(Adopted at the 4th Session of the Standing Committee of the Sixth National People's Congress on March 12, 1984 .Amended by the Decision Regarding the Revision of the Patent Law of the People's Republic of China, adopted at the 27th Session of the Standing Committee of the Seventh National People's Congress on September 4,1992)
CHAPTER
I
GENERAL PROVISIONS
Article 1.This Law is enacted to protect patent rights for inventions-creations,
to encourage inventions-creations, to foster the spreading and application
of inventions-creations, and to promote the development of science
and technology, for meeting the needs of the construction of socialist
modernization.
Article 2.In this Law, "inventions-creations"
mean inventions, utility models and designs.
Article 3.The Patent Office of the People's Republic
of China receives and examines patent applications and grants patent
rights for inventions-creations that conform with the provisions of
this Law.
Article 4.Where the invention-creation for which
a patent is applied for relates to the security or other vital interests
of the State and is required to be kept secret, the application shall
be treated in accordance with the relevant prescriptions of the State.
Article 5.No patent right shall be granted for any
invention-creation that is contrary to the laws of the State or social
morality or that is detrimental to public interest.
Aticle 6.For a service invention-creation, made
by a person in execution of the tasks of the entity to which he belongs
or made by him mainly by using the material means of the entity, the
right to apply for a patent belongs to the entity. For any non-service
invention-creation, the right to apply for a patent belongs to the
inventor or creator. After the application is approved, if it was
filed by an entity under ownership by the whole people, the patent
right shall be held by the entity; if it was filed by an entity under
collective ownership or by an individual, the patent right shall be
owned by the entity or individual.
For a service invention-creation made by any staff member or worker
of a foreign enterprise, or of a Chinese-foreign joint venture enterprise,
located in China, the right to apply for a patent belongs to the enterprise.
For any non-service invention-creation, the right to apply for a patent
belongs to the inventor or creator. After the application is approved,
the patent right shall be owned by the enterprise or the individual
that applied for it.
The owner of the patent right and the holder of the patent right are
referred to as "patentee".
Article 7.No entity or individual shall prevent
the inventor or creator from filing an application for a patent for
a non-service invention-creation.
Article 8.For an invention-creation made in cooperation
by two or more entities, or made by an entity in execution of a commission
for research or designing given to it by another entity, the right
to apply for a patent belongs, unless otherwise agreed upon, to the
entity which made, or to the entities which jointly made, the invention-creation.
After the application is approved, the patent right shall be owned
or held by the entity or entities that applied for it .
Article 9.Where two or more applicants file applications
for patent for the identical invention- creation, the patent right
shall be granted to the applicant whose application was filed first.
Article 10.The right to apply for a patent and the
patent right may be assigned.
Any assignment, by an entity under ownership by the whole people,
of the right to apply for a patent, or of the patent right, must be
approved by the competent authority at the higher level.
Any assignment, by a Chinese entity or individual, of the right to
apply for a patent, or of the patent right, to a foreigner must be
approved by the competent department concerned of the State Council.
Where the right to apply for a patent or the patent right is assigned,
the parties must conclude a written contract, which will come into
force after it is registered with and announced by the Patent Office.
Article 11.After the grant of the patent right for
an invention or utility model, except as otherwise provided for in
the law, no entity or individual may, without the authorization of
the patentee, make, use or sell the patented product, or use the patented
process and use or sell the product directly obtained by the patented
process, for production or business purposes.
After the grant of the patent right for a design, no entity or individual
may, without the authorization of the patentee, make or sell the product,
incorporating its or his patented design, for production or business
purposes.
After the grant of the patent right, except as otherwise provided
for in the law, the patentee has the right to prevent any other person
from importing, without its or his authorization, the patented product,
or the product directly obtained by its or his patented process, for
the uses mentioned in the preceding two paragraphs.
Article 12.Any entity or individual exploiting the
patent of another must, except as provided for in Article 14 of this
Law, conclude with the patentee a written license contract for exploitation
and pay the patentee a fee for the exploitation of the patent. The
licensee has no right to authorize any entity or individual, other
than that referred to in the contract for exploitation, to exploit
the patent.
