    Except under the circumstances specified in the preceding paragraph, exercise of the co-owned right to apply for patent or of the co-owned patent right shall be subject to the consent of all the co-owners.

    Article 16 The unit that is granted the patent right shall reward the inventor or designer of an employment invention-creation. After such patent is exploited, the inventor or designer shall be given a reasonable amount of remuneration according to the scope of application and the economic results.

    Article 17 An inventor or designer shall have the right to state in the patent documents that he is the inventor or designer.
    The patentee shall have the right to have his patent mark displayed on the patented products or the package of such products.

    Article 18 Where a foreigner, foreign enterprise or other foreign organization without a regular residence or business site in China applies for a patent in China, the application shall be handled in accordance with the agreements concluded by the country he or it belongs to and China or the international treaties to which both the countries have acceded or in accordance with this Law on the principle of reciprocity.

    Article 19 If a foreigner, foreign enterprise, or other foreign organization without a regular residence or business site inChinaintends to apply for a patent or handle other patent-related matters inChina, he or it shall entrust a legally established patent agency with the application and such matters.
    If a Chinese unit or individual intends to apply for a patent or handle other patent-related matters inChina, it or he may entrust a legally established patent agency with the application and such matters.
    A patent agency shall abide by laws and administrative regulations and handle patent applications or other patent-related matters as entrusted by its principals. It shall also be obligated to keep confidential the contents of the inventions of its principals, unless the patent applications have been published or announced. The specific measures for administration of the patent agencies shall be formulated by the State Council.

    Article 20 Any unit or individual that intends to apply for patent in a foreign country for an invention or utility model accomplished inChinashall submit the matter to the patent administration department under the State Council for confidentiality examination. Such examination shall be conducted in conformity with the procedures, time limit, etc. prescribed by the State Council.
    A Chinese unit or individual may file for international patent applications in accordance with the relevant international treaties to whichChinahas acceded. The applicant for such patent shall comply with the provisions of the preceding paragraph.
    The patent administration department under the State Council shall handle international patent applications in accordance with the relevant international treaties to which China has acceded and the relevant provisions of this Law and regulations of the State Council.
    With regard to an invention or utility model for which an application is filed for a patent in a foreign country in violation of the provisions of the first paragraph of this Article, if an application is also filed for the patent in China, patent right shall not be granted.

    Article 21 The patent administration department under the State Council and its Patent Review Board shall, according to the requirements of objectivity, fairness, accuracy and timeliness, handle patent applications and requests in accordance with law.
    The patent administration department under the State Council shall release patent-related information in a complete, accurate and timely manner, and publish patent gazettes on a regular basis.
    Before a patent application is published or announced, the staff members of the patent administration department under the State Council and the persons concerned shall be obligated to keep such application confidential.

    Chapter II Conditions for Granting Patent Rights

    Article 22 Inventions and utility models for which patent rights are to be granted shall be ones which are novel, creative and of practical use.
    Novelty means that the invention or utility model concerned is not an existing technology; no patent application is filed by any unit or individual for any identical invention or utility model with the patent administration department under the State Council before the date of application for patent right, and no identical invention or utility model is recorded in the patent application documents or the patent documentations which are published or announced after the date of application.
    Creativity means that, compared with the existing technologies, the invention possesses prominent substantive features and indicates remarkable advancements, and the utility model possesses substantive features and indicates advancements.
    Practical use means that the said invention or utility model can be used for production or be utilized, and may produce positive results.
    For the purposes of this Law, existing technologies mean the technologies known to the public both domestically and abroad before the date of application.

    Article 23 Adesign for which the patent right is granted is not an existing design, and no application is filed by any unit or individual for any identical design with the patent administration department under the State Council before the date of application for patent right and no identical design is recorded in the patent documentations announced after the date of application.
    Designs for which the patent right is to be granted shall be ones which are distinctly different from the existing designs or the combinations of the features of existing designs.
    Designs for which a patent right is granted shall be ones which are not in conflict with the lawful rights acquired by others prior to the date of application.
    For the purposes of this Law, existing designs mean designs that are known to the public both domestically and abroad before the date of application.

    Article 24 Within six months before the date of application, an invention for which an application is filed for a patent does not lose its novelty under any of the following circumstances:
    (1) It is exhibited for the first time at an international exhibition sponsored or recognized by the Chinese Government;
    (2) It is published for the first time at a specified academic or technological conference; and
    (3) Its contents are divulged by others without the consent of the applicant.

    Article 25 Patent rights shall not be granted for any of the following:
    (1) scientific discoveries;
    (2) rules and methods for intellectual activities;
    (3)methods for the diagnosis or treatment of diseases;
    (4) animal or plant varieties;
    (5) substances obtained by means of nuclear transformation; and
    (6) designs that are mainly used for marking the pattern, color or the combination of the two of prints.
    The patent right may, in accordance with the provisions of this Law, be granted for the production methods of the products specified in Subparagraph (4) of the preceding paragraph.

    Chapter III Patent Application

    Article 26 When a person intends to apply for an invention or utility model patent, he shall submit the relevant documents, such as a written request, a written description and its abstract, and a written claim.
    In the written request shall be specified the name of the invention or utility model, the name of the inventor or designer, the name or title and the address of the applicant and other related matters.
    The written description shall contain a clear and comprehensive description of the invention or utility model so that a technician in the field of the relevant technology can carry it out; when necessary, pictures shall be attached to it. The abstract shall contain a brief introduction to the main technical points of the invention or utility model.
    The written claim shall, based on the written description, contain a clear and concise definition of the proposed scope of patent protection.
    With regard to an invention-creation accomplished by relying on genetic resources, the applicant shall, in the patent application documents, indicate the direct and original source of the genetic resources. If the applicant cannot indicate the original source, he shall state the reasons.

    Article 27 When a person intends to apply for a design patent, he shall submit a written request, drawings or pictures of the design, a brief description of the design, and other relevant documents.
    In the relevant drawings or pictures submitted by the applicant shall clearly be shown the design of the products for which patent protection is requested.

    Article 28 The date when the patent administration department under the State Council receives the patent application documents is the date of application. If the application documents are delivered by post, the date of the postmark is the date of application.

    Article 29 If, within twelve months from the date the applicant first files an application for an invention or utility model patent in a foreign country, or within six months from the date the applicant first files an application for a design patent in a foreign country, he files an application for a patent in China for the same subject matter, he may enjoy the right of priority in accordance with the agreements concluded between the said foreign country and China, or in accordance with the international treaties to which both countries have acceded, or on the principle of mutual recognition of the right of priority.
    If, within twelve months form the date the applicant first files an application for an invention or utility model patent inChina, he files an application for a patent with the patent administration department under the State Council for the same subject matter, the applicant may enjoy the right of priority.

    Article 30 An applicant who requests the right of priority shall submit a written declaration at the time of application and submit, within three months, duplicates of the patent application documents filed for the first time. Where no written declaration is submitted or no duplicates of the patent application documents are submitted at the expiration of the specified time limit, the applicant shall be deemed to have waived the right of priority.

    Article 31 An application for an invention patent or utility model patent shall be limited to one invention or utility model. Two or more inventions or utility models embodied in a single general invention concept may be handled with one application.
    An application for a design patent shall be limited to one design. Two or more similar designs of one and the same product or two or more designs of products of the same kind that are sold or used in sets may be handled with one application.

    Article 32 An applicant may withdraw his patent application anytime before being granted the patent right.

    Article 33 An applicant may amend his patent application documents, provided that the amendment to the invention or utility model patent application documents does not exceed the scope specified in the original written descriptions and claims, or that the amendment to the design patent application documents does not exceed the scope shown in the original drawings or pictures.

    Chapter IV Examination and Approval of Patent Applications

    Article 34 Upon receipt of an invention patent application, if the patent administration department under the State Council, after preliminary examination, confirms that the application meets the requirements of this Law, it shall publish the application within 18 full months from the date of application. And it may do so at an earlier date upon request of the applicant.

    Article 35 Within three years from the date an invention patent application is filed, the patent administration department under the State Council may, upon request made by the applicant at any time, carry out substantive examination of the application. If the applicant, without legitimate reasons, fails to request substantive examination at the expiration of the time limit, such application shall be deemed to have been withdrawn.
    The patent administration department under the State Council may carry out substantive examination of its own accord, as it deems it necessary.

    Article 36 When an applicant for an invention patent requests substantive examination, he shall submit the reference materials relating to the invention existing prior to the date of application.
    If an application has been filed for an invention patent in a foreign country, the patent administration department under the State Council may require the applicant to submit, within a specified time limit, materials concerning any search made for the purpose of examining the application in that country, or materials concerning the results of any examination made in the country. In the event of the applicant’s failure to comply at the expiration of the specified time limit without legitimate reasons, the application shall be deemed to be withdrawn.

    Article 37 After the patent administration department under the State Council has made the substantive examination of the invention patent application, if it finds that the application does not conform to the provisions of this Law, it shall notify the applicant of the need to state its opinions within a specified time limit or to make amendment to the application. In the event of the applicant’s failure to comply at the expiration of the specified time limit without legitimate reasons, the application shall be deemed to be withdrawn.

