People's Republic Of China Patent Law

Original Language Title: 中华人民共和国专利法

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  People's Republic of China President of the eighth Standing Committee of the national people's Congress to amend People's Republic of China patent law decision by the People's Republic of China the sixth meeting of the Standing Committee of the 11th NPC on December 27, 2008, are hereby promulgated and take effect on October 1, 2009. People's Republic of China President Hu Jintao December 27, 2008 People's Republic of China patent law (March 12, 1984 the last session of the Standing Committee of the national people's Congress, adopted at the fourth Conference on September 4, 1992 VII session of the 27th meeting of the Standing Committee of the national people's Congress to amend People's Republic of China patent law, the first amendment of the decision on the basis of 2000 August 25 the 17th meeting of the Standing Committee of the ninth the modification of People's Republic of China patent law decision on second amendment of December 27, 2008, the sixth meeting of the Standing Committee of the 11th NPC the modification of People's Republic of China patent law, the decision of the third amendment) contents chapter I General provisions chapter II requirements for grant of the patent right chapter III application for patent review and approval of the fifth chapter of the fourth chapter patent application patent term, termination

Compulsory license for exploitation of patent invalid and sixth chapter seventh chapter VII protection of patent rights the eighth chapter by-laws chapter I General provisions article in order to protect the legitimate rights and interests of the patentee, to encourage invention-creation, promoting the application of innovations, improving innovation ability, promote scientific and technological progress and economic and social development, this law is enacted.

Article inventions mentioned in this law refer to inventions, utility models and designs.

Invention refers to a product, or an improvement that the new technical solutions.

Utility refers to the product's shape, structure, or a combination thereof ' is fit for practical use of new technical solutions.

Design, refers to the product's shape, design or a combination thereof, as well as color and shape, pattern, made by the combination of aesthetic feeling and new design suitable for industrial applications.

Patent Administration Department under the State Council shall be responsible for the patent work throughout the country; it receives and examines patent applications and grants patent rights according to law.

The provinces, autonomous regions, or municipalities directly under the administration of patent work in the Department responsible for the administration of patent work.

Article fourth patent inventions related to national security or other vital interests should be kept confidential, in accordance with the relevant provisions of the State.

Article fifth inventions contrary to legal or social morality or that is detrimental to public interest, no patent shall be granted.

For violations of the laws and administrative regulations of the access to or use of genetic resources, and relied on the genetic resource he belongs, no patent shall be granted. Article sixth delivery of the unit's tasks or is the use of material and technical resources of the entity he belongs as a Service invention-creation.

Invention patent shall belong to the unit after the application is approved, the patentee of the unit.

An inventor created right to apply for a patent belongs to the inventor or designer; after the application is approved, inventor or designer of the people-the patentee.

Use of material and technical resources of the entity he belongs, the unit has contracts with the inventor or designer, patent rights and patent rights belonging to make contract, their agreement shall prevail.

Article seventh to the inventor or creator of an inventor to create a patent application, no unit or individual shall suppress.

Article eighth of two or more units or individuals to complete inventions, units or individuals receiving other units or individuals entrusted by he belongs, unless the agreement otherwise requires, patent rights belong to complete or completed by units or individuals; after the application is approved, unit or individual applications to the patentee. Nineth same invention can only be granted a patent.

However, the same applicant for the same invention on the same day both applications for utility model patents and applications for patents for invention, utility model patent obtained has not been terminated, and the applicant renounces the patent right for utility model, invention can be granted a patent.

Two or more applicants of patent applications for the same invention, patents are granted first to the person applying.

Tenth right of patent application and the patent right may be assigned.

Chinese entity or individual to a foreigner, foreign enterprise or other foreign organization of transfer of the right of patent application or patent right shall be shall be handled according to relevant laws and administrative rules and procedures. Transfer of the right of patent application or patent right, the parties concerned shall enter into a written contract, and register with the Administrative Department for patent under the State Council, and by the Administrative Department for patent under the State Council shall be announced.

The transfer of the right of patent application or patent right take effect from the date of registration.

11th article invention and practical new patent was grant Hou, except this method another has provides of yiwai, any units or personal without patent people license, are shall not implementation its patent, that shall not for production business purpose manufacturing, and using, and promised sales, and sales, and imports its patent products, or using its patent method and using, and promised sales, and sales, and imports in accordance with the patent method directly get of products.