Article 13.After the publication of the application
for a patent for invention, the applicant may require the entity or
individual exploiting the invention to pay an appropriate fee.
Article 14.The competent departments concerned of
the State Council and the people's governments of provinces, autonomous
regions or municipalities directly under the Central Government have
the power to decide, in accordance with the State plan, that any entity
under ownership by the whole people that is within their system or
directly under their administration and that holds the patent right
to an important invention-creation is to allow designated entities
to exploit that invention- creation; and the exploiting entity shall,
according to the prescriptions of the State, pay a fee for exploitation
to the entity holding the patent right.
Any patent of a Chinese individual or entity under collective ownership,
which is of great significance to the interests of the State or to
the public interest and is in need of spreading and application, may,
after approval by the State Council at the solicitation of its competent
department concerned, be treated alike by making reference to the
provisions of the preceding paragraph.
Article 15.The patentee has the right to affix a
patent marking and to indicate the number of the patent on the patented
product or on the packing of that product.
Article 16.The entity owning or holding the patent
right shall award to the inventor or creator of a service invention-creation
a reward and, upon exploitation of the patented invention-creation,
shall award to the inventor or creator a reward based on the extent
of spreading and application and the economic benefits yielded.
Article 17.The inventor or creator has the right
to be named as such in the patent document.
Article 18.Where any foreigner, foreign enterprise
or other foreign organization having no habitual residence or business
office in China files an application for a patent in China, the application
shall be treated under this Law in accordance with any agreement concluded
between the country to which the applicant belongs and China, or in
accordance with any international treaty to which both countries are
party, or on the basis of the principle of reciprocity.
Article 19.Where any foreigner, foreign enterprise
or other foreign organization having no habitual residence or business
office in China applies for a patent, or has other patent matters
to attend to, in China, he or it shall appoint a patent agency designated
by the State Council of the People's Republic of China to act as his
or its agent.
Where any Chinese entity or individual applies for a patent or has
other patent matters to attend to in the country, it or he may appoint
a patent agency to act as its or his agent.
Article 20.Where any Chinese entity or individual
intends to file an application in a foreign country for a patent for
invention-creation made in the country, it or he shall file first
an application for patent with the Patent Office and, with the sanction
of the competent department concerned of the State Council, shall
appoint a patent agency designated by the State Council to act as
its or his agent.
Article 21.Until the publication or announcement
of the application for a patent, staff members of the Patent Office
and persons involved have the duty to keep its content secret.
CHAPTER
II
REQUIREMENTS FOR GRANT OF PATENT RIGHT
Article 22.Any
invention or utility model for which patent right may be granted must
possess novelty, inventiveness and practical applicability.
Novelty means that, before the date of filing, no identical invention
or utility model has been publicly disclosed in publications in the
country or abroad or has been publicly used or made known to the public
by any other means in the country, nor has any other person filed
previously with the Patent Office an application which described the
identical invention or utility model and was published after the said
date of filing.
Inventiveness means that, as compared with the technology existing
before the date of filing the invention has prominent substantive
features and represents a notable progress and that the utility model
has substantive features and represents progress.
Practical applicability means that the invention or utility model
can be made or used and can produce effective results.
Article 23.Any design for which patent right may
be granted must not be identical with or similar to any design which,
before the date of filing, has been publicly disclosed in publications
in the country or abroad or has been publicly used in the country.
Article 24.An invention-creation for which a patent
is applied for does not lose its novelty where, within six months
before the date of filing, one of the following events occurred:
(1)where it was first exhibited at an international exhibition sponsored
or recognized by the Chinese Government;
(2)where it was first made public at a prescribed academic or technological
meeting;
(3)where it was disclosed by any person without the consent of the
applicant.
Article 25.For any of the following, no patent right
shall be granted:
(1)scientific discoveries;
(2)rules and methods for mental activities;
(3)methods for the diagnosis or for the treatment of diseases;
(4)animal and plant varieties;
(5)substances obtained by means of nuclear transformation.