    Article 38 After the applicant states his opinions on or makes amendment to the invention patent application, if the patent administration department under the State Council still believes the application does not conform to the provisions of this Law, it shall reject the application.

    Article 39 If no reason for rejection is discerned after an invention patent application is substantively examined, the patent administration department under the State Council shall make a decision on granting of the invention patent right, issue an invention patent certificate, and meanwhile register and announce the same. The invention patent right shall become effective as of the date of announcement.

    Article 40 If no reason for rejection is discerned after preliminary examination of a utility model or design patent application, the patent administration department under the State Council shall make a decision on granting of the utility model or design patent right, issue a corresponding patent certificate, and meanwhile register and announce the same. The utility model patent right and the design patent right shall become effective as of the date of announcement.

    Article 41 The patent administration department under the State Council shall establish a patent review board. If a patent applicant is dissatisfied with the decision made by the Patent Administration Department under the State Council on rejecting of the application, he may, within three months from the date of receipt of the notification, file a request with the patent review board for review. After review, the Patent Review Board shall make a decision and notify the patent applicant of the same.
    If the patent applicant is dissatisfied with the review decision made by the patent review board, he may take legal action before the people’s court within three months from the date of receipt of the notification.

    Chapter V Duration, Termination and Invalidation of Patent Rights

    Article 42 The duration of the invention patent right shall be 20 years and that of the utility model patent right and of the design patent right shall be ten years respectively, all commencing from the date of application.

    Article 43 The patentee shall pay annual fees commencing from the year when the patent right is granted.

    Article 44 Under any of the following circumstances, the patent right shall be terminated before the expiration of the duration:
    (1) failure to pay the annual fee as required; or
    (2) the patentee waiving of the patent right by a written declaration;
    If a patent right is terminated before the duration expires, the patent administration department under the State Council shall register and announce such termination.

    Article 45 Beginning from the date the patent administration department under the State Council announces the grant of a patent right, if a unit or individual believes that such grant does not conform to the relevant provisions of this Law, it or he may request that the patent review board declare the said patent right invalid.

    Article 46 The patent review board shall examine the request for declaring a patent right invalid and make a decision in a timely manner and notify the requesting person and the patentee of its decision. The decision on declaring a patent right invalid shall be registered and announced by the patent administration department under the State Council.
    A person that is dissatisfied with the patent review board’s decision on declaring a patent right invalid or its decision on affirming the patent right may take legal action before a people’s court, within three months from the date of receipt of the notification. The people’s court shall notify the opposite party in the invalidation procedure to participate in the litigation 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 on declaring a patent right invalid shall have no retroactive effect on any written judgment or written mediation on patent infringement that has been made and enforced by the people’s court, or on any decision concerning the handling of a dispute over the patent infringement that has been performed or compulsively executed, or on any contract for permitted exploitation of the patent or for transfer of patent rights that has been performed–prior to the invalidation declaration of the patent right. However, compensation shall be made for the losses caused to another person mala fides by the patentee.
    Where the patent infringement compensation, royalties, and patent right transfer fees are not refunded pursuant to the provisions of the preceding paragraph, which constitutes a blatant violation of the principle of fairness, refund shall be made fully or partly.

    Chapter VI Compulsory License for Exploitation of a Patent

    Article 48 Under any of the following circumstances, the patent administration department under the State Council may, upon application made by any unit or individual that possesses the conditions for exploitation, grant a compulsory license for exploitation of an invention patent or utility model patent:
    (1) When it has been three years since the date the patent right is granted and four years since the date the patent application is submitted, the patentee, without legitimate reasons, fails to have the patent exploited or fully exploited; or
    (2) The patentee’s exercise of the patent right is in accordance with law, confirmed as monopoly and its negative impact on competition needs to be eliminated or reduced.

    Article 49 Where a national emergency or any extraordinary state of affairs occurs, or public interests so require, the patent administration department under the State Council may grant a compulsory license for exploitation of an invention patent or utility model patent.

    Article 50 For the benefit of public health, the patent administration department under the State Council may grant a compulsory license for manufacture of the drug, for which a patent right has been obtained, and for its export to the countries or regions that conform to the provisions of the relevant international treaties to which the People’s Republic of China has acceded.

    Article 51 If an invention or utility model, for which the patent right has been obtained, represents a major technological advancement of remarkable economic significance, compared with an earlier invention or utility model for which the patent right has already been obtained, and exploitation of the former relies on exploitation of the latter, the patent administration department under the State Council may, upon application made by the latter, grant it a compulsory license to exploit the earlier invention or utility model.
    Under the circumstance where a compulsory license for exploitation is granted in accordance with the provisions of the preceding paragraph, the patent administration department under the State Council may, upon application made by the earlier patentee, grant it a compulsory license to exploit the later invention or utility model.

    Article 52 If an invention involved in a compulsory license is a semi-conductor technology, the exploitation thereof shall be limited to the purpose of public interests and to the circumstances as provided for in Subparagraph (2) of Article 48 of this Law.

    Article 53 Except for the compulsory license granted in accordance with the provisions of Subparagraph (2) of Article 48 or Article 50 of this Law, compulsory license shall mainly be exercised for the supply to the domestic market.

    Article 54 Aunit or individual that applies for a compulsory license in accordance with the provisions of Subparagraph (1) of Article 48 or Article 51 of this Law shall provide evidence to show that it or he has, under reasonable terms, requests the patentee’s permission for exploitation of the patent, but fails to obtain such permission within a reasonable period of time.

    Article 55 The decision made by the patent administration department under the State Council on granting of a compulsory license for exploitation shall be notified to the patentee in a timely manner and shall be registered and announced.
    In a decision on granting of the compulsory license for exploitation shall, according to the reasons justifying the compulsory license, be specified the scope and duration for exploitation. When such reasons cease to exist and are unlikely to recur, the patent administration department under the State Council shall, upon request by the patentee, make a decision to terminate the compulsory license after examination.

    Article 56 Any unit or individual that is granted a compulsory license for exploitation shall not have an exclusive right to exploitation and shall not have the right to allow exploitation by others.

    Article 57 The unit or individual that is granted a compulsory license for exploitation shall pay reasonable royalties to the patentee, or handle the issue of royalties in accordance with the provisions of the relevant international treaties to which the People’s Republic ofChinahas acceded. The amount of royalties to be paid shall be subject to consultation between the two parties. In the event of failure to reach an agreement between the two parties, the patent administration department under the State Council shall make a ruling.

    Article 58 If a patentee is dissatisfied with the decision made by the patent administration department under the State Council -on granting of the compulsory license for exploitation, or if the patentee, or the unit or individual that has obtained the compulsory license for exploitation is dissatisfied with the ruling made by the patent administration department under the State Council regarding the royalties for the compulsorily licensed exploitation, it or he may take legal action before the people’s court within three months from the date of receipt of the notification of the ruling.

    Chapter VII Protection of Patent Rights

    Article 59 For the patent right of an invention or a utility model, the scope of protection shall be confined to what is claimed, and the written description and the pictures attached may be used to explain what is claimed.
    For the design patent right, the scope of protection shall be confined to the design of the product as shown in the drawings or pictures, and the brief description may be used to explain the said design as shown in the drawings or pictures.

    Article 60 If a dispute arises as a result of exploitation of a patent without permission of the patentee, that is, the patent right of the patentee is infringed, the dispute shall be settled through consultation between the parties. If the parties are not willing to consult or if consultation fails, the patentee or interested party may take legal action before a people’s court, and may also request the administration department for patent-related work to handle the dispute. If, when handling the dispute, the said department believes the infringement is established, it may order the infringer to cease the infringement immediately; if the infringer is dissatisfied with the order, he may, within 15 days from the date of receipt of the notification of the order, take legal action before a people’s court in accordance with the Administrative Procedure Law of the People’s Republic of China. If the infringer neither takes legal action at the expiration of the time limit nor ceases the infringement, the said department may file an application with the people’s court for compulsory enforcement. The administration department for patent-related work that handles the call shall, upon request of the parties, carry out mediation concerning the amount of compensation for the patent right infringement. If mediation fails, the parties may take legal action before the people’s court in accordance with the Civil Procedure Law of the People’s Republic ofChina.

    Article 61 If a dispute over patent infringement involves an invention patent for the method of manufacturing a new product, the unit or individual manufacturing the same product shall provide evidence to show that the manufacturing method of their own product is different from the patented method.
    If a dispute over patent infringement involves a utility model patent or a design patent, the people’s court or the administration department for patent-related work may require the patentee or the interested parties to present a patent right assessment report prepared by the patent administration department under the State Council through searching, analyzing, and assessing the relevant utility model or design, which shall serve as evidence for trying or handling the patent infringement dispute.

    Article 62 Ina patent infringement dispute, if the accused infringer has evidence to prove that the technology or design exploited is an existing technology or design, the exploitation shall not constitute a patent right infringement.

    Article 63 Aperson who counterfeits the patent of another person shall, in addition to bearing civil liabilities in accordance with law, be ordered by the administration department for patent-related work to put it right, and the department shall make the matter known to the public, confiscate his unlawful gains and, in addition, impose on him a fine of not more than four times the unlawful gain; if there are no unlawful gains, a fine of not more than RMB 200,000 may be imposed on him; and if a crime is constituted, criminal responsibility shall be pursued in accordance with law.

