Laws of the People's Republic of China

PATENT LAW OF THE PEOPLE'S REPUBLIC OF CHINA

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

 

 

SUBJECT: PATENT; INTELLECTUAL PROPERTY

ISSUING-DEPT: STANDING COMMITTEE OF PEOPLE'S CONGRESS

ISSUE-DATE: 03/12/1984

IMPLEMENT-DATE: 04/01/1985

LENGTH: 4914 words

TEXT:

CHAPTER I GENERAL PROVISIONS


CHAPTER I GENERAL PROVISIONS

[Article 1] This Law is enacted to protect patent rights for invention-creations, to encourage inventioncreations, to foster the dissemination and application of invention-creations, and to promote the raising of scientific and technological levels, benefitting socialist modernization and construction.

[Article 2] In this Law, "invention-creations" means inventions, utility models and designs.

[Article 3] The Patent Office of the People's Republic of China receives and examines patent applications and grants patent rights for invention-creations that conform with the provisions of this Law.

[Article 4] Where the invention-creation for which a patent is applied for relates to the security or other vital interests of the State and is required to be kept secret, the application shall be treated in accordance with the relevant prescriptions of the State.

[Article 5] No patent right shall be granted for any invention-creation that is contrary to the laws of the State or social morality or that is detrimental to public interest.

[Article 6] For a service invention-creation, made by a person in execution of the tasks of the entity to which he belongs or made by him mainly by using the material means of that entity, the right to apply for a patent belongs to the entity.  For any non-service invention-creation, the right to apply for a patent belongs to the inventor or creator.  After the application is approved, if it was filed by an entity under ownership by the whole people, the patent right shall be held by the entity; if it was filed by an entity under collective ownership or by an individual, the patent right shall be owned by the entity or individual.

For a service invention-creation made by any staff member or worker of a foreign enterprise, or of a Chinese-foreign joint venture enterprise, located in China, the right to apply for a patent belongs to the enterprise.  For any non-service invention-creation, the right to apply for a patent belongs to the inventor or creator, After the application is approved, the patent right shall be owned by the enterprise or the individual that applied for it.

The owner of the patent right and the holder of the patent right are referred to as the "patentee."

[Article 7] No entity or individual shall prevent the inventor or creator from filing an application for a patent for a non-service invention-creation.

[Article 8] For an invention-creation made in cooperation by two or more entities, or made by an entity in execution of a commission for research or design given to it by another entity, the right to apply for a patent belongs, unless otherwise agreed upon, to the entity which made, or to the entities which jointly made, the invention-creation.  After the application is approved, the patent right shall be owned or held by the entity or entities that applied for it.

[Article 9] Where two or more applicants file applications for patent for the identical invention-creation, the patent right shall be granted to the applicant whose application was filed first.

[Article 10] The right to apply for a patent and the patent right may be assigned.

Any assignment, by an entity under ownership by the whole people, of the right to apply for a patent, or of the patent right, must be approved by the competent authority at the higher level.

Any assignment, by a Chinese entity or individual, of the right to apply for a patent, or of the patent right, to a foreigner must be approved by the competent department concerned of the State Council.

Where the right to apply for a patent or the patent right is assigned, the parties must conclude a written contract, which will come into force after it is registered with and announced by the Patent Office.

[Article 11] After the grant of the patent right for an invention or utility model, except as provided for in Article 14 of this Law, no entity or individual may, without the authorization of the patentee, exploit the patent, that is, make, use or sell the patented product, or use the patented process, for production or business purposes.

After the grant of the patent right for a design, no entity or individual may, without the authorization of the patentee, exploit the patent, that is, make or sell the product, incorporating the patented design, for production or business purposes.

[Article 12] Any entity or individual exploiting the patent of another must, except as provided for in Article 14 of this Law, conclude with the patentee a written license contract for exploitation and pay the patentee a fee for the exploitation of the patent.  The licensee has no right to authorize any entity or individual, other than that referred to in the contract for exploitation, to exploit the patent.

[Article 13] After the publication of the application for a patent for invention, the applicant may require the entity or individual exploiting the invention to pay an appropriate fee.