For processes used in producing products referred to in items (4)
of the preceding paragraph, patent right may be granted in accordance
with the provisions of this Law.
CHAPTER
III
APPLICATION FOR PATENT
Article 26.Where an application for a patent for invention or utility model is
filed, a request, a description and its abstract, and claims shall
be submitted.
The request shall state the title of the invention or utility model,
the name of the inventor or creator, the name and the address of the
applicant and other related matters.
The description shall set forth the invention or utility model in
a manner sufficiently clear and complete so as to enable a person
skilled in the relevant field of technology to carry it out; where
necessary, drawings are required. The abstract shall state briefly
the main technical points of the invention or utility model.
The claims shall be supported by the description and shall state the
extent of the patent protection asked for .
Article 27.Where an application for a patent for
design is filed, a request, drawings or photographs of the design
shall be submitted, and the product incorporating the design and the
class to which that product belongs shall be indicated.
Article 28.The date on which the Patent Office receives
the application shall be the date of filing. If the application is
sent by mail, the date of mailing indicated by the postmark shall
be the date of filing.
Article 29.Where, within twelve months from the
date on which any applicant first filed in a foreign country an application
for a patent for invention or utility model, or within six months
from the date on which any applicant first filed in a foreign country
an application for a patent for design, he or it files in China an
application for a patent for the same subject matter, he or it may,
in accordance with any agreement concluded between the said foreign
country and China, or in accordance with any international treaty
to which both countries are party, or on the basis of the principle
of mutual recognition of the right of priority, enjoy a right of priority.
Where, within twelve months from the date on which any applicant first
filed in China an application for a patent for invention or utility
model, he or it files with the Patent Office an application for a
patent for the same subject matter, he or it may enjoy a right of
priority.
Article 30.Any applicant who claims the right of
priority shall make a written declaration when the application is
filed, and submit, within three months, a copy of the patent application
document which was first filed; if the applicant fails to make the
written declaration or to meet the time limit for submitting the patent
application document, the claim to the right of priority shall be
deemed not to have been made.
Article 31.An application for a patent for invention
or utility model shall be limited to one invention or utility model.
Two or more inventions or utility models belonging to a single general
inventive concept may be filed as one application.
An application for a patent for design shall be limited to one design
incorporated in one product. Two or more designs which are incorporated
in products belonging to the same class and are sold or used in sets
may be filed as one application.
Article 32.An applicant may withdraw his or its
application for a patent at any time before the patent right is granted.
Article 33.An applicant may amend his or its application
for a patent, but the amendment to the application for a patent for
invention or utility model may not go beyond the scope of the disclosure
contained in the initial description and claims, and the amendment
to the application for a patent for design may not go beyond the scope
of the disclosure as shown in the initial drawings or photographs.
CHAPTER
IV
EXAMINATION AND APPROVAL OF APPLICATION FOR PATENT
Article 34.Where, after receiving an application for a patent for invention,
the Patent Office, upon preliminary examination, finds the application
to be in conformity with the requirements of this Law, it shall publish
the application promptly after the expiration of eighteen months from
the date of filing. Upon the request of the applicant,the Patent Office
publishes the application earlier.
Article 35.Upon the request of the applicant for
a patent for invention, made at any time within three years from the
date of filing, the Patent Office will proceed to examine the application
as to its substance. If, without any justified reason, the applicant
fails to meet the time limit for requesting examination as to substance,
the application shall be deemed to have been withdrawn.
The Patent Office may, on its own initiative, proceed to examine any
application for a patent for invention as to its substance when it
deems it necessary.
Article 36.When the applicant for a patent for invention
requests examination as to substance, he or it shall furnish pre-filing
date reference materials concerning the invention.
The applicant for a patent for invention who has filed in a foreign
country an application for a patent for the same invention shall,
at the time of requesting examination as to substance, furnish documents
concerning any search made for the purpose of examining that application,
or concerning the results of any examination made, in that country.