    Article 64 When the administration department for patent-related work investigates and handles the suspected counterfeiting of a patent, it may, based on evidence obtained, inquire the parties concerned, and investigate the circumstances related to the suspected illegal act; it may conduct on-the-spot inspection of the places where the suspected illegal act is committed; consult and duplicate the relevant contracts, invoices, account books and other related materials; and check the products related to the suspected illegal act and seal or detain the products that are proved to be produced by the counterfeited patent.
    When the administration department for patent-related work performs its duties as prescribed in the preceding paragraph, the parties concerned shall provide assistance and cooperation, instead of refusing to do so or creating obstacles.

    Article 65 The amount of compensation for patent right infringement shall be determined according to the patentee’s actual losses caused by the infringement. If it is hard to determine the actual losses, the amount of compensation may be determined according to the benefits acquired by the infringer through the infringement. If it is hard to determine the losses of the patentee or the benefits acquired by the infringer, the amount of compensation may be determined according to the reasonably multiplied amount of the royalties of that patent. The amount of compensation shall include the reasonable expenses paid by the patentee for putting an end to the infringement.
    If the losses of the patentee, benefits of the infringer, or royalties of the patent are all hard to determine, the people’s court may, on the basis of the factors such as the type of patent right, nature of the infringement, and seriousness of the case, determine the amount of compensation within the range from 10,000 yuan to 1,000,000 yuan.

    Article 66 If the patentee or interested party has evidence to prove that another person is committing or is about to commit a patent infringement, which, unless being checked in time, may cause irreparable harm to his lawful rights and interests, he may, before taking legal action, file an application to request that the people’s court order to have such act ceased.
    When filing such an application, the applicant shall provide guarantee. In the event of failure to provide guarantee, the application shall be rejected.
    The people’s court shall make a ruling within 48 hours from the time of its acceptance of the application. If an extension is needed under special circumstances, a 48-hour extension may be allowed. If a ruling is made to order to have the relevant act ceased, it shall be enforced immediately. The party that is dissatisfied with the ruling may file once for review, and the enforcement shall not be suspended during the period of review.
    If the applicant does not take legal action within 15 days from the date the people’s court takes measures to have the relevant act ceased, the people’s court shall lift such measures.
    If the application is wrong, the applicant shall compensate the losses suffered by respondent due to ceasing of the relevant act.

    Article 67 To check a patent infringement, when evidence might be lost or might be hard to acquire thereafter, the patentee or interested party may, before taking legal action, file an application with the people’s court for evidence preservation.
    If the people’s court takes preservation measures, it may order the applicant to provide guarantee. If the applicant fails to provide guarantee, the application shall be rejected.
    The people’s court shall make a ruling within 48 hours from the time of its acceptance of the application. If it rules to take preservation measures, such a ruling shall be enforced immediately.
    If the applicant does not take legal action within 15 days from the date the people’s court takes preservation measures, the people’s court shall lift such measures.

    Article 68 The period of limitation for action against patent right infringement shall be two years, commencing from the date when the patentee or interested party knows or should have known of the infringement.
    If an appropriate royalty is not paid for using an invention during the period from the publication of the invention patent application to the grant of the patent right, the period of limitation for taking legal action by the patentee for requesting payment of royalties shall be two years, commencing from the date when the patentee knows or should have known of the use of that patent by another person. However, the period of limitation for action shall commence from the date when the patent right is granted, if the patentee knows or should have known of the use before the patent right is granted.

    Article 69 The following shall not be deemed to be patent right infringement:
    (1) After a patented product or a product directly obtained by using the patented method is sold by the patentee or sold by any unit or individual with the permission of the patentee, any other person uses, offers to sell, sells or imports that product;
    (2) Before the date of patent application, any other person has already manufactured identical products, used identical method or has made necessary preparations for the manufacture or use and continues to manufacture the products or use the method within the original scope;
    (3) With respect to any foreign means of transportation that temporarily passes through the territory, territorial waters, or territorial airspace of China, the relevant patent is used in the devices and installations for its own needs, in accordance with the agreement concluded between the country it belong to and China, or in accordance with any international treaty to which both countries have acceded, or on the principle of mutual benefit;
    (4) Any person uses the relevant patent specially for the purpose of scientific research and experimentation; and
    (5) Any person produces, uses, or imports patented drugs or patented medical apparatus and instruments, for the purpose of providing information required for administrative examination and approval, or produces or any other person imports patented drugs or patented medical apparatus and instruments especially for that person.

    Article 70 Where any person, for the purpose of production and business operation, uses, offers to sell or sells a patent-infringing product without knowing that such product is produced and sold without permission of the patentee, he shall not be liable for compensation provided that the legitimate source of the product can be proved.

    Article 71 If, in violation of the provisions of Article 20 of this Law, a person files an application for patent in a foreign country, thereby divulging national secrets, the unit where he works or the competent authority at a higher level shall impose on him an administrative sanction. If a crime is constituted, he shall be investigated for criminal responsibility according to law.

    Article 72 If a person usurps the right of an inventor or designer to apply for a non-employment invention patent, or usurps any other rights and interests of an inventor or designer specified in this Law, he shall be given an administrative sanction by the unit where he works or the competent authority at a higher level.

    Article 73 The administration department for patent-related work shall not be involved in recommending patented products to the public or engage in any other similar business activities.
    If the administration department for patent-related work violates the provisions of the preceding paragraph, its immediate superior or the supervisory authority shall order it to rectify, and confiscate its unlawful gains, if any; if the circumstances are serious, the principal leading person directly in charge and the other persons directly responsible shall be given administrative sanctions in accordance with law.

    Article 74 Where a staff member of the government department engaged in administration of patent-related work or of a relevant department neglects his duty, abuses his power, or commits irregularities for personal gain, which constitutes a crime, he shall be pursued for criminal responsibility in accordance with law. If the case is not serious enough to constitute a crime, he shall be given an administrative sanction in accordance with law.

    Chapter VIII Supplementary Provisions

    Article 75 To apply for patent at the patent administrative department under the State Council or go through other formalities, fees shall be paid in accordance with relevant regulations.

    Article 76 This Law shall go into effect on April 1, 1985.

  • Regulations on Patent Commissioning

    2013-04-23

    (Promulgated on March 4, 1991)

    Chapter 1 General Principles

    Article 1 With a view to guaranteeing the legitimate rights of patent agencies and consignors and ensuring the normal working of patent commissioning services, these Regulations her eof are formulated.

    Article 2 Patent commissioning stated here denotes patent application or the handling of other patent- related affairs by patent agencies on behalf of their consignors and within their authorized powers.

    Chapter 2 Patent Agencies

    Article 3 Patent agencies stated here denote service organs that apply for patents or handle other patent-related affairs on behalf of their consignors and within their authorized powers.
    Patent agencies include:
    (1) those that handle foreign patent-related affairs;
    (2) those that handle domestic patent-related affairs; and
    (3) law firms that handle domestic patent-related affairs.

    Article 4 Establishment of a patent agency shall require the following conditions:
    (1) having a name, articles of association and fixed work place of its own;
    (2) having necessary capital and work installations;
    (3) being financially independent and able to meet civil liabilities independently; and
    (4) employing three or more special staff members qualified as patent agents and a proportionate number of likewise qualified spare-time working staff as stipulated by the China Administration of Patents (CAP).
    Law firms engaged in patent commissioning must have special staff for the business stated in item (4) of the previous paragraph.

    Article 5 To apply for the establishment of a patent agency at a patent administration, the following documents must be presented:
    (1) a letter of application with the name, office space and responsible person’s name stated;
    (2) the articles of association of the patent agency;
    (3) the names of patent agents and their certificates of qualification; and
    (4) written proof of the amount of capital and installations of the patent of the agency.

    Article 6 Patent agencies applying for the handling of domestic patent-related affairs or law firms applying for the same must have the consent of their governing authorities and their applications must be examined by patent administrations of provinces, autonomous regions or municipalities directly under the Central Government; in the absence of governing authorities, they may be directly examined by the later. Upon agreement, the examining authorities shall report the applications to CAP for approval.
    Patent agencies applying to handle foreign-related patent affairs must go through procedures as stipulated in the Patent Law of the People’s Republic of China. Such agencies, upon approval by CAP, can handle domestic patent affairs.

    Article 7 Patent agencies, as of the date of approval, can start handling patent-commissioning business in accordance with law, enjoy civil rights and meet civil liabilities.

    Article 8 Patent agencies shall deal with the following businesses:
    (1) providing patent-related consulting agencies;
    (2) writing on commission patent application documents and handling re-examination and other related affairs;
    (3) raising disagreement, asking for the announcement of a patent right cancellation and other related affairs;
    (4) handling the right of patent application, the transfer of patent right and patent permission and other related affairs;
    (5) appointing patent agents to serve as patent advisors upon invitation; and
    (6) other related matters.

