国务院令第368号

（Promulgated by the State Council on 15 June 2001， revised according to the > Decision> on 28 December 2002 and effective as of 1 February 2003.）

颁布日期：20021228 　实施日期：20030201 　颁布单位：国务院

PART ONE　GENERAL PROVISIONS

Article 1　These Rules are formulated in accordance with the PRC， Patent Law （the “Patent Law”）。

Article 2　For the purposes of the Patent Law， the term “invention” shall mean a new technical solution put forward for a product， process or the improvement thereof.

For the purposes of the Patent Law， the term “utility model” shall mean a new technical solution that is put forward for the form or structure， or the combination of the two， of a product and that has practical applicability.

For the purposes of the Patent Law， the term “design” shall mean a new design of a product's shape， pattern or the combination thereof， or the combination of its colour and its shape and/or pattern， that is aesthetically pleasing and suitable for industrial use.

Article 3　The various procedures provided for in the Patent Law and these Rules shall be carried out in writing or in another form prescribed by the State Council's patent administration authority.

Article 4　All documents submitted in accordance with the Patent Law and these Rules shall be in Chinese. Where the State has prescribed unified scientific and technical terminology， the standard terms shall be used. If there is no unified Chinese translation for a foreign personal or place name or foreign scientific or technical term， the original term shall be indicated.

If any certificate or supporting document submitted in accordance with the Patent Law and these Rules is in a foreign language， the State Council's patent administration authority may require the party concerned to supply a Chinese translation within a prescribed time limit if it considers this to be necessary. If the translation is not supplied within the time limit， such certificate or supporting document shall be deemed not to have been submitted.

Article 5　The postmark date of a document mailed to the State Council's patent administration authority shall be the date of submission. If the postmark date is unclear， the date of receipt of the document by the State Council's patent administration authority shall be the date of submission， unless the party concerned can supply evidence regarding the date of mailing.

Documents of the State Council's patent administration authority may be served on a party by mail， direct delivery or otherwise. If the party has appointed a patent agency， documents shall be delivered to the patent agency. If the party has not appointed a patent agency， documents shall be delivered to the contact person designated in the request.

Documents mailed by the State Council's patent administration authority shall be assumed to have been received by the party concerned after a lapse of 15 days from the date of sending.

The date of service of documents that regulations of the State Council's patent administration authority require to be delivered directly shall be the date of delivery.

If the address to which a document is to be sent is unclear and the document cannot be mailed， the documents may be served on the party concerned by public announcement. Such document shall be deemed to have been served after the lapse of one month from the date of the announcement.

Article 6　The first day of any time limit provided for in the Patent Law or these Rules shall not be calculated as part of the time limit. If a time limit is calculated in years or months， the corresponding day of the last month of such time limit shall be the date of expiration. If there is no corresponding day in such month， the last day of that month shall be the date of expiration. If the date of expiration of a time limit is a statutory holiday， the first working day following the holiday shall be the date of expiration.

Article 7　If， due to an event of force majeure， a party fails to observe a time limit provided for in the Patent Law or these Rules or a time limit prescribed by the State Council's patent administration authority， and consequently forfeits his rights， he may within two months from the date of elimination of the obstacle， but not later than within two years from the date of expiration of the time limit， request the State Council's patent administration authority to restore his rights. Such request shall contain an explanation of the reasons and be accompanied by relevant supporting documents.

If， for legitimate reasons， a party fails to observe a time limit provided for in the Patent Law or these Rules or a time limit prescribed by the State Council's patent administration authority， and consequently forfeits his rights， he may within two months from the date of receipt of a notice from the State Council's patent administration authority request such authority to restore his rights. Such request shall contain an explanation of the reasons.

If a party requests extension of a time limit prescribed by the State Council's patent administration authority， he shall explain the reasons to the State Council's patent administration authority and carry out the relevant procedure prior to the expiration of the time limit.

The provisions of the first and second paragraphs hereof shall not apply to the time limits provided for in Articles 24， 29， 42 and 62 of the Patent Law.

Article 8　If an application for an invention patent involves State secrets in respect of national defence and needs to be kept confidential， such patent application shall be accepted by the national defence patent organization. Invention patent applications accepted by the State Council's patent administration authority that involve State secrets in respect of national defence and need to be kept confidential shall be transferred to the national defence patent organization for examination.　The State Council's patent administration authority shall make a decision in accordance with the opinion reached by the national defence patent organization upon examination.

Except where otherwise provided in the preceding paragraph， those invention applications accepted by the State Council's patent administration authority that require confidential examination shall be transferred to the State Council's relevant department-in-charge for examination. The relevant department-in-charge shall notify the State Council's patent administration authority of the results of its examination within four months from the date on which it receives the application. If confidentiality is required for a patent application， the State Council's patent administration authority shall treat it as a confidential patent application and shall notify the applicant.

Article 9　For the purposes of Article 5 of the Patent Law， inventions or creations that violate State law do not include inventions or creations only the working of which is prohibited under State law.

Article 10　For the purposes of the Patent Law， except for the circumstances stipulated in Articles 28 and 42 thereof， the term “date of application”， if the application has priority， shall mean the date of priority.

For the purposes of these Rules， the term “date of application” shall mean the application date specified in Article 28 of the Patent Law， unless otherwise specified.

Article 11　For the purposes of Article 6 of the Patent Law， the phrase “a service invention or creation completed in executing a task of one's work unit” shall mean an invention or creation made：

1. in the course of one's job；

2. in the performance of a task assigned by one's work unit other than in the course of one's job； or

3. within one year of resignation， dismissal， retirement or transfer， where the invention or creation is related to the job held or a task assigned by the original work unit.