If, without any justified reason, the said documents are not furnished,
the application shall be deemed to have been withdrawn.
Article 37.Where the Patent Office, after it has
made the examination as to substance of the application for a patent
for invention, finds that the application is not in conformity with
the provisions of this Law, it shall notify the applicant and request
him or it to submit, within a specified time limit, his or its observations
or to amend the application. If, without any justified reason, the
time limit for making response is not met, the application shall be
deemed to have been withdrawn.
Article 38.Where, after the applicant has made the
observations or amendments, the Patent Office finds that the application
for a patent for invention is still not in conformity with the provisions
of this Law, the application shall be rejected.
Article 39.Where it is found after examination as
to substance that there is no cause for rejection of the application
for a patent for invention, the Patent Office shall make a decision
to grant the patent right for invention, issue the certificate of
patent for invention, and register and announce it.
Article 40.Where it is found after preliminary examination
that there is no cause for rejection of the application for a patent
for utility model or design, the Patent Office shall make a decision
to grant the patent right for utility model or the patent right for
design, issue the relevant patent certificate, and register and announce
it.
Article 41.Where, within six months from the date
of the announcement of the grant of the patent right by the Patent
Office, any entity or individual considers that the grant of the said
patent right is not in conformity with the relevant provisions of
this Law, it or he may request the Patent Office to revoke the patent
right.
Article 42.The Patent Office shall examine the request
for revocation of the patent right, make a decision revoking or upholding
the patent right, and notify the person who made the request and the
patentee. The decision revoking the patent right shall be registered
and announced by the Patent Office.
Article 43.The Patent Office shall set up a Patent
Reexamination Board. Where any party is not satisfied with the decision
of the Patent Office rejecting the application, or the decision of
the Patent Office revoking or upholding the patent right, such party
may, within three months from the date of receipt of the notification,
request the Patent Reexamination Board to make a reexamination. The
Patent Reexamination Board shall, after reexamination, make a decision
and notify the applicant, the patentee or the person who made the
request for revocation of the patent right.
Where the applicant for a patent for invention, the patentee of an
invention or the person who made the request for revocation of the
patent right for invention is not satisfied with the decision of the
Patent Reexamination Board, he or it may, within three months from
the date of receipt of the notification, institute legal proceedings
in the people's court.
The decision of the Patent Reexamination Board in respect of any request,
made by the applicant, the patentee or the person who made the request
for revocation of the patent right, for reexamination concerning a
utility model or design is final.
Article 44.Any patent right which has been revoked
shall be deemed to be non-existent from the beginning.
CHAPTER
V
DURATION, CESSATION AND INVALIDATION OF PATENT RIGHT
Article 45.The
duration of patent right for inventions shall be twenty years, the
duration of patent right for utility models and patent right for designs
shall be ten years, counted from the date of filing.
Article 46.The patentee shall pay an annual fee
beginning with the year in which the patent right was granted.
Article 47.In any of the following cases, the patent
right shall cease before the expiration of its duration:
(1)where an annual fee is not paid as prescribed;
(2)where the patentee abandons his or its patent right by a written
declaration.
Any cessation of the patent right shall be registered and announced
by the Patent Office.
Article 48.Where, after the expiration of six months
from the date of the announcement of the grant of the patent right
by the Patent Office, any entity or individual considers that the
grant of the said patent right is not in conformity with the relevant
provisions of this Law, it or he may request the Patent Reexamination
Board to declare the patent right invalid.
Article 49.The Patent Reexamination Board shall
examine the request for invalidation of the patent right, make a decision
and notify the person who made the request and the patentee. The decision
declaring the patent right invalid shall be registered and announced
by the Patent Office.
Where any party is not satisfied with the decision of the Patent Reexamination
Board declaring the patent right for invention invalid or upholding
the patent right for invention, such party may, within three months
from receipt of the notification of the decision, institute legal
proceedings in the people's court.
The decision of the Patent Reexamination Board in respect of a request
to declare invalid the patent right for utility model or design is
final.
