中华人民共和国专利法(中英)
第一章 总 则
第一条 为了保护发明创造专利权，鼓励发明创造，有利于发明创造的推广应用，促进科学技术的发展，适应社会主义现代化建设的需要，特制定本法。
第二条 本法所称的发明创造是指发明、实用新型和外观设计。
第三条 中华人民共和国专利局受理和审查专利申请，对符合本法规定的发明创造授予专利权。
第四条 申请专利的发明创造涉及国家安全或者重大利益需要保密的，按照国家有关规定办理。
第五条 对违反国家法律、社会公德或者妨害公共利益的发明创造，不授予专利权。
第六条 执行本单位的任务或者主要是利用本单位的物质条件所完成的职务发明创造，申请专利的权利属于该单位；非职务发明创造，申请专利的权利属于发明人或者设计人。申请被批准后，全民所有制单位申请的，专利权归该单位持有；集体所有制单位或者个人申请的，专利权归该单位或者个人所有。
在中国境内的外资企业和中外合资经营企业的工作人员完成的职务发明创造，申请专利的权利属于该企业；非职务发明创造，申请专利的权利属于发明人或者设计人。申请被批准后，专利权归申请的企业或者个人所有。
专利权的所有人和持有人统称专利权人。
第七条 对发明人或者设计人的非职务发明创造专利申请，任何单位或者个人不得压制。
第八条 两个以上单位协作或者一个单位接受其他单位委托的研究、设计任务所完成的发明创造，除另有协议的以外，申请专利的权利属于完成或者共同完成的单位；申请被批准后，专利权归申请的单位所有或者持有。
第九条 两个以上的申请人分别就同样的发明创造申请专利的，专利权授予最先申请的人。
第十条 专利申请权和专利权可以转让。
全民所有制单位转让专利申请权或者专利权的，必须经上级主管机关批准。
中国单位或者个人向外国人转让专利申请权或者专利权的，必须经国务院有关主管部门批准。
转让专利申请权或者专利权的，当事人必须订立书面合同，经专利局登记和公告后生效。
第十一条 发明和实用新型专利权被授予后，除法律另有规定的以外，任何单位或者个人未经专利权人许可，不得为生产经营目的制造、使用、销售其专利产品，或者使用其专利方法以及使用、销售依照该专利方法直接获得的产品。
外观设计专利权被授予后，任何单位或者个人未经专利权人许可，不得为生产经营目的制造、销售其外观设计专利产品。
专利权被授予后，除法律另有规定的以外，专利权人有权阻止他人未经专利权人许可，为上两款所述用途进口其专利产品或者进口依照其专利方法直接获得的产品。
第十二条 任何单位或者个人实施他人专利的，除本法第十四条规定的以外，都必须与专利权人订立书面实施许可合同，向专利权人支付专利使用费。被许可人无权允许合同规定以外的任何单位或者个人实施该专利。
第十三条 发明专利申请公布后，申请人可以要求实施其发明的单位或者个人支付适当的费用。
第十四条 国务院有关主管部门和省、自治区、直辖市人民政府根据国家计划，有权决定本系统内或者所管辖的全民所有制单位持有的重要发明创造专利允许指定的单位实施，由实施单位按照国家规定向持有专利权的单位支付使用费。
中国集体所有制单位和个人的专利，对国家利益或者公共利益具有重大意义，需要推广应用的，由国务院有关主管部门报国务院批准后，参照上款规定办理。
第十五条 专利权人有权在其专利产品或者该产品的包装上标明专利标记和专利号。
第十六条 专利权的所有单位或者持有单位应当对职务发明创造的发明人或者设计人给予奖励；发明创造专利实施后，根据其推广应用的范围和取得的经济效益，对发明人或者设计人给予奖励。
第十七条 发明人或者设计人有在专利文件中写明自己是发明人或者设计人的权利。
第十八条 在中国没有经常居所或者营业所的外国人、外国企业或者外国其他组织在中国申请专利的，依照其所属国同中国签订的协议或者共同参加的国际条约，或者依照互惠原则，根据本法办理。
第十九条 在中国没有经常居所或者营业所的外国人、外国企业或者外国其他组织在中国申请专利和办理其他专利事务的，应当委托中华人民共和国国务院指定的专利代理机构办理。
中国单位或者个人在国内申请专利和办理其他专利事务的，可以委托专利代理机构办理。
第二十条 中国单位或者个人将其在国内完成的发明创造向外国申请专利的，应当首先向专利局申请专利，并经国务院有关主管部门同意后，委托国务院指定的专利代理机构办理。
第二十一条 在专利申请公布或者公告前，专利局工作人员及有关人员对其内容负有保密责任。
第二章 授予专利权的条件