Design after the grant of the patent right, no entity or individual may, without the authorization of the patentee, shall not exploit the patent, namely, for production or business purposes manufacture, offering for sale, sale and import its design patent product. 12th no unit or individual patent of another person, shall conclude with the patentee a license contract and pay royalties to the patent rights.

Licensee has no right to allow anything other than stipulated in the contract unit or individual to exploit the patent.

Article 13th after 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.

14th state-owned enterprises and institutions of the invention patent, of major importance to national interests or public interests, relevant departments of the State Council and provinces, autonomous regions and municipalities reported to the State Council for approval, you can decide in the context of approved application, allows you to specify the entity, by implementing units pay royalties to the patent according to state regulations. 15th the right of patent application or patent owners have agreed on the exercise of the right of, their agreement shall prevail.

No contract, owners can individually or based on common license license the patent; license the patent, use fees charged should be divided among the co-owners.

Apart from the cases provided for in the preceding paragraph, exercise the right of patent application or patent right shall obtain the consent of all the co-owners.

16th the patent right is granted shall set forth the invention inventor or creator a reward after the implementation of inventions and patents, obtained under the scope of its application and economic efficiency, reasonable remuneration to the inventor or creator.

17th the inventor or creator has the right to the patent document stated himself to be the inventor or creator.

The patentee has the right to, in its patented product or on the packaging of the product indicated on the patent identified.

18th no habitual residence or business office in China, foreigner, foreign enterprise or other foreign organization apply for patents in China, in accordance with their respective State and China signed agreements or joint participation in international treaties, or in accordance with the principle of reciprocity, according to this law shall be followed.

19th no habitual residence or business office in China to foreigners, foreign enterprise or other foreign organization patent, and any other patent matters in China shall entrust's patent agency established by law.

Units or individuals in the country applied for a patent in China, and any other patent matters, may appoint a patent agency established by law. Patent Agency shall comply with the laws and administrative regulations, in accordance with the principal delegate to handle patent applications and other patent matters; the principal contents of the invention, in addition to patents that have been published or announced, have a duty of confidentiality.

Specific measures for the administration of the patent agencies designated by the State Council. 20th no units or individuals in China completed the invention or utility model patent application to the foreign, confidentiality shall be submitted to the Administrative Department for patent under the State Council for review.

Confidentiality review procedures, terms in accordance with the regulations of the State Council. The Chinese entity or individual can People's Republic of China participate in relevant international treaties for the international application for patent.

International application for a patent of the applicant, shall comply with the provisions of the preceding paragraph.

The Administrative Department for patent under the State Council in accordance with the People's Republic of China participate in the relevant international treaties, this law and the relevant regulations of the State Council the international patent application.

For violation of the provisions of the first paragraph of this article apply to the foreign patent of invention or utility model, patent in China, and no patent shall be granted.

21st the patent Administration Department under the State Council and its patent reexamination Board shall, in accordance with objective, fair, accurate, and timely request, the law relating to patent applications and requests.

The Administrative Department for patent under the State Council shall be complete, accurate, and timely dissemination of patent information and publish the Patent Gazette at regular intervals.

In front of the published or announced patent applications, the patent Administration Department under the State Council staff and associated personnel have a duty of confidentiality to its content.

Chapter II requirements for grant of the patent right granted in article 22nd patents of invention and utility model, must possess novelty, creativity and practicality.

Novelty refers to the invention or utility model does not belong to the prior art; nor is there any units or individuals for the same invention or utility model application is filed prior to the date of the Administrative Department for patent under the State Council application and document published after the filing date of the patent application or announced patent documents.

Creativity is compared with the existing technology, the invention has prominent substantive features and significant progress, the utility model has substantive features and improvements.

Usability refers to the invention or utility model can be made or used, and can produce positive results.
Existing technology referred to in this law, refers to the date of application technology previously unknown to the public at home and abroad.

Article 23rd appearance design patent right may be granted, should not belong to an existing design, nor any units or individuals for the same design before the date of filing of the patent Administration Department under the State Council submitted applications, and documented in the notice after the date of filing of the patent document.

Patented design with an existing design or a combination of existing design features compared should have significant differences.

