Contents
1.TRADEMARK LAW OF THE PEOPLE'S REPUBLIC OF CHINA
2.IMPLEMENTING REGULATIONS OF THE TRADEMARK LAW OF THE PEOPLE'S REPUBLIC OF CHINA
3.PATENT LAW OF THE PEOPLE'S REPUBLIC OF CHINA
4.IMPLEMENTING REGULATIONS OF THE PATENT LAW OF THE PEOPLE'SREPUBLIC OF CHINA
5.COPYRIGHT LAW OF THE PEOPLE'S REPUBLIC OF CHINA
6.REGULATIONS FOR THE IMPLEMENTATION OF THE COPYRIGHT LAW OF THEPEO
TRADEMARK LAW OF THE PEOPLE'S REPUBLIC OF CHINA
(Adopted at the 24th Session of the Standing Committee of the
Standing Committee of the Fifth National People's Congress on August 23,1982, and amended according to the "Decision on the Revision of the'Trademark Law of the People's Republic of China'" adopted at the 30th Session ofthe Standing Committee of the Seventh National People's Congress, on February 22, 1993)
Important Notice: ( 注意事项 )
当发生歧意时 , 应以法律法规颁布单位发布的中文原文为准 .
In case of discrepancy, the original version in Chinese shall prevail. Whole Document ( 法规全文 )
Trademark Law of the People's Republic of China (Adopted at the 24th Session of the Standing Committee of the Standing Committee of the Fifth National People's Congress on August 23, 1982, and amended according to the "Decision on the Revision of the 'Trademark Law of the People's Republic of China'" adopted at the 30th Session of the Standing Committee of the Seventh National People's Congress, on February 22, 1993)
Chapter I. General Provisions
Article 1.
This Law is enacted for the purposes of improving the administration of trademarks, protecting the exclusive right to use a trademark, and of encouraging producers to guarantee the quality of their goods and maintain the reputation of their trademarks, with a view to protecting consumers' interests and to promoting the development of socialist commodity economy.
Article 2.
The Trademark Office of the administrative authority for industry and commerce under the State Council shall be responsible for the registration and administration of trademarks throughout the country.
Article 3.
A registered trademark means a trademark that has been approved and registered by the Trademark Office. The trademark registrant shall enjoy an exclusive right to use the trademark, which shall be protected by law.
Article 4.
Any enterprise, institution, or individual producer or trader, intending to acquire the exclusive right to use a trademark for the goods produced, manufactured, processed, selected or marketed by it or him, shall file an application for the registration of the goods trademark with the Trademark Office.
Any enterprise, institution, or individual producer or trader, intending to acquire the exclusive right to use a service mark for the services provided by it or him, shall file an application for the registration of the service mark with the Trademark Office. The provisions made in this Law concerning goods trademarks shall apply to service marks.
Article 5.
As for any of such goods, as prescribed by the State, that must bear a registered trademark, a trademark registration must be applied for. Where no trademark registration has been granted, such goods cannot be sold on the market.
Article 6.
Any user of a trademark shall be responsible for the quality of the goods in respect of which the trademark is used. The administrative authorities for industry and commerce at different levels shall, through the administration of trademarks, exercise supervision over the quality of the goods and shall stop any practice that deceives consumers.
Article 7.
Any word, device or their combination that is used as a trademark shall be so distinctive as to be distinguishable. Where a registered trademark is used, it shall carry the indication of "Registered Trademark" or a sign indicating that it is registered.
Article 8.
In trademarks, the following words or devices shall not be used:
(1) those identical with or similar to the State name, national flag, national emblem, military flag, or decorations, of the People's Republic of China ;
(2) those identical with or similar to the State names, national flags, national emblems or military flags of foreign countries;
(3) those identical with or similar to the flags, emblems or names, of international intergovernmental organizations;
(4) those identical with or similar to the symbols, or names, of the Red Cross or the Red Crescent;
(5) those relating to generic names or designs of the goods in respect of which the trademark is used;
(6) those having direct reference to the quality, main raw materials,
function, use, weight, quantity or other features of the goods in respect of which the trademark is used;
(7) those having the nature of discrimination against any nationality;
(8) those having the nature of exaggeration and fraud in advertising goods; and
(9) those detrimental to socialist morals or customs, or having other unhealthy influences.
The geographical names as the administrative divisions at or above the county level and the foreign geographical names well-known to the public shall not be used as trademarks, but such geographical names as have otherwise meanings shall be exclusive. Where a trademark using any of the above-mentioned geographical names has been approved and registered, it shall continue to be valid.
Article 9.
Any foreigner or foreign enterprise intending to apply for the registration of a trademark in China shall file an application in
accordance with any agreement concluded between the People's Republic of China and the country to which the applicant belongs, or according to the international treaty to which both countries are parties, or on the basis of the principle of reciprocity.
Article 10.
Any foreigner or foreign enterprise intending to apply for the registration of a trademark or for any other matters concerning a trademark in China shall entrust any of such organizations as designated by the State to act as his or its agent.
Chapter II. Application for Trademark Registration
Article 11.
An applicant for the registration of a trademark shall, in a form,
indicate, in accordance with the prescribed classification of goods, the class of the goods and the designation of the goods in respect of which the trademark is to be used.
Article 12.
Where any applicant intends to use the same trademark for goods in different classes, an application for registration shall be filed in respect of each class of the prescribed classification of goods.
Article 13.
Where a registered trademark is to be used in respect of other goods of the same class, a new application for registration shall be filed.
Article 14.
Where any word or device of a registered trademark is to be altered, a new registration shall be applied for.
Article 15.
Where, after the registration of a trademark, the name, address or other registered matters concerning the registrant change, an application regarding the change shall be filed.
Chapter III.Examination for and Approval of Trademark Registration
Article 16.
Where a trademark the registration of which has been applied for is in conformity with the relevant provisions of this Law, the Trademark Office shall, after examination, preliminarily approve the trademark and publish it.
Article 17.
Where a trademark the registration of which has been applied for is not in
conformity with the relevant provisions of this Law, or it is identical with or similar to the trademark of another person that has, in respect of the same or similar goods, been registered or, after examination, preliminarily approved, the Trademark Office shall refuse the application and shall not publish the said trademark.
Article 18.
Where two or more applicants apply for the registration of identical or similar trademarks for the same or similar goods, the preliminary
approval, after examination, and the publication shall be made for the trademark which was first filed. Where applications are filed on the same day, the preliminary approval, after examination, and the publication shall be made for the trademark which was the earliest used, and the applications of the others shall be refused and their trademarks shall not be published.
Article 19.
Any person may, within three months from the date of the publication, file an opposition against the trademark that has, after examination, been preliminarily approved. If no opposition has been filed, or if it is decided that the opposition is not justified, the registration shall be approved, a certificate of trademark registration shall be issued and the trademark shall be published. If it is decided that the opposition is justified, no registration shall be approved.
Article 20.
The Trademark Review and Adjudication Board, established under the administrative authority for industry and commerce under the State Council, shall be responsible for handling trademark disputes.
Article 21.
Where the application for registration of a trademark is refused and no publication of the trademark is made, the Trademark Office shall notify the applicant of the same in writing. Where the applicant is dissatisfied, he may, within fifteen days from receipt of the notification, apply for a review. The Trademark Review and Adjudication Board shall make a final decision and notify the applicant in writing.
Article 22.
Where an opposition is filed against the trademark that has, after examination, been preliminarily approved and published, the Trademark Office shall hear both the opponent and applicant state facts and grounds and shall, after investigation and verification, make a decision. Where any party is dissatisfied, he may, within fifteen days from receipt of the notification, apply for a review, and the Trademark Review and Adjudication Board shall make a final decision and notify both the opponent and applicant in writing.
Chapter IV. Renewal, Assignment and Licensing of RegisteredTrademarks
Article 23.
The period of validity of a registered trademark shall be ten years, counted from the date of approval of the registration.
Article 24.
Where the registrant intends to continue to use the registered trademark beyond the expiration of the period of validity, an application for renewal of the registration shall be made within six months before the said expiration. Where no application therefor has been filed within the said period, a grace period of six months may be allowed. If no application has been filed at the expiration of the grace period, the registered trademark shall be cancelled.
The period of validity of each renewal of registration shall be ten years.
Any renewal of registration shall be published after it has been approved.
Article 25.
Where a registered trademark is assigned, both the assignor and assignee shall jointly file an application with the Trademark Office. The assignee shall guarantee the quality of the goods in respect of which the registered trademark is used.
The assignment of a registered trademark shall be published after it has been approved.
Article 26.
Any trademark registrant may, by signing a trademark license contract, authorize other persons to use his registered trademark. The licensor shall supervise the quality of the goods in respect of which the licensee uses his registered trademark, and the licensee shall guarantee the quality of the goods in respect of which the registered trademark is used.
Where any party is authorized to use a registered trademark of another person, the name of the licensee and the origin of the goods must be indicated on the goods that bear the registered trademark.
The trademark license contract shall be submitted to the Trademark Office for record. Chapter V. Adjudication of Disputes Concerning Registered Trademarks
Article 27.
Where a registered trademark stands in violation of the provisions of
Article 8 of this Law, or the registration of a trademark was acquired by fraud or any other unfair means, the Trademark Office shall cancel the registered trademark in question; and any other organization or individual may request the Trademark Review and Adjudication Board to make an adjudication to cancel such a registered trademark.
In addition to those cases as provided for in the preceding paragraph, any person disputing a registered trademark may, within one year from the date of approval of the trademark registration, apply to the Trademark Review and Adjudication Board for adjudication.
The Trademark Review and Adjudication Board shall, after receipt of the application for adjudication, notify the interested parties and request them to respond with arguments within a specified period.
Article 28.
Where a trademark, before its being approved for registration, has been the object of opposition and decision, no application for adjudication may be filed based on the same facts and grounds.
Article 29.
After the Trademark Review and Adjudication Board has made a final adjudication either to maintain or to cancel a registered trademark, it shall notify the interested parties of the same in writing.
Chapter VI. Administration of the Use of Trademarks
Article 30.
Where any person who uses a registered trademark has committed any of the following, the Trademark Office shall order him to rectify the situation within a specified period or even cancel the registered trademark:
(1) Where any word, device or their combination of a registered trademark is altered unilaterally (that is, without the required registration);
(2) where the name, address or other registered matters concerning the registrant of a registered trademark are changed unilaterally (that is, without the required application);
(3) where the registered trademark is assigned unilaterally (that is, without the required approval); and
(4) where the registered trademark has ceased to be used for three consecutive years.
Article 31.
Where a registered trademark is used in respect of the goods that have been roughly or poorly manufactured, or whose superior quality has been replaced by inferior quality, so that consumers are deceived, the administrative authorities for industry and commerce at different levels shall, according to the circumstances, order rectification of the situation within a specified period, and may, in addition, circulate a notice of criticism or impose a fine, and the Trademark Office may even cancel the registered trademark.
Article 32.
Where a registered trademark has been cancelled or has not been renewed at the expiration, the Trademark Office shall, during one year from the date of the cancellation or removal thereof, approve no application for the registration of a trademark that is identical with or similar to the said trademark.
Article 33.
Where any person violates the provisions of Article 5 of this Law, the local administrative authority for industry and commerce shall order him to file an application for the registration within a specified period, and may, in addition, impose a fine.
Article 34.
Where any person who uses an unregistered trademark has committed any of the following, the local administrative authority for industry and
commerce shall stop the use of the trademark, order him to rectify the situation within a specified period, and may, in addition, circulate a notice of criticism or impose a fine:
(1) where the trademark is falsely represented as registered;
(2) where any provision of Article 8 of this Law is violated; and
(3) where the manufacture is rough or poor, or where superior quality is replaced by inferior quality, so that consumers are deceived.
Article 35.
Any party dissatisfied with the decision of the Trademark Office to cancel a registered trademark may, within fifteen days from receipt of the corresponding notice, apply for a review. The Trademark Review and Adjudication Board shall make a final decision and notify the applicant in writing.