第二十二条 授予专利权的发明和实用新型，应当具备新颖性、创造性和实用性。
新颖性，是指在申请日以前没有同样的发明或者实用新型在国内外出版物上公开发表过、在国内公开使用过或者以其他方式为公众所知，也没有同样的发明或者实用新型由他
人向专利局提出过申请并且记载在申请日以后公布的专利申请文件中。
创造性，是指同申请日以前已有的技术相比，该发明有突出的实质性特点和显著的进步，该实用新型有实质性特点和进步。
实用性，是指该发明或者实用新型能够制造或者使用，并且能够产生积极效果。
第二十三条 授予专利权的外观设计，应当同申请日以前在国内外出版物上公开发表过或者国内公开使用过的外观设计不相同或者不相近似。
第二十四条 申请专利的发明创造在申请日以前六个月内，有下列情形之一的，不丧失新颖性：
一、在中国政府主办或者承认的国际展览会上首次展出
二、在规定的学术会议或者技术会议上首次发表的；
三、他人未经申请人同意而泄露其内容的。
第二十五条 对下列各项，不授予专利权：
一、科学发现；
二、智力活动的规则和方法；
三、疾病的诊断和治疗方法；
四、动物和植物品种；
五、用原子核变换方法获得的物质。
对上款第四项所列产品的生产方法，可以依照本法规定授予专利权。
第三章 专利的申请
第二十六条 申请发明或者实用新型专利的，应当提交请求书、说明书及其摘要和权利要求书等文件。
请求书应当写明发明或者实用新型的名称，发明人或者设计人的姓名，申请人姓名或者名称、地址，以及其他事项。
说明书应当对发明或者实用新型作出清楚、完整的说明，以所属技术领域的技术人员能够实现为准；必要的时候，应当有附图。摘要应当简要说明发明或者实用新型的技术要点。
权利要求书应当以说明书为依据，说明要求专利保护的范围。
第二十七条 申请外观设计专利的，应当提交请求书以及该外观设计的图片或者照片等文件，并且应当写明使用该外观设计的产品及其所属的类别。
第二十八条 专利局收到专利申请文件之日为申请日。如果申请文件是邮寄的，以寄出的邮戳日为申请日。
第二十九条 申请人自发明或者实用新型在外国第一次提出专利申请之日起12个月内，或者自外观设计在外国第一次提出专利申请之日起6个月内，又在中国就相同主题提出专利申请的，依照该外国同中国签订的协议或者共同参加的国际条约，或者依照相互承认优先权的原则，可以享有优先权。
申请人自发明或者实用新型在中国第一次提出专利申请之日起12个月内，又向专利局就相同主题提出专利申请的，可以享有优先权。
第三十条 申请人要求优先权的，应当在申请的时候提出书面声明，并且在3个月内提交第一次提出的专利申请文件的副本；未提出书面声明或者逾期未提交专利申请文件副本的，视为未要求优先权。
第三十一条 一件发明或者实用新型专利申请应当限于一项发明或者实用新型。属于一个总的发明构思的两项以上的发明或者实用新型，可以作为一件申请提出。
一件外观设计专利申请应当限于一种产品所使用的一项外观设计。用于同一类别并且成套出售或者使用的产品的两项以上的外观设计，可以作为一件申请提出。
第三十二条 申请人可以在被授予专利权之前随时撤回其专利申请。
第三十三条 申请人可以对其专利申请文件进行修改，但是，对发明和实用新型专利申请文件的修改不得超出原说明书和权利要求记载的范围，对外观设计专利申请文件的修改不得超出原图片或者照片表示的范围。
第四章 专利申请的审查和批准
第三十四条 专利局收到发明申请后，经初步审查认为符合本法要求的，自申请日起满18个月，即行公布。专利局可以根据申请人的请求早日公布其申请。
第三十五条 发明专利申请自申请日起3年内，专利局可以根据申请人随时提出的请求，对其申请进行实质审查；申请人无正当理由逾期不请求实质审查的，该申请即被视为撤回。
专利局认为必要的时候，可以自行对发明专利申请进行实质审查。
第三十六条 发明专利的申请人请求实质审查的时候，应当提交在申请日前与其发明有关的参考资料。
发明专利已经在外国提出过申请的，申请人请求实质审查的时候，应当提交该国为审查其申请进行检索的资料或者审查结果的资料；无正当理由不提交的，该申请即被视为撤回。
第三十七条 专利局对发明专利申请进行实质审查后，认为不符合本法规定的，应当通知申请人，要求其在指定的期限内陈述意见，或者对其申请进行修改；无正当理由逾期不答复的，该申请即被视为撤回。
第三十八条 发明专利申请经申请人陈述意见或者进行修改后，专利局仍然认为不符合本法规定的，应当予以驳回。