For the purposes of Article 6 of the Patent Law， the term “one's work unit” shall include a work unit for which one works on a temporary basis. For the purposes of Article 6 of the Patent Law， the phrase “material and technical conditions of one's work unit” shall mean the work unit's funds， equipment， parts， components， raw materials， or technical information not made public， etc.

Article 12　For the purposes of the Patent Law， the term “inventor” or “designer” shall mean a person that makes creative contributions to the essential features of an invention or creation. Persons that are responsible only for organizing the work， that only facilitate the use of material and technical conditions， or that only engage in other support work during the course of accomplishment of an invention or creation are not inventors or designers.

Article 13　Only one patent shall be granted for identical inventions or creations.

If， as provided for in Article 9 of the Patent Law， two or more applicants on the same day separately apply for a patent for identical inventions or creations， they shall consult among themselves to determine the applicant after being notified by the State Council's patent administration authority.

Article 14　The assignment of patent application rights or patent rights to a foreign national by a Chinese work unit or individual shall be subject to the approval of the State Council's authority in charge of foreign economic relations and trade and the State Council's authority for the administration of science and technology.

Article 15　If a patent right is transferred other than pursuant to Article 10 of the Patent Law， the parties shall carry out the procedures for a change in patentee with the State Council's patent administration authority on the strength of the relevant supporting document or legal instrument.

A patent licensing contract concluded by the patentee with another party shall be submitted to the State Council's patent administration authority for the record within three months from the date on which the contract enters into effect.

PART TWO　APPLICATION FOR A PATENT

Article 16　When an application for a patent is made in writing， the application documents shall be filed with the State Council's patent administration authority in duplicate.

When an application for a patent is made in another form specified by the State Council's patent administration authority， such application shall comply with the specified requirements.

If an applicant has appointed a patent agency to apply to the State Council's patent administration authority for a patent and handle other patent matters， the power of attorney specifying the scope of the power entrusted shall be submitted at the same time.

If there are two or more applicants and they have not appointed a patent agency， the first applicant indicated on the request shall be their representative， unless otherwise stated in the request.

Article 17　For the purposes of the second paragraph of Article 26 of the Patent Law， the phrase “other matters covered in the request” shall mean：

1. the applicant's nationality；

2. if the applicant is an enterprise or other organization， the country in which its head office is located；

3. if the applicant has appointed a patent agency， the relevant particulars that are to be indicated； if the applicant has not appointed a patent agency， the name， address， postal code and contact telephone number of his contact person；

4. if priority is claimed， the relevant particulars that are to be indicated；

5. the signature or seal of the applicant or patent agency；

6. the list of application documents；

7. the list of appended documents； and

8.　other relevant particulars that need to be indicated.

Article 18　The description in an application for a patent for an invention or utility model shall indicate the title of the invention or utility model， which shall be consistent with the title stated in the request. The description shall include the following particulars：

1. technical field： the technical field to which the technical solution for which protection is requested pertains shall be specified；

2. background art： the background art useful for the understanding， searching and examination of the invention or utility model shall be specified and， where possible， the documents reflecting such background art shall be cited；

3. disclosure of the invention： the technical problem（s） to be solved by the invention or utility model， the technical solution adopted to resolve such technical problem（s） and the advantageous effects of the invention or utility model in comparison with prior art shall be specified；

4. description of the drawings： if the description contains drawings， a brief description shall accompany each drawing； and

5. the specific mode for carrying out the invention or utility model： a detailed description of the best mode contemplated by the applicant for carrying out the invention or utility model shall be indicated； where appropriate， such description shall be done in terms of examples with reference to the drawings， if any.

Applicants for patents for inventions or utility models shall write a description in the manner and sequence provided above， with each part thereof preceded by a heading， unless， due to the nature of the invention or utility model， a different manner or different sequence can reduce the length of the description and enable others to accurately understand the invention or utility model.

The description of an invention or utility model shall be worded in standard Chinese and be written clearly， and may not contain such references as “as described in claim……” or contain commercial advertising terms.

If an invention patent application contains one or more nucleotide or amino acid sequences， the description shall include a sequence listing complying with the regulations of the State Council's patent administration authority. The applicant shall submit such sequence listing as a separate part of the description and a duplicate of such sequence listing in computer readable form in accordance with the regulations of the State Council's patent administration authority.

Article 19　Several drawings of an invention or utility model may be drawn on one sheet of paper and shall be arranged in numerical order as “Figure 1， Figure 2， ……”。

The size and clarity of drawings shall be such as to ensure that when such drawings are reduced in size by two-thirds， all the details are still clearly distinguishable.

Reference characters that are not mentioned in the text of the invention or utility model description may not appear in the drawings， and reference characters that do not appear in the drawings may not be mentioned in the text of the description.　Those reference characters in the application documents that refer to the same constituent parts shall be consistent.

Drawings shall not contain any explanatory notes other than words that are indispensable.

Article 20　Claims shall describe the technical characteristics of the invention or utility model， and clearly and concisely define the scope of the request for protection.

If a letter of claim contains several claims， the claims shall be numbered consecutively with Arabic numerals.

Technical terminology used in a letter of claim shall be consistent with that used in the description. Claims may contain chemical or mathematical formulas， but no illustrations. Unless absolutely necessary， the phrases “as described in part …… of the description”， or “as illustrated in Figure ……” may not be used.