[Article 14] The competent departments concerned of the State Council and the people's governments of provinces, autonomous regions or municipalities directly under the Central Government have the power to decide, in accordance with the state plan, that any entity under ownership by the whole people that is within their system or directly under their administration and that holds the patent right to an important invention-creation is to allow designated entities to exploit that invention-creation; and the exploiting entity shall, according to the prescriptions of the State, pay a fee for exploitation to the entity holding the patent right.

Any patent of a Chinese individual or entity under collective ownership, which is of great significance to the interests of the State or to public interest, and is in need of dissemination and application, may, after approval by the State Council at the solicitation of its competent department concerned, be treated alike by making reference to the provisions of the preceding paragraph.

[Article 15] The patentee has the right to affix a patent marking and to indicate the number of the patent on the patented product or on the packing of that product.

[Article 16] The entity owning or holding the patent right shall award the inventor or creator of a service invention-creation a reward and, upon exploitation of the patented invention-creation, shall award the inventor or creator a reward based on the extent of dissemination and application and the economic benifits yielded.

[Article 17] The inventor or creator has the right to be named as such in the patent document.

[Article 18] Where any foreigner, foreign enterprise or other foreign organization having no habitual residence or business office in China files an application for a patent in China, the application shall be treated under this Law in accordance with any agreement concluded between the country to which the applicant belongs and China, or in accordance with any international treaty to which both countries are parties, or on the basis of the principle of reciprocity.

[Article 19] Where any foreigner, foreign enterprise or other foreign organization having no habitual residence or business office in China applies for a patent, or has other patent matters to attend to, in China, he or it shall appoint a patent agency designated by the State Council of the People's Republic of China to act as his or its agent.

Where any Chinese entity or individual applies for a patent or has other patent matters to attend to in the country, it or he may appoint a patent agency to act as its or his agent.

[Article 20] Where any Chinese entity or individual intends to file an application in a foreign country for a patent for an invention-creation made in the country, it or he shall file first an application for patent with the Patent Office and, with the sanction of the competent department concerned of the State Council, shall appoint a patent agency designated by the State Council to act as its or his agent.

[Article 21] Until the publication or announcement of the application for a patent, staff members of the Patent Office and persons involved have the duty to keep its content secret.

CHAPTER II REQUIREMENTS FOR GRANT OF PATENT RIGHT

[Article 22] Any invention or utility model for which patent right may be granted must possess novelty, inventiveness and practical applicability.

"Novelty" means that, before the date of filing, no identical invention or utility model has been publicly disclosed in publications in the country or abroad or has been publicly used or made known to the public by any other means in the country, nor has any other person filed previously with the Patent Office an application which described the identical invention or utility model and was published after the said date of filing.

"Inventiveness" means that, as compared with the technology existing before the date of filing, the invention has prominent substantive features and represents notable progress and that the utility model has substantive features and represents progress.

"Practical applicability" means that the invention or utility model can be made or used and can produce effective results.

[Article 23] Any design for which patent right may be granted must not be identical with or similar to any design which, before the date of filing, has been publicly disclosed in publications in the country or abroad or has been publicly used in the country.

[Article 24] An invention-creation for which a patent is applied for does not lose its novelty where, within six months before the date of filing, one of the following events occurred:

(1) Where it was first exhibited at an international exhibition sponsored or recognized by the Chinese Government;

(2) Where it was first made public at a prescribed academic or technological meeting;

(3) Where it was disclosed by any person without the consent of the applicant.

[Article 25] For any of the following, no patent right shall be granted:

(1) Scientific discoveries;

(2) Rules and methods for mental activities;

(3) Methods for the diagnosis or for the treatment of diseases;

(4) Food, beverages and flavourings;

(5) Pharmaceutical products and substances obtained by means of a chemcial process;

(6) Animal and plant varieties;

(7) Substances obtained by means of nuclear transformation.

For processes used in producing products referred to in items 4 to 6 of the preceding paragraph, patent right may be granted in accordance with the provisions of this Law.

CHAPTER III APPLICATION FOR PATENT

[Article 26] Where an application for a patent for invention or utility model is filed, a request, a description and its abstract, and claims shall be submitted.

The request shall state the title of the invention or utility model, the name of the inventor or creator, the name and the address of the applicant and other related matters.

The description shall set forth the invention or utility model in a manner sufficiently clear and complete so as to enable a person skilled in the relevant field of technology to carry it out; where necessary, drawings are required.  The abstract shall state briefly the main technical points of the invention or utility model.