第三十九条 发明专利申请经实质审查没有发现驳回理由的，专利局应当作出授予发明专利权的决定，发给发明专利证书，并予以登记和公告。
第四十条 实用新型和外观设计专利申请经初步审查没有发现驳回理由的，专利局应当作出授予实用新型专利权或者外观设计专利权的决定，发给相应的专利证书，并予以登记和公告。
第四十一条 自专利局公告授予专利权之日起后6个月内，任何单位或者个人认为该专利权的授予不符合本法有关规定的，都可以请求专利局撤销该专利权。
第四十二条 专利局对撤销专利权的请求进行审查，作出撤销或者维持专利权的决定，并通知请求人和专利权人。撤销专利权的决定，由专利局登记和公告。
第四十三条 专利局设立专利复审委员会。对专利局驳回申请的决定不服的，或者对专利局撤销或者维持专利权的决定不服的，可以自收到通知之日起3个月内，向专利复审委员会请求复审。专利复审委员会复审后，作出决定，并通知专利申请人、专利权人或者撤销专利权的请求人。
发明专利的申请人、发明专利权人或者撤销发明专利权的请求人对专利复审委员会的复审决定不服的，可以自收到通知之日起3个月内向人民法院起诉。
专利复审委员会对申请人、专利权人或者撤销专利权的请求人关于实用新型和外观设计的复审请求所作出的决定为终局决定。
第四十四条 被撤销的专利权视为自始即不存在。
第五章 专利权的期限、终止和无效
第四十五条 发明专利权的期限为20年，实用新型专利权和外观设计专利权的期限为十年，均自申请日起计算。
第四十六条 专利权人应当自被授予专利权的当年开始缴纳年费。
第四十七条 有下列情形之一的，专利权在期限届满前终止：
一、没有按照规定缴纳年费的；
二、专利权人以书面声明放弃其专利权的。
专利权的终止，由专利局登记和公告。
第四十八条 自专利局公告授予专利权之日起满6个月后，任何单位或者个人认为该专利权的授予不符合本法有关规定的，都可以请求专利复审委员会宣告该专利权无效。
第四十九条 专利复审委员会对宣告专利权无效的请求进行审查，作出决定，并通知请求人和专利权人。宣告专利权无效的决定，由专利局登记和公告。
对专利复审委员会宣告发明专利权无效或者维持发明专利权的决定不服的，可以在收到通知之日起3个月内向人民法院起诉。
专利复审委员会对宣告实用新型和外观设计专利权无效的请求所作出的决定为终局决定。
第五十条 宣告无效的专利权视为自始即不存在。
宣告专利权无效的决定，对在宣告专利权无效前人民法院作出并已执行的专利侵权的判决、裁定，专利管理机关作出并已执行的专利侵权处理决定，以及已经履行的专利实施
许可合同和专利权转让合同，不具有追溯力。但是因为专利权人的恶意给他人造成的损失，应当给予赔偿。
如果依照上款规定，专利权人或者专利权转让人不向被许可实施专利人或者专利权受让人返还专利使用费或者专利权转让费，明显违反公平原则，专利权人或者专利权转让人应当向被许可实施专利人或者专利权受让人返还全部或者部分专利使用或者专利权转让费。
本条第二款、第三款的规定适用于被撤销的专利权。
第六章 专利实施的强制许可
第五十一条 具备实施条件的单位以合理的条件请求发明或者实用新型专利权人许可实施其专利，而未能在合理长的时间内获得这种许可时，专利局根据该单位的申请，可以给予实施该发明专利或者实用新型专利的强制许可。
第五十二条 在国家出现紧急状态或者非常情况时，或者为了公共利益的目的，专利局可以给予实施该发明专利或者实用新型专利的强制许可。
第五十三条 一项取得专利权的发明或者实用新型比前已经取得专利权的发明或者实用新型在技术上先进，其实施又有赖于前一发明或者实用新型的实施的，专利局根据后一专利权人的申请，可以给予实施前一发明或者实用新型的强制许可。
在依照上款规定给予实施强制许可的情形下，专利局根据前一专利权人的申请，也可以给予实施后一发明或者实用新型的强制许可。
第五十四条 依照本法规定申请实施强制许可的单位或者个人，应当提出未能以合理条件与专利权人签订实施许可合同的证明。
第五十五条 专利局作出的给予实施强制许可的决定，应当予以登记和公告。
第五十六条 取得实施强制许可的单位或者个人不享有占的实施权，并且无权允许他人实施。
第五十七条 取得实施强制许可的单位或者个人应当付给专利权人合理的使用费，其数额由双方商定；双方不能达协议的，由专利局裁决。
