Promulgated by the State Council on June 15, 2001, and revised for the first time on December 28, 2002, and for the second time in accordance with the Decision of the State Council on Amending the Detailed Rules for the Implementation of the Patent Law on January 9, 2010
Effective: July 1, 2001 (as amended, effective February 1, 2010)
Table of Contents
Chapter I — General Provisions
Article 1 — These Detailed Rules are formulated in accordance with the Patent Law of the People’s Republic of China.
Article 2 — For the purposes of the Patent Law, “invention” means any new technical solution relating to a product, a process, or an improvement thereof. “Utility model” means any new technical solution relating to the shape, structure, or combination thereof of a product, which is fit for practical use. “Design” means any new design of the shape, pattern, or combination thereof, or the combination of color with shape and pattern, of the whole or part of a product, which creates an aesthetic feeling and is fit for industrial application.
Article 3 — The patent administration authority of the State Council shall be responsible for the administration of patent work nationwide, uniformly accept and examine patent applications, and grant patent rights in accordance with the law.
Chapter II — Filing of Patent Applications
Article 4 — Any foreigner, foreign enterprise, or other foreign organization without a habitual residence or business office in China that applies for a patent in China shall appoint a patent agency legally established in China to handle the application.
Article 5 — A patent application shall be filed in writing. The application documents shall be in Chinese. Where any certificate or supporting document is in a foreign language, a Chinese translation shall be attached.
Article 6 — The date of filing of a patent application shall be the date on which the patent administration authority of the State Council receives the application documents. Where the application documents are sent by mail, the date of filing shall be the date of the postmark.
Article 7 — 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.
Article 8 — The specification shall contain a clear and complete description of the invention or utility model so as to enable a person skilled in the relevant field of technology to carry it out. Where necessary, drawings shall be appended. The abstract shall briefly state the technical points of the invention or utility model.
Article 9 — The claims shall be based on the specification and shall clearly and concisely define the scope of the patent protection sought.
Article 10 — Where an applicant claims priority, it shall submit a written declaration when filing the application and, within three months from the filing date, submit a copy of the earlier patent application documents.
Chapter III — Examination and Approval
Article 11 — For an application for a patent for invention, after receiving a notification that the application has passed the preliminary examination, the applicant shall request substantive examination within three years from the filing date. Where the applicant fails to request substantive examination within the prescribed period, the application shall be deemed to have been withdrawn.
Article 12 — When the patent administration authority of the State Council conducts a substantive examination of an application for a patent for invention, it shall search and examine the novelty, inventiveness, and practical applicability of the invention.
Article 13 — For an application for a patent for utility model or design, the patent administration authority shall conduct a preliminary examination. Where no grounds for rejection are found after the preliminary examination, the patent right shall be granted, a patent certificate issued, and the grant registered and publicly announced.
Article 14 — Within two months from the date of the announcement of the grant of a patent right, any entity or individual that considers that the grant does not comply with the relevant provisions of the Patent Law may request the patent administration authority to revoke the patent right.
Chapter IV — Invalidation and Compulsory Licensing
Article 15 — Any entity or individual that considers that the grant of a patent right does not comply with the relevant provisions may request the Patent Reexamination Board to declare the patent right invalid.
Article 16 — Where the Patent Reexamination Board declares a patent right invalid, the patent right shall be deemed to have never existed. The decision to declare a patent right invalid shall not have retroactive effect on any judgment or mediation document on patent infringement that has been rendered and enforced by the people’s court, or on any decision on patent infringement dispute that has been enforced or performed, or on any patent licensing contract or patent assignment contract that has been performed.
Article 17 — Where an entity or individual requests a compulsory license, it shall submit a request to the patent administration authority of the State Council, explaining the reasons and attaching supporting documents.
Chapter V — Protection of Patent Rights
Article 18 — The scope of protection of a patent for invention or utility model shall be determined by the terms of the claims. The specification and appended drawings may be used to interpret the claims. The scope of protection of a patent for design shall be determined by the design of the product shown in the drawings or photographs.
Article 19 — For the purposes of determining the amount of compensation for patent infringement, it may be calculated based on the losses suffered by the patentee due to the infringement, or the profits obtained by the infringer due to the infringement. Where the losses of the patentee or the profits of the infringer are difficult to determine, the amount may be determined with reference to a reasonable multiple of the patent licensing fee.
Article 20 — Where a patent infringement dispute involves an invention patent for a manufacturing process, the manufacturer of a product identical to the patented product shall provide proof that its manufacturing process is different from the patented process.
Chapter VI — Supplementary Provisions
Article 21 — The fees for filing a patent application and for handling other formalities shall be paid in accordance with the regulations. Where the fee is not paid or not paid in full within the prescribed period, the application shall be deemed to have been withdrawn or the corresponding right shall be deemed to have been waived.
Article 22 — These Detailed Rules shall take effect on July 1, 2001. The Detailed Rules for the Implementation of the Patent Law of the People’s Republic of China approved by the State Council on December 12, 1992, and promulgated by the Patent Office of the People’s Republic of China on December 21, 1992, shall be repealed simultaneously. The 2010 revision shall take effect on February 1, 2010.
Disclaimer: This English translation is provided for informational and reference purposes only by Dan Young Business Consultancy. While every effort has been made to ensure accuracy, this is an unofficial translation. For legal purposes, the original Chinese text shall prevail. The translator assumes no liability.