The claims shall be supported by the description and shall state the extent of the patent protection asked for.

[Article 27] Where an application for a patent for design is filed, a request, drawings or photographs of the design shall be submitted, and the product incorporating the design and the class to which that product belongs shall be indicated.

[Article 28] The date on which the Patent Office receives the application shall be the date of filing.  If the application is sent by mail, the date of mailing indicated by the postmark shall be the date of filing.

[Article 29] Where any foreign applicant files an application in China within twelve months from the date on which he or it first filed in a foreign country an application for a patent for the identical invention or utility model, or within six months from the date on which he or it first filed in a foreign country an application for a patent for the identical design, he or it may, in accordance with any agreement concluded between the country to which he or it belongs and China, or in accordance with any international treaty to which both countries are parties, or on the basis of the principle of mutual recognition of the right of priority, enjoy a right of priority, that is, the date of which the application was first filed in the foreign country shall be regarded as the date of filing.

Where the applicant claims a right of priority and where one of the events listed in Article 24 of this Law occurred, the period of the right of priority shall be counted from the date on which the event occurred.

[Article 30] Any applicant who claims the right of priority shall make a written declaration when the application is filed, indicating the date of filing of the earlier application in the foreign country and the country in which that application was filed, and submit, within three months, a copy of that application document, certified by the competent authority of that country; if the applicant fails to make the written declaration or to meet the time limit for submitting the document, the claim to the right of priority shall be deemed not to have been made.

[Article 31] An application for a patent for invention or utility model shall be limited to one invention or utility model.  Two or more inventions or utility models belonging to a single general inventive concept may be filed as one application.

An application for a patent for design shall be limited to one design incorporated in one product.  Two or more designs which are incorporated in products belonging to the same class and are sold or used in sets may be filed as one application.

[Article 32] An applicant may withdraw his or its application for a patent at any time before the patent right is granted.

[Article 33] An applicant may amend his or its application for a patent, but may not go beyond the scope of the disclosure contained in the initial description.

CHAPTER IV EXAMINATION AND APPROVAL OF APPLICATION FOR A PATENT

[Article 34] Where, after receiving an application for a patent for invention, the Patent Office, upon preliminary examination, finds the application to be in conformity with the requirements of this Law, it shall publish the application within 18 months from the date of filing.  Upon the request of the applicant, the Patent Office may publish the application earlier.

[Article 35] Upon the request of the applicant for a patent for invention, made at any time within three years from the date of filing, the Patent Office will proceed to examine the application as to its substance.  If, without any justified reason, the applicant fails to meet the time limit for requesting examination as to substance, the application shall be deemed to have been withdrawn.

The Patent Office may, on its own initiative, proceed to examine any application for a patent for invention as to substance when it deems it necessary.

[Article 36] When the applicant for a patent for invention requests examination as to substance, he or it shall furnish pre-filing date reference materials concerning the invention.

The applicant for a patent for invention who has filed in a foreign country an application for a patent for the identical invention shall, at the time of requesting examination as to substance, furnish documents concerning any search made for the purpose of examining that application, or concerning the results of any examination made, in that country.  If, without any justified reason, the said documents are not furnished, the application shall be deemed to have been withdrawn.

[Article 37] Where the Patent Office, after it has made the examination as to substance of the application for a patent for invention, finds that the application is not in conformity with the provisions of this Law, it shall notify the applicant and request him or it to submit, within a specified time limit, his or its observations or to amend the application.  If, without any justified reason, the time limit for making response is not met, the application shall be deemed to have been withdrawn.

[Article 38] Where, after the applicant has made the observations or amendments, the Patent Office finds that the application for a patent for invention is still not in conformity with the provisions of this Law, the application shall be rejected.

[Article 39] Where it is found after examination as to substance that there is no cause for rejection of the application for a patent for invention, the Patent Office shall make a decision, announce it and notify the applicant.

[Article 40] Where, after receiving the application for a patent for utility model or design, the Patent Office finds upon preliminary examination that the application is in conformity with the requirements of this Law, it shall not proceed to examine it as to substance but shall immediately make an announcement and notify the applicant.

[Article 41] Within three months from the date of the announcement of the application for a patent, any person may, in accordance with the provisions of this Law, file with the Patent Office an opposition to that application.  The Patent Office shall send a copy of the opposition to the applicant, to which the applicant shall respond in writing within three months from the date of its receipt; if, without any justified reason, the time limit for making the written response is not met, the application shall be deemed to have been withdrawn.