Article 50.Any patent right which has been declared
invalid shall be deemed to be non-existent from the beginning.
The decision of invalidation shall have no retroactive effect on any
judgement or order on patent infringement which has been pronounced
and enforced by the people's court, on any decision concerning the
handling of patent infringement which has been made and enforced by
the administrative authority for patent affairs, and on any contract
of patent license and of assignment of patent right which have been
performed, prior to the decision of invalidation; however, the damages
caused to other persons in bad faith on the part of the patentee shall
be compensated.
If, pursuant to the provisions of the preceding paragraph, no repayment,
by the patentee or the assignor of the patent right to the licensee
or the assignee of the patent right, of the fee for the exploitation
of the patent or the price for the assignment of the patent right
is obviously contrary to the principle of equity, the patentee or
the assignor of the patent right shall repay the whole or part of
the fee for the exploitation of the patent or the price for the assignment
of the patent right to the licensee or the assignee of the patent
right.
The provisions of the second and third paragraph of this Article shall
apply to the patent right which has been revoked.
CHAPTER
VI
COMPULSORY LICENSE FOR EXPLOITATION OF THE PATENT
Article 51.Where any entity which is qualified to exploit the invention or utility
model has made requests for authorization from the patentee of an
invention or utility model to exploit its or his patent on reasonable
terms and such efforts have not been successful within a reasonable
period of time, the Patent Office may, upon the application of that
entity, grant a compulsory license to exploit the patent for invention
or utility model.
Article 52.Where a national emergency or any extraordinary
state of affairs occurs, or where the public interest so requires,
the Patent Office may grant a compulsory license to exploit the patent
for invention or utility model.
Article 53.Where the invention or utility model
for which the patent right was granted is technically more advanced
than another invention or utility model for which a patent right has
been granted earlier and the exploitation of the later invention or
utility model depends on the exploitation of the earlier invention
or utility model, the Patent Office may, upon the request of the later
patentee, grant a compulsory license to exploit the earlier invention
or utility model.
Where, according to the preceding paragraph, a compulsory license
is granted, the Patent Office may, upon the request of the earlier
patentee, also grant a compulsory license to exploit the later invention
or utility model.
Article 54.The entity or individual requesting,
in accordance with the provisions of this Law, a compulsory license
for exploitation shall furnish proof that it or he has not been able
to conclude with the patentee a license contract for exploitation
on reasonable terms.
Article 55.The decision made by the Patent Office
granting a compulsory license for exploitation shall be registered
and announced.
Article 56.Any entity or individual that is granted
a compulsory license for exploitation shall not have an exclusive
right to exploit and shall not have the right to authorize exploitation
by any others.
Article 57.The entity or individual that is granted
a compulsory license for exploitation shall pay to the patentee a
reasonable exploitation fee, the amount of which shall be fixed by
both parties in consultations. Where the parties fail to reach an
agreement, the Patent Office shall adjudicate.
Article 58.Where the patentee is not satisfied with
the decision of the Patent Office granting a compulsory license for
exploitation or with the adjudication regarding the exploitation fee
payable for exploitation, he or it may, within three months from the
receipt of the notification, institute legal proceedings in the people's
court.
CHAPTER
VII
PROTECTION OF PATENT RIGHT
Article 59.The
extent of protection of the patent right for invention or utility
model shall be determined by the terms of the claims. The description
and the appended drawings may be used to interpret the claims.
The extent of protection of the patent right for design shall be determined
by the product incorporating the patented design as shown in the drawings
or photographs.
Article 60.For any exploitation of the patent, without
the authorization of the patentee, constituting an infringing act,
the patentee or any interested party may request the administrative
authority for patent affairs to handle the matter or may directly
institute legal proceedings in the people's court. The administrative
authority for patent affairs handling the matter shall have the power
to order the infringer to stop the infringing act and to compensate
for the damage. Any party dissatisfied may, within three months from
the receipt of the notification, institute legal proceedings in the
people's court. If such proceedings are not instituted within the
time limit and if the order is not complied with, the administrative
authority for patent affairs may approach the people's court for compulsory
execution.