    Article 9 When patent agencies accept consignments and handle business, they shall have a consignor’s letter of commitment clearly stating commissioned items and powers.
    If needed, a patent agency may designate a certain patent agent appointed by the consignor to handle the business.
    Patent agencies may charge commissions in accordance with relevant regulations of t he State.

    Article 10 After accepting a commission, a patent agency shall not accept the commission of rival consignors concerning patents with the same content.

    Article 11 Patent agencies shall employ as patent agents persons with Patent Agent Qualification Certificate”. The latter shall go through necessary procedures, be given “Patent Agent Work Permit” by the former, and register at CAP.
    Beginners shall not be issued “Patent Agent Work Permit” until after a full year of apprenticeship.
    When patent agencies discharge their patent agents, they shall recover in time the latter’s “Patent Agent Working Permit” and report such discharge to CAP.

    Article 12 When patent agencies change their names, addresses and responsible persons, they shall report to CAP of such changes, which become effective only after approval by the latter.
    When a patent agency goes out of business, it shall, after appropriately handling a unsettled affairs, report to the authorities that endorsed its opening and the latter shall be responsible for going through all necessary procedures as CAP.

    Article 13 If an approved patent agency no longer meets the conditions stated in Article 4 of these Regulations hereof due to a change of circumstances and will not be able to meet such conditions within 1 year, the authorities that endorsed its opening should propose to CAP that it be canceled as a patent agency.

    Chapter 3 Patent Agents

    Article 14 Patent agents that these Regulations hereof stated denote bearers of “Patent Agent Qualification Certificate” and of “Patent Agent Working Permit”.

    Article 15 Chinese citizens who support Constitution as the People’s Republic of China and meet the following conditions may apply to be patent agents:
    (1) over the age of 18 with full capacity for civil behaviors;
    (2) graduates of college departments of sciences (or with equivalent education) in command of one foreign language;
    (3) well-versed in the Patent Law and related legal knowledge; and
    (4) scientists or lawyers with upwards of 2 years of work experience.

    Article 16 Persons who apply to be patent agents will obtain CAP “Patent Agent Qualification Certificate” after a panel of examination judges deem him or her qualified.
    The panel of judges is composed of persons from CAP, State Council department and organizations of patent agents.

    Article 17 Patent agents shall handle only patent commissioning services assigned by their patent agencies and shall not accept such services on their own.

    Article 18 Patent agents shall handle patent commissioning services in two or more patent agencies simultaneously.
    Before quitting their jobs at patent agencies, patent agents must appropriately conclude unsettled commissioned cases.

    Article 19 In case bearers of “Patent Agent Qualification Certificate” fail to engage in patent commissioning business or patent-related management for 5 years, their “Patent Agent Qualification Certificates” are automatically rendered ineffective.

    Article 20 Patent agents in the course of doing their professional work or within 1 year of their quitting their profession must not apply for patents.

    Article 21 Patent agents lawfully handling patent commissions shall be protected by State laws and their work shall not be interfered with by any unit or individual.

    Article 22 State organ staff are forbidden to work at patent agencies and engage in patent commissioning service in their spare-time.

    Article 23 Patent agents have the responsibility to keep the inventions they get to know in the course of their rendering commission service s unless relevant patent application have been made public.

    Chapter 4 Punishment

    Article 24 For one of the following offenses, the governing authorities or patent administrations of the provinces, autonomous regions or municipalities directly under the Central Government may serve a warning to the offending patent agency; in cases of serious offense, CAP may punish it by ordering its close:
    (1) concealing facts in application;
    (2) changing major registration items by itself;
    (3) accepting and handling patent commission services unauthorizedly or beyond the approved business scope; and
    (4) other illegal activities.

    Article 25 For one of the following offenses on the part of patent agents, relevant patent agencies may criticize the offenders if the cases are not serious; in cases of serious offenses, patent agencies may discharge the offenders and revoke their “Patent Agent Work Permit”; relevant patent administrations of the provinces, autonomous regions or municipalities directly under the Central Government may serve each offender a warning or CAP may revoke his or her “Patent Agent Qualification Certificate”:
    (1) failing to fulfill his or her duties to the detriment of the interests of the consignors;
    (2) disclosing or stealing inventions of the consignors;
    (3) going beyond the powers of commission and causing damages to the interests of the consignors; and
    (4) charging through accepting and handling patent commission services without permission.
    If the commissaries’ economic losses hass been caused by the behavior as stated in the previous paragraph, relevant patent agencies, after making economic pensions, may charge the patent agent in question according to a given proportion.

    Article 26 If a patent agency ordered to close down as a punishment by CAP and a patent agent whose “Patent Agent Qualification Certificate” has been revoked do not agree with the decisions of punishment, they may appeal to CAP for re-examination; if they still fail to be satisfied with the CAP decision, they may bring the case to a people’s court within 15 days of the receipt of the CAP decision.

    Chapter 5 Supplementary Articles

    Article 27 The right to interpret these Regulations hereof rests with CAP.

    Article 28 These Regulations hereof become effective as of April 1, 1991. The Temporary Regulations on Patent Commissioning endorsed by the State Council on September 4, 1985 and promulgated by CAP on September 12 of the same year is simultaneously canceled.

  • Trademark Law of the People’s Republic of China

    2013-04-23

    (Adopted at the 24th Session of the Standing Committee of the Fifth National People’s Congress on 23 August 1982, revised for the first time according to the Decision on the Amendment of the Trademark Law of the People’s Republic of China adopted at the 30th Session of the Standing Committee of the Seventh National People’s Congress, on 22 February 1993, and revised for the second time according to the Decision on the Amendment of the Trademark Law of the People’s Republic of China adopted at the 24th Session of the Standing Committee of the Ninth National People’s Congress on 27 October 2001.)

    Chapter l General Provisions

    Article 1 This Law is enacted for the purposes of improving the administration of trademarks, protecting the exclusive right to use trademarks, and of encouraging producers and operators to guarantee the quality of their goods and services and maintaining the reputation of their trademarks, with a view to protecting the interests of consumers, producers and operators and to promoting the development of the socialist market economy.

    Article 2 The Trademark Office of the administrative authority for industry and commerce under the State Council shall be responsible for the registration and administration of trademarks throughout the country.
    The Trademark Review and Adjudication Board, established under the administrative authority for industry and commerce under the State Council, shall be responsible for handling matters of trademark disputes.

    Article 3 Registered trademarks mean trademarks that have been approved and registered by the Trademark Office, including trademarks, service marks, collective marks and certification marks; the trademark registrants shall enjoy the exclusive right to use the trademarks, and be protected by law.
    Said collective marks mean sings which are registered in the name of bodies, associations or other organizations to be used by the members thereof in their commercial activities to indicate their membership of the organizations.
    Said certification marks mean signs which are controlled by organizations capable of supervising some goods or services and used by entities or individual persons outside the organization for their goods or services to certify the origin, material, mode of manufacture, quality or other characteristics of the goods or services.
    Regulations for the particular matters of registration and administration of collective and certification marks shall be established by the administrative authority for industry and commerce under the State Council.

    Article 4 Any natural person, legal entity or other organization intending to acquire the exclusive right to use a trademark for the goods produced, manufactured, processed, selected or marketed by it or him, shall file an application for the registration of the trademark with the Trademark Office. Any natural person, legal entity or other organization intending to acquire the exclusive right to use a service mark for the service provided by it or him, shall file an application for the registration of the service mark with the Trademark Office.
    The provisions set forth in this Law concerning trademarks shall apply to service marks.

    Article 5 Two or more natural persons, legal entities or other organizations may jointly file an application for the registration for the same trademark with the Trademark Office, and jointly enjoy and exercise the exclusive right to use the trademark.

    Article 6 As for any of such goods, as prescribed by the State, that must bear a registered trademark, a trademark registration must be applied for. Where no trademark registration has been granted, such goods cannot be marketed.

    Article 7 Any user of a trademark shall be responsible for the quality of the goods in respect of which the trademark is used. The administrative authorities for industry and commerce at different levels shall, through the administration of trademarks, stop any practice that deceives consumers.

    Article 8 Inrespect of any visual sign capable of distinguishing the goods or service of one natural person, legal entity or any other organization from that of others, including any word, design, letters of an alphabet, numerals, three-dimensional symbol, combinations of colours, and their combination, an application may be filed for registration.

    Article 9 Any trademark in respect of which an application for registration is filed shall be so distinctive as to be distinguishable, and shall not conflict with any prior right acquired by another person.
    A trademark registrant has the right to use the words of “registered trademark” or a symbol to indicate that his trademark is registered.