[Article 42] Where, after examination, the Patent Office finds that the opposition is justified, it shall make a decision to reject the application and notify the opponent and the applicant.

[Article 43] The Patent Office shall set up a Patent Reexamination Board.  Where the applicant is not satisfied with the decision of the Patent Office rejecting the application, he or it may, within three months from the date of receipt of the notification, request the Patent Reexamination Board to make a reexamination.  The Patent Reexamination Board shall, after reexamination, make a decision and notify the applicant.

Where the applicant for a patent for invention is not satisfied with the decision of the Patent Reexamination Board rejecting the request for reexamination, he or it may, within three months from the date of receipt of the notification, institute legal proceedings in the people's court.

The decision of the Patent Reexamination Board in respect of any request by the applicant for reexamination concerning a utility model or design is final.

[Article 44] Where no opposition to the application for a patent is filed or where, after its examination, the opposition is found unjustified, the Patent Office shall make a decision to grant the patent right, issue the patent certificate, and register and announce the relevant matters.

CHAPTER V DURATION, CESSATION AND INVALIDATION OF PATENT RIGHT

[Article 45] The duration of patent right for inventions shall be 15 years counted from the date of filing.

The duration of patent right for utility models or designs shall be five years counted from the date of filing.  Before the expiration of the said term, the patentee may apply for a renewal for three years.

Where the patentee enjoys a right of priority, the duration of the patent right shall be counted from the date on which the application was filed in China.

[Article 46] The patentee shall pay an annual fee beginning with the year in which the patent right was granted.

[Article 47] In any of the following cases, the patent right shall cease before the expiration of its duration:

(1) Where an annual fee is not paid as prescribed;

(2) Where the patentee abandons his or its patent right by a written declaration.

Any cessation of the patent right shall be registered and announced by the Patent Office.

[Article 48] Where, after the grant of the patent right, any entity or individual considers that the grant of the said patent right is not in conformity with the provisions of this Law, it or he may request the patent Reexamination Board to declare the patent right invalid.

[Article 49] The Patent Reexamination Board shall examine the request for invalidation of the patent right, make a decision and notify the person who made the request and the patentee.  The decision declaring the patent right invalid shall be registered and announced by the Patent Office.

Where any party is not satisfied with the decision of the Patent Reexamination Board declaring the patent right for invention invalid or upholding the patent right for invention, such party may, within three months from receipt of the notification of the decision, institute legal proceedings in the people's court.

The decision of the Patent Reexamination Board in respect of a request to declare invalid the patent right for utility model or design is final.

[Article 50] Any patent right which has been declared invalid shall be deemed to be non-existent from the beginning.

CHAPTER VI COMPULSORY LICENCE FOR EXPLOITATION OF THE PATENT

[Article 51] The patentee himself or itself has the obligation to make the patented product, or to use the patented process, in China, or otherwise to authorize other persons to make the patented product, or to use the patented process, in China.

[Article 52] Where the patentee of an invention or utility model fails, without any justified reason, by the expiration of three years from the date of the grant of the patent right, to fulfill th obligation set forth in Article 51, the Patent Office may, upon the request of an entity which is qualified to exploit the invention or utility model, grant is compulsory licence to exploit the patent.

[Article 53] Where the invention or utility model for which the patent right was granted is technically more advanced than another invention or utility model for which a patent right has been granted earlier and the exploitation of the later invention or utility model depends on the expiration of three years from the date of the grant of the patent right, to fulfil the obligation set forth in Article 51, the Patent Office may, upon the request of an entity which is qualified to exploit the invention or utility model, grant a compulsory licence to exploit the patent.

Where, according to the preceding paragraph, a compulsory licence is granted, the Patent Office may, upon the request of the earlier patentee, also grant a compulsory licence to exploit the later invention or utility model.

[Article 54] The entity or individual requesting, in accordance with the provisions of this Law, a compulsory licence for exploitation shall furnish proof that it or he has not been able to conclude with the patentee a licence contract for exploitation on reasonable terms.

[Article 55] The decision made by the Patent Office granting a compulsory licence for exploitation shall be registered and announced.