第五十八条 专利权人对专利局关于实施强制许可的决定或者关于实施强制许可的使用费的裁决不服的，可以在收到通知之日起3个月内向人民法院起诉。
第七章 专利权的保护
第五十九条 发明或者实用新型专利权的保护范围以其权利要求的内容为准，说明书及附图可以用于解释权利要求。
外观设计专利权的保护范围以表示在图片或者照片中的该外观设计专利产品为准。
第六十条 对未经专利权人许可，实施其专利的侵权行为，专利权人或者利害关系人可以请求专利管理机关进行处理，也可以直接向人民法院起诉。专利管理机关处理的时候，有权责令侵权人停止侵权行为，并赔偿损失；当事人不服的，可以在收到通知之日起3个月内向人民法院起诉；期满不起诉又不履行的，专利管理机关可以请求人民法院强制执行。
在发生侵权纠纷的时候，如果发明专利是一项新产品的制造方法，制造同样产品的单位或者个人应当提供其产品制造方法的证明。
第六十一条 侵犯专利权的诉讼时效为2年，自专利权人或者利害关系人得知或者应当得知侵权行为之日起计算。
第六十二条 有下列情形之一的，不视为侵犯专利权：
一、专利权人制造或者经专利权人许可制造的专利产品售出后，使用或者销售该产品的；
二、使用或者销售不知道是未经专利权人许可而制造并售出的专利产品的；
三、在专利申请日前已经制造相同产品、使用相同方法或者已经作好制造、使用的必要准备，并且仅在原有范围内继续制造、使用的；
四、临时通过中国领土、领水、领空的外国运输工具，依照其所属国同中国签订的协议或者共同参加的国际条约，或者依照互惠原则，为运输工具自身需要而在其装置和设备中使用有关专利的；
五、专为科学研究和实验而使用有关专利的。
第六十三条 假冒他人专利的，依照本法第六十条的规定处理；情节严重的，对直接责任人员比照刑法第一百二十七条的规定追究刑事责任。
将非专利产品冒充专利产品的或者将非专利方法冒充专利方法的，由专利管理机关责令停止冒充行为，公开更正，并处以罚款。
第六十四条 违反本法第二十条规定，擅自向外国申请专利，泄露国家重要机密的，由所在单位或者上级主管机关给予行政处分；情节严重的，依法追究刑事责任。
第六十五条 侵夺发明人或者设计人的非职务发明创造专利申请权和本法规定的其他权益的，由所在单位或者上级主管机关给予行政处分。
第六十六条 专利局工作人员及有关国家工作人员徇私舞弊的，由专利局或者有关主管机关给予行政处分；情节严重的，比照刑法第一百八十八条的规定追究刑事责任。
第八章 附 则
第六十七条 向专利局申请专利和办理其他手续，应当按照规定缴纳费用。
第六十八条 本法实施细则由专利局制订，报国务院批准后施行。
第六十九条 本法自1985年4月1日起施行。
Patent Law of the People's Republic of China
(Adopted at the 4th Session of the Standing Committee of the Sixth National People's Congress on March 12, 1984; Amended for the first time 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; Amended for the second time by the Decision Regarding the Revision of the Patent Law of the People's Republic of China, adopted at the 17th Session of the Standing Committee of the Ninth National People's Congress on August 25,2000)
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 Administrative Organ under the State Council is responsible for the patent work nationwide, receives and examines patent applications and grants patent rights for inventions-creations that conform with the provisions of this Law.