    Article 10 The following signs shall not be used as trademarks:
    (1) those identical with or similar to the State name, national flag, national emblem, military flag, or decorations, of the People’s Republic of China, with names of the places where the Central and State organs are located, or with the names and designs of landmark buildings;
    (2) those identical with or similar to the State names, national flags, national emblems or military flags of foreign countries, except that the foreign state government agrees otherwise on the use;
    (3) those identical with or similar to the names, flags or emblems or names, of international intergovernmental organizations, except that the organizations agree otherwise on the use or that it is not easy for the use to mislead the public;
    (4) those identical with or similar to official signs and hallmarks, showing official control or warranty by them, except that the use thereof is otherwise authorized;
    (5) those identical with or simi1ar to the symbols, or names, of the Red Cross or the Red Crescent;
    (6) those having the nature of discrimination against any nationality;
    (7) those having the nature of exaggeration and fraud in advertising goods; and
    (8) those detrimental to socialist morals or customs, or having other unhealthy influences.
    The geographical names as the administrative divisions at or above the county level and the foreign geographical names well known to the public shall not be used as trademarks, but such geographical terms as have otherwise meanings or are a part of collective marks/or a certification marks shall be exclusive. Where a trademark using any of the above-mentioned geographical names has been approved and registered, it shall continue to be valid.

    Article 11 The following signs shall not be registered as trademarks:
    (1) those only comprising generic names, designs or models of the goods in respect of which the trademarks are used;
    (2) those having direct reference to the quality, main raw materials, function, use, weight, quantity or other features of the goods in respect of which the trademarks are used; and
    (3) those lacking distinctive features.
    The signs under the preceding paragraphs may be registered as trademarks where they have acquired the distinctive features through use and become readily identifiable.

    Article 12 Where an application is filed for registration of a three-dimensional sign as a trademark, any shape derived from the goods itself, required for obtaining the technical effect, or giving the goods substantive value, shall not be registered.

    Article 13 Where a trademark in respect of which the application for registration is filed for use for identical or similar goods is a reproduction, imitation or translation of another person’s trademark not registered inChinaand likely to cause confusion, it shall be rejected for registration and prohibited from use.
    Where a trademark in respect of which the application for registration is filed fdr use for non-identical or dissimilar goods is a reproduction, imitation or translation of the well-known mark of another person that has been registered in China, misleads the pub1ic and is likely to create prejudice to the interests of the well-known mark registrant, it shall be rejected for registration and prohibited from use.

    Article 14 Account shall be taken of the fol1owing factors in establishment of a well-known mark:
    (l) reputation of the mark to the relevant public;
    (2) time for continued use of the mark;
    (3) consecutive time, extent and geographical area of advertisement of the mark;
    (4) records of protection of the mark as a well-known mark; and
    (5) any other factors relevant to the reputation of the mark.

    Article 15 Where any agent or representative registers, in its or his own name, the trademark of a person for whom it or he acts as the agent or representative without authorization therefrom, and the latter raises opposition, the trademark shall be rejected for registration and prohibited from use.

    Article 16 Where a trademark contains a geographic indication of the goods in respect of which the trademark is used, the goods is not from the region indicated therein and it misleads the public, it shall be rejected for registration and prohibited from use; however, any trademark that has been registered in good faith shall remain valid.
    The geographic indications mentioned in the preceding paragraph refer to the signs that signify the place of origin of the goods in respect of which the signs are used, their specific quality, reputation or other features as mainly decided by the natural or cultural factors of the regions.

    Article 17 Any foreign person or foreign enterprise intending to apply for the registration of a trademark in China shall file an application in accordance with any agreement concluded between the People’s Republic of China and the country to which the applicant belongs, or according to the international treaty to which both countries are parties, or on the basis of the principles of reciprocity.

    Article 18 Any foreign person or foreign enterprise intending to apply for the registration of a trademark or for any other matters conceming a trademark in China sha1lappoint any of such organizations as designated by the State to act as its or his agent.

    Chapter II AppIication for Trademark Registration

    Article 19 An applicant for the registration of a trademark shall, in a form, indicate, in accordance with the prescribed classification of goods, the class of the goods and the designation of the goods in respect of which the trademark is to be used.

    Article 20 Where any applicant for registration of a trademark intends to use the same trademark for goods in different classes, an application for registration shall be filed in respect of each class of the prescribed classification of goods.

    Article 21 Where a registered trademark is to be used in respect of other goods of the same class, a new application for registration shall be filed.

    Article 22 Where the sign of a registered trademark is to be altered, a new registration shall be applied for.

    Article 23 Where, after the registration of a trademark, the name, address or other registered matters concerning the registrant change, an application regarding the change shall be filed.

    Article 24 Any aPp1icant for the registration of a trademark who files an application for registration of the same trademark for identica1 goods in China within six months from the date of filing the first application for the trademark registration overseas may enjoy the right of priority in accordance with any agreement concluded between the People’s Republic of China and the country to which the applicant belongs, or according to the international treaty to which both countries are parties, or on the basis of the principle whereby each acknowledges the right of priority of the other.
    Anyone claiming the right of priority according to the preceding paragraph shall make a statement in writing when it or he files the application for the trademark registration, and submit, within three months, a copy of the application documents it or he first filed for the registration of the trademark; where the applicant fails to make the claim in writing or submit the copy of the application documents within the time limit, the claim shall be deemed not to have been made for the right of priority.

    Article 25 Where a trademark is first used for goods in an international exhibition on sponsored or recognized by me Chinese Government, the applicant for the registration of the trademark may enjoy the right of priority within six months from the date of exhibition of the goods.
    Anyone claiming the right of priority according to the preceding paragraph shall make a claim in writing when it or he files the application for the registration of the trademark, and submit, within three months, documents showing the title of the exhibition in which its or his goods was displayed, proof that the trademark was used for the goods exhibited, and the date of exhibition; where the claim is not made in writing, or the proof documents not submitted within the time limit, the claim shall be deemed not to have been made for the right of priority.

    Article 26 The matters reported and materials submitted in the application for trademark registration shall be true, accurate and complete.

    Chapter lII Examination for and ApprovaI of Trademark Registration

    Article 27 Where a trademark the registration of which has been applied for is in conformity with the relevant provisions of this Law, the Trademark Office shall, after examination, preliminarily approve the trademark and publish it.

    Article 28 Where a trademark the registration of which has been applied for is not in conformity with the relevant provisions of this Law, or it is identical with or similar to the trademark of another person that has, in respect of the same or similar goods, been registered or, after examination, preliminarily approved, the Trademark Office shall refuse the application and shall not publish the said trademark.

    Article 29 Where two or more applicants apply for the registration of identical or similar trademarks for the same or similar goods, the preliminary aPproval, after examination, and the publication shall be made for the trademark which was first filed. Where applications are filed on the same day, the preliminary approval, after examination, and the publication shall be made for the trademark which was the earliest used, and the applications of the others shall be refused and their trademarks shall not be published.

    Article 30 Any person may, within three months from the date of the publication, file an opposition against the trademark that has, after examination, been preliminarily approved. If no opposition has been filed after the expiration of the time limit from the publication, the registration shall be approved, a certificate of trademark registration shall be issued and the trademark shall be published.

    Article 31 An application for the registration of a trademark shall not create any prejudice to the prior right of another person, nor unfair means be used to pre-emptively register the trademark of some reputation another person has used.

    Article 32 Where the application for registration of a trademark is refused and no publication of the trademark is made, the Trademark Office shall notify the applicant of the same in writing. Where the applicant is dissatisfied, he may, within fifteen days from receipt of the notice, file an application with the Trademark Review and Adjudication Board for a review. The Trademark Review and Adjudication Board shall make a decision and notify ‘the applicant in writing.
    Any interested party who is not satisfied with the decision made by the Trademark Review and Adjudication Board may, within thirty days from receipt of the notice, institute legal proceedings in the People’s Court.

    Article 33 Where an opposition is filed against the trademark that has, after examination, been preliminarily approved and published, the Trademark Office shall hear both the opponent and applicant state facts and grounds, and shall, after investigation and verification, make a decision. Where any party is dissatisfied, it or he may within fifteen days from receipt of the notification, apply for a reexamination, and the Trademark Review and Adjudication Board shall make a decision and notify both the opponent and applicant in writing.
    Any interested party who is not satisfied with the decision made by the Trademark Review and Adjudication Board within thirty days from the date of receipt of the notice, may institute legal proceedings in the People’s Court. The People’s Court shall notify the other party to the trademark reexamination proceeding to be a third party to the litigation.

    Article 34 Where the interested party does not, within the statutory time limit, apply for the reexamination of the adjudication by the Trademark Office or does not institute legal proceedings in respect of the adjudication by the Trademark Review and Adjudication Board, the adjudication takes effect.
    Where the opposition cannot be established upon ad judication, the registration shall be approved, a certificate of trademark registration shall be issued and the trademark shall be published; where the opposition is established upon adjudication, the registration shall not be approved.
    Where the opposition cannot be established upon ad judication, but the registration is approved, the time of the exclusive right the trademark registration applicant has obtained to use the trademark is counted from the date on which the three months expires from the publication of the preliminary examination.

    Article 35 Any application for trademark registration and trademark reexamination shall be examined in due course.

    Article 36 Where any trademark registration applicant or registrant finds any obvious errors in the trademark registration documents or application documents, it or he may apply for correction thereof The Trademark Office shall ex officio make the correction according to law and notify the interested party of the correction.
    The error correction mentioned in the preceding paragraph shall not relate to the substance of the trademark registration documents or application documents.

    Chapter IV Renewal, Assignment and Licensing of Registered Trademarks

    Article 37 The period of validity of a registered trademark shall be ten years, counted from the date of approval of the registration.