In setting forth technical features in claims， appropriate references in the description's drawings may be cited. Such references shall be placed in brackets after the corresponding technical feature， to aid understanding of the claim. Reference characters may not be interpreted as restrictions of the claim.

Article 21　Letters of claim shall have an independent claim and may also have dependent claims.

The independent claim shall reflect the entire technical solution that an invention or utility model offers and record the technical features necessary for resolving the technical problem.

Dependent claims shall further restrict the claims cited by using additional technical features.

Article 22　The independent claim for an invention or utility model shall include a preamble and a features section， which shall be written in accordance with the following provisions：

1. preamble： specifying the title of the subject matter of the technical solution that is offered by the invention or utility model for which protection is requested and those necessary technical features of the subject matter of the invention or utility model that it has in common with the prior art to which it is most closely related；

2. features section： specifying， by using the expression “it is characterized by ……” or similar expressions， the technical features of the invention or utility model that differ from the prior art to which it is most closely related； taken together， these features and those described in the preamble shall define the scope of protection claimed for the invention or utility model.

If， owing to its nature， it is inappropriate to describe an invention or utility model in the above manner， independent claims for it may be written in another form.

Only one independent claim shall be made for one invention or utility model. Such claim shall precede the dependent claims for the same invention or utility model.

Article 23　Dependent claims for an invention or utility model shall contain a reference portion and a limitation portion， which shall be written in accordance with the following provisions：

1. reference portion： specifying the serial number（s） of the claim（s） referred to and the title（s） of its （their） subject matter；

2. limitation portion： specifying additional technical features of the invention or utility model.

Dependent claims may refer only to the preceding claim（s）。 A multiple dependent claim that refers to two or more claims may refer to the preceding claims in the alternative only and may not serve as the basis for any other multiple dependent claim.

Article 24　A description abstract shall consist of a summary of the disclosure as contained in the patent application for the invention or utility model， i.e. it shall specify the title of the invention or utility model and the technical field to which it pertains， and clearly reflect the technical problem to be solved， the gist of the technical solution to such problem and the principal use（s） of the invention or utility model.

Description abstracts may include the chemical formula that best characterizes the invention. For a patent application with drawings， the drawing that best characterizes the technical features of the invention or utility model shall be provided as well.　The scale and clarity of drawings shall be such as to ensure that all details of the drawings are still clearly distinguishable when the drawings are reduced in size to 4 cm x 6 cm. The textual portion of the abstract may not exceed 300 Chinese characters. No commercial advertising terminology may be used in the abstract.

Article 25　If an invention for which a patent application is made involves a new biological material that is not available to the public and cannot be described in such a manner as to enable the invention to be carried out by a person skilled in the art， the application shall comply with the relevant provisions of the Patent Law and these Rules and， in addition， the applicant shall carry out the following procedures：

1. deposit， prior to the date of application or at the latest on the date of application （if he has priority， the date of application shall be the date of priority）， a sample of the biological material with the depositary institution designated by the State Council's patent administration authority and submit， at the time of application or at the latest within four months of the date of application， the certificate of deposit and certificate of survival issued by the depositary institution； if the certificates are not submitted within the time limit， no sample shall be deemed to have been deposited；

2. provide， in the application documents， information on the characteristics of the biological material； and

3. if the patent application involves the deposit of a sample of the biological material， specify in the request and the description the taxonomic description （indicating the Latin name） of the said biological material， the name and address of the institution with which the sample of the biological material was deposited， the date of deposit and the serial number of the deposit； if such particulars are not specified at the time of application， they shall be supplied within four months of the date of application； if they are not supplied within the time limit， no sample shall be deemed to have been deposited.

Article 26　If an invention patent applicant deposits a sample of a biological material pursuant to Article 25 hereof， any work unit or individual that needs to use the biological material involved in the patent application for experimental purposes after the publication of the patent application shall submit a request to the State Council's patent administration authority specifying the following matters：

1. the name and address of the work unit or individual making the request；

2. an undertaking not to supply the said biological material to any other person； and

3. an undertaking to use the biological material only for experimental purposes prior to the grant of the patent right.

Article 27　Drawings or photographs of designs submitted in accordance with Article 27 of the Patent Law may not be smaller than 3 cm x 8 cm or larger than 15 cm x 22 cm.

When patent applications for designs also request protection of colour， colour drawings or photographs shall be submitted in duplicate.

Applicants shall submit relevant views or photographs concerning those contents of each design product that require protection. Such views or photographs shall clearly show the subject matter for which protection is requested.

Article 28　If necessary， an application for a design patent shall contain a brief description of the design.

A brief description of a design shall specify such particulars as the key design elements of， the request for protection of colour for， and the omission of views of， the product incorporating such design. The brief description may not contain commercial advertising terminology and may not be used to describe the function of the product.

Article 29　When the State Council's patent administration authority considers it necessary， it may require applicants for design patents to submit samples or models of the products incorporating the designs. The volume of a sample or model may not exceed 30 cm x 30 cm x 30 cm and its weight may not exceed 15 kg. Articles that are perishable， easily damaged or dangerous may not be submitted as samples or models.

Article 30　For the purposes of the third paragraph of Article 22 of the Patent Law， the term “existing technology” shall mean technology publicly disclosed in publications in China or abroad， publicly used in China or otherwise learned of by the public in China before the date of application （if there is priority， then before the date of priority）， i.e. prior art.

Article 31　For the purposes of Item （ii） of Article 24 of the Patent Law， the term “academic meetings” or “technological meetings” shall mean academic or technological meetings convened by relevant departments-in-charge of the State Council or by national academic organizations.