The authorities for patent work under he people's governments of provinces autonomous regions and municipalities directly under the Central Government are responsible for the patent administration work of their own administrative areas.
Article 4. Where an invention-creation for which a patent is applied 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.
Article 6. An invention-creation, made by a person in execution of the tasks of the entity to which he belongs, or made by him by mainly using the material and technical means of the entity is a service invention. For a service invention-creation, the right to apply for a patent belongs to the entity. After the application is approved, the entity shall be the patentee.
For a non-service invention-creation, the right to apply for a patent belongs to the inventor or creator. After the application is approved, the inventor or creator shall be the patentee. For an invention-creation, made by a person by using the material and technical means of the entity to which he belongs, and where the entity and the inventor or creator has entered into an agreement under which there is provision on who has right to apply for a patent and to whom the patent right belongs, the provisions of the agreement shall prevail.
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 jointly made by two or more entities or individuals, or made by an entity or individual in execution of a commission for another entity or individual, the right to apply for a patent belongs, unless otherwise agreed upon, to the entity or individual which made, or to the entities or individual which jointly made, the invention-creation. After the application is approved, the entity or individual that applied for it shall be the patentee.
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 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 and should register it with the patent administrative organ under the State Council. The patent administrative organ shall announce the registration .The assignment will come into force upon the date of registration.
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, exploit the patent, that is, make, use, offer to sell, sell or import the patented product; or use the patented process or use, offer to sell, sell or import 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, exploit the design, that is, make, sell or import the product incorporating its or his patented design, for production or business purposes.
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.For any patent for invention belonging to state-owned enterprises or entities, which is of great significance to national or public interests, the competent departments concerned of the State Council as well as the people's governments of provinces, autonomous regions or municipalities directly under the Central Government have the power to decide, after approved by the State Council, the said patented invention be spread and exploited within the prescribed scope and to allow designated entities to exploit it . The entities that exploit it shall, according to the prescriptions of the State , pay exploitation fees to the patentee.
Any patent for invention belonging to a Chinese entity under collective ownership or an individual, which is of great significance to national or public interests and is in need of spreading and exploitation, may 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 that is granted the patent right shall award to the inventor or creator of a service invention-creation a reward and, upon the exploitation of the patented invention-creation, shall award to the inventor or creator an appropriate remuneration based on the extent of exploitation 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 patent administrative organ under the State Council 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.
The patent agencies should abide by the laws and administrative regulations and should deal with patent applications and other patent matters according to the commissions of the clients. Except for those applications that have been published or announced, the agencies should bear the responsibility for keeping confidential the content of its clients' inventions-creations. The administrative regulations for administering the patent agencies shall be formulated by the State Council.
Article 20. Where any Chinese entity or individual intends to file an application in a foreign country for a patent for its or his domestic invention-creation, it or he shall file first an application for patent with the patent administrative organ under the State Council and, shall appoint a patent agency designated by the said organ to act as its or his agent, and shall abide by the prescriptions of Article 4 in this law.
Any Chinese entity of individual may, according to the international treaties concerned to which China is a party, file an international application for patent for its or his invention-creation. The applicant for the international application should abide by the provisions of the preceding paragraph .
The patent administrative organ under the State Council shall handle the international application for patent in line with the international treaty to which China is a party, this law and the administrative regulations concerned made by the State Council.
Article 21. The patent administrative organ under the State Council and the patent reexamination board subordinated to it shall handle patent applications and requests concerned according to law and in the spirit of objectiveness, justice, precision and punctuality.