    Article 38 Where the registrant intends to continue to use the registered trademark beyond the expiration of the period of validity, an application for renewal of the registration shall be made within six months before the said expiration. Where no application therefore has been filed within the said period, a grace period of six months may be allowed. If no application has been filed at the expiration the grace period, the registered trademark shall be cancelled.
    The period of validity of each renewal of registration shaIl be ten years.
    Any renewa1 of registration shall be published after it as been approved.

    Article 39 Where a registered trademark is assigned, the assignor and assignee shall conclude a contract for the assignment, and jointly file an application with the trademark Office. The assignee shall guarantee the quality of the goods in respect of which the registered trademark is used.
    The assignment of a registered trademark shall be published after it has been approved, and the assignee enjoys the exclusive right to use the trademark from the date of publication.

    Article 40 Any trademark registrant may, by signing a trademark license contract, authorize other persons to use his registered trademark. The licensor shall supervise the quality of the goods in respect of which the licensee uses his registered trademark, and the licensee shall guarantee the quality of the goods in respect of which the registered Trademark is used.
    Where any party is authorized to use a registered trademark of another person, the name of the licensee and the origin of the goods must be indicated on the goods that bear the registered trademark.
    The trademark license contract shall be submitted to the Trademark Office for record.

    Chapter V Adjudication of Disputes Concerning Registered Trademarks

    Article 41 Where a registered trademark stands in violation of the provisions of Articles 10, 11 and 12 of this Law, or the registration of a trademark was acquired by fraud or any other unfair means, the Trademark Office shall cancel the registered trademark in question; and any other organization or individual may request the Trademark Review and Ad judication Board to make an adjudication to cancel such a registered trademark.
    Where a registered trademark stands in violation of the provisions of Articles l3, l5, l6 and3lof this Law, any other trademark owner concerned or interested party may, within five years from the date of the registration of the trademark, file a request with the Trademark Review and Adjudication Board for adjudication to cancel the registered trademark. Where a well-known mark is registered in bad faith, the genuine owner thereof shall not be restricted by the five-year limitation.
    In addition to those cases as provided for in the preceding two paragraphs, any person disputing a registered trademark may, within five years from the date of approval of the trademark registration, apply to the Trademark Review and Adjudication Board for adjudication.
    The Trademark Review and Adjudication Board shall, after receipt of the application for adjudication, notify the interested parties and request them to respond with arguments within a specified period.

    Article 42 Where a trademark, before its being approved for registration, has been the object of opposition and decision, no application for adjudication may be filed based on the same facts and grounds.

    Article 43 After the Trademark Review and Adjudication Board has made an adjudication either to maintain or to cancel a registered trademark, it shall notify the interested parties of the same in writing.
    Any interested party who is dissatisfied with the adjudication made by the Trademark Review and Adjudication Board may, within thirty days from the date of receipt of the notice, institute legal proceedings in the People’s Court. The People’s Court shall notify the other party of the trademark adjudication proceeding to be a third party to the legal proceedings.

    Chapter Vl Administration of the Use of Trademarks

    Article 44 Where any person who uses a registered trademark has committed any of the following, the Trademark Office shall order him to rectify the situation within a specified period or even cancel the registered trademark:
    (1) where a registered trademark is altered unilaterally (that is, without the required registration);
    (2) where the name, address or other registered matters concerning the registrant of a registered trademark are changed unilaterally (that is, without the required application );
    (3) where the registered trademark is assigned unilaterally (that is, without the required approval); or
    (4) where the use of the registered trademark has ceased for three consecutive years.

    Article 45 Where a registered trademark is used in respect of the goods that have been roughly or poorly manufactured, or whose superior quality has been replaced by inferior quality, so that consumers are deceived, the administrative authorities for industry and commerce at different levels shall, according to the circumstances, order rectification of the situation within a specified period, and may, in addition, circulate a notice of criticism or impose a fine, and the Trademark Office may even cancel the registered trademark.

    Article 46 Where a registered trademark has been cancelled or has not been renewed at the expiration, the Trademark Office shall, during one year from the date of the cancellation or removal thereof, approve no application for the registration of a trademark that is identical with or similar to the said trademark.

    Article 47 Where any person violates the provisions of Article 6 of this Law, the local administrative authority for industry and commerce shall order him to file an application for the registration within a specified period, and may, in addition, impose a fine.

    Article 48 Where any person who uses an unregistered trademark has committed any of the following, the local administrative authority for industry and commerce shall stop the use of the trademark, order him to rectify the situation within a specified period, and may, in addition, circulate a notice of criticism or impose a fine:
    (1) where the trademark is falsely represented as registered;
    (2) where any provision of Article 10 of this Law is violated; or
    (3) where the manufacture is of rough or poor quality, or where superior quality is replaced by inferior quality, so that consumers are deceived.

    Article 49 Any party dissatisfied with the decision of the Trademark Office to cancel a registered trademark may, within fifteen days from receipt of the corresponding notice, apply for a review. The Trademark Review and Adjudication Board shall make a decision and notify the applicant in writing.
    Any interested party dissatisfied with the decision by the Trademark Review and Adjudication Board may, within thirty days from the date of receipt of the notice, institute legal proceedings in the People’s Court.

    Article 50 Any party dissatisfied with the decision of the administrative authority for industry and commerce to impose a fine under the provisions of Article 45, Article 47 or Article 48 may, within fifteen days from receipt of the corresponding notice, institute legal proceedings with the People’s Court. If there have been instituted no legal proceedings or made no performance of the decision at the expiration of the said period, the administrative authority for industry and commerce may request the People’s Court for compulsory execution thereof.

    Chapter VII Protection of the Exclusive Rights to Use Registered Trademarks

    Article 51 The exclusive right to use a registered trademark is limited to the trademark which has been approved for registration and to the goods in respect of which the use of the trademark has been approved.

    Article 52 Any of the following acts shall be an infringement of the exclusive right to use a registered trademark:
    (1) to use a trademark that is identical with or similar to a registered trademark in respect of the identical or similar goods without the authorization from the trademark registrant;
    (2) to sell goods that he knows bear a counterfeited registered trademark;
    (3) to counterfeit, or to make, without authorization, representations of a registered trademark of another person, or to sell such representations of a registered trademark as were counterfeited, or made without authorization;
    (4) to replace, without the consent of the trademark registrant, its or his registered trademark and market again the goods bearing the replaced trademark; or
    (5) to cause, in other respects, prejudice to the exclusive right of another person to use a registered trademark.

    Article 53 Where any party has committed any of such acts to infringe the exclusive right to use a registered trademark as provided for in Article 52 of this Law and has caused a dispute, the interested parties shall resolve the dispute through consultation; where they are reluctant to resolve the matter through consultation or the consultation fails, the trademark registrant or interested party may institute legal proceedings in the People’s Court or request the administrative authority for industry and commerce for actions. Where it is established that the infringing act is constituted in its handling the matter, the administrative authority for industry and commerce handling the matter shall order the infringer to immediately stop the infringing act, confiscate and destroy the infringing goods and tools specially used for the manufacture of the infringing goods and for counterfeiting the representations of the registered trademark, and impose a fine. Where any interested party is dissatisfied with decision on handling the matter, it or he may, within fifteen days from the date of receipt of the notice, institute legal proceedings in the People’s Court according to the Administrative Procedure Law of the People’s Republic ofChina. If there have been instituted no legal proceedings or made on performance of the decision at the expiration of the said period, the administrative authority for industry and commerce shall request the People’s Court for compulsory execution thereof. The administrative authority for industry and commerce handling the matter may, upon the request of the interested party, medicate on the amount of compensation for the infringement of the exclusive right to use the trademark; where the medication fails, the interested party may institute legal proceedings in the People’s Court according to the Civil Procedure Law of the People’s Republic of China.

    Article 54 The administrative authority for industry and commerce has the power to investigate and handle any act of infringement of the exclusive right to use a registered trademark according to law; where the case is so serious as to constitute a crime, it shall be transferred to the judicial authority for handling.

    Article 55 When investigating and handling an act suspected of infringement of a registered trademark, the administrative authority for industry and commerce at or above the county level may, according to the obtained evidence of the suspected violation of law or informed offence, exercise the following functions and authorities:
    (1 ) to inquire of the interested parties involved, and to investigate the relevant events of the infringement of the exclusive right to use the trademark;
    (2) to read and make copy of the contract, receipts, account books and other relevant materials of the interested parties relating to the infringement;
    (3) to inspect the site where the interested party committed the alleged infringement of the exclusive right to use the trademark; and
    (4) to inspect any articles relevant to the infringement; any articles that prove to have been used for the infringement of another person’s exclusive right to use the trademark may be sealed up or seized.
    When the administrative authority for industry and commerce exercises the preceding functions and authorities, the interested party shall cooperate and help, and shall not refuse to do so or stand in the way.