If an invention or creation for which a patent is applied for comes under the provisions of Item （i） or Item （ii） of Article 24 of the Patent Law， the applicant shall declare the same when filing the application and， within two months of the date of application， submit a document issued by the organizer of the relevant international exhibition or academic or technological meeting attesting that the invention or creation has been exhibited or published， and attesting to the date of exhibition or publication.

If an invention or creation for which a patent is applied for comes under Item （iii） of Article 24 of the Patent Law， the State Council's patent administration authority may require the applicant to submit supporting documents within a prescribed period of time， if it considers such documents necessary.

If an applicant fails to submit a declaration or supporting documents in accordance with the second paragraph hereof or fails to submit the supporting documents within the prescribed time limit in accordance with the third paragraph hereof， the provisions of Article 24 of the Patent Law shall not apply to his application.

Article 32　If an applicant carries out the procedures for claiming priority in accordance with Article 30 of the Patent Law， the date of application and application number of the patent application that was filed first （the “Earlier Application”） and the country that accepted such application shall be specified in the written declaration. If the date of application of the Earlier Application and the country accepting such application are not specified in the written declaration， no declaration shall deemed to have been submitted.

If foreign priority is claimed， the copies of the Earlier Application documents filed by the applicant shall have been certified by the original accepting authority. If the name of the earlier applicant on the submitted supporting documents is different from the name of the later applicant， evidence of the assignment of priority shall be submitted. If domestic priority is claimed， the copies of the Earlier Application documents to be filed by the applicant shall be prepared by the State Council's patent administration authority.

Article 33　In one patent application， an applicant may claim one or multiple priorities. If multiple priorities are claimed， the term of priority of the application shall be calculated commencing from the date of the earliest priority.

If an applicant claims domestic priority， and the Earlier Application is an application for an invention patent， an application for an invention or utility model patent may be filed regarding the same subject matter. If the Earlier Application is an application for a utility model patent， an application for a utility model or invention patent may be filed regarding the same subject matter. However， if the subject matter of such Earlier Application is characterized by any of the circumstances set forth below when the later application is filed， the Earlier Application may not be taken as the basis for a claim for domestic priority：

1. foreign or domestic priority has already been claimed；

2. a patent right has already been granted； or

3. the Earlier Application is a divisional application filed in accordance with regulations.

When an applicant claims domestic priority， his Earlier Application shall be deemed withdrawn from the date on which the later application is filed.

Article 34　If an applicant without a habitual residence or place of business in China applies for a patent or claims foreign priority， the State Council's patent administration authority may， where it considers necessary， require the applicant to provide the following documents：

1. proof of nationality；

2. if the applicant is an enterprise or another organization， a certificate concerning the location of its place of business or head office；

3. a certificate from the applicant's home country， confirming that work units and individuals from China are entitled to patent rights， priority and other patent-related rights in such country on the same conditions as are such country's nationals.

Article 35　Two or more inventions or utility models belonging to one general inventive concept that may be submitted as one patent application under the first paragraph of Article 31 of the Patent Law shall be technically interrelated and contain one or more identical or corresponding specific technical features， where the term “specific technical features” refers to the technical features of the contribution that each invention or utility model， as a whole， makes to the prior art.

Article 36　For the purposes of the second paragraph of Article 31 of the Patent Law， the term “of the same class” shall mean that the products belong to the same subclass in the classification， and the term “to be sold or used in sets” shall mean that the products belong to the same design concept and are customarily sold or used at the same time.

If one application is filed for two or more designs in accordance with the second paragraph of Article 31 of the Patent Law， each design shall be numbered consecutively and the numbers shall be placed in front of the titles of the views of the products using the designs.

Article 37　If an applicant withdraws a patent application， he must declare such withdrawal in writing to the State Council's patent administration authority， specifying the name， application number and date of application of the invention or creation.

If the declaration of withdrawal of an application is submitted after the State Council's patent administration authority has completed the printing preparations for publication of the application documents， the application documents shall still be published. However， the declaration of withdrawal of the application shall be published in the subsequent Patent Gazette.

PART THREE　EXAMINATION AND APPROVAL OF PATENT APPLICATIONS

Article 38　Any person conducting an examination or hearing during the procedure for preliminary examination， substantive examination， re-examination or declaration of invalidity， shall recuse himself or may be challenged by a party or another interested person：

1. if he is a close relative of a party or of a party's agent；

2. if he has a material interest in the patent application or patent right；

3. if he has such other relationship with a party or a party's agent as may affect the impartiality of the examination or hearing； or

4. if he is a member of the Patent Re-examination Board and participated in the examination of the original application.

Article 39　Following receipt of the written request， description （that， for a utility model， must contain drawings） and claims in respect of an application for an invention or utility model patent， or following receipt of the written request and drawings or photographs of the design in respect of an application for a design patent， the State Council's patent administration authority shall determine the date of application， assign an application number and notify the applicant.

Article 40　The State Council's patent administration authority shall not accept patent application documents， and shall notify the applicant：

1. if the application for an invention or utility model patent lacks a written request， a description （or， in the case of a utility model， the description lacks drawings） or claims， or the application for a design patent lacks a request， drawings or photographs；

2. if the documents are not in Chinese；

3. if the documents do not conform to the first paragraph of Article 120 hereof；

4. if the written request lacks the name and address of the applicant；

5. if the documents clearly do not conform to Article 18 or the first paragraph of Article 19 of the Patent Law； or

6. if the category （invention， utility model or design） of the patent application is unclear or difficult to determine.