Until the publication or announcement of the application for a patent, staff members of the patent administrative organ and other personnel involved have the duty to keep its content confidential.
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 administrative organ under the State Council 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, and must not collide with any legal prior rights obtained by any other person.
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 administrative organ under the State Council 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 administrative organ under the State Council 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 administrative organ under the State Council, 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 administrative organ under the State Council 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 administrative organ under the State Council 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 administrative organ under the State Council 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.
For an application for a patent for invention that has been already filed in a foreign country, the patent administrative organ under the State Council may ask the applicant to furnish within a prescribed time limit 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 within the prescribed time limit, the application shall be deemed to have been withdrawn.
Article 37. Where the patent administrative organ under the State Council, 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 administrative organ under the State Council 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 administrative organ under the State Council shall make a decision to grant the patent right for invention, issue the certificate of patent for invention, and register and announce it. The patent right for invention shall come into force upon the date of the announcement.
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 administrative organ under the State Council 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. The patent right for utility model or design shall come into effect upon the date of the announcement.
Article 41. The patent administrative organ under the State Council shall set up a Patent Reexamination Board. Where an applicant is not satisfied with the decision of the patent administrative organ under the State Council rejecting his application for patent, such applicant 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 for patent.
Where the applicant for patent who made the request for reexamination 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.
CHAPTER V
DURATION, CESSATION AND INVALIDATION OF PATENT RIGHT
Article 42. 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 43. The patentee shall pay an annual fee beginning with the year in which the patent right was granted.
Article 44. 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 administrative organ under the State Council.
Article 45. Where, starting from the date of the announcement of the grant of the patent right by the patent administrative organ under the State Council, 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 46. 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 administrative organ under the State Council.
Where any party is not satisfied with the decision of the Patent Reexamination Board declaring the patent right invalid or upholding the patent right, such party may, within three months from receipt of the notification of the decision, institute legal proceedings in the people's court.
The people's court shall notify the opponent party of the party which has requested for the invalidation procedure to be represented the proceedings as the third party.
Article 47. 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 implemented or enforced, 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.
COMPULSORY LICENSE FOR EXPLOITATION OF THE PATENT
Article 48. 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 administrative organ under the State Council may, upon the application of that entity, grant a compulsory license to exploit the patent for invention or utility model.
Article 49. Where a national emergency or any extraordinary state of affairs occurs, or where the public interest so requires, the patent administrative organ under the State Council may grant a compulsory license to exploit the patent for invention or utility model.
Article 50. Where the invention or utility model for which the patent right was granted is of important technical advance of considerable economic significance compared with 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 administrative organ under the State Council 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 administrative organ under the State Council may, upon the request of the earlier patentee, also grant a compulsory license to exploit the later invention or utility model.
Article 51. 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 52. The decision made by the patent administrative organ under the State Council granting a compulsory license for exploitation shall be notified to the patent concerned as soon as reasonably practicable and shall be registered and announced.
The decision of the patent administrative organ under the State Council granting a compulsory license for exploitation shall limit the scope and duration of the exploitation on the basis of the reasons justifying the grant. If and when the circumstances which led to such compulsory license cease to exist and are unlikely to recur, the patent administrative organ under the State Council may, upon the request of the patentee, terminate the compulsory license after examination.
Article 53. 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 54. 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 administrative organ under the State Council shall adjudicate.
Article 55. Where the patentee is not satisfied with the decision of the patent administrative organ under the State Council granting a compulsory license for exploitation, or where the patentee or the entity or individual that is granted the compulsory license is not satisfied with the adjudication made by the patent administrative organ under the State Council 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 56. 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 57. Where anyone exploits a patent without the authorization of the patentee, he or it constitutes an infringement to the patent right of the patentee. For the disputes resulted from the infringement, the parties concerned may settle it by themselves through consultation. Where the parties are not willing to settle the disputes through consultation or where the consultation fails to reach an agreement, the patentee or any interested party may institute legal proceedings in the people's court or to request the authorities for patent work to handle the matter. Where the authorities for patent work considers the infringement well found, it has the power to order the infringer to stop infringement acts immediately. In case the party concerned is not satisfied with the decision, he or it may, within 15 days from the receipt of the notification of the order, institutes legal proceedings in the people's court, according to the Administrative Procedure Law of the People's Republic of China. If such proceedings are not instituted within the time limit and if the order is not compiled with, the authority for patent work may approach the people's court for compulsory execution. The authorities for patent work may, upon the request of the parties concerned, mediate on the damages concerned. If mediation does not work, the parties concerned may lodge a lawsuit with the people's court according to the Civil Procedure Law of the People's Republic of China.