When any infringement dispute arises, if the patent for invention
is a process for the manufacture of a new product, any entity or individual
manufacturing the identical product shall furnish proof of the process
used in the manufacture of its or his product.
Article 61.Prescription for instituting legal proceedings
concerning the infringement of patent right is two years counted from
the date on which the patentee or any interested party obtains or
should have obtained knowledge of the infringing act.
Article 62.None of the following shall be deemed
an infringement of the patent right:
(1)Where, after the sale of a patented product that was made by the
patentee or with the authorization of the patentee, any other person
uses or sells that product;
(2)Where any person uses or sells a patented product not knowing that
it was made and sold without the authorization of the patentee;
(3)Where, before the date of filing of the application for patent,
any person who has already made the identical product, used the identical
process,or made necessary preparations for its making or using, continues
to make or use it within the original scope only;
(4)Where any foreign means of transport which temporarily passes through
the territory, territorial waters or territorial airspace of China
uses the patent concerned, in accordance with any agreement concluded
between the country to which the foreign means of transport belongs
and China, or in accordance with any international treaty to which
both countries are party, or on the basis of the principle of reciprocity,
for its own needs, in its devices and installations;
(5)Where any person uses the patent concerned solely for the purposes
of scientific research and experimentation.
Article 63.Where any person passes off the patent
of another person, such passing off shall be treated in accordance
with Article 60 of this Law. If the circumstances are serious, any
person directly responsible shall be prosecuted, for his criminal
liability, by applying mutatis mutandis Article 127 of the Criminal
Law.
Where any person passes any unpatented product off as patented product
or passes any unpatented process off as patented process, such person
shall be ordered by the administrative authority for patent affairs
to stop the passing off, correct it publicly, and pay a fine.
Article 64.Where any person, in violation of the
provisions of Article 20 of this Law, unauthorizedly files in a foreign
country an application for a patent that divulges an important secret
of the State, he shall be subject to disciplinary sanction by the
entity to which he belongs or by the competent authority concerned
at the higher level. If the circumstances are serious, he shall be
prosecuted for his criminal liability according to the law.
Article 65.Where any person usurps the right of
an inventor or creator to apply for a patent for a non- service invention-creation,
or usurps any other right or interest of an inventor or creator, prescribed
by this Law, he shall be subject to disciplinary sanction by the entity
to which he belongs or by the competent authority at the higher level.
Article 66.Where any staff member of the Patent
Office, or any staff member concerned of the State, acts wrongfully
out of personal considerations or commits fraudulent acts, he shall
be subject to disciplinary sanction by the Patent Office or the competent
authority concerned. If the circumstances are serious, he shall be
prosecuted, for his criminal liability, by applying mutatis mutandis
Article 188 of the Criminal Law.
CHAPTER
VIII
SUPPLEMENTARY PROVISIONS
Article 67.Any application for a patent filed with, and any other proceedings
before, the Patent Office shall be subject to the payment of a fee
as prescribed.
Article 68.The implementing Regulations of this
Law shall be drawn up by the Patent Office and shall enter into force
after approval by the State Council.
Article 69.This Law shall enter into force on April
1, 1985.
This decision shall enter into force on January 1, 1993. The applications
for patent filed before the entry into force of this Decision and
the patent rights granted on the basis of the said applications shall
continue to be governed by the provisions of the Patent Law before
its amendment. However, the procedures provided by the amended Articles
39 to 44 and the amended Article 48 of the Patent Law concerning the
approval of applications for patent, and the revocation and invalidation
of the patent right shall apply to the said applications which are
not announced according to the provisions of Articles 39 and 40 of
the Patent Law before its amendment. (Extract from the Decision Regarding
the Revision of the Patent Law of the People's Republic of China,
Adopted at the 27th Session fo the Standing Committee of the Seventh
National People's Congress on September 4, 1992)
( In case of discrepancy, the original version in Chinese shall prevail.)