Article 41　If a description contains an explanation of drawings but there are no drawings or a portion of the drawings is missing， the applicant shall submit the drawings or declare the cancellation of the explanation of the drawings， within the time limit prescribed by the State Council's patent administration authority. If the applicant submits the drawings， the date of application shall be the date on which the drawings are submitted or mailed to the State Council's patent administration authority. If the applicant cancels the explanation of the drawings， the original date of application shall be retained.

Article 42　If one patent application covers two or more inventions， utility models or designs， the applicant may file a divisional application with the State Council's patent administration authority before the expiration of the time limit prescribed in the first paragraph of Article 54 hereof. However， a divisional application may not be filed if a patent application has already been rejected， withdrawn or deemed to be withdrawn.

If the State Council's patent administration authority considers that a patent application does not conform to Article 31 of the Patent Law or Article 35 or 36 hereof， it shall notify the applicant to amend the application within a prescribed time limit. If the applicant does not reply within the time limit， the application shall be deemed to have been withdrawn.

Divisional applications may not change the category of the parent applications.

Article 43　Divisional applications filed in accordance with Article 42 hereof may retain the original date of application. If they have right of priority， the date of the right of priority may be retained. However， the scope of the disclosure in the parent application may not be exceeded.

The relevant procedures for divisional applications shall be carried out in accordance with the provisions of the Patent Law and of these Rules.

The request for divisional application shall specify the application number and date of application of the parent application. When filing a divisional application， the applicant shall submit copies of the parent application documents. If the parent application had right of priority， copies of the right of priority documents for the parent application shall also be submitted.

Article 44　For the purposes of Articles 34 and 40 of the Patent Law， the term “preliminary examination” shall mean examination of whether or not a patent application contains the documents specified in Article 26 or 27 of the Patent Law and other necessary documents， whether or not such documents are in the required format， and an examination of the following：

1. whether or not an application for an invention patent clearly comes under Article 5 or 25 of the Patent Law， or does not conform to Article 18 or the first paragraph of Article 19 of the Patent Law， or clearly does not conform to the first paragraph of Article 31 or Article 33 of the Patent Law or the first paragraph of Article 2， or Article 18 or Article 20 of these Rules；

2. whether or not an application for a utility model patent clearly comes under Article 5 or 25 of the Patent Law， or does not conform to Article 18 or the first paragraph of Article 19 of the Patent Law， or clearly does not conform to the third or fourth paragraphs of Article 26， the first paragraph of Article 31 or Article 33 of the Patent Law or the second paragraph of Article 2， the first paragraph of Article 13， Articles 18 to 23 or the first paragraph of Article 43 of these Rules， or is not patentable pursuant to Article 9 of the Patent Law； and

3. whether or not an application for a design patent clearly comes under Article 5 of the Patent Law， or does not conform to Article 18 or the first paragraph of Article 19 of the Patent Law， or clearly does not conform to the second paragraph of Article 31 or Article 33 of the Patent Law or the third paragraph of Article 2， the first paragraph of Article 13 or the first paragraph of Article 43 of these Rules， or is not patentable pursuant to Article 9 of the Patent Law.

The State Council's patent administration authority shall notify the applicant of the opinion reached by it upon examination， and request him to state his comments or to make corrections within the prescribed time limit. If the applicant does not reply within the time limit， his application shall be deemed to have been withdrawn. If， after the applicant states his comments or makes corrections， the State Council's patent administration authority still considers that the application does not conform to the provisions of the preceding paragraph， the application shall be rejected.

Article 45　With the exception of patent application documents， documents relevant to a patent application that are submitted to the State Council's patent administration authority by an applicant shall be deemed not to have been submitted：

1. if the documents are not in the prescribed format or have not been completed in accordance with regulations； or

2. if evidence is not submitted according to regulations.

The State Council's patent administration authority shall notify the applicant if its opinion upon examination is that the documents are deemed not to have been submitted.

Article 46　If an applicant requests early publication of his application for an invention patent， he shall declare the same to the State Council's patent administration authority. The State Council's patent administration authority shall publish the application immediately after preliminary examination， unless it rejects the application.

Article 47　When an applicant specifies the product incorporating a design and the class it belongs to in accordance with Article 27 of the Patent Law， reference shall be made to the classification of design products published by the State Council's patent administration authority. If the class to which a product incorporating a design belongs is not specified， or the class specified is inaccurate， the State Council's patent administration authority may supply or amend the class.

Article 48　Any person may submit comments， with an explanation of the reasons therefor， to the State Council's patent administration authority regarding an application for an invention patent that does not conform to the provisions of the Patent Law， from the date of publication of such patent application until the date of public announcement of the grant of the patent right.

Article 49　If， for legitimate reasons， an applicant for an invention patent cannot submit the search information or the information on the examination result as prescribed in Article 36 of the Patent Law， he shall declare the same to the State Council's patent administration authority and submit the relevant information once obtained.

Article 50　If the State Council's patent administration authority examines a patent application of its own motion pursuant to the second paragraph of Article 35 of the Patent Law， it shall notify the applicant.

Article 51　At the time an applicant for an invention patent submits a request for substantive examination and within three months of the date of receipt of the notice issued by the State Council's patent administration authority stating that the invention patent application has entered the stage of substantive examination， he may amend the patent application on his own initiative.

Applicants for utility model or design patents may amend their applications on their own initiative during a period of two months from the date of application.

If an applicant amends his patent application documents after receipt of the notice giving the opinion upon examination issued by the State Council's patent administration authority， he shall do so in accordance with the requirements of the notice.

