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Patent Law of the People's Republic of China

(expo2010.cn)
Updated: 2009-04-14 18:45

Article 69.

This Law shall enter into force on April 1, 1985. This Decision [*22] 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 of the Standing Committee of the Seventh National People's Congress on September 4, 1992)

[*1] This Table of Contents was established for the convenience of the reader by the Patent Laws Research Institute of the Chinese Patent Office. The text of the Patent Law adopted by the Standing Committee of the National People''s Congress does not contain such a table and the Articles have no titles in the Law.

[*2] The texts of those articles of the Law printed in boldface are amended texts. The relevant old texts are, for the convenience of reference, printed in the footnotes on the same page.

[*3] Old 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.

[*4] Old 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 flavorings;

(5) pharmaceutical products and substances obtained by means of a chemical 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.

[*5] Old 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 party, or on the basis of the principle of mutual recognition of the right of priority, enjoy a right of priority, that is, the date on 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.

[*6] Old 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.

[*7] Old 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 nitial description.

[*8] Old 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 publishes the application earlier.

[*9] Old 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.

[*10] Old 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.

[*11] Old 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.

[*12] Old 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.

[*13] Old 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.

[*14] Old 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.

[*15] Old 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 patent right shall be counted from the date on which the application was filed in China.

[*16] Old 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.

[*17] Old Article 50. Any patent right which has been declared invalid shall be deemed to be nonexistent from the beginning.

[*18] Old 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.

[*19] Old 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 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 license to exploit the patent.

[*20] The old second paragraph of Article 60: 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.

[*21] This is a new paragraph added to Article 63.

[*22] This Decision relates to the amendments of Articles 11, 25, 29, 30, 33, 34, 39-45, 48, 50-52, 60 and 63 of the Patent Law.

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