Article 36.
Any party dissatisfied with the decision of the administrative authority for industry and commerce to impose a fine under the provisions of Article 31, Article 33 or Article 34 may, within fifteen days from receipt of the corresponding notice, institute legal proceedings with the people's court.
If there have been instituted no legal proceedings or made no performance of the decision at the expiration of the said period, the administrative authority for industry and commerce may request the people's court for compulsory execution thereof.
Chapter VII. Protection of the Exclusive Rights to Use Registered Trademarks
Article 37.
The exclusive right to use a registered trademark is limited to the trademark which has been approved for registration and to the goods in respect of which the use of the trademark has been approved.
Article 38.
Any of the following acts shall be an infringement of the exclusive right to use a registered trademark:
(1) to use a trademark that is identical with or similar to a registered trademark in respect of the same or similar goods without the authorization of the proprietor of the registered trademark;
(2) to sell goods that he knows bear a counterfeited registered trademark;
(3) to counterfeit, or to make, without authorization, representations of a registered trademark of another person, or to sell such representations of a registered trademark as were counterfeited, or made without authorization;
(4) to cause, in other respects, prejudice to the exclusive right of another person to use a registered trademark.
Article 39.
Where any party has committed any of such acts to infringe the exclusive right to use a registered trademark as provided for in Article 38 of this
Law, the infringee may request the administrative authority for industry and commerce at or above the county level for actions. The administrative authority for industry and commerce shall have the power to order the infringer to immediately stop the infringing act and to compensate the infringee for the damages suffered by the latter. The amount of compensation shall be the profit that the infringer has earned through the infringement during the period of the infringement or the damages that the infringee has suffered through the infringement during the period of the infringement. Where the infringement of the exclusive right to use a registered trademark is not serious enough to constitute a crime, the administrative authority for industry and commerce may impose a fine.
Where any interested party is dissatisfied with the decision of handling made by the administrative authority for industry and commerce to order him to stop the infringing act or to impose a fine, he may, within fifteen days from receipt of the notice, institute legal proceedings with the people's court. If there have been instituted no legal proceedings or made no performance of the decision (to impose a fine) at the expiration of the said period, the administrative authority for industry and commerce shall request the people's court for compulsory execution thereof.
Where the exclusive right to use a registered trademark has been infringed, the infringee may institute legal proceedings directly with the people's court.
Article 40.
Where any party passes off a registered trademark of another person, and the case is so serious as to constitute a crime, he shall be prosecuted, according to law, for his criminal liabilities in addition to his compensation for the damages suffered by the infringee.
Where any party counterfeits, or makes, without authorization, representations of a registered trademark of another person, or sells such representations of a registered trademark as were counterfeited, or made without authorization, and the case is so serious as to constitute a crime, he shall be prosecuted, according to law, for his criminal liabilities in addition to his compensation for the damages suffered by the infringee.
Where any party sells goods that he knows bear a counterfeited registered trademark, and the case is so serious as to constitute a crime, he shall be prosecuted, according to law, for his criminal liabilities in addition to his compensation for the damages suffered by the infringee.
Chapter VIII. Supplementary Provisions
Article 41.
Any application for a trademark registration and for other matters concerning a trademark shall be subject to payment of the fee as prescribed. The schedule of fees shall be prescribed separately.
Article 42.
The Implementing Regulations under this Law shall be drawn up by the administrative authority for industry and commerce under the State Council. They shall enter into force after they have been submitted to and approved by the State Council.
Article 43.
This Law shall enter into force on March 1, 1983. The "Regulations Governing Trademarks" promulgated by the State Council on April 10, 1963 shall be abrogated on the same date, and any other provisions concerning trademarks contrary to this Law shall cease to be effective at the same time.
Trademarks registered before this Law enters into force shall continue to be valid.
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IMPLEMENTING REGULATIONS OF THE TRADEMARK LAW OF THE PEOPLE'S REPUBLIC OF CHINA
(Promulgated by the State Council on 3 August 2002)
Chapter l General Provisions
Article 1 These Implementing Regulations are formulated in accordance with the Trademark Law of the People's Republic of China (hereinafter referred to as the Trademark Law).
Article 2 The provisions made in these Implementing Regulations concerning goods marks shall apply to service marks.
Article 3 The use of trademarks referred to in the Trademark Law and these Regulations include, among other things, the use of trademarks on goods, Packages or containers thereof and commodity trading instruments, or use of trademarks in advertisements, exhibitions and other commercial activities.
Article 4 Goods required to bear registered trademarks as prescribed by the State mentioned in Article 6 of the Trademark Law refer to goods in respect of which registered trademarks must be used as prescribed by law and administrative regulations.
Article 5 Under the Trademark Law and these Regulations, when an interested party believes his trademark constitutes a well-known trademark when a dispute arises in the course of trademark registration or trademark review and adjudication, he may file a request with the Trademark Office or the Trademark Review and Adjudication Board to establish it as a well-known trademark, to reject the trademark registration application contrary to the provision of Article l3 of the Trademark Law, or to cancel the trademark registration contrary to the provision of Article 13 of the Trademark Law. When filing an application, an interested party shall submit proofs that his trademark constitutes a well-known trademark.
At the request of the interested party, the Trademark Office or the Trademark Review and Adjudication Board shall, on the basis of ascertained facts, establish whether his trademark constitutes a well-known trademark pursuant to the provision of Article 14 of the Trademark Law.
Article 6 Applications may be filed for registration of geographic indications provided for in Article l6 of the Trademark Law as certification marks or collective marks in accordance with the provisions of the Trademark Law and these Regulations.
Where a geographic indication is registered as a certification mark, the natural person, legal person or other organization whose goods has met the requirement imposed on the geographic indications may request for using the certification mark, and the organization having control on the certification mark shall give its permission. Where a geographic indication is registered as a collective mark, the natural person, legal person or other organization whose goods has met the requirement imposed on the geographic indications may request for membership of the body, association or other organization having the geographic indication as its collective mark. The body, association or other organization shall accept him or it as its member according to the articles of constitution thereof. Any person who does not ask to join the body, association or other organization having the geographic indication as its collective mark may also duly use the geographic indication, and the body, association or other organization does not have the right to prohibit the use.
Article 7 An interested party entrusting a trademark agency with the filing of an application for trademark registration or attending to other trademark matters shall submit a Power of Attorney. The Power of Attorney}' shall indicate such contents and competence as authorized: the Power of Attorney from a foreign person or foreign enterprise shall, in addition, indicate the nationality of the entruster.
Notarization and legalization of the Power of Attorney and other relevant certificates from a foreign person or foreign enterprise' shall be done based on the principle of reciprocity.
The foreign person or foreign enterprise mentioned in Article l8 of the Trademark Law refers to the foreign person who or foreign enterprise which does not have its habitual residence or place of business in China .
Article 8 The Chinese language shall be used in applying for trademark registration or attending to other trademark matters.
Where the various certificates, certifying documents and proofs submitted under the Trademark Law and these Regulations are in a foreign language, the Chinese translation thereof shall be attached; where the Chinese translation is not attached, the certificates, certifying documents and proofs shall be deemed not to have been submitted.
Article 9 In any one of the following circumstances, any staff member of the Trademark Office and the Trademark Review and Adjudication Board shall withdraw, or a party or interested Part} may request him to withdraw:
(l) he is a party or a close relative to a party or agent;
(2) he is related in such a way with a party or agent insofar as the relation would affect impartiality; or
(3) he has interests in an application for trademark registration or an}' other trademark matters.
Article l0 Unless otherwise provided for in these Regulations, where any document is sent to the Trademark Office or the Trademark Review and Adjudication Board, the date of receipt shall be the date of delivery where it is delivered personally}. or the date of posting indicated by the postmark if it is sent by post; where the date of posting indicated by the postmark is illegible, or there is no postmark, the date of receipt shall be the date on which the Trademark Office or the Trademark Review and Adjudication Board actually receives the document, except that the interested Part]' is able to present evidence as to the actual date of posting indicated by the postmark.
Article 11 Any document of the Trademark Office or the Trademark Review and Adjudication Board may be served by post, by personal delivery or by other means. Where an interested party entrusts a trademark agency, delivery of the document to the trademark agency shall be deemed delivery thereof to the interested party.
Where any document is sent to an interested party by the Trademark Office or the Trademark Review and Adjudication Board. the date of receipt shall be the date of receipt indicated b]- the postmark on which the interested party receives it if it is sent by post; where the date of Posting indicated by the postmark is i1legible, or where there is no postmark. the document shal1 be deemed to have been delivered to the interested party on the fifteenth day from the date of posting the document; the date of receipt shall be the date of delivery if it is delivered personally. Where any document cannot be sent by post or by personal delivery, the document may be served b}' making an announcement. At the expiration of the thirtieth day from the date of the announcement, the document shall be deemed to have been served.
Article 12 Where an application is filed for international registration, it shall be done in accordance with the relevant international treaties to which China has acceded. The specific measures shall be prescribed by the administrative department for industry and commerce under the State Council.
Chapter II Application for Trademark Registration
Article 13 In application for the registration of a trademark, a separate application shall be filed in respect of each class of goods or service according to the published Classification of Goods and Services. For each application for the trademark registration, an Application for Trademark Registration shall be filed with the Trademark Office, accompanied by five copies of the reproduction of the trademark; if colour is claimed, five copies of the colour reproduction of the trademark shall be attached, so shall be a black and white design of the trademark.
The reproduction of the trademark must be clear and easy to paste and shall be printed on smooth and clean durable paper or substituted by a photograph. Its length or breadth shall not be more than l 0 cm and less than 5 cm each.
Where an application is filed for the registration of a three-dimensional sign as a trademark, a statement shall be made in the application, and the reproduction capable of defining the three-dimensional formation be submitted.
Where an application is filed for the registration of a combination of colours as a trademark, a statement shall be made in the application, and an explanation thereof be submitted in writing.
Where an application is filed for the registration of a certification mark or collective mark, a statement shall be made in the application, and the certificates of the qualification of the applicant and regulations for the administration of the use thereof be submitted.
Where a trademark is in a foreign language or contains lexical elements in a foreign language, explanation of its meaning shall be made.
Article 14 When filing an application for the registration of a trademark, the applicant shall submit a copy of effective certificate capable of proving his identification. The name of the applicant for trademark registration shall be consistent with the certificate submitted.
Article 15 The goods or services shall be listed in the application according to the Classification of Goods and Services. If the goods or services are not listed in the Classification of Goods and Services, a description of the 5aid goods or services shall be attached.
The documents relating to an application for trademark registration shall be typewritten or printed.
Article 16 If an application is jointly filed for registration of the same trademark, a representative shall be designated in the application; if such representative is not designated, the first person listed in the application shall be the representative.
Article 17 If an applicant changes his name, address, agent, or deletes or reduces designated goods, he may go through the formalities for the change with the Trademark Office.
An applicant who assigns his application for trademark registration shall go through the formalities for the assignment with the Trademark Office.
Article 18 The filing date of an application for trademark registration shal1 be the date on which the Trademark Office receives the application documents.
Where the formal requirements of the application are fulfilled and the application form filled out according to the relevant rules, the Trademark Office will accept the application and notify the applicant in writing. Where the formal requirements are not fulfilled or the application form not filled out according to the relevant rules, the Trademark Office will not accept it, and it shall notify the applicant in writing and explain the reason. Where the formal requirements are basically fulfilled or the application form filled out basica1ly according to the relevant rules, but amendments are required, the Trademark Office shall notify the applicant to make the amendments and require him to do so according to the contents prescribed and re-submit it to the Trademark Office within thirty days from the date on which he receives the notification. Where the application is amended and re-submitted to the Trademark Office within the time limit, the date of filing shall be retained. Where the application is not amended within the time limit, the application shall be deemed to have been abandoned, and the Trademark Office shall notify the applicant in writing.
Article 19 Where two or more applicants respectively apply for the registration of identical or similar trademarks used on the identica1 or similar goods on the same day, each applicant sha 1l , within thirty days from the date of receipt of the notification of the Trademark Office, submit a proof of his prior use of the mark in respect of which he has applied for the registration. Where the applicants used the mark for the first time on the same day or where none of them has used the mark, they shall try to resolve the matter through consultation, and submit a written agreement to the Trademark Office within thirty days from the date of receipt of the notification from the Trademark Office; where the applicants are reluctant to resolve the matter through consultation or an agreement is not reached, the Trademark Office shall notify the applicants that one applicant will be singled out by lot, and reject the registration applications filed by the other applicants. Where the Trademark Office notifies an applicant, but the applicant does not show up and draw his lot, his application shall be deemed to have been abandoned, and the Trademark Office shall notify in writing the applicant who has failed to show up.
Article 20 Where an applicant claims the right of priority according to Article 24 of the Trademark Law, the copy of the application document which he first filed for the registration of the trademark shall be certified by the competent trademark authority accepting the application, with the date of filing and the application number indicated.
Where an applicant claims the right of priority according to Article 25 of the Trademark Law, the certification documents submitted by him shall be certified by the administrative department for industry and commerce under the State Council, except that the international exhibition on which the goods are put on display is held inside the territory of China .
Chapter III Examination of Application for Trademark Registration
Article 21 The Trademark Office shall, in accordance with the Trademark Law and these Regulations, examine the applications for the registration of trademark it has accepted. Applications which conform to the relevant provisions, or those for the registration of trademarks in respect of a part of the designated goods which conform to the relevant provisions, shall be preliminarily approved and published. Applications which do not conform to the relevant provisions, or those for the registration of trademarks in respect of a part of the designated goods which do not conform to the relevant provisions, shall be rejected. The Trademark Office shall notify the applicant in writing and explain the reason for the rejection.
Where the Trademark Office has preliminarily approved applications for the registration of trademarks on a part of the designated goods, the applicant may apply for the abandonment thereof before the date of expiration of the opposition period; where the applicant abandons the registration of trademarks in respect of a part of the designated goods, the Trademark Office shall withdraw the preliminary approval, terminate the examination procedure, and republish it.
Article 22 Where an opposition is filed to a trademark which, after examination, has been preliminarily approved and published by the Trademark Office, the opponent shall submit the Application for Trademark Opposition in duplicate to the Trademark Office. The Application for Trademark Opposition shall indicate the issue number of the Trademark Gazette on which the opposed trademark is published, and the number of preliminary approval of the opposed trademark. The Application for Trademark Opposition shall contain the specific requests and facts and grounds, with relevant proofs and certificates attached.
The Trademark Office shall send a copy of the Application for Trademark Opposition to the opposed party and require him to make a reply within thirty days from the date of his receipt of the copy. His failure to make a rep1y shall not affect the adjudication by the Trademark Office on the opposition.
Where an interested party needs to supplement relevant proofs and certificates after he raises an opposition application or makes a reply, he shall make a statement in the application or reply, and submit the proofs and certificates within three months from the date of submission of the application or rep1y; where he fails to submit them at the expiration of the time limit, the interested party shall be deemed to have abandoned supplementing the relevant proofs and certificates.
Article 23 The justification of the opposition mentioned in Article 34, paragraph two, of the Trademark Law shall include the justification of the opposition to a registration in respect of a part of the designated goods. Where such opposition is justified, the application for the registration of trademarks in respect of that part of the designated goods shall not be approved.
Where an opposed trademark has, prior to the coming into effect of the adjudication on the opposition, been announced as a registered trademark in the Trademark Gazette, the registration announcement shall be cancelled. The trademark that has been approved for registration upon the adjudication on the opposition sha 1l be re-published.
The trademark approved for registration upon the adjudication on the opposition shall not have the retroactive effect on another person's act to use a sign identical with or similarly to the trademark on the same or similar goods from the date on which the period for trademark opposition expires and before the adjudication on the opposition takes effect; however, the losses inflicted to the trademark registrant due to the bad faith in which the sign is used shall be compensated.
The time limit for the application for review and adjudication of the trademark approved for registration upon the adjudication on the opposition shall be calculated from the date of publication of the adjudication on the trademark opposition.
Chapter IV Modification, Assignment and Renewal of Registered Trademarks
Article 24 When applying for modification of his name, address or other registration matters, the registrant shall file an Application for Modification with the Trademark Office. The Trademark Office shall, upon examination and approval, issue the trademark registrant the relevant certificates, and make an announcement. Where the application is not approved, the Trademark Office shall notify the applicant in writing and explain the reason.
When applying for modification of his name, the registrant shall submit modification certificate issued by the relevant registry. An applicant who has not submitted the modification certificate may do so within thirty days from the date of filing the application. Where the submission is not made within the time limit, the application for the modification shall be deemed to have been abandoned, and the Trademark Office shall notify the applicant in writing.
When applying for modification of his name and address, the trademark registrant shall make the modifications in all his registered trademarks. If he fails to do so, the application for the modification shall be deemed to have been abandoned, and the Trademark Office shall notify the applicant in writing.
Article 25 When applying for the assignment of a registered trademark, the assignor and assignee shall file with the Trademark Office an Application for Assignment of Registered Trademark. The formalities of applying for the assignment of the registered trademark shall be gone through by the assignee. The Trademark Office, upon examination and approval of the application. shall issue the relevant certificate to the assignee and make an announcement.
When applying for the assignment of a registered trademark, the trademark registrant shall assign all the identical or similar trademarks registered in respect of the same or similar goods. If the registrant fails to do so, the Trademark Office shal1 notify him to correct the situation within a time limit; if the correction is not made within the time limit, the application for the assignment of the registered trademark shall be deemed to have been abandoned, and the Trademark Office shall notify the applicant in writing.
Any application for the assignment of a registered trademark that may mislead the public or cause confusion or exert any other adverse effects shall not be approved by the Trademark Office. the Trademark Office shall notify the applicant in writing and explain the reason.
Article 26 If the exclusive right to use a registered trademark is transferred for reasons other than assignment, the party receiving the transferred exclusive right to use the registered trademark shall go to the Trademark Office with relevant certificates or legal instruments to go through the formalities for the transfer of the exclusive right to use the registered trademark.
When applying for a transfer of the exclusive right to use a registered trademark, the exclusive right holder of the registered trademark shall transfer all the other identical or similar trademarks registered in respect of the same or similar goods. If the exclusive right holder fails to do so, the Trademark Office shall notify him to correct the situation within a time limit; if the correction is not made within the time limit, the application for the assignment of the registered trademark shall be deemed to have been abandoned, and the Trademark Office shall notify the applicant in writing.
Article 27 When applying for the renewal of a trademark registration, the applicant shall file with the Trademark Office an App1ication for Renewal of Trademark Registration. After examination and approval of the application for the renewal of a trademark registration, the Trademark Office shall issue the relevant certificate and announce it.
The period of validity of a renewed trademark shall be calculated from the day after the expiration of the previous period of validity of the said trademark.
Chapter V Trademark Review and Adjudication
Article 28 The Trademark Review and Adjudication Board shall accept applications for trademark review and adjudication filed according to the provisions of Articles 32, 33, 4l and 49 of the Trademark Law, and conduct, according to law, the review and adjudication on the basis of facts.
Article 29 By having dispute over a registered trademark mentioned in Article 4l , paragraph three, of the Trademark Law shall be meant that a registrant of a trademark in respect of which a prior application is filed for registration thereof alleges that a trademark in respect of which another person subsequently files an application for its registration is identical with or similar to his trademark registered in respect of the identical or similar goods.
Article 30 When applying for the trademark review and adjudication, the applicant shall file an application with the Trademark Review and Adjudication Board, and submit the same number of copies thereof as that of the other parties; when filing the application for reexamination based on the Decision or Adjudication made by the Trademark Office, the applicant shall meantime submit a copy of the Decision or Adjudication made by the Trademark Office.
After receipt of the application, the Trademark Review and Adjudication Board shall accept the application found to have met the requirements for acceptance upon examination; the Trademark Review and Adjudication Board shall not accept the application if it does not meet the requirements, and notify the applicant in writing and explain the reason. Where rectification is required, the Trademark Review and Adjudication Board shall notify the applicant to make the rectification within thirty days from the date of receipt of the notification. If an application still fails to meet the requirements after the rectification, the Trademark Review and Adjudication Board shall not accept it, and notify the applicant in writing and explain the reason. If the rectification is not made within the time limit, the application shall be deemed to have been withdrawn, and the Trademark Review and Adjudication Board shall notify the applicant in writing.
Where it finds that an application for the trademark review and adjudication does not meet the requirements for acceptance after accepting it, the Trademark Review and Adjudication Board shall reject the application and notify the applicant in writing and explain the reason.
Article 31 After accepting an application for the trademark review and adjudication, the Trademark Review and Adjudication Board shall send, in a timely manner, a copy of the Application to the other party, and require him to reply within thirty days from the date of receipt of the copy of the Application, failure to make a reply at the expiration of the time limit shall not affect the review and adjudication by the Trademark Review and Adjudication Board.
Article 32 Where an interested party needs to supplement relevant proofs after he files an application for trademark review and adjudication or makes a reply, he shall make a statement to this effect in the Application or Reply, and submit the proofs within three months from the date of filing the Application or making the Reply; if the proofs are not submitted at the expiration of the time limit, the supplementation thereof shall be deemed to have be abandoned.
Article 33 The Trademark Review and Adjudication Board may, at the request of an interested party or according to practical needs, decide to conduct a public review and adjudication of the application therefor.
Where it conducts a public review and adjudication of an application therefor, the Trademark Review and Adjudication Board shall notify the interested party, within fifteen days before the public review and adjudication is held, of the date and place of, and the persons conducting the public review and adjudication. The interested party shall make a reply within the time limit fixed in the notification.
Where the applicant does not reply, nor attend the public review and adjudication, his application for the trademark review and adjudication shall be deemed to have been withdrawn, and the Trademark Review and Adjudication Board shall notify him in writing. Where the respondent does not respond, nor attend the public review and adjudication, the Trademark Review and Adjudication Board may conduct a default review and adjudication.
Article 34 Where an applicant requests for the withdrawal of his application before the Trademark Review and Adjudication Board makes its decision or adjudication, he may withdraw his application after he explains the reason in writing to the Trademark Review and Adjudication. Where the application is withdrawn, the review and adjudication procedure terminates.
Article 35 Where an applicant withdraws his application for review and adjudication, he shall not file another application for the review and adjudication on the basis of the same facts and grounds. Where the Trademark Review and Adjudication Board has made the adjudication or decision as regards an application for trademark review and adjudication, any person shall not file another app1ication for the review and adjudication on the basis of the same facts and grounds.
Article 36 In respect of a trademark the registration of which is cancelled in accordance with Article 4l of the Trademark Law, the exclusive right to use the trademark shall be deemed to be non-existent from the beginning. The decision or adjudication on the cancellation of the registered trademark has no retroactive effect on a judgment or decision already made and executed by the People's Court or the administrative department for industry and commerce on a case of trademark infringement, or on a trademark assignment or licensing contract executed. However, in respect of damage done to any other person in bad faith by the trademark registrant, he shall compensate for the damages.
Chapter VI Administration of the Use of Trademarks
Article 37 Where a registered trademark is used, it may carry the indication of “ 注册商标” ("Registered Trademark") or the registration signs of the goods, packaging or description or other attachments of the goods.
The registration signs include 注 and ?. When used, the registration signs shall be marked or indicated on the upper or lower right hand corner of the trademark.
Article 38 Where a Certificate of Trademark Registration is lost or damaged, it is necessary to apply to the Trademark Office for re-issuance of the Certificate. Where the Certificate is lost, the registrant shall declare the loss of the Certificate by publishing a declaration in the Trademark Gazette. The damaged Certificate shall be returned to the Trademark Office when an application for re-issuance is filed.
Where a Certificate of Trademark Registration is forged or falsified, criminal liability shall be imposed according to law based on the provisions governing the crimes of forging and falsifying certificates issued by the State administrative authority or other crimes.
Article 39 In respect of any of the acts referred to in Article 44 (l), (2) and (3) of the Trademark Law, the administrative authority for industry and commerce shall order the trademark registrant to rectify the situation within a time limit. If the registrant refuses to comply, the case shall be submitted to the Trademark Office for cancellation of the registered trademark.
In respect of the act referred to in Article 44 (4) of the Trademark Law, any person may apply to the Trademark Office for cancellation of the said registered trademark and explain the circumstances. The Trademark Office shall notify the trademark registrant and require him to furnish, within two months from the date of receipt of the notification, proof of use of the trademark before the date on which the application for cancellation is filed, or a justifiable reason for its non-use. If no proof of use, nor a justifiable reason for the non-use is furnished at the expiration of the time limit or the proof is invalid, the Trademark Office shall cancel his registered trademark.
The proof of use of a trademark referred to in the preceding paragraph includes proofs of the registrant's using the registered trademark and his licensing any other person to use the registered trademark.
Article 40 Registered trademarks cancelled according to the provisions of Articles 44 and 45 of the Trademark Law shall be published by the Trademark Office, the exclusive right in the registered trademarks shall terminate on the date of cancellation decision made by the Trademark Office.
Article 4l Where the Trademark Office or the Trademark Review and Adjudication Board cancels a registered trademark for reasons re1ating only to a part of the goods designated, the trademark registration in respect of this part of the designated goods shall be cancelled.
Article 42 The amount of the fine imposed in accordance with the provisions of Articles 45 and 48 of the Trademark Law shall be less than 20% of the illegal business turnover or less than two times the illegal profits.
The amount of the fine imposed in accordance with the provision of Article 47 of the Trademark Law shall be less than l0% of the illegal business turnover.
Article 43 Where he licenses another person to use his registered trademark, the licensor shall submit the trademark licensing contract to the Trademark Office for filing within three months from the date on which the contract is concluded.
Article 44 Where any person contravening the provisions of Article 40, paragraph two, of the Trademark Law, the administrative department for industry and commerce shall order the offender to rectify the situation within a prescribed time limit. Where the offender refuses to comply, the administrative department for industry and commerce shall confiscate the representations of his trademark. If it is difficult to detach the representations of the trademark from the goods, both the representations and goods shall be confiscated and destroyed.
Article 45 Where a trademark is used in contravention of the provision of Article 13 of the Trademark Law, an interested party may request the administrative department for industry and commerce for prohibition of the use. When filing the request, the interested party shall submit proofs that his trademark constitutes a well-known mark. If the Trademark Office establishes it as a well-known mark according to the provision of Article l4 of the Trademark Law, the administrative department for industry and commerce sha 1l order the infringer to cease the act of using the well-known mark in contravention with the provision of Article l3 of the Trademark Law, confiscate and destroy the representations of the trademark. If it is difficult to detach the representations of the trademark from the goods, both the representations and goods shall be confiscated and destroyed.
Article 46 Where a trademark registrant applies for the removal, from the Register, of his registered trademark or the registration of his trademark in respect of a part of the designated goods, he shall send an Application for Trademark Removal and return the original Certificate of Trademark Registration to the Trademark Office.
Where a trademark registrant applies for the removal, from the Register, of his registered trademark or the registration of his trademark in respect of a part of the designated goods, the exclusive right in the registered trademark or the effect thereof on the part of designated goods shall terminate on the date of receipt by the Trademark Office of the Application for Trademark Removal.
Article 47 Where the registrant of a trademark dies or ceases, and no formalities have been gone through for transfer of the registered trademark at the expiration of one year from the date of the death or cessation, any person is entitled to apply to the Trademark Office for the removal, from the Register, of the registered trademark. When filing an application for the removal, he shall submit the proofs of the death or cessation of the trademark registrant.
Where a registered trademark is removed from the Register owing to the death or cessation of the trademark registrant, the exclusive right to use the registered trademark terminates from the date of the death or cessation of the trademark registrant.
Article 48 Where a registered trademark is cancelled or removed from the Register according to the provisions of Articles 46 and 47 of these Regulations, the original Certificate of Trademark Registration shall become invalid. Where the registration of the trademark in respect of a part of the designated goods is cancelled, or where the trademark registrant applies for removal, from the Register, the registration of the trademark in respect of a part of designated goods, the Trademark Office shall return, to the registrant, the original Certificate of Trademark Registration on which the approval of the cancellation or removal has been marked, or re-issue the Certificate of Trademark Registration and publish the re-issuance.
Chapter VII Protection of the Exclusive Right to Use Registered Trademark
Article 49 Where an registered trademark contains the generic name, shape or model of the goods in respect of which it is used, or directly indicates the quality, main raw material, function, use, weight, quantity and other features of the goods, or contains a place name, the holder of the exc1usive right to use the registered trademark has no right to prohibit others from duly using it.
Article 50 Any of the following acts shall be an act of infringement of the exclusive right to use a registered trademark as provided for in Article 52 (5) of the Trademark Law:
(l) to use any design which is identical with or similar to the registered trademark of another person on the same or similar goods, as the designation or decoration of the goods, which mislead the public; or
(2) to intentionally provide any other person with such facilities as of storage, transportation, postal service, and concealment in his infringement of the exclusive right of another person to use a registered trademark.
Article 51 Where the exc1usive right to use a registered trademark has been infringed, any person may lodge a complaint with, or file a report on, the case of infringement to the administrative department for industry and commerce.
Article 52 An act of infringement of the exclusive right to use a registered trademark shall be subject to a fine of not exceeding three times the amount of the illegal business turnover. Where it is impossible to calculate the amount of the illegal business turnover, the fine shall be no more than RMB l00,000 yuan.
Article 53 Where a trademark proprietor believes that another person has registered his well-known trademark as an enterprise name, which is likely to deceive, or mislead, the public, he may file an application with the competent authority for the registration of enterprise names for cancellation of the registration of the enterprise name. The competent authority for the registration of enterprise names shall handle the matter pursuant to the Regulations for the Administration of Registration of Enterprise Names.
Chapter VIII Supplementary Provisions
Article 54 Where a service mark already in continuous use up to l July l993 which is identical with or similar to the service mark of another person already registered in respect of the same or similar services may continue to be used. However, a mark the use of which has been suspended for three or more years after l July l993 shall not continue to be used.
Article 55 The specific measures for the administration of trademark agency shall be separately provided for by the State Council.
Article 56 The classification of goods and services for the purposes of registration of trademarks shall be formulated and published by the administrative department for industry and commerce under the State Council.
The documents or forms for filing applications for the registration of trademarks or for attending to other trademark matters shall be formulated and published by the administrative department for industry and commerce under the State Council.
The rules for trademark review and adjudication of the Trademark Review and Adjudication Board shall be formulated and published by the administrative department for industry and commerce under the State Council.
Article 57 The Trademark Office shall set up the Register of Trademark Registration for the documentation of registered trademarks and matters relating to the registration.
The Trademark Office shall compile, print and distribute the Trademark Gazette to publish trademark registrations and other related matters.
Article 58 Fees shall be paid for applying for the registration of trademarks or for handling other trademark matters. The items and schedule of the fees shall be provided for and published by the administrative department for industry and commerce under the State Council in conjunction with the competent price administrative department under the State Council.
Article 59 These Regulations shall enter into force on l5 September 2002. The Implementing Regulations of the Trademark Law of the People's Republic of China promulgated by the State Council on l0 March l983, revised for the first time with the approval by the State Council on 3 January l988, and revised for the second time with the approval by the State Council on 15 July 1993 and the Answers by the State Council to Issues Relating to the Attachment of Certificates for the Purpose of Trademark Registration shall simultaneously be abrogated.
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PATENT LAW OF THE PEOPLE'S REPUBLIC OF CHINA
(Adopted at the 4th Session of the Standing Committee of the SixthNational People's Congress on March 12, 1984 Amended by the DecisionRegarding the Revision of the Patent Law of the People's Republic ofChina, adopted at the 27th Session of the Standing Committee of theSeventh National People's Congress on September 4, 1992)
Important Notice:
In case of discrepancy, the original version in Chinese shall prevail.Whole Document
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 by the Decision Regarding the Revision of the Patent Law of the People's Republic o fChina, adopted at the 27th Session of the Standing Committee of theSeventh National People's Congress on September 4, 1992) (Translated by the Patent Office of the People's Republic of China . In case of discrepancy, the original version in Chinese shall prevail.)
TABLE OF CONTENTS [*1]
Chapter I General Provisions
Article
1 Purpose of the Law
2 Subject Matter of Patents: Inventions-Creations (Inventions and Utility Models; Designs)
3 Tasks of the Patent Office
4 Subject Matters to be Kept Secret
5 Subject Matter Contrary to Public Order
6 Right to Apply for Patent; Ownership of Patent Right
7 Prohibition of Preventing Filing Application for Non Service Inventions- Creations
8 Inventions-Creations Made Jointly or on Commission
9 First-to-File Rule
10 Assignment of Right to Apply for Patent or of Patent Right
11 Rights Conferred by Patent
12 Patent License Contract
13 Inventions: Exploitation after Publication of Application
14 Planned Exploitation of Certain Patents Owned by Chinese Entities or Individuals
15 Marking of Patents
16 Reward of Inventors or Creators of Service Inventions-Creations
17 Naming of Inventor or Creator in Patent
18 Foreigners Entitled to File Patent Applications
19 Representation by Chinese Agency
20 Filing of Applications Abroad by Chinese
21 Secrecy of Patent Application Chapter II Requirements for Grant of Patent Right
22 Inventions and Utility Models: Substantive Requirements of Patentability
23 Designs: Substantive Requirements of Patentability
24 Disclosures Not Causing Loss of Novelty
25 Subject Matters Excluded from Patentability Chapter III Application for Patent
26 Inventions and Utility Models: Documents Required for Filing Patent Application
27 Designs: Documents Required for Filing Patent Application
28 Filing Date
29 Right of Priority
30 Claiming of Right of Priority
31 Unity of Subject Matter
32 Withdrawal of Application
33 Amendment of Application Chapter IV Examination and Approval of Application for Patent
34 Inventions: Publication of Application
35 Inventions: Initiative for Examination as to Substance
36 Inventions: Information by Applicant for Examination as to Substance
37 Inventions: Invitation to Amend or Make Observations
38 Inventions: Rejection of Application after Examination as to Substance
39 Inventions: Grant of Patent Right after Examination as to Substance
40 Utility Model and Designs: Grant of Patent Right after Preliminary Examination
41 Request for Revocation
42 Decision on Request for Revocation
43 Reexamination and, for Inventions, Court Proceedings
44 Effect of Revocation Chapter V Duration, Cessation and Invalidation of Patent Right
45 Duration
46 Annual Fees
47 Cessation of Patent Right
48 Request for Invalidation
49 Decision on Request for Invalidation
50 Effect of Invalidation Chapter VI Compulsory License for Exploitation of Patent
51 Inventions and Utility Models: Compulsory Licenses in Case of Failure to Obtain Authorization from Patentee
52 Inventions and Utility Models: Compulsory Licenses in Case of Use for Public Interest
53 Inventions and Utility Models: Compulsory Licenses in Case of Dependent Patents
54 Inventions and Utility Models: Proof Required from Requestor of Compulsory License
55 Inventions and Utility Models: Registration and Announcement of Compulsory License
56 Inventions and Utility Models: Limitation of Rights of Compulsory Licensee
57 Inventions and Utility Models: Exploitation Fee to be Paid by Compulsory Licensee
58 Inventions and Utility Models: Court Proceedings by Patentee Concerning Compulsory License Chapter VII Protection of Patent Right
59 Determination of Extent of Protection
60 Definition of Infringement and Remedies; Inventions: Proof in Case of Process of Patents
61 Prescription for Instituting Legal Proceedings for Infringements
62 Acts not Constituting Infringement
63 Remedies and Penalties for Passing Off
64 Sanctions for Not Respecting Provision of Article 20
65 Sanctions for Usurpation of Rights of Inventor or Creator
66 Sanctions Against Offending Officials Chapter VIII Supplementary Provisions
67 Fees
68 Implementing Regulations
69 Date of Entry Into Force of the Law Chapter I GENERAL PROVISIONS
Article 1.
This Law is enacted to protect patent rights for inventions-creations, toencourage 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 Office of the People's Republic of China receives and examines patent applications and grants patent rights for inventions-creations that conform with the provisions of this Law.
Article 4.
Where the invention-creation for which a patent is applied for relates tothe 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.
For a service invention-creation, made by a person in execution of the tasks of the entity to which he belongs or made by him mainly by using the material means of the entity, the right to apply for a patent belongs to the entity. For any non service invention-creation, the right to apply for a patent belongs to the inventor or creator. After the application is approved, if it was filed by an entity under ownership by the whole people, the patent right shall be held by the entity; if it was filed by an entity under collective ownership or by an individual, the patent right shall be owned by the entity or individual. For a service invention-creation made by any staff member or worker of a foreign enterprise, or of a Chinese-foreign joint venture enterprise, located in China, the right to apply for a patent belongs to the enterprise. For any non service invention-creation, the right to apply for a patent belongs to the inventor or creator. After the application is approved, the patent right shall be owned by the enterprise or the individual that applied for it. The owner of the patent right and the holder of the patent right are referred to as "patentee".
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 made in cooperation by two or more entities, or made by an entity in execution of a commission for research or designing given to it by another entity, the right to apply for a patent belongs, unless otherwise agreed upon, to the entity which made, or to the entities which jointly made, the invention-creation. After the application is approved, the patent right shall be owned or held by the entity or entities that applied for it.
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 an entity under ownership by the whole people, of the right to apply for a patent, or of the patent right, must be approved by the competent authority at the higher level. 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, which will come into force after it is registered with and announced by the Patent Office.
Article 11. [*2] [*3]
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, make, use or sell the patented product, or use the patented process and use or sell 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, make or sell the product, incorporating its or his patented design, for production or business purposes. After the grant of the patent right, except as otherwise provided for in the law, the patentee has the right to prevent any other person from importing, without its or his authorization, the patented product, or the product directly obtained by its or his patented process, for the uses mentioned in the preceding two paragraphs.
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.
The competent departments concerned of the State Council and the people's governments of provinces, autonomous regions or municipalities directly under the Central Government have the power to decide, in accordance with the State plan, that any entity under ownership by the whole people that is within their system or directly under their administration and that holds the patent right to an important invention-creation is to allow designated entities to exploit that invention-creation; and the exploiting entity shall, according to the prescriptions of the State, pay a fee for exploitation to the entity holding the patent right.
Any patent of a Chinese individual or entity under collective ownership, which is of great significance to the interests of the State or to the public interest and is in need of spreading and application, may, after approval by the State Council at the solicitation of its competent department concerned, 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 owning or holding the patent right shall award to the inventor or creator of a service invention-creation a reward and, upon exploitation of the patented invention-creation, shall award to the inventor or creator a reward based on the extent of spreading 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 State Council of the People's Republic of China 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.
Article 20.
Where any Chinese entity or individual intends to file an application in a foreign country for a patent for invention-creation made in the country, it or he shall file first an application for patent with the Patent Office and, with the sanction of the competent department concerned of the State Council, shall appoint a patent agency designated by the State Council to act as its or his agent.
Article 21.
Until the publication or announcement of the application for a patent, staff members of the Patent Office and persons involved have the duty to keep its content secret.
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 Office 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.
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. [*4]
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 Office 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. [*5]
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 Office an application for a patent for the same subject matter, he or it may enjoy a right of priority.
Article 30. [*6]
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 desig 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. [*7]
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. [*8]
Where, after receiving an application for a patent for invention, the Patent Office, upon preliminary examination, finds the application to be in conformity with the requirements of this Law, it shall publish the application promptly after the expiration of eighteen months from the date of filing. Upon the request of the applicant, the Patent Office 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 Office 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 Office 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. The applicant for a patent for invention who has filed in a foreign country an application for a patent for the same invention shall, at the time of requesting examination as to substance, furnish 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, the application shall be deemed to have been withdrawn.
Article 37.
Where the Patent Office, 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 Office 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. [*9]
Where it is found after examination as to substance that there is no cause for rejection of the application for a patent for invention, the Patent Office shall make a decision to grant the patent right for invention, issue the certificate of patent for invention, and register and announce it.
Article 40. [*10]
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 Office 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.
Article 41. [*11]
Where, within six months from the date of the announcement of the grant of the patent right by the Patent Office, 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 Office to revoke the patent right.
Article 42. [*12]
The Patent Office shall examine the request for revocation of the patent right, make a decision revoking or upholding the patent right, and notify the person who made the request and the patentee. The decision revoking the patent right shall be registered and announced by the Patent Office.
Article 43. [*13]
The Patent Office shall set up a Patent Reexamination Board. Where any party is not satisfied with the decision of the Patent Office rejecting the application, or the decision of the Patent Office revoking or upholding the patent right, such party 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, the patentee or the person who made the request for revocation of the patent right. Where the applicant for a patent for invention, the patentee of an invention or the person who made the request for revocation of the patent right for invention 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.
The decision of the Patent Reexamination Board in respect of any request, made by the applicant, the patentee or the person who made the request for revocation of the patent right, for reexamination concerning a utility model or design is final.
Article 44. [*14]
Any patent right which has been revoked shall be deemed to be nonexistent from the beginning.
Chapter V DURATION, CESSATION AND INVALIDATION OF PATENT RIGHT
Article 45. [*15]
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 46.
The patentee shall pay an annual fee beginning with the year in which the patent right was granted.
Article 47.
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 Office.
Article 48. [*16]
Where, after the expiration of six months from the date of the announcement of the grant of the patent right by the Patent Office, 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 49.
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 Office. Where any party is not satisfied with the decision of the Patent Reexamination Board declaring the patent right for invention invalid or upholding the patent right for invention, such party may, within three months from receipt of the notification of the decision, institute legal proceedings in the people's court. The decision of the Patent Reexamination Board in respect of a request to declare invalid the patent right for utility model or design is final.
Article 50. [*17]
Any patent right which has been declared invalid shall be deemed to be nonexistent 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 made and enforced by the administrative authority for patent affairs, 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. The provisions of the second and third paragraph of this Article shall apply to the patent right which has been revoked.
Chapter VI COMPULSORY LICENSE FOR EXPLOITATION OF THE PATENT
Article 51. [*18]
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 Office may, upon the application of that entity, grant a compulsory license to exploit the patent for invention or utility model.
Article 52. [*19]
Where a national emergency or any extraordinary state of affairs occurs, or where the public interest so requires, the Patent Office may grant a compulsory license to exploit the patent for invention or utility model.
Article 53.
Where the invention or utility model for which the patent right was granted is technically more advanced than 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 Office 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 Office may, upon the request of the earlier patentee, also grant a compulsory license to exploit the later invention or utility model.
Article 54.
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 55.
The decision made by the Patent Office granting a compulsory license for exploitation shall be registered and announced.
Article 56.
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 57.
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 Office shall adjudicate.
Article 58.
Where the patentee is not satisfied with the decision of the Patent Office granting a compulsory license for exploitation or with the adjudication 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 59.
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 60.
For any exploitation of the patent, without the authorization of the patentee, constituting an infringing act, the patentee or any interested party may request the administrative authority for patent affairs to handle the matter or may directly institute legal proceedings in the people's court. The administrative authority for patent affairs handling the matter shall have the power to order the infringer to stop the infringing act and to compensate for the damage. Any party dissatisfied may, within three months from the receipt of the notification, institute legal proceedings in the people's court. If such proceedings are not instituted within the time limit and if the order is not complied with, the administrative authority for patent affairs may approach the people's court for compulsory execution. When any infringement dispute arises, if the patent for invention is a process for the manufacture of a new product, any entity or individual manufacturing the identical product shall furnish proof of the process used in the manufacture of its or his product. [*20]
Article 61.
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.
Article 62.
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 by the patentee or with the authorization of the patentee, any other person uses or sells that product;
(2) Where any person uses or sells a patented product not knowing that it was made and sold without the authorization of the patentee;
(3) 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;
(4) Where any foreign means of transport which temporarily passes through the territory, 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;
(5) Where any person uses the patent concerned solely for the purposes of scientific research and experimentation.
Article 63.
Where any person passes off the patent of another person, such passing off shall be treated in accordance with Article 60 of this Law. If the circumstances are serious, any person directly responsible shall be prosecuted, for his criminal liability, by applying mutatis mutandis Article 127 of the Criminal Law.
Where any person passes any unpatented product off as patented product or passes any unpatented process off as patented process, such person shall be ordered by the administrative authority for patent affairs to stop the passing off, correct it publicly, and pay a fine. [*21]
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.
Where any staff member of the Patent Office, or any staff member concerned of the State, acts wrongfully out of personal considerations or commits fraudulent acts, he shall be subject to disciplinary sanction by the Patent Office or the competent authority concerned. If the circumstances are serious, he shall be prosecuted, for his criminal liability, by
applying mutatis mutandis Article 188 of the Criminal Law.
Chapter VIII SUPPLEMENTARY PROVISIONS
Article 67.
Any application for a patent filed with, and any other proceedings before, the Patent Office shall be subject to the payment of a fee as prescribed.
Article 68.
The implementing Regulations of this Law shall be drawn up by the Patent Office and shall enter into force after approval by the State Council.
Article 69.
This Law shall enter into force on April 1, 1985.
This Decision [*22] shall enter into force on January 1, 1993. The applications for patent filed before the entry into force of this Decision and the patent rights granted on the basis of the said applications shall continue to be governed by the provisions of the Patent Law before its amendment. However, the procedures provided by the amended Articles 39 to 44 and the amended Article 48 of the Patent Law concerning the approval of applications for patent, and the revocation and invalidation of the patent right shall apply to the said applications which are not announced according to the provisions of Articles 39 and 40 of the Patent Law before its amendment. (Extract from the Decision Regarding the Revision of the Patent Law of the People's Republic of China, Adopted at the 27th Session of the Standing Committee of the Seventh National People's Congress on September 4, 1992)
[*1] This Table of Contents was established for the convenience of the reader by the Patent Laws Research Institute of the Chinese Patent Office. The text of the Patent Law adopted by the Standing Committee of the National People's Congress does not contain such a table and the Articles have no titles in the Law.
[*2] The texts of those articles of the Law printed in boldface are amended texts. The relevant old texts are, for the convenience of reference, printed in the footnotes on the same page.
[*3] Old Article 11. After the grant of the patent right for an invention or utility model, except as provided for in Article 14 of this Law, no entity or individual may, without the authorization of the patentee, exploit the patent, that is, make, use or sell the patented product, or use the patented process, for production or business purposes. After the grant of the patent right for a design, no entity or individual may, without the authorization of the patentee, exploit the patent, that is, make or sell the product, incorporating the patented design, for production or business purposes.
[*4] Old Article 25. For any of the following, no patent right shall be granted:
(1) scientific discoveries;
(2) rules and methods for mental activities;
(3) methods for the diagnosis or for the treatment of diseases;
(4) food, beverages and flavorings;
(5) pharmaceutical products and substances obtained by means of a chemical process;
(6) animal and plant varieties;
(7) substances obtained by means of nuclear transformation. For processes used in producing products referred to in items (4) to (6) of the preceding paragraph, patent right may be granted in accordance with the provisions of this Law.
[*5] Old Article 29.
Where any foreign applicant files an application in China within twelve months from the date on which he or it first filed in a foreign country an application for a patent for the identical invention or utility model, or within six months from the date on which he or it first filed in a foreign country an application for a patent for the identical design, he or it may, in accordance with any agreement concluded between the country to which he or it belongs and China, or in accordance with any international treaty to which both countries are party, or on the basis of the principle of mutual recognition of the right of priority, enjoy a right of priority, that is, the date on which the application was first filed in the foreign country shall be regarded as the date of filing. Where the applicant claims a right of priority and where one of the events listed in Article 24 of this Law occurred, the period of the right of priority shall be counted from the date on which the event occurred.
[*6] Old Article 30. Any applicant who claims the right of priority shall make a written declaration when the application is filed, indicating the date of filing of the earlier application in the foreign country and the country in which that application was filed, and submit, within three months, a copy of that application document, certified by the competent authority of that country; if the applicant fails to make the written declaration or to meet the time limit for submitting the document, the claim to the right of priority shall be deemed not to have been made.
[*7] Old Article 33. An applicant may amend his or its application for a patent, but may not go beyond the scope of the disclosure contained in the initial description.
[*8] Old Article 34. Where, after receiving an application for a patent for invention, the Patent Office, upon preliminary examination, finds the application to be in conformity with the requirements of this Law, it shall publish the application within 18 months from the date of filing. Upon the request of the applicant, the Patent Office publishes the application earlier.
[*9] Old Article 39. Where it is found after examination as to substance that there is no cause for rejection of the application for a patent for invention, the Patent Office shall make a decision, announce it and notify the applicant.
[*10] Old Article 40. Where, after receiving the application for a patent for utility model or design, the Patent Office finds upon preliminary examination that the application is in conformity with the requirements of this Law, it shall not proceed to examine it as to substance but shall immediately make an announcement and notify the applicant.
[*11] Old Article 41. Within three months from the date of the announcement of the application for a patent, any person may, in accordance with the provisions of this Law, file with the Patent Office an opposition to that application. The Patent Office shall send a copy of the opposition to the applicant, to which the applicant shall respond in writing within three months from the date of its receipt; if, without any justified reason, the time limit for making the written response is not met, the application shall be deemed to have been withdrawn.
[*12] Old Article 42. Where, after examination, the Patent Office finds that the opposition is justified, it shall make a decision to reject the application and notify the opponent and the applicant.
[*13] Old Article 43. The Patent Office shall set up a Patent Reexamination Board. Where the applicant is not satisfied with the decision of the Patent Office rejecting the application, he or it may, within three months from the date of receipt of the notification, request the Patent Reexamination Board to make a reexamination. The Patent Reexamination Board shall, after reexamination, make a decision and notify the applicant. Where the applicant for a patent for invention is not satisfied with the decision of the Patent Reexamination Board rejecting the request for reexamination, he or it may within three months from the date of receipt of the notification, institute legal proceedings in the people's court. The decision of the Patent Reexamination Board in respect of any request by the applicant for reexamination concerning a utility model or design is final.
[*14] Old Article 44. Where no opposition to the application for a patent is filed or where, after its examination, the opposition is found unjustified, the Patent Office shall make a decision to grant the patent right, issue the patent certificate, and register and announce the relevant matters.
[*15] Old Article 45. The duration of patent right for inventions shall be 15 years counted from the date of filing. The duration of patent right for utility models or designs shall be five
years counted from the date of filing. Before the expiration of the said term, the patentee may apply for a renewal for three years. Where the patentee enjoys a right of priority, the duration of patent right shall be counted from the date on which the application was filed in China .
[*16] Old Article 48. Where, after the grant of the patent right, any entity or individual considers that the grant of the said patent right is not in conformity with the provisions of this Law, it or he may request the Patent Reexamination Board to declare the patent right invalid.
[*17] Old Article 50. Any patent right which has been declared invalid shall be deemed to be nonexistent from the beginning.
[*18] Old Article 51. The patentee himself or itself has the obligation to make the patented product, or to use the patented process, in China , or otherwise to authorize other persons to make the patented product, or to use the patented process, in China .
[*19] Old Article 52. Where the patentee of an invention or utility model fails, without any justified reason, by the expiration of three years from the date of the grant of the patent right, to fulfil the obligation set forth in Article 51, the Patent Office may, upon the request of an entity which is qualified to exploit the invention or utility model, grant a compulsory license to exploit the patent.
[*20] The old second paragraph of Article 60: When any infringemet dispute arises, if the patent for invention is a process for the manufacture of a product, any entity or individual manufacturing the identical product shall furnish proof of the process used in the manufacture of its or his product.
[*21] This is a new paragraph added to Article 63.
[*22] This Decision relates to the amendments of Articles 11, 25, 29, 30,
33, 34, 39-45, 48, 50-52, 60 and 63 of the Patent Law.
TOP
IMPLEMENTING REGULATIONS OF THE PATENT LAW OF THE PEOPLE'SREPUBLIC OF CHINA
(Revision Approved by the State Council on December 12, 1992 andPromulgated by the Patent Office of the People's Republic of China onDecember 21, 1992)
Important Notice:
In case of discrepancy, the original version in Chinese shall prevail.
Whole Document
IMPLEMENTING REGULATIONS OF THE PATENT LAW OF THE PEOPLE'S
REPUBLIC OF CHINA
(Revision Approved by the State Council on December 12, 1992 andPromulgated by the Patent Office of the People's Republic of China on December 21, 1992)
(Translated by the Patent Office of the People's Republic of China . In case of discrepancy, the original version shall prevail.)
TABLE OF CONTENTS*
CHAPTER I GENERAL PROVISIONS
Rule
1 Basis of the Implementing Regulations
2 Definitions of Invention, Utility Model and Design
3 Requirement of Written Form for Procedures
4 Language of Documents
5 Filing and Service of Documents
6 Computation of Time Limits
7 Restoration of Right and Extension of Time Limit
8 Applications Relating to State Security
9 Meaning of Date of Filing
10 Service Inventions-Creations
11 Inventors and Creators
12 Prohibition of Double Patenting
13 Record of Patent License Contract
14 Designation of Foreign-Related Patent Agency
15 Dispute Concerning Right to Patent and Patent Ownership
CHAPTER II APPLICATION FOR PATENT
16 Application Document; Appointment of Patent Agency
17 Request
18 Description
19 Drawings
20 Claims
21 Independent Claim and Dependent Claim
22 Form of Independent Claim
23 Form of Dependent Claim
24 Abstract
25 Deposit of Sample of Micro-Organism
26 Request for Use of Sample of Micro-Organism
27 Drawings or Photographs of Design
28 Brief Explanation of Design
29 Sample or Model of Product Incorporating a Design
30 Existing Technology
31 Claiming Grace Period
32 Claiming Right of Priority
33 Claiming One or More Priorities; Claiming Domestic Priority
34 Documents Required for Claiming Foreign Priority
35 Unity of Invention and Utility Model
36 Unity of Design
37 Withdrawal of Patent Application
CHAPTER III EXAMINATION AND APPROVAL OF APPLICATION FOR PATENT
38 Exclusion
39 Notification of Date of Filing and Filing Number
40 Unacceptable Patent Application
41 Belated Furnishing of Drawings
42 Filing of Divisional Application
43 Date of Filing and Date of Priority of Divisional Application
44 Preliminary Examination
45 Submission of Other Related Documents
46 Early Publication of Patent Application
47 Classification of Products Incorporating the Design
48 Observations on Application for Patent for Invention
49 Documents Concerning Search or Results of Examination to Be Furnished Later
50 Examination by the Patent Office on its Own Initiative
51 Time for Amending Patent Application
52 Form of Amending Patent Application
53 Grounds for Rejecting Application for Patent for Invention
54 Grant of Patent Right
55 Grounds for Revocation
56 Request for Revocation
57 Examination of Request for Revocation
58 Patent Reexamination Board
59 Request for Reexamination
60 Rectification of Request for Reexamination
61 Pre-Examination by Former Examination Department
62 Examination of Request for Reexamination
63 Withdrawal of Request for Reexamination
64 Correction of Mistakes by the Patent Office CHAPTER IV INVALIDATION OF PATENT RIGHT
65 Request for Invalidation
66 Rectification of Request for Invalidation; Grounds for Request for Invalidation
67 Observatio ns by the Patentee
CHAPTER V COMPULSORY LICENSE FOR EXPLOITATION OF PATENT
68 Request for Compulsory License; Observations by the Patentee; Grant of Compulsory License
69 Adjudication of Fees for Exploitation
CHAPTER VI REWARDS TO INVENTOR OR CREATOR OF SERVICE INVENTION-CREATION
70 Rewards
71 Money Prize
72 Remuneration Drawn from Profits of Exploitation
73 Remuneration Drawn from Exploitation fee of License
74 Disbursement of Remunerations
75 Applicability to Entities Owning Patent Right
CHAPTER VII ADMINISTRATIVE AUTHORITY FOR PATENT AFFAIRS
76 Administrative Authority for Patent Affairs
77 Function of Administrative Authority for Patent Affairs to Settle Patent Disputes; Prescription
78 Punishment for Act of Passing Off
79 Jurisdiction of Trans-departmental or Trans-regional Infringement Disputes
CHAPTER VIII PATENT REGISTER AND PATENT GAZETTE
80 Patent Registration
81 Patent Gazette
CHAPTER IX FEES
82 Kinds of Fees
83 Methods of Payment of Fees
84 Time Limit for Payment of Application Fee
85 Time Limit for Payment of Fees Relating to Examination, Reexamination, Restoration of Right and Revocation
86 Time Limit for Payment of Application Maintenance Fee
87 Time Limit for Payment of Patent Registration Fee and Annual Fee
88 Grace Period for Application Maintenance Fee and Annual Fee
89 Time Limit for Payment of Other Fees
90 Reduction or Postponement of Payment of Fees CHAPTER X SUPPLEMENTARY PROVISIONS
91 Inspection, Copy and Keeping of Files
92 Prescribed Form of Documents; Changes in the Bibliographic Data
93 Sending of Documents by Mail
94 Formal Requirements for Application Documents
95 Interpretation of the Implementing Regulations
96 Date of Entry into Force and Transitional Provisions
Chapter I GENERAL PROVISIONS
Rule 1.
These Implementing Regulations are drawn up in accordance with the Patent Law of the People's Republic of China (hereinafter referred to as the Patent Law).
Rule 2.
"Invention" in the Patent Law means any new technical solution relating to a product, a process or improvement thereof. "Utility model" in the Patent Law means any new technical solution
relating to the shape, the structure, or their combination, of a product, which is fit for practical use. "Design" in the Patent Law means any new design of the shape, pattern, color, or their combination, of a product, which creates an aesthetic feeling and is fit for industrial application.
Rule 3.
Any proceedings provided for by the Patent Law and these Implementing Regulations shall be conducted in a written form.
Rule 4.
Any document submitted under the Patent Law and these Implementing Regulations shall be in Chinese. The standard scientific and technical terms shall be used if there is a prescribed one set forth by the State. Where no generally accepted translation in Chinese can be found for a foreign name or scientific or technical term, the one in the original language shall be also indicated. Where any certificate and certified document submitted in accordance with the Patent Law and these Implementing Regulations are in foreign languages, and where the Patent Office deems it necessary, it may request a Chinese translation of the certificate and the certified document to be submitted within a specified time limit; where the translation is not submitted within the specified time limit, the certificate and certified document shall be deemed not to have been submitted.
Rule 5.
For any document sent by mail to the Patent Office, the date of mailing indicated by the postmark on the envelope shall be presumed to be the date of filing. If the date of mailing indicated by the postmark on the envelope is illegible, the date on which the Patent Office receives the document shall be the date of filing, except where the date of mailing is
proved by the addressee. Any document of the Patent Office may be served by mail, by personal delivery or by public announcement. Where any party concerned appoints a patent agency, the document shall be sent to the patent agency; where no patent agency is appointed, the document shall be sent to the person first named in the request or to the representative. If such person refuses to accept the document, it shall be presumed to have been served. For any document sent by mail by the Patent Office, the 16th day from the date of mailing shall be presumed to be the date on which the addressee receives the document. For any document which shall be delivered personally in accordance with the prescription of the Patent Office, the date of delivery is the date on which the addressee receives the document. Where the address of a document is not clear and it cannot be sent by mail, the document may be served by making an announcement in the Patent Gazette. At the expiration of one month from the date of the announcement, the document shall be presumed to have been served.
Rule 6.
The first day of any time limit prescribed in the Patent Law and these Implementing Regulations shall not be counted. Where a time limit is counted by year or by month, it shall expire on the corresponding day of the last month; if there is no corresponding day in that month, the time limit shall expire on the last day of that month. If a time limit expires on an official holiday, the time limit shall expire on the first working day after that official holiday.
Rule 7.
Where a time limit prescribed in the Patent Law or these Implementing Regulations or specified by the Patent Office is not observed because of force majeure, resulting the loss of any right on the part of the party concerned, he or it shall, within two months from the date on which the impediment is removed, at the latest within two years immediately following the expiration of that time limit, state the reasons, together with relevant supporting documents and request the Patent Office to restore his or its rights. Where a time limit prescribed in the Patent Law or these Implementing
Regulations or specified by the Patent Office is not observed because of any justified reason, resulting the loss of any right on the part of the party concerned, he or it shall, within two months from the date of receipt of a notification from the Patent Office, state the reasons and request the Patent Office to restore his or its rights. Where the party concerned makes a request for an extension of a time limit specified by the Patent Office, he or it shall, before the time limit expires, state the reasons to the Patent Office and complete the relevant procedures. The provisions of paragraphs one and two of this Rule shall not be applicable to the time limits referred to in Articles 24, 29, 41, 45 and 61 of the Patent Law. The provisions of paragraph two of this Rule shall not be applicable to the time limit referred to in Rule 88 of these Implementing Regulations.
Rule 8.
Where the invention for which a patent is applied for by the entity of the national defence system relates to the security of the State concerning national defence and is required to be kept secret, the application for patent shall be filed with the patent organization set up by the competent department of science and technology of national defence under the tate Council. Where any application for patent for invention relating to the secrets of the State concerning national defence and requiring to be kept classified is received by the Patent Office, the Patent Office shall transfer the application to the said patent organization. The Patent Office shall make a decision on the basis of the observations of the examination of the application presented by the said patent organization. Subject to the preceding paragraph, the Patent Office, after receipt of an application for patent for invention which is required to be examined for the purpose of security, shall send it to the competent department concerned of the State Council for examination. The said department shall, within four months from receipt of the application, send a report on the results of the examination to the Patent Office. Where the invention for which a patent is applied for is required to be kept classified, the Patent Office shall handle it as an application for secret patent and notify the applicant accordingly.
Rule 9.
The date of filing referred to in the Patent Law, except that mentioned in Articles 28 and 45, means the priority date where a right of priority is claimed. The date of filing referred to in these Implementing Regulations means the date on which the application for patent is filed with the Patent Office.
Rule 10.
"Service invention-creation made by a person in execution of the tasks of the entity to which he belongs" mentioned in Article 6 of the Patent Law refers to any invention-creation made:
(1) in the course of performing his own duty;
(2) in execution of any task, other than his own duty, which was entrusted to him by the entity to which he belongs;
(3) within one year from his resignation, retirement or change of work, where the invention-creation relates to his own duty or the other task entrusted to him by the entity to which he previously belonged. "Material means of the entity" mentioned in Article 6 of the Patent Law refers to entity's money, equipment, spare parts, raw materials, or technical data which are not to be disclosed to the public.
Rule 11.
"Inventor" or "creator" mentioned in the Patent Law refers to any person who has made creative contributions to the substantive features of the invention-creation. Any person who, during the course of accomplishing the invention-creation, is responsible only for organization work, or who offers facilities for making use of material means, or who takes part in other auxiliary functions, shall not be considered as inventor or creator.
Rule 12.
For any identical invention-creation, only one patent right shall be granted. Two or more applicants who file, on the same day, applications for patent for the identical invention-creation, as provided for in Article 9 of the Patent Law, shall, after receipt of a notification from the Patent Office, hold consultation among themselves to decide the person or persons who shall be entitled to file the application.
Rule 13.
Any license contract for exploitation of the patent which has been concluded by the patentee with an entity or individual shall, within three months from the date of entry into force of the contract, be submitted to the Patent Office for record.
Rule 14.
"The patent agency" referred to in Article 19, Paragraph one, and Article 20 of the Patent Law shall, on the authorization of the State Council, be designated by the Patent Office.
Rule 15.
Where any dispute arises concerning the right to apply for a patent for an invention-creation or the right to own a patent right which has been granted, any of the parties concerned may request the administrative authority for patent affairs to handle the matter or may institute legal proceedings in the people's court. Any party to a dispute concerning the right to apply for a patent or the right to own a patent right which is pending before the administrative authority for patent affairs or the people's court, may request the Patent Office to suspend the relevant procedures. Any party requesting suspension of the procedure before the Patent Office in accordance with the preceding paragraph, shall submit a request to the Patent Office, together with the relevant document of the administrative authority forpatent affairs or the people's court before which the dispute is pending.
Chapter II APPLICATION FOR PATENT
Rule 16.
Anyone who applies for a patent shall submit application documents in two copies. Any applicant who appoints a patent agency for filing an application for a patent with, or for dealing with other patent matters before, the Patent Office, shall submit a power of attorney indicating the scope of the power entrusted.
Rule 17.
Other related matters mentioned in Article 26, paragraph two, of the Patent Law refer to:
(1) the nationality of the applicant;
(2) where the applicant is an enterprise or other organization, the name of the country in which the applicant has the principal business office;
(3) where the applicant has appointed a patent agency, the relevant matters which should be indicated;
(4) where the priority of an earlier application is claimed, the relevant matters which should be indicated;
(5) the signature or seal of the applicant or the patent agency;
(6) a list of the documents constituting the application;
(7) a list of the documents appending the application;
(8) any other related matter which needs to be indicated. Where there are two or more applicants and where they have not appointed a patent agency, they shall designate a representative.
Rule 18.
The description of an application for a patent for invention or utility model shall be presented in the following manner and order:
(1) state the title of the invention or utility model as appearing in the request;
(2) specify the technical field to which the invention or utility model relates;
(3) indicate the background art which, as far as known to the applicant, can be regarded as useful for the understanding, searching and examination of the invention or utility model, and cite the documents reflecting such art;
(4) specify the purpose which the invention or utility model is designed to fulfil;
(5) disclose the technical solution of the invention or utility model, as claimed, in such terms that a person having ordinary skill in the art can understand it and fulfil the purpose of the invention or utility model;
(6) state the advantageous effects of the invention or utility model, with reference to the background art;
(7) briefly describe the figures in the drawings, if any;
(8) describe in detail the best mode contemplated by the applicant for carrying out the invention or utility model; this shall be done in terms of examples, where appropriate, and with reference to the drawings, if any. The manner and order mentioned in the preceding paragraph shall be observed by the applicant of a patent for invention or a patent for utility model, unless, because of the nature of the invention or utility model, a different manner or order would afford a better understanding and a more economical presentation. The description of the invention or utility model shall not contain such references to the claims as: "as described in part......of the claim", nor shall it contain commercial advertising.
Rule 19.
The same sheet of drawings may contain several figures of the invention or utility model, and the drawings shall be numbered and arranged in numerical order consecutively as "Figure 1, Figure 2,......". The scale and the distinctness of the drawings shall be such that a reproduction with a linear reduction in size to two-thirds would still enable all details to be clearly distinguished. Drawing reference signs not appearing in the text of the description of the invention or utility model shall not appear in the drawings. Drawingreference signs not appearing in the drawings shall not appear in the text of the description. Drawing reference signs for the same composite part used in an application document shall be consistent throughout. The drawings shall not contain any other explanatory notes, except words which are indispensable.
Rule 20.
The claims shall define clearly and concisely the matter for which protection is sought in terms of the technical features of the invention or utility model. If there are several claims, they shall be numbered consecutively in Arabic numerals. The technical terminology used in the claims shall be consistent with that used in the description. The claims may contain chemical or mathematical formulate but no drawings. They shall not, except where absolutely necessary, contain such references to the description or drawings as: "as described in part......of the description", or "as illustrated in figure......of the drawings". The technical features mentioned in the claims may, in order to facilitate quicker understanding of the claim, make reference to the corresponding reference signs in the drawings of the description. Such reference signs shall follow the corresponding technical features and be placed between parentheses. They shall not be construed as limiting the claims.
Rule 21.
The claims shall have an independent claim, and may also contain dependent claims. An independent claim shall outline the technical solution of an invention or utility model and describe the indispensable technical features necessary for fulfilling the purpose of the invention or utility model.
A dependent claim shall further define the claim which it refers to by additional features which it is desired to protect.
Rule 22.
An independent claim of an invention or utility model shall contain a preamble portion and a characterizing portion, and be presented in the following form:
(1) a preamble portion, indicating the title of the claimed subject matter of the invention or utility model, and those technical features of the invention or utility model which are necessary for the definition of the claimed subject matter but which, in combination, are part of the prior art;
(2) a characterizing portion, stating, in such words as "characterized in that......" or in similar expressions, the technical features of the invention or utility model, which distinguish it from the prior art. These features, in combination with the features stated in the preamble portion,
served to define the scope of protection of the invention or utility model. Independent claims may be presented in any other form, where it is not appropriate, according to the nature of the invention or utility model, to present them in the form prescribed in the preceding paragraph. Each invention or utility model shall have only one independent claim, which shall precede all the dependent claims relating to the same invention or utility model.
Rule 23.
A dependent claim of an invention or utility model shall contain a reference portion and a characterizing portion, and be presented in the following form:
(1) a reference portion, indicating the serial number(s) of the claim(s) referred to, and the title of the subject matter;
(2) a characterizing portion, stating the additional technical features of the invention or utility model. A dependent claim referring to one or more other claims shall refer only to the preceding claim or claims. A multiple dependent claim which refers to more than one other claim shall not serve as a basis for any other multiple dependent claim.
Rule 24.
The abstract shall indicate the technical field to which the invention or utility model pertains, the technical problems to be solved, the essential technical features and the use or uses of the invention or utility model. The abstract may contain the chemical formula which best characterizes the invention. In an application for a patent which contains drawings, the applicant shall indicate and provide a drawing which best characterizes the invention or utility model. The scale and the distinctness of the drawings shall be such that a reproduction with a linear reduction in size to 4cm * 6cm would still enable all details to be clearly distinguished. The whole text of the abstract shall contain not more than 200 Chinese characters. There shall be no commercial advertising in the abstract.
Rule 25.
Where an application for a patent for invention concerns a new micro- organism, a micro-biological process or a product thereof and involves the use of a micro-organism which is not available to the public, the applicant shall, in addition to the other requirements provided for in the Patent Law and these Implementing Regulations, complete the following procedures.
(1) deposit a sample of the micro-organism with a depositary institution designated by the Patent Office before the date of filing, or, at the latest, on the date of filing, and submit, at the time of filing, or, at the latest, within three months from the filing date, a receipt of deposit and the viability proof from the depository institution; where they are not submitted within the specified time limit, the sample of the micro- organism shall be deemed not to have been deposited;
(2) give in the application document relevant information of the characteristics of the micro-organism;
(3) indicate, where the application relates to the deposit of the micro- organism, in the request and the description the scientific name (with its Latin name) and the name of the depositary institution, the date on which the sample of the micro-organsim was deposited and the accession number of the deposit; where, at the time of filing, they are not indicated, they shall be supplied within three months from the date of filing; where after the expiration of the time limit they are not supplied, the sample of the micro-organism shall be deemed not to have been deposited.
Rule 26.
After the publication of an application for a patent for invention relating to a micro-organism, any entity or individual which or who intends to make use of the micro-organism mentioned in the application for the purpose of experiment shall make a request to the Patent Office containing the following:
(1) the name and address of the entity or individual making the request;
(2) an undertaking not to make the micro-organism available to any other person;
(3) an undertaking to use the micro-organism for experimental purpose only before the grant of the patent right.
Rule 27.
The size of drawings or photographs of a design submitted in accordance with the provisions of Article 27 of the Patent Law shall not be smaller than 3cm * 8cm , nor larger than 15cm * 22cm . Where an application for a patent for design seeking concurrent protection of colors is filed, a drawing or photograph in color, and a drawing or photograph in white and black, shall be submitted. The applicant shall submit, in respect of the subject matter of the
product incorporating the design which is in need of protection, the relevant views and stereoscopic drawings or photographs, so as to clearly show the subject matter for which protection is sought.
Rule 28.
Where an application for a patent for design is filed, a brief explanation of the design shall, when necessary, be indicated. The brief explanation of the design shall include the main creative portion of the design, the colors for which protection is sought and the omission of the view of the product incorporating the design. The brief explanation shall not contain any commercial advertising and shall not be used to indicate the function and the uses of the product.
Rule 29.
Where the Patent Office finds it necessary, it may require the applicant for a patent for design to submit a sample or model of the product incorporating the design. The volume of the sample or model submitted shall not exceed 30cm * 30cm * 30cm , and its weight shall not surpass 15 kilos. Articles easy to get rotten or broken, or articles that are dangerous may not be submitted as sample or model.
Rule 30.
The existing technology mentioned in Article 22, paragraph three, of the Patent Law means any technology which has been publicly disclose 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, before the date of filing (or the priority date where priority is claimed), that is, prior art.
Rule 31.
The academic or technological meeting mentioned in item (2) of Article 24 f the Patent Law means any academic or technological meeting organized by a competent department concerned of the State Council or by a national academic or technological association. Where any application for a patent falls under the provisions of item (1) or item (2) of Article 24 of the
Patent Law, the applicant shall, when filing the application, make a declaration and, within a time limit of two months from the date of filing, submit a certificate issued by the entity which organized the international exhibition or academic or technological meeting, stating that the invention-creation was in fact exhibited or made public there and also the date of its exhibition or making public. Where any application for a patent falls under the provisions of item (3) of Article 24 of the Patent Law, the Patent Office may, when necessary, require the applicant to submit the relevant proof.
Rule 32.
Where the applicant is to comply with the requirements for claiming the right of priority in accordance with Article 30 of the Patent Law, he or it shall, in his or its written declaration, indicate the date of filing and the filing number of the application which was first filed (hereinafter referred to as the earlier application) and the country in which that application was filed. If the written declaration does not contain the date of filing of the earlier application and the name of that country, the declaration shall be deemed not to have been made. Where the foreign priority is claimed, the copy of the earlier application document submitted by the applicant shall be certified by the competent authority of the foreign country; where the domestic priority is claimed, the copy of the earlier application document shall be prepared by the Patent Office.
Rule 33.
Any applicant may claim one or more priorities for an application for a patent; where the priorities of several earlier applications are claimed, the priority period for the application shall be calculated from the earliest priority date. Where any applicant claims the right of domestic priority, if the earlier application is one for a patent for invention, he or it may file an application for a patent for invention or utility model for the same subject matter; if the earlier application is one for a patent for utility model, he or it may file an application for a patent for utility model or invention for the same subject matter. But when the later application is filed, if the earlier application falls under any of the following, it may not be the basis of domestic priority:
(1) where it has claimed foreign or domestic priority;
(2) where it has been granted a patent right;
(3) where it is a divisional application filed as prescribed. Where the domestic priority is claimed, the earlier application shall be deemed to be withdrawn from the date on which the later application is filed.
Rule 34.
Where an application for a patent is filed or the right of foreign priority is claimed by any applicant having no habitual residence or business office in China, the Patent Office may, when necessary, require the applicant to submit the following documents:
(1) a certificate concerning the nationality of the applicant;
(2) a certificate concerning the seat of the business office or the headquarters, if the applicant is an enterprise or other organization;
(3) a testimonial showing that the country, to which the foreigner, foreign enterprise or other foreign organization belongs, recognizes that Chinese citizens and entities are, under the same conditions applied to its nationals, entitled to patent right, right of priority and other related rights in that country.
Rule 35.
Two or more inventions or utility models belonging to a single general inventive concept which may be filed as one application in accordance with the provision of Article 31, paragraph one, of the Patent Law shall be technically inter-related and contain one or more same or corresponding special technical features. The expression "special technical features" shall mean those technical features that define a contribution which each of those inventions, considered as a whole, makes over the prior art. The claims in one application for a patent for two or more inventions which are in conformity with the provisions of the preceding paragraph may be any of the following:
(1) independent claims of the same category for two or more products or processes which cannot be included in one claim;
(2) an independent claim for a product and an independent claim for a process specially adapted for the manufacture of the product;
(3) an independent claim for a product and an independent claim for a use of the product;
(4) an independent claim for a product, an independent claim for a process specially adapted for the manufacture of the product, and an independent claim for a use of the product;
(5) an independent claim for a product, an independent claim for a process specially adapted for the manufacture of the product, an independent claim for an apparatus specially designed for carrying out the process;
(6) an independent claim for a process and an independent claim for an apparatus specially designed for carrying out the process. The claims in one application for a patent for two or more utility models which are in conformity with the provisions of the first paragraph may be independent claims for two or more products which cannot be included in one claim.
Rule 36.
The expression "the same class" mentioned in Article 31, paragraph two of the Patent law means that the products incorporating the designs belong to the same subclass in the classification of products for designs. The expression "be sold or used in sets" means that the products incorporating the designs have the same designing concept and are customarily sold or used at the same time. Where two or more designs are filed as one application in accordance with the provisions of Article 31, paragraph two, of the Patent Law, they shall be numbered consecutively and the numbers shall be placed in front of the titles of the view of the product incorporating the design.
Rule 37.
When withdrawing an application for a patent, the applicant shall submit to the Patent Office a declaration stating the title of the invention- creation, the filing number and the date of filing. Where a declaration to withdraw an application for a patent is submitted after the printing preparation has been done by the Patent Office for publication of the application documents, the application shall be published as scheduled.
Chapter III EXAMINATION AND APPROVAL OF APPLICATION FOR PATENT
Rule 38.
In any of the following situations, any person who makes examination or hears a case in the procedures of preliminary examination, examination as to substance, reexamination, revocation and invalidation shall, on his own initiative or upon the request of the parties concerned or any other interested person, be excluded from exercising his function:
(1) where he is a close relative of the party concerned or his agent;
(2) where he has an interest in the application for patent or the patent right;
(3) where he has such other kinds of relations with the party concerned or his agent that might influence impartial examination and hearing. Where a member of the Patent Reexamination Board has taken part in the examination of the application, the provisions of the preceding paragraph shall apply. The exclusion of persons making examination and hearing cases shall be decided by the Patent Office.
Rule 39.
Upon the receipt of an application for a patent for invention or utility model consisting of a request, a description (a drawing being indispensable for utility model) and one or more claims, or an application for a patent for design consisting of a request and one or more drawings or photographs showing the design, the Patent Office shall accord the date of filing and a filing number and notify the applicant.
Rule 40.
In any of the following situations, the Patent Office shall declare the application unacceptable and notify the applicant accordingly;
(1) where the application for a patent for invention or utility model does not contain a request, a description (the description of utility model does not contain drawings) or claims, or the application for a patent for design does not contain a request, drawings or photographs;
(2) where the application is not written in Chinese;
(3) where the application is not in conformity with the provisions of Rule 94, paragraph one, of these Implementing Regulations;
(4) where the request does not contain the name and address of the applicant;
(5) where the application is obviously not in conformity with the provisions of Article 18, or Article 19, paragraph one, of the Patent Law;
(6) where the kind of protection (patent for invention, utility model or design) of the application for a patent is not clear and definite or cannot be discerned.
Rule 41.
Where the description mentions that it contains "explanatory notes to the drawings" but the drawings or part of them are missing, the applicant shall, within the time limit specified by the Patent Office, either furnish the drawings or make a declaration for the deletion of the "explanatory notes to the drawings". If the drawings are submitted later, the date of their delivering at, or mailing to, the Patent Office shall be the date of filing of the application; if the mention of "explanatory notes to the drawings" is to be deleted, the initial date of filing shall be the date of filing of the application.
Rule 42.
Where an application for a patent contains two or more inventions, utility models or designs, the applicant may, at any time before the Patent Office sends out the notification to grant the patent right, submit to the Patent Office a divisional application. If the Patent Office finds that an application for a patent is not in conformity with the provisions of Article 31 of the Patent Law and Rule 35 of these Implementing Regulations, it shall invite the applicant to amend the application within the specified time limit; if the applicant does not make any response within the time limit, the application shall be deemed to have been withdrawn. The divisional application may not change the kind of protection of the initial application.
Rule 43.
A divisional application filed in accordance with Rule 42 of these Implementing Regulations may enjoy the date of filing and, if priority is validly claimed, the priority date of the initial application, provided that the divisional application does not go beyond the scope of disclosure contained in the initial application. The divisional application shall be subject to the procedures in accordance with the provisions of the Patent Law and these Implementing Regulations. The filing number and the date of filing of the initial application shall be indicated in the request of a divisional application. When submitting the divisional application, the applicant shall submit a copy of the initial application document; if priority is claimed for the initial application, the applicant shall submit a copy of the priority document of the initial application as well.
Rule 44.
"Preliminary examination" mentioned in Articles 34 and 40 of the Patent Law means examining an application for a patent to see whether or not it contains the documents as provided for in Articles 26 or 27 of the Patent Law and other necessary documents, and whether or not those documents are in the prescribed form; such examination shall also include the following:
(1) whether or not an application for a patent for invention obviously falls under Articles 5 or 25 of the Patent Law, or is obviously not in conformity with the provisions of Article 18 or Article 19, paragraph one, or is obviously not in conformity with the provisions of Article 31, paragraph one, or Article 33 of the Patent Law, or Rule 2, paragraph one, of these Implementing Regulations;
(2) whether or not an application for a patent for utility model obviously falls under Articles 5 or 25 of the Patent Law, or is obviously not in conformity with the provisions of Article 18 or Article 19, paragraph one, or is obviously not in conformity with the provisions of Article 31, paragraph 1, or Article 33 of the patent Law, or Rule 2, paragraph two, or Rule 12, paragraph one, or Rules 18 to 23 of these Implementing Regulations, or cannot obtain a patent right according to the provisions of Article 9 of the Patent Law;
(3) whether or not an application for a patent for design obviously falls under Article 5 of the Patent Law, or is obviously not in conformity with the provisions of Article 18 or Article 19, paragraph one, or is obviously not in conformity with the provisions of Article 31, paragraph two, or Article 33 of the Patent Law, or Rule 2, paragraph three, or Rule 12, paragraph one, of these Implementing Regulations, or cannot obtain a patent right according to the provisions of Article 9 of the Patent Law. The Patent Office shall communicate its observations after examination of the application to the applicant and invite him or it to submit his or its observations or to correct his or its application within the time limit. If the applicant makes no response within the time limit, the application shall be deemed to have been withdrawn. Where, after the applicant has made the observations or the corrections, the Patent Office still finds that the application is not in conformity with the provisions of the Articles and the Rules cited in the relevant preceding sub-paragraph, the application shall be rejected.
Rule 45.
In any of the following situations, any document relating to a patent application, not including the patent application, which is submitted to the Patent