Appearance design patent right may be granted shall not be before the date of filing has been made with other people's legitimate rights conflict.

Existing designs in this law, refers to the date of application design previously known to the public at home and abroad.

24th the invention before the date of filing of the patent within six months, any of the following circumstances, does not lose its novelty where: (a) an international exhibition sponsored or recognized by the Chinese Government on display for the first time, (ii) first published in prescribed academic or technological meeting, (iii) to any person without the consent of the applicant disclosing its contents.

25th article on following the, not grant patent: (a) Science found; (ii) intelligence activities of rules and method; (three) disease of diagnosis and treatment method; (four) animal and plant varieties; (five) with nucleus transform method get of material; (six) on plane print of pattern, and color or both of combined made of main up identifies role of design.

The preceding paragraph (d) of the method of production of the products listed, patent can be granted in accordance with the provisions of this law.

Chapter III patent applications article 26th apply for a patent for invention or utility model shall submit a request, a description and its abstract, and claims files.

The request shall clearly state the name of the invention or utility model, the inventor's name, name or name and address of the applicant, as well as other matters. Description shall set forth the invention or utility model has made clear and complete instructions to skilled technicians in the field to achieve is to prevail when necessary, drawings shall be there.

Summary should be a brief description of the invention or utility model technical points.

Claims should be based on the instructions clearly and concisely state requires the scope of patent protection.

Dependent on genetic resources he belongs, the applicant shall describe the genetic resources in the patent application documents directly to source and the original source could not account for the original source of the applicant, shall state the reasons.

27th to apply for a design patent, shall submit a written request, the design drawings or photographs as well as the the file such as a brief description of the design.

The applicant has submitted the drawings or photographs should be clearly displayed that requests the patent protected product design. 28th the patent Administration Department under the State Council receives the application shall file the date of filing.

If the application is sent by mail, with date of postmark date as the date of filing.

29th article applicants since invention or practical new in foreign first times proposed patent application of day up 12 months within, or since appearance design in foreign first times proposed patent application of day up six months within, and in China on same theme proposed patent application of, in accordance with the foreign with China signed of agreement or common participate in of international treaty, or in accordance with mutual admitted priority of principles, can enjoys priority.

Applicants since the invention or utility model in China for the first time within 12 months from the date of the patent application, the patent Administration Department under the State Council to submit the patent application on the same subject, can be given priority.

Article 30th an applicant claims the right of priority, shall at the time of application a written statement and submitted for the first time in three months to submit copies of patent documents; does not make a written declaration or fails to submit a copy of the patent application document, shall be deemed not to claim priority. 31st an invention or utility model patent application shall be limited to one invention or utility model.

Belonging to a single general inventive concept to two or more inventions or utility models, may be filed as one application. A design patent application shall be limited to one design.

Two or more similar designs of the same product, or to the same class and sets the sale or if you use two or more designs may be filed as one application.

32nd applicant may withdraw its application for a patent at any time before the patent right is granted.

33rd the applicant can modify its patent application, however, modifications to the invention or utility model patent application documents shall not exceed the original specifications and claims the scope of, and modifications to the design patent application documents shall not exceed the original pictures or photographs of the area. Fourth chapter of patent application examination and approval article 34th after receipt of the patent application the patent Administration Department under the State Council, upon preliminary examination, to meet the requirements of this law, from the expiration of 18 months from the date of filing, it shall publish.

According to the request of the applicant, the patent Administration Department under the State Council publishes its application.

35th invention within three years from the date of filing of patent application, the patent Administration Department under the State Council can put forward according to the applicant's request, to carry out a substantial review of their applications applicants without any justified reason, the time limit is not requesting examination as to substance, the application shall be deemed withdrawn.

When deemed necessary by the Administrative Department for patent under the State Council, can apply for a patent for invention for examination as to substance.

36th when applicants of patent for invention requests examination as to substance, shall furnish pre-filing date reference relating to the invention.

Of applications for invention patents have been made in a foreign country, the patent Administration Department under the State Council may require the applicant to submit, within a specified period to the country to review its application to retrieve information or review information without any justified reason, the time limit is not submitted, the application shall be deemed withdrawn.

37th the patent Administration Department under the State Council after the substantive examination of patent application for invention, considered incompatible with the provisions of this law, it shall notify the applicant, requesting a statement within the period specified, or to modify its application; without due cause fails to reply, the application shall be deemed withdrawn.