The State Council's patent administration authority may itself correct obvious typographical and symbol errors in patent application documents. If the State Council's patent administration authority makes such corrections itself， it shall notify the applicant thereof.

Article 52　Replacement pages shall be submitted， in the prescribed format， for the amended portions of the descriptions or claims in applications for invention or utility model patents， except in the case of amendments， insertions or deletions of individual words. Replacement pages for amendments to drawings or photographs in applications for design patents shall be submitted in accordance with regulations.

Article 53　In accordance with Article 38 of the Patent Law， the circumstances under which applications for invention patents shall be rejected following substantive examination shall be as follows：

1. the application does not conform to the first paragraph of Article 2 hereof；

2. the application comes under Article 5 or 25 of the Patent Law， or does not conform to Article 22 of the Patent Law or the first paragraph of Article 13， the first paragraph of Article 20 or the second paragraph of Article 21 of these Rules， or is not patentable pursuant to Article 9 of the Patent Law；

3. the application does not conform to the third or fourth paragraph of Article 26 or the first paragraph of Article 31 of the Patent Law；

4. an amendment to the application does not conform to Article 33 of the Patent Law or the divisional application does not conform to the first paragraph of Article 43 hereof.

Article 54　After the State Council's patent administration authority issues a notice of grant of a patent right， the applicant shall carry out registration procedures within two months from the date of receipt of the notice. If the applicant carries out registration procedures on time， the State Council's patent administration authority shall grant the patent right， issue a patent certificate and gazette the same.

If the applicant does not carry out registration procedures within the time limit， he shall be deemed to have renounced the right to obtain the patent right.

Article 55　After a decision to grant a patent right for a utility model has been gazetted， the patentee of a utility model may make a request to the State Council's patent administration authority to issue a utility model patent search report.

Anyone who makes a request for a utility model patent search report shall submit a written request and indicate the patent number of the utility model patent. Each request shall be limited to one utility model patent.

After the State Council's patent administration authority receives a request to issue a utility model patent search report， it shall examine the same. If the request is found not to conform to the specified requirements， it shall notify the party making the request to correct the same within a prescribed time limit.

Article 56　If， upon examination， the request for a utility model patent search report is found to conform with regulations， the State Council's patent administration authority shall promptly issue a utility model patent search report.

If， after searching， the State Council's patent administration authority is of the opinion that the relevant utility model patent does not comply with the provision on novelty or creativeness of Article 22 of the Patent Law， it shall cite the relevant documents， explain its reasons and attach photocopies of the documents cited by it.

Article 57　The State Council's patent administration authority shall correct errors in the Patent Gazette and patent documents as soon as they are discovered and gazette the corrections that it has effected.

PART FOUR　RE-EXAMINATION OF PATENT APPLICATIONS AND INVALIDATION OF PATENT RIGHTS

Article 58　The Patent Re-examination Board shall be composed of technical and legal experts designated by the State Council's patent administration authority.　The person in charge of the State Council's patent administration authority shall concurrently serve as the chairman of the Patent Re-examination Board.

Article 59　To submit a request for re-examination to the Patent Re-examination Board in accordance with Article 41 of the Patent Law， a written request for re-examination， stating the reasons therefor shall be submitted accompanied， if necessary， by the relevant evidence.

If a request for re-examination is not in the prescribed format， the party requesting re-examination shall correct it within the time limit prescribed by the Patent Re-examination Board. If correction is not made within the time limit， the request for re-examination shall be deemed not to have been submitted.

Article 60　When submitting the request for re-examination or responding to the re-examination notice issued by the Patent Re-examination Board， the party making the request may amend his patent application documents provided that the amendments are limited to eliminating the defects indicated in the rejection decision or the re-examination notice.

The amended patent application documents shall be submitted in duplicate.

Article 61　The Patent Re-examination Board shall forward accepted requests for re-examination to the original examination department of the State Council's patent administration authority for examination. If the original examination department agrees to cancel the original decision on the basis of the request for re-examination， the Patent Re-examination Board shall make a corresponding decision upon re-examination and notify the requesting party.

Article 62　If， after re-examination， the Patent Re-examination Board considers that a request for re-examination does not conform to the relevant provisions of the Patent Law and these Rules， it shall notify the requesting party and require him to state his comments within a prescribed time limit. If no response is made within the time limit， the request for re-examination shall be deemed to have been withdrawn. If， after comments have been stated or amendments made， the Patent Re-examination Board still considers that the request for re-examination does not conform to the relevant provisions of the Patent Law and these Rules， it shall render a re-examination decision sustaining its original rejection decision.

If， after re-examination， the Patent Re-examination Board considers that the original rejection decision does not conform to the relevant provisions of the Patent Law and these Rules or that the amendments made to the patent application documents have eliminated the defects indicated in the original rejection decision， it shall revoke the original rejection decision and the original examination authority shall continue the examination procedure.

Article 63　A party requesting re-examination may withdraw such request before the Patent Re-examination Board renders its decision.

The re-examination procedure shall terminate if the party requesting re-examination withdraws its request before the Patent Re-examination Board renders its decision.

Article 64　To request that a patent right be invalidated or partially invalidated pursuant to Article 45 of the Patent Law， a written request for invalidation of a patent right， accompanied by the necessary evidence， shall be submitted in duplicate to the Patent Re-examination Board. The request for invalidation of the patent shall integrate all the evidence submitted therewith， explain the specific reasons for the invalidation request and state the evidence on which each reason is based.