    Article 56 The amount of damages shall be the profit that the infringer has earned because of the infringement in the period of the infringement or the injury that the infringee has suffered from the infringement in the period of the infringement, including the appropriate expenses of the infringee for stopping the infringement.
    Where it is difficult to determine the profit that the infringer has earned because of the infringement in the period of the infringement or the injury that the infringee has suffered from the infringement in the period of the infringement, the People’s Court shall impose an amount of damages of no more than RMB 500, 000 yuan according to the circumstances of the infringement.
    Anyone who sells a goods that it or he does not know has infringed the exclusive right to use a registered trademark, and is able to prove that it or he has obtained the goods legitimately and indicates the supplier thereof shall not bear the liability for damages.

    Article 57 Where a trademark registrant or interested party who has evidence to show that another person is committing or will commit an infringement of the right to use its or his registered trademark, and that failure to promptly stop the infringement will cause irreparable damages to its or his legitimate rights and interests, it or he may file an application with the People’s Court to order cessation of the relevant act and to take measures for property preservation before instituting legal proceedings in the People’s Court.
    The People’s Court handling the application under the preceding paragraph shall apply the provisions of Articles 93 to 96 and 99 of the Civil Procedure Law of the People’s Republic ofChina.

    Article58 Inorder to stop an infringing act, any trademark registrant or interested party may file an application with the People’s Court for preservation of the evidence before instituting legal proceedings in the People’s Court where the evidence will possibly be destroyed or lost or difficult to be obtained again in the future. The People’s Court must make adjudication within forty-eight hours after receipt of the application; where it is decided to take the preservative measures, the measures shall be executed immediately. The People’s Court may order the applicant to place guaranty; where the applicant fails to place the guaranty, the application shall be rejected.
    Where the applicant institutes no legal proceedings within fifteen days after the People’s Court takes the preservative measures, the People’s Court shall release the measures taken for the preservation.

    Article 59 Where any party uses, without the authorization from the trademark registrant, a trademark identical with a registered trademark, and the case is so serious as to constitute a crime, he shall be prosecuted, according to law, for his criminal liabilities in addition to his compensation for the damages suffered by the infringee.
    Where any party counterfeits, or makes, without authorization, representations of a registered trademark of another person, or sells such representations of a registered trademark as were counterfeited, or made without authorization, and the case is so serious as to constitute a crime, he shall be prosecuted, according to law, for his criminal liabilities in addition to his compensation for the damages suffered by the infringee.
    Where any party sells goods that he knows bear a counterfeited registered trademark, and the case is so serious as to constitute a crime, he shall be prosecuted, according to law, for his criminal liabilities in addition to his compensation for the damages suffered by the infringee.

    Article 60 The State functionaries for the registration, administration and reexamination of trademarks must handle cases according to law, be incorruptible and disciplined, devoted to their duties and courteous and honest in their provision of service.
    The State functionaries of the Trademark Office and the Trademark Review and Adjudication Board and those working for the registration, administration and reexamination of trademarks shall not practice as trademark agent and engage in any activity to manufacture and market goods.

    Article 61 The administrative authority for industry and commerce shall establish and amplify its internal supervision system to supervise and inspect the State functionaries for the registration, administration and reexamination of trademarks in their implementation of the laws and administrative regulations and in their observation of the discipline.

    Article 62 Where any State functionary for the registration, administration and reexamination of trademarks neglects his duty, abuses his power, engages in malpractice for personal gain, handles the registration, administration and reexamination of trademarks in violation of law, accepts money or material wealth from any interested party or seeks illicit interest, which constitutes a crime, he or she shall be prosecuted for his or her criminal liabi1ity. If the case is not serious enough to constitute a crime, he or she shall be given disciplinary sanction according to law.

    Chapter VIII Supplementary Provisions

    Article 63 Any application for a trademark registration and for other matters concerning a trademark shall be subject to payment of the fees as prescribed. The schedule of fees shall be prescribed separately.

    ArticIe 64 This Law shall enter into force on March l, l983. The “Regulations Governing Trademarks” promulgated by the State Council on April l0, l963 shall be abrogated on the same date, and any other provisions concerning trademarks contrary to this Law shall cease to be effective at the same time.

    Trademarks registered before this Law enters into force shall continue to be valid.

  • Regulations on the Protection of Layout-Designs of Integrated Circuits

    2013-04-23

    (Adopted at the 36th Executive Meeting of the State Council on March 28, 2001, promulgated by Decree No. 300 of the State Council of the People’s Republic of Chinaon April 2001, and effective as of the date of October 1, 2001)

    Chapter I General Provisions

    Article 1. These Regulations are formulated in order to protect the exclusive right of layout-design of integrated circuits, to encourage innovation of integrated circuits technology and to promote the development of science and technology.

    Article 2. For the purposes of these Regulations:
    (1) “integrated circuit” means semiconductor integrated circuit, that is, a product, in its intermediate or final form, which uses semiconductor material as its chip, in and/or on which two or more elements, at least one of which is an active element, and some or all of the interconnections are integrally formed and which is intended to perform a certain electronic function;
    (2) “layout-design of integrated circuit”(hereinafter referred to as layout-design) means the three-dimensional disposition of the two or more elements, at least one of which is an active element, and some or all of the interconnections of an integrated circuit, or such a three-dimensional disposition prepared for the manufacture of an integrated circuit;
    (3) “holder of the right of layout-design” means the natural person, the legal person or any other organization that, according to these Regulations, is entitled to the exclusive right of a layout-design;
    (4) “reproduction” means the act of reproducing a layout-design or of reproducing an integrated circuit incorporating the layout-design;
    (5) “commercial exploitation” means the act of importing, selling or otherwise distributing for commercial purposes a protected layout-design, or an integrated circuit incorporating such a layout-design, or an article incorporating such an integrated circuit.

    Article 3. Any layout-design created by a Chinese natural person, legal person or other organization shall be eligible for the exclusive right of layout-design in accordance with these Regulations.
    Any layout-design created by a foreigner shall, where it is first commercially exploited in the territory of the People’s Republic ofChina, be eligible for the exclusive right of layout-design in accordance with these Regulations.
    Any layout-design created by a foreigner shall be eligible for the exclusive right of layout-design in accordance with these Regulations, if the country to which the foreigner belongs has concluded an agreement with China to protect layout-designs or both the country to which the foreigner belongs and China are party to an international treaty concerning the protection of layout-designs.

    Article 4. Any layout-design which is to be protected shall be original in the sense that the layout-design is the result of the creator’s own intellectual effort, and it is not commonplace among creators of layout-designs and manufacturers of integrated circuits at the time of its creation.
    Where a layout-design which is to be protected consists of several commonplace layout-designs, the combination of these layout-designs taken as a whole shall be in compliance with the requirements referred to in the preceding paragraph.

    Article 5. The protection of layout-designs under these Regulations shall not extend to ideas, procedures, methods of operations or mathematical concepts as such.

    Article 6. The intellectual property administration department of the State Council is responsible for the relevant administrative work concerning the exclusive right of layout-design in accordance with these Regulations.

    Chapter II Exclusive Right of Layout-design

    Article 7. The holder of the right of layout-design shall enjoy the following exclusive right:
    (1) reproducing a protected layout-design in its entirety or any part thereof that complies with the requirement of originality;
    (2) commercially exploiting a protected layout-design, an integrated circuit incorporating a protected layout-design, or an article incorporating such an integrated circuit.

    Article 8. The exclusive right of layout-design is acquired after its being registered with the intellectual property administration department of the State Council.
    Any unregistered layout-design shall not be protected under these Regulations.

    Article 9. The exclusive right of layout-design shall belong to its creator, except as otherwise prescribed in these Regulations.
    Where a layout-design is created according to the will and under the charge of a legal person or other organization, which shall bear responsibility for such layout-design, that legal person or other organization shall be the creator.
    Where a layout-design is created by a natural person, that person shall be the creator.

    Article 10. Where a layout-design is created jointly by two or more natural persons, legal persons or other organizations, the ownership of the exclusive right shall be agreed upon by the joint creators; in the absence of such an agreement or where the agreement is not clear, the exclusive right shall be owned jointly by the creators.

    Article 11. Where a layout-design is created in execution of a commission, the ownership of the exclusive right shall be agreed upon by the person having commissioned and the person being commissioned; in the absence of such an agreement or where the agreement is not clear, the exclusive right shall be owned by the person being commissioned.

    Article 12. The term of protection of the exclusive right of layout-design shall be 10 years counted from the date of filing an application for registration or from the date on which it was first commercially exploited anywhere in the world, whichever expires earlier. However, no matter whether it has been registered or commercially exploited, a layout-design shall no longer be protected under these Regulations 15 years after the date of the completion of its creation.

    Article 13. Where the exclusive right of layout-design belongs to a natural person, the exclusive right shall, after the death of the natural person and within the term of protection as prescribed in these Regulations, be transferred in accordance with the provisions of the Succession Law.
    Where the exclusive right of a layout-design belongs to a legal person or other organization, the exclusive right shall, after the legal person or other organization is reorganized or ceases to exist and within the term of protection as prescribed in these Regulations, be owned by the legal person or other organization which succeeds to its rights and obligations; where there is no such legal person or other organization to succeed to its rights and obligations, the layout-design shall enter into the public domain.

    Chapter III Registration of Layout-design

    Article 14. The intellectual property administration department of the State Council is responsible for the registration of layout-design and receives applications for layout-design registration.