Article 38th invention after the patent application after the applicant has made the comments or amendments, the Administrative Department for patent under the State Council still considers incompatible with the provisions of this law, shall be rejected. 39th patent for invention is found after examination as to substance does not cause for rejection of the application, to grant the patent right for invention by the patent Administration Department under the State Council decided to issue the certificate of patent for invention, and register and announce it.

Invention patents came into effect since the date of the announcement. 40th utility and design patent applications subject to preliminary review found no cause for rejection, made by the patent Administration Department under the State Council to grant a utility model patent right or the patent right for design decisions, and issue the relevant patent certificate, and register and announce it.

Utility model patents and design patents came into effect since the date of the announcement. 41st the patent Administration Department under the State Council set up a patent reexamination Board. Patents the patent Administration Department under the State Council to reject the application by the applicant disagrees with the decision, he may, within three months from the date of receipt of the notification, request for review to the patent reexamination Board.

The patent reexamination Board shall, after reexamination, make a decision, and notify the applicant.

Patent applicants not satisfied with the decision of the patent reexamination Board, he may, within three months from the date of receipt of the notification to the Court.

Chapter fifth patent duration, termination and invalidity article 42nd invention for a period of 20 years, utility model patents and design patents for a period of ten years, from the date of filing.

Article 43rd the patentee shall pay an annual fee are granted patents beginning with the year.

44th under any of the following circumstances, franchise terminated prior to the expiration of the period: (a) do not pay an annual fee in accordance with the provisions of (ii) of a written declaration to give up its patent by the patentee.

Terminated before the expiry of patent rights and registered by the Administrative Department for patent under the State Council and the announcements.

Article 45th from the date of announcement of the grant of the patent the patent Administration Department under the State Council, no unit or individual considers that this law is not in conformity with the relevant provisions of the patent, may request the patent reexamination Board declaring the patent right invalid. Article 46th request the patent reexamination Board declaring the patent right invalid shall promptly review and take a decision, and notify the applicant and the patentee.

The decision declaring the patent right invalid, registered by the Administrative Department for patent under the State Council and the announcements. Patent Reexamination Board declaring the patent right invalid or upholding the patent right, disagrees with the decision, he may, within three months from the date of receipt of the notification to the Court.

The people's Court shall notify the other party of the request for invalidation process as a third party to the litigation.

47th declared invalid patents as that does not exist from the very beginning. The decision declaring the patent right invalid, in the people's Court and executed before invalidation of patent infringement judgment, mediation, has been complied with or enforced decision concerning the handling of patent infringement, and has executed a patent licensing contract and the transfer of patent rights contract, does not have retrospective effect.

But losses due to patent rights to other people's bad faith, shall be compensated.

In accordance with the provisions of the preceding paragraph shall not return the patent infringement damages, royalties, franchise transfer fee, in clear violation of the principle of fairness, it should be all or part of the return. Sixth chapter patent implementation of forced license 48th article has following case one of of, State patent administrative sector according to has implementation conditions of units or personal of application, can give implementation invention patent or practical new patent of forced license: (a) patent people since patent was grant of day up full three years, and since proposed patent application of day up full four years, no due reason not implementation or not full implementation its patent of; (ii) patent people exercise patent of behavior was law finds for monopoly behavior,

To eliminate or reduce the adverse effects of the conduct on competition.

49th in the country when emergency or exceptional circumstances occur, or where the public interest purposes, the patent Administration Department under the State Council may grant a patent for invention or utility model patents compulsory licenses.
50th for public health purposes, for patented medicines, the patent Administration Department under the State Council may give manufacturing and exporting it to meet the People's Republic of China participate in the provisions of the relevant international treaties country or region of compulsory licensing.

51st of a patented invention or utility model patent has been made before the invention or utility model has significant economic importance and significant technological progress, its implementation also depends on the previous implementation of the invention or utility model, the patent Administration Department under the State Council after a patent application, may grant a compulsory license for exploitation of the invention or utility model before.

In the case of granting a compulsory license in accordance with the preceding paragraph, the patent Administration Department under the State Council according to the previous patent application or grant a compulsory license for exploitation of the invention or utility model.