For the purposes of the preceding paragraph， the term “reason for an invalidation request” shall mean that the patented invention or creation does not conform to Article 22， 23， the third or fourth paragraph of Article 26 or Article 33 of the Patent Law or Article 2， the first paragraph of Article 13， the first paragraph of Article 20 or the second paragraph of Article 21 hereof， or falls under Article 5 or Article 25 of the Patent Law or is not patentable pursuant to Article 9 of the Patent Law.

Article 65　If a request for the invalidation of a patent right does not conform to Article 64 hereof， the Patent Re-examination Board shall not accept it.

If another invalidation request is made on the same grounds and with the same evidence after the Patent Re-examination Board has rendered a decision on an invalidation request， the Patent Re-examination Board shall not accept it.

If a request for invalidation of a design patent right is made on the grounds that the patented design conflicts with the legally obtained prior right of a third party and the party making the request fails to submit a valid handling decision or judgment evidencing the conflict of rights， the Patent Re-examination Board shall not accept the request.

If a request for invalidation of a patent right is not in the prescribed format， the requesting party shall correct it within the time limit prescribed by the Patent Re-examination Board. If correction is not made within the time limit， the invalidation request shall be deemed not to have been submitted.

Article 66　After the Patent Re-examination Board accepts an invalidation request， the party making the request may add to the reasons or supplement the evidence for the request for one month commencing from the date of submission. The Patent Re-examination Board may refuse to consider additional reasons or supplementary evidence submitted after this time limit.

Article 67　The Patent Re-examination Board shall send duplicates of the request for invalidation of a patent right and the relevant documents to the patentee and require the patentee to state his comments within a prescribed time limit.

The patentee and the party requesting the invalidation shall respond within the prescribed time limit to the notice of service of documents or the notice of examination of an invalidation request issued by the Patent Re-examination Board. Failure to respond within the time limit shall not affect the hearing by the Patent Re-examination Board.

Article 68　The patentee of an invention or utility model patent may amend his written claim during the examination procedure for the invalidation request provided that he does not broaden the original scope of patent protection.

The patentee of an invention or utility model patent may not amend his patent description or drawings and the patentee of a design patent may not amend the drawings， photographs or brief description of the design.

Article 69　At the request of the parties or if required by the case， the Patent Re-examination Board may decide to conduct an oral hearing in respect of the invalidation request.

If the Patent Re-examination Board decides to conduct an oral hearing in respect of the invalidation request， it shall issue a notice for an oral hearing to the parties informing them of the date and place of the oral hearing. The parties shall respond within the time limit prescribed in the notice.

If the party requesting invalidation fails to respond within the prescribed time limit to the notice for an oral hearing issued by the Patent Re-examination Board and fails to attend the oral hearing， its invalidation request shall be deemed to have been withdrawn. If the patentee fails to attend the oral hearing， such hearing may be conducted ex parte.

Article 70　The time limits prescribed by the Patent Re-examination Board in the course of the examination procedure for an invalidation request may not be extended.

Article 71　A party requesting invalidation may withdraw such request before the Patent Re-examination Board renders its decision on the invalidation request.

The re-examination procedure shall terminate if the party requesting invalidation withdraws his request before the Patent Re-examination Board renders its decision.

PART FIVE　COMPULSORY LICENCE FOR THE WORKING OF A PATENT

Article 72　Three years after the date of grant of a patent right， any work unit may request the State Council's patent administration authority to grant a compulsory licence under Article 48 of the Patent Law.

To request a compulsory licence， a written request for a compulsory licence stating the grounds for the request and accompanied by the relevant supporting documents shall be submitted in duplicate to the State Council's patent administration authority.

The State Council's patent administration authority shall send the duplicate of the request for a compulsory licence to the patentee， who shall state his comments within the time limit prescribed by the State Council's patent administration authority. Failure to respond within the time limit shall not affect the rendering of a decision by the State Council's patent administration authority regarding the compulsory licence.

Decisions by the State Council's patent administration authority to grant compulsory licences shall restrict the working of the patent under the compulsory licence chiefly to meeting domestic market demand. If the invention or creation covered by the compulsory licence is semiconductor technology， the working of the patent under the compulsory licence shall be restricted to non-commercial use in the public interest or be granted as a remedy against anti-competitive behavior as determined in legal or administrative procedures.

Article 73　If the State Council's patent administration authority is requested to rule on the amount of the royalty in accordance with Article 54 of the Patent Law， the parties shall submit a written request for the ruling together with a document evidencing that the parties are unable to reach an agreement. The State Council's patent administration authority shall give a ruling on the matter within three months of the date of receipt of the request， and notify the parties.

PART SIX　REWARD AND REMUNERATION OF INVENTORS OR DESIGNERS OF SERVICE INVENTIONS AND CREATIONS

Article 74　A State-owned enterprise or institution granted a patent right shall give the inventor or designer a money award within three months from the date on which the patent right is gazetted. The money award for an invention patent shall not be less than Rmb 2000. The money award for a utility model or design patent shall not be less than Rmb 500.

After the granting of a patent right for an invention or creation that was completed because the work unit to which the inventor or creator belongs accepted his proposal， the State-owned enterprise or institution granted the patent right shall give a generous money award.

Enterprises may enter money awards paid to inventors or designers under costs. Institutions may enter such money awards under operating expenses.

Article 75　After working a patent for an invention or creation within the term of the validity of the patent right， the State-owned enterprise or institution granted the patent right shall pay the inventor or designer remuneration at a rate of not less than 2% of the annual after-tax profit obtained from working the patent for the invention or utility model or not less than 0.2% of the annual after-tax profit obtained from working the design patent， or pay the designer or inventor a lump sum remuneration by reference to the above percentages.