When any infringement dispute relates to a process patent for the manufacture of a new product, any entity or individual manufacturing the identical product shall furnish proof to the effect that a different process is used in the manufacture of its or his product . Where the infringement relates to a patent for utility model, the people's court or the authority for patent work may request the applicant to furnish search reports made by the patent administrative organ under the State Council .
Article 58. Where any person passes off the patent of another person, except for bearing civil liabilities according to law, he shall be ordered to amend his acts by the authorities for patent work and the order shall be announced. The illegal income of the said person shall be confiscated. He may be coupled with a fine of no more than 3 times of his illegal income and, where there is no illegal income, he may be imposed a fine of no more than 50,000 RMB. Where the infringement constitutes a crime, he shall be prosecuted for his criminal liability.
Article 59. Where any person passes any non-patented product off as patented product or passes any non-patented process off as patented process, he shall be ordered by the authority for patent work to amend his acts and the order shall be announced. The said person may be imposed a fine of no more than 50,000 RMB.
Article 60. The amount of damages for infringing a patent right shall be calculated according to the losses suffered by the patentee or the profits gained by the infringer out of the infringement. If it is too difficult to determine the damages based on such losses of the patentee or the profits of the infringer, the appropriate times of the royalties for licenses for the said patent may be applied mutatis mutandis.
Article 61. Where a patentee or any interested party who can provide any reasonable evidence that his right is being infringed or that such infringement is imminent, and any delay to stop the acts is likely to cause irreparable harm to his or its legitimate rights, he or it may, before instituting legal proceedings, request the people's court to order the suspension of related acts and to provide property preservation.
The people's court, when dealing with requests referred to in the preceding paragraph, the provisions of Articles 93 to 96 and Article 99 of the Civil Procedure Law of the People's Republic of China shall apply.
Article 62. 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.
Where the license fee is not paid for the use of a patent for invention during the period when the said application is published and up to its being granted the patent right, the prescription for instituting legal proceedings by the patentee for requesting royalties is two years counted from the date on which the patentee obtains or should have obtained knowledge of the use of his patented invention by the user. However, where the patentee has already obtained or should have obtained the knowledge of the use of his invention before the date of granting the patent right, the prescription shall be counted from the date on which the patent right is granted.
Article 63. 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 or imported by the patentee or with the authorization of the patentee, or that was directly obtained by using the patented process, any other person uses, offers to sell or sells that product;
(2)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;
(3)Where any foreign means of transport which temporarily passes through the territorial lands, 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;
(4)Where any person uses the patent concerned solely for the purposes of scientific research and experimentation.
Any person who, for production and business purposes, uses or sells a patented product without knowing that it was made and sold without the authorization of the patentee, shall not be responsible for the damages caused so long as he proves that he obtains the product from legitimate channels of distribution.
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. The authorities for patent work should not participate in any such commercial activities as to recommend patented products to the public.
Where any authorities for patent work violates the provisions of the preceding paragraph, it shall be ordered to amend its ways and to eliminate its bad influence by its competent authority at the higher level or by the supervisory authority, and its illegal income shall be confiscated .Where the circumstances are serious, any person directly responsible or any other person who are directly involved shall be subject to disciplinary sanction according to law.
Article 67. Where any staff member of the government organs for patent administration or of other related government organs constitutes a crime by ignoring his duty, abusing his official power, acting wrongfully out of personal considerations or committing fraudulent acts, he shall be subject to criminal sanction. If a crime is not constituted, he shall be subject to disciplinary sanction according to law.
CHAPTER VIII
SUPPLEMENTARY PROVISIONS
Article 68. Any application for a patent filed with, and any other proceedings before, the patent administrative organ under the State Council shall be subject to the payment of a fee as prescribed.
Article 69. This Law shall enter into force on April 1, 1985.
(This translation is only for reference. In case of discrepancy, the original version in Chinese shall prevail.)