Covered by the 52nd compulsory licensing inventions to semiconductor technology, its implementation is limited to public interest and 48th articles of this law (b) provided.

53rd, inter alia in accordance with 48th article (b), 50th outside the compulsory licensing provisions, the implementation of compulsory licenses shall be mainly to supply the domestic market.

54th 48th article of this law in accordance with (a) application for compulsory licensing, 51st article unit or individual should provide evidence proved, to request the authorization of the patentee on reasonable terms to its patent, but not available within a reasonable period of time to obtain a license.

55th the patent Administration Department under the State Council made the decision to grant a compulsory license shall notify the patentee, and shall be registered and announced. Decision to grant a compulsory license should be based on the grounds for compulsory licensing provisions on the scope and timing of implementation.

Compulsory licensing grounds for removal and is no longer taking place, the patent Administration Department under the State Council shall, in accordance with the patentee's request to terminate the compulsory license decision upon review.

Achieved a compulsory license for the 56th article of units or individuals shall not have an exclusive right and the right to authorize other persons to commit. 57th is granted a compulsory license units or individuals to be paid to the patentee a reasonable fee, or in accordance with the People's Republic of China participate in the provisions of the relevant international treaties to address fee issues.

To pay royalties, which, through mutual consultation; both parties fail to reach agreement, by the Administrative Department for patent under the State Council decision.

Article 58th patentee on a compulsory license for the patent Administration Department under the State Council decision, the patentee and is granted a compulsory license units or individuals to the Administrative Department for patent under the State Council decision on the compulsory license fee if, within three months from the date of receipt of the notification of a lawsuit.

Seventh chapter VII protection of patent rights 59th invention or utility model patent protection for its claim of subject content, content of the description and the drawings may be used to interpret the claims.

Designs to indicate the scope of patent protection in the drawings or photographs of the design of the product is subject, a brief description can be used to interpret the drawings or photographs of the product design. 60th without the authorization of the patentee, exploit the patent, that patent violations, disputes, resolved by the parties through consultation; not consultation or negotiation, the patent holder or an interested person may bring a lawsuit, or request the administrative authority for patent Affairs handling. When the administrative authority for patent Affairs handling, finds that infringement is established, it may order the infringer to stop the infringing act immediately any party dissatisfied with, May 15th from the date of receipt of the notification in accordance with the People's Republic of China administrative litigation law of the people's Court; the infringer does not sue, nor to stop the infringing act, administrative authorities for patent Affairs may request the people's Court for compulsory execution.

Dealing with administrative authorities for patent Affairs upon the request of the parties, for infringement of a patent damages can be mediate mediation fails, the parties may, in accordance with the People's Republic of China Law of civil procedure Court.

61st for patent infringement dispute involving patent of new manufacturing methods, manufacturing the identical product unit or individual shall provide the proof of product manufacturing method is different from the patented process.

Patent infringement dispute involving patent for utility model or design patent, the Court or the administrative authority for patent Affairs may request the patentee or interested persons issued by the Administrative Department for patent under the State Council on related utility or retrieve, analyze, and evaluate the design patent was made after evaluation reports as evidence of the trial, dealing with patent infringement.

62nd in a patent infringement dispute, accused infringer there is evidence that the implementation of technology belongs to an existing technology or existing designs or design, does not constitute patent infringement.

63rd of passing off the patent, and in addition shall bear civil liability, be ordered by the administrative authority for patent Affairs to correct and announce, confiscate the illegal income, and may be fined not more than the illegal income four times; no illegal income, and may be fined not more than 200,000 yuan constitutes a crime, criminal responsibility shall be investigated according to law.

64th article management patent work of sector according to has made of evidence, on suspected fake patent behavior for investigation Shi, can asked about party, survey and suspected violations about of situation; on party suspected violations of places implementation site check; check out, and copy and suspected violations about of contract, and invoice, and books and other about information; check and suspected violations about of products, on has evidence proved is fake patent of products, can seized or seized.

Administrative authorities for patent affairs according to law when exercising the powers prescribed in the preceding paragraph, the Parties shall provide assistance and cooperation, and may not refuse or obstruct. 65th for infringement of a patent in accordance with the amount of compensation of infringement of rights caused by the actual losses determined actual losses are difficult to determine, can be determined according to the benefits derived by the infringer for infringement. Benefits human loss or infringement of rights of people it is difficult to determine, multiples of the reference the patent license fee determination.