Article 76　If the State-owned enterprise or institution granted the patent right for an invention or creation licenses another work unit or an individual to work its patent， it shall pay the inventor or designer remuneration at the rate of not less than 10% of the after-tax royalty received by it from such licence.

Article 77　Other work units in China may refer to the provisions of this Part regarding money awards and remuneration.

PART SEVEN　PATENT PROTECTION

Article 78　For the purposes of the Patent Law and these Rules， the term “Patent Administration Authorities” shall mean the patent administration authorities established by the people's governments of the provinces， autonomous regions and municipalities directly under the central government and the people's governments of municipalities divided into districts that have both a large volume of and the actual capability to handle patent administration work.

Article 79　In addition to that provided for in Article 57 of the Patent Law， Patent Administration Authorities may mediate in the following types of patent disputes at the request of the parties：

1. disputes over patent application rights and ownership of patent rights；

2. disputes over the qualifications of inventors and designers；

3. disputes over the rewarding and remuneration of the inventors and designers of service inventions； and

4. disputes concerning the inadequacy of royalties for the use of an invention after the invention patent application has been published and before the patent has been granted.

Requests to the Patent Administration Authorities by patentees for mediation in the disputes specified in Item （4） of the preceding paragraph shall be submitted after the patent right has been granted.

Article 80　The State Council's patent administration authority shall provide professional guidance to the Patent Administration Authorities in the handling and mediation of patent disputes.

Article 81　When a party requests the handling or mediation of a patent dispute， the Patent Administration Authority of the place where the respondent is located or in which the infringement occurred shall have jurisdiction.

In patent disputes where two or more Patent Administration Authorities have jurisdiction， the party concerned may submit his request to any one of the Patent Administration Authorities； if the party concerned submits his request to two or more Patent Administration Authorities that have jurisdiction， the Patent Administration Authority that first accepted the request shall have jurisdiction.

If a conflict over jurisdiction arises between Patent Administration Authorities， the Patent Administration Authority of the people's government to which they are all subordinate shall determine jurisdiction. In cases where there is no Patent Administration Authority of a people's government to which all the Patent Administration Authorities concerned are subordinate， the State Council's patent administration authority shall determine jurisdiction.

Article 82　If， during the handling of a patent infringement dispute， the respondent submits an invalidation request and the request is accepted by the Patent Re-examination Board， a request may be made to the Patent Administration Authority to suspend its handling of the dispute.

If the Patent Administration Authority is of the opinion that the grounds for suspension submitted by the respondent clearly cannot be sustained， it may refuse to suspend its handling of the dispute.

Article 83　If a patentee affixes its patent marking on its patented product or on the packaging of such product pursuant to Article 15 of the Patent Law， it shall do so in the manner prescribed by the State Council's patent administration authority.

Article 84　The following acts constitute passing off a third party's patent：

1. affixing， without a licence， a third party's patent number on products or the packaging of products one manufactures or sells；

2. using， without a licence， a third party's patent number in advertising or other publicity materials， thereby causing people to confuse the technology involved with the patented technology of such third party；

3. using， without a licence， a third party's patent number in a contract， thereby causing people to confuse the technology under the contract with the patented technology of such third party；

4. forging or altering a third party's patent certificate， patent documents or patent application documents.

Article 85　The following acts constitute the passing off of non-patented products as patented products or the passing off of a non-patented process as a patented process：

1. the manufacture or sale of non-patented products bearing a patent marking；

2. continuing to affix a patent marking on products that one manufactures or sells after a patent right has been invalidated；

3. referring to non-patented technology as patented technology in advertisements or other publicity materials；

4. referring to non-patented technology as patented technology in a contract；

5. forging or altering patent certificates， patent documents or patent application documents.

Article 86： If a dispute over the ownership of a patent application right or patent right arises and a party has a requested a Patent Administration Authority to handle the matter or instituted an action in a people's court， a request may be made to the State Council's patent administration authority to suspend the relevant procedure.

If a request is made to suspend the relevant procedure pursuant to the preceding paragraph， a written request accompanied by a duplicate of the acceptance document issued by the Patent Administration Authority or people's court shall be submitted to the State Council's patent administration authority.

After the handling decision of the Patent Administration Authority or the judgment of the people's court has entered into effect， the concerned party shall carry out formalities with the State Council's patent administration authority for resumption of the relevant procedure. If the dispute over the ownership of the patent application right or patent right cannot be resolved within one year of the date of the suspension request and it is necessary to continue the suspension of the relevant procedure， the party making the request shall request an extension of the suspension within the said time limit. If at the expiration of the time limit no request for extension has been made， the State Council's patent administration authority shall automatically resume the relevant procedure.

Article 87： If， during the hearing of a civil case， the people's court rules that preservation measures be taken in respect of a patent right， the State Council's patent administration authority shall， while assisting in enforcement， suspend the relevant procedure in which the preserved patent right is involved. If， upon expiration of the term of preservation， the people's court has not ruled that the preservation measures be continued， the State Council's patent administration authority shall automatically resume the relevant procedure.

PART EIGHT　PATENT REGISTRATION AND PATENT GAZETTE

Article 88： The State Council's patent administration authority shall establish a Patent Register to register the following matters relating to patent registration and patent rights：

1. grant of patent rights；

2. transfer of patent application rights and patent rights；

3. pledge and preservation of patent rights as well as the termination of such pledge or preservation；

4. recordal of licensing contracts for the working of patents；

5. invalidation of patent rights；