Chapter IV Reexamination of Patent Application and Invalidation of Patent Right

Article 58 The Patent Reexamination Board shall consist of technical and legal experts appointed by the patent administration department under the State Council. The responsible person of the patent administration department under the State Council shall be the Director General of the Board.

Article 59 Where the applicant requests the Patent Reexamination Board to make a reexamination in accordance with the provisions of Article 41 of the Patent Law, it or he shall file a request for reexamination, state the reasons and, when necessary, attach the relevant supporting documents.

Where the request for reexamination does not comply with the prescribed form, the person making the request shall rectify it within the time limit specified by the Patent Reexamination Board. If the person making the request fails to meet the time limit for making rectification, the request for reexamination shall be deemed not to have been filed.

Article 60 The person making the request may amend its or his application at the time when it or he requests reexamination or makes responses to the reexamination notification of the Patent Reexamination Board. However, the amendments shall be limited only to remove the defects pointed out in the decision of rejection of the application, or in the reexamination notification.

The amendments to the application for patent shall be in two copies.

Article 61 The Patent Reexamination Board shall send the request for reexamination that the Board has received to the original examination department of the patent administration department under the State Council for examination. Where the original examination department agrees to revoke its original decision upon the request of the person requesting reexamination, the Patent Reexamination Board shall make a decision accordingly and notify the person making the request.

Article 62 Where, after reexamination, the Patent Reexamination Board finds that the request does not comply with the provisions of the Patent Law and these Rules, it shall notify the person requesting reexamination to submit his observations within a specified time limit. If the time limit for making response is not met, the request for reexamination shall be deemed to have been withdrawn. Where, after the person requesting reexamination has made its observations and amendments, the Patent Reexamination Board still finds that the request does not comply with the provisions of the Patent Law and these Rules, it shall make a decision of reexamination to maintain the earlier decision rejecting the application for patent.

Where, after reexamination, the Patent Reexamination Board finds that the decision rejecting the application for patent does not comply with the provisions of the Patent Law and these Rules, or that the amended application has removed the defects as pointed out by the decision rejecting the application, it shall make a decision to revoke the decision rejecting the application for patent, and ask the original examination department to continue the examination procedure.

Article 63 At any time before the Patent Reexamination Board makes its decision on the request for reexamination, the person making the request may withdraw his request for reexamination.

Where the person making the request withdraws his request for reexamination before the Patent Reexamination Board makes its decision, the procedure of reexamination is terminated.

Article 64 Anyone requesting invalidation or part invalidation of a patent right in accordance with the provisions of Article 45 of the Patent Law shall submit a request and necessary evidence in two copies. The request for invalidation shall state in detail the grounds for filing the request for invalidation, making reference to all the evidence as submitted, and indicate the piece of evidence on which each ground is based.

The grounds on which the request for invalidation is based, referred to in the preceding paragraph, mean that the invention-creation for which the patent right is granted does not comply with the provisions of Article 22 or 23, or of Article 26, paragraph three or four, or of Article 33 of the Patent Law, or of Article 2, or of Article l3, paragraph one, or of Article 20, paragraph one, or of Article 21, paragraph two of these Rules; or it falls under the provisions of Article 5 or 25 of the Patent Law; or the person is not entitled to be granted the patent right in accordance with the provisions of Article 9 of the Patent Law.

Article 65 Where the request for invalidation does not comply with the provisions of Article 64 of these Rules, the Patent Reexamination Board shall not accept it.

Where, after a decision on any request for invalidation of the patent right is made, invalidation based on the same facts and evidence is requested once again, the Patent Reexamination Board shall not accept it.

Where a request for invalidation of a patent for design is based on the ground that the patent for design is in conflict with a prior right of another person, if, however, no decision of settlement or no judgment of any court which has entered into force to prove such conflict of rights has been submitted, the Patent Reexamination Board shall not accept it.

Where the request for invalidation of the patent right does not comply with the prescribed form, the person making the request shall rectify it within the time limit specified by the Patent Reexamination Board. If the rectification fails to be made within the time limit, the request for invalidation shall be deemed not to have been filed.

Article 66 After the Patent Reexamination Board has accepted a request for invalidation, the person making the request may add reasons or supplement proofs within one month from the date when the request for invalidation is filed. The Patent Reexamination Board may not take into account any additional reasons or supplementary proofs that are submitted after the specified time limit.

Article 67 The Patent Reexamination Board shall send a copy of the request for invalidation of the patent right and copies of the relevant documents to the patentee and refuse it or him to present its or his observations within a specified time limit.

The patentee and the person making the request for invalidation shall, within the specified time limit, make responses to the notification concerning transmitted documents or the notification concerning the examination of the request for invalidation sent by the Patent Reexamination Board. Where no response is made within the specified time limit, the examination of the Patent Reexamination Board will not be affected.

Article 68 In the course of the examination of the request for invalidation, the patentee for patent for invention or utility model may amend its or his claims, but may not broaden the scope of patent protection.

The patentee for patent for invention or utility model may not amend its or his description or drawings. The patentee for patent for design may not amend its or his drawings, photographs or the brief explanation of the design.

Article 69 The Patent Reexamination Board may, at the request of the parties concerned or in accordance with the need of the case, decide to conduct oral proceedings in respect of a request for invalidation.

Where the Patent Reexamination Board decides to conduct oral proceedings in respect of a request for invalidation, it shall send notification of oral proceedings to the parties concerned, indicating the date and place of the oral proceedings to be held. The parties concerned shall make response to the notification within the specified time limit.

Where the person requesting invalidation fails to make response to the notification of oral proceedings sent by the Patent Reexamination Board within the specified time limit, and fails to take part in the oral proceedings, the request for invalidation shall be deemed to have been withdrawn. Where the patentee fails to take part in the oral proceedings, the Patent Reexamination Board may proceed to examine by default.

Article 70 In the course of the examination in respect of a request for invalidation, the time limit specified by the Patent Reexamination Board shall not be extended.

Article 71 The person requesting invalidation may withdraw his request before the Patent Reexamination Board makes a decision on it.

Where the person requesting invalidation withdraws his request before the Patent Reexamination Board makes a decision on it, the examination of the request for invalidation is terminated.