Shall also include the amount of compensation paid by the right holder to stop the infringing act of reasonable expenses.

Loss of rights holders, the infringer has earned interest and patent licensing fees are difficult to determine, the people's courts under the franchise type, factors such as the nature and circumstances of the violation to determine given 10,000 yuan and 1 million Yuan compensation.

66th patentee or interested party has evidence to prove that others are being implemented or are about to commit acts of infringement of a patent, if not stopped will cause irreparable damage to their legitimate rights and interests, before sue and you can apply to the Court to order the suspension of the relevant measures.

When the applicant, should provide a guarantee does not provide guaranty, the application shall be rejected. People's courts shall accept applications within 48 hours from the time of decision; there are special circumstances need to be extended, can be extended by 48 hours. Ruling ordered to stop the Act, should be implemented immediately.

A party who is dissatisfied, he may apply for reconsideration once for reconsideration of the order shall not be suspended during the execution.

Applicant the Court to order the suspension of the measures within 15th of prosecution, the people's Court shall cancel the measure.

Applications with errors, the applicant shall compensate the losses suffered by the applicant ceased the behavior.

67th to prevent patent infringement, in the context of that evidence may be destroyed or lost or difficult to obtain later, the patentee or interested parties can sue to the people's Court for preservation of the evidence before it.

Preservative measure against the people's Court may order the applicant to provide security; the applicant fails to provide security, to reject the application.

People's courts shall accept applications made within 48 hours from the time of order; order to adopt security measures, should be implemented immediately.

Applicant within 15th since the day of the people's Court to take protective measures for prosecution, the people's Court shall cancel the measure.

68th limitation of action for infringement of a patent for two years, since the patentee or interested party obtains or should have learned that date on which the infringement.

From the publication of the invention patent application before the grant of patent right, using the invention did not pay an appropriate fee, the patent holder required to pay the toll the Statute of limitations is two years since the patentee learned or should have learned that the date on which the invention is used by others, but to the date of the grant of patent right of the patentee has already obtained or should have, calculated from the date of the grant of patent right. 69th article has following case one of of, not considered violations patent: (a) patent products or in accordance with patent method directly get of products, by patent people or by its license of units, and personal sold Hou, using, and promised sales, and sales, and imports the products of; (ii) in patent application recently has manufacturing same products, and using same method or has for good manufacturing, and using of necessary prepared, and only in original range within continues to manufacturing, and using of; (three) temporary through China territorial land, and territorial waters, and

Airspace of foreign transport tool, in accordance with its belongs country with China signed of agreement or common participate in of international treaty, or in accordance with mutual principles, for transport tool itself need and in its device and equipment in the using about patent of; (four) designed for scientific research and experiment and using about patent of; (five) for provides administrative approval by need of information, manufacturing, and using, and imports patent drug or patent medical devices of, and specifically for its manufacturing, and imports patent drug or patent medical devices of.

70th article for the purpose of production and operation using, offering for sale or selling don't know without the authorization of the patentee to manufacture and sell products for patent infringement, the legitimate sources can be proved, does not assume liability.

71st violates the 20th article of this Act apply to the foreign patent, divulging State secrets, given sanction by the unit or by the competent organs constitutes a crime, criminal responsibility shall be investigated according to law.

72nd made the inventor or creator of an inventor to create the right of patent application and other rights stipulated by this law, by the unit or the competent authority to administrative sanctions.

73rd administrative authorities for patent Affairs may not engage in business activities such as recommending any patented product to the public.
Administrative authorities for patent work violates the provisions of the preceding paragraph, by its superior organ or supervisory organs shall be ordered to correct, remove, confiscation of illegal income; the circumstances are serious, managers directly responsible and other persons directly responsible shall be given administrative sanctions.

74th engaged in patent administration functionaries and other relevant organs of dereliction of duty, abuse of power, favoritism and constitutes a crime, criminal responsibility shall be investigated according to law; do not constitute a crime, administrative sanctions according to law.

Eighth chapter supplementary articles article 75th to the patent Administration Department under the State Patent and other formalities, fees shall be paid according to the regulations.

76th article this law shall enter into force on April 1, 1985.