[Article 56] Any entity of individual that is granted a compulsory licence exploitation shall not have an exclusive right to exploit and shall not have the right to authorize exploitation by any others.

[Article 57] The entity of individual that is granted a compulsory licence for exploitation shall pay to the patentee a reasonable exploitation fee, the amount of which shall be fixed by both parties in consultations.  Where the parties fail to reach an agreement, the Patent Office shall adjudicate.

[Article 58] Where the patentee is not satisfied with the decision of the Patent Office granting a compulsory licence for exploitation or with the adjudication regarding the exploitation fee payable for exploitation, he or it may, within three months from the receipt of the notification, institute legal proceedings in the people's court.

CHAPTER VII PROTECTION OF PATENT RIGHT

[Article 59] The extent of protection of the patent right for invention or utility models shall be determined by the terms of the claims.  The description and the appended drawings may be used to interpret the claims.

The extent of protection of the patent right for design shall be determined by the product incorporating the patented design as shown in the drawings or photographs.

[Article 60] For any exploitation of the patent, without the authorization of the patentee, constituting an infringing act, the patentee or any interested party may request the administrative authority for patent affairs to handle the matter or may directly institute legal proceedings in the people's court.  The administrative authority for patent affairs handling the matter shall have the power to order the infringer to stop the infringing act and to compensate for the damage.  Any party dissatisfied may, within three months from the receipt of the notification, institute legal proceedings in the people's court.  If such proceedings are not instituted within the time limit and if the order is not complied with, the administrative authority for patent affairs may approach the people's court for compulsory execution.

When any infringement dispute arises, if the patent for invention is a process for the manufacture of a product, any entity or individual manufacturing the identical product shall furnish proof of the process used in the manufacture of its or his product.

[Article 61] Prescription for instituting legal proceedings concerning the infringement of patent right is two years counted from the date on which the patentee or any interested party obtains or should have obtained knowledge of the infringing act.

[Article 62] None of the following shall be deemed an infringement of the patent right:

(1) Where, after the sale of a patented product that was made by the patentee or with the authorization of the patentee, any other person uses or sells that product;

(2) Where any person uses or sells a patented product not knowing that it was made and sold without the authorization of the patentee;

(3) Where, before the date of filing of the application for patent, any person who has already made the same product, used the same process, or made necessary preparations for its making or using, continues to make or use it within the original scope only;

(4) Where any foreign means of transport which temporarily passes through the territory, territorial waters or territorial airspace of China uses the patent concerned, in accordance with any agreement concluded between the country to which the foreign means of transport belongs and China, or in accordance with any international treaty to which both countries are parties, or on the basis of the principle of reciprocity, for its own needs in its devices and installations;

(5) Where any person uses the patent concerned solely for the purposes of scientific research and experimentation.

[Article 63] Where any person passes off the patent of another person, such passing off shall be treated in accordance with Article 60 of this Law.  If the circumstances are serious, any person directly responsible shall be prosecuted for his criminal liability, by applying mutatis mutandis Article 127 of the Criminal Law.

[Article 64] Where any person, in violation of the provisions of Article 20 of this Law, unauthorizedly files in a foreign country an application for a patent that divulges an important secret of the State, he shall be subject to disciplinary sanction by the entity to which he belongs or by the competent authority concerned at the higher level.  If the circumstances are serious, he shall be prosecuted for his criminal liability according to the law.

[Article 65] Where any person usurps the right of an inventor or creator to apply for a patent for a nonservice invention-creation, or usurps any other right or interest of an inventor or creator prescribed by this Law, he shall be subject to disciplinary sanction by the entity to which he belongs or by the competent authority at the higher level.

[Article 66] Where any staff member of the Patent Office, or any staff member concerned of the State, acts wrongfully out of personal considerations or commits fraudulent acts, he shall be subject to disciplinary sanction by the Patent Office or the competent authority concerned.  If the circumstances are serious, he shall be prosecuted, for his criminal liability, by applying mutatis mutandis Article 188 of the Criminal Law.

CHAPTER VIII SUPPLEMENTARY PROVISIONS

[Article 67] Any application for a patent filed with, and any other proceedings before, the Patent Office shall be subject to the payment of a fee as prescribed.

[Article 68] The Implementing Regulations of this Law shall be drawn up by the Patent Office and shall enter into force after approval by the State Council.

[Article 69] This Law shall come into force on April 1, 1985.