    Article 15. Where a layout-design for which registration is applied relates to the security or other vital interests of the State and is required to be kept secret, the application shall be handled in accordance with the relevant provisions of the State.

    Article 16. Where an application for registration of layout-design is filed, the following shall be submitted:
    (1) an application form for registration of layout-design;
    (2) a copy or drawing of the layout-design;
    (3) where the layout-design has been put into commercial exploitation, a sample of that integrated circuit incorporating the layout-design;
    (4) other materials required by the intellectual property administration department of the State Council.

    Article 17. Any layout-design, if no application for its registration has been filed with the intellectual property administration department of the State Council within two years from the date on which it was first commercially exploited anywhere in the world, shall no longer be registered by the intellectual property administration department of the State Council.

    Article 18. Where, after preliminary examination of an application for registration of layout-design, it is found that there is no cause for rejection of the application, the intellectual property administration department of the State Council shall register it, issue the registration certificate and announce it.

    Article 19. Where the applicant for layout-design registration is not satisfied with the decision of the intellectual property administration department of the State Council rejecting its or his application for registration, it or he may, within three months from the date of receipt of the notification, request the intellectual property administration department of the State Council to make a reexamination. The intellectual property administration department of the State Council shall, after reexamination, make a decision and notify the applicant for layout-design registration. Where the applicant for layout-design registration is still not satisfied with the decision of reexamination of the intellectual property administration department of the State Council, it or he may, within three months from the date of receipt of the notification, bring a law suit before the people’s court.

    Article 20. Where, after the registration of a layout-design, the intellectual property administration department of the State Council finds that the registration does not comply with the provisions of these Regulations, it shall revoke the registration, notify the holder of the right of layout-design and announce it. Where the holder of the right of layout-design is not satisfied with the decision of the intellectual property administration department of the State Council revoking the registration of layout-design, it or he may, within three months from receipt of the notification, bring a law suit before the people’s court.

    Article 21. Until the announcement of the layout-design registration, staff members of the intellectual property administration department of the State Council have the duty to keep its contents secret.

    Chapter IV Exercise of Exclusive Right of Layout-design

    Article 22. The holder of the right of layout-design may assign its or his exclusive right or give other persons a license to exploit its or his layout-design.
    Where the exclusive right of layout-design is assigned, the parties concerned shall conclude a written contract and register it with the intellectual property administration department of the State Council. The intellectual property administration department of the State Council shall announce the registration. The assignment of the exclusive right of layout-design shall take effect as of the date of registration.
    Where a license to exploit a layout-design is given to others, the parties shall conclude a written contract.

    Article 23. Any of the following acts may be performed without the authorization of the holder of the right of layout-design and without any payment of remuneration:
    (1) reproducing a protected layout-design for private purposes or for the sole purpose of evaluation, analysis, research or teaching;
    (2)creating a layout-design with originality on the basis of the evaluation or analysis of a protected layout-design referred to in the preceding sub-paragraph;
    (3)reproducing or commercially exploiting a layout-design that is identical with the layout-design of another person but is created independently by oneself.

    Article 24. Where a protected layout-design, an integrated circuit incorporating such a layout-design, or an article incorporating such an integrated circuit has been put on the market by, or with the consent of, the holder of the right of layout-design, anyone may exploit it for commercial purposes without the authorization of, nor payment of remuneration to, the holder of the right of layout-design.

    Article 25. In the case of a national emergency, or in any extraordinary state of affairs, or for the purposes of public interests, or where it is determined according to the law by the people’s court or the supervision and inspection department against unfair competition that there is unfair competition on the part of the holder of the right of layout-design and there is a need to give remedy, the intellectual property administration department of the State Council may grant a non-voluntary license to exploit the layout-design.

    Article 26. Any decision made by the intellectual property administration department of the State Council granting a non-voluntary license to exploit a layout-design shall be notified promptly to the holder of the right of layout-design.
    In the decision granting a non-voluntary license to exploit a layout-design, the scope and duration of the exploitation shall be specified on the basis of the reasons justifying the grant. The scope shall be limited to non-commercial use for public purposes, or to remedy an act of the holder of the right of layout-design determined according to the law by the people’s court or the supervision and inspection department against unfair competition to be one of unfair competition.
    When the circumstances which led to such non-voluntary license cease to exist and are unlikely to recur, the intellectual property administration department of the State Council shall, after reviewing upon the request of the holder of the right of layout-design, make a decision to terminate the non-voluntary license.

    Article 27. Any natural person, legal person or other organization that is granted a non-voluntary license to exploit a layout-design shall not have an exclusive right to exploit it and shall not have the right to authorize exploitation by any other person.

    Article 28. Any natural person, legal person or other organization that is granted a non-voluntary license shall pay to the holder of the right of layout-design a reasonable remuneration, the amount of which shall be fixed by both parties in consultations; where the parties fail to reach an agreement, the intellectual property administration department of the State Council shall make an adjudication.

    Article 29. Where the holder of the right of layout-design is not satisfied with the decision of the intellectual property administration department of the State Council granting a non-voluntary license to exploit the layout-design, or where the holder of the right of layout-design or, the natural person, legal person or other organization that is granted the non-voluntary license is not satisfied with the ruling made by the intellectual property administration department of the State Council regarding the remuneration payable for exploitation, it or he may, within three months from the date of receipt of notification, bring a law suit before the people’s court.

    Chapter V Legal Liability

    Article 30. Except as otherwise prescribed in these Regulations, where any person commits any of the following acts without the authorization of the holder of the right of layout-design, he or it must stop the acts immediately and bear liability to compensate for the damage:
    (1) reproducing a protected layout-design in its entirety or any part thereof that complies with the requirement of originality;
    (2) importing, selling, or otherwise distributing for commercial purposes a protected layout-design, an integrated circuit incorporating such a layout-design, or an article incorporating such an integrated circuit.
    The amount of compensation for the damage caused by an infringement of the exclusive right of layout-design shall be the profits which the infringer has earned through the infringement or the losses suffered by the person whose right was infringed, including the reasonable expenses paid by the infringed person for the purposes of stopping the infringement.

    Article 31. Where a dispute arises as a result of the exploitation of a layout-design without the authorization of the holder of the right of layout-design, that is, the infringement of the exclusive right of layout-design, it shall be settled through consultation by the parties concerned. Where the parties are not willing to consult with each other or where the consultation fails, the holder of the right of layout-design or any interested party may bring a law suit before the people’s court, or request the intellectual property administration department of the State Council to handle the matter. When the intellectual property administration department of the State Council handling the matter considers that the infringement is established, it may order the infringer to stop the infringing act immediately, and confiscate or destroy the infringing products or articles. If the party concerned is not satisfied with the decision, he may, within 15 days from the date of receipt of the notification, bring a law suit before the people’s court in accordance with the Administrative Procedure Law of the People’s Republic ofChina. If, within the said time limit, the infringer does not institute legal proceedings and refuses to stop the infringing act, the intellectual property administration department of the State Council may apply to the people’s court for compulsory enforcement. The intellectual property administration department of the State Council may, upon the request of the parties, mediate in the amount of compensation for the damage caused by the infringement of the exclusive right of layout-design. If the mediation fails, the parties may bring a law suit before the people’s court in accordance with the Civil Procedure Law of the People’s Republic ofChina.

    Article 32. Where any holder of the right of layout-design or interested party has evidence to prove that another person is infringing or will soon infringe its or his exclusive right and that if such infringing act is not checked or prevented from occurring in time, it is likely to cause irreparable harm to its or his `legitimate rights, it or he may, before any legal proceedings are instituted, request the people’s court to adopt measures for ordering the suspension of relevant acts and the preservation of property.

    Article 33. Where any person commercially exploits an integrated circuit which is incorporated an unlawfully reproduced layout-design, or an article which is incorporated an integrated circuit with unlawfully reproduced layout-design, and if at the time of acquiring the said integrated circuit or article, that person did not know and had no reasonable ground to know that the said integrated circuit incorporated an unlawfully reproduced layout-design, or the said article incorporated an integrated circuit with unlawfully reproduced layout-design, the commercial exploitation of such integrated circuit or article by that person shall not be deemed as infringing the right of layout design.
    After being notified that the integrated circuit or the article is incorporated with an unlawfully-reproduced layout-design, the person referred to in the preceding paragraph may, subject to payment of reasonable remuneration to the holder of the right of layout-design, continue to commercially exploit the stock on hand or ordered before the notification.

    Article 34. Where any staff member of the intellectual property administration department of the State Council, in the work of layout-design administration, neglects his duty, abuses his power or commits illegalities for personal gains or by fraudulent means shall be investigated for criminal liability in accordance with law if a crime is constituted, if the case is not serious enough to constitute a crime, he shall be given administrative sanction in accordance with law.

    Chapter VI Supplementary Provisions

    Article 35. When applying for layout-design registration and going through other formalities, fees shall be paid as prescribed. The standard of the fees shall be fixed by the price administration department of the State Council and the intellectual property administration department of the State Council, and shall be announced by the intellectual property administration department of the State Council.

    Article 36. These Regulations shall enter into force as of October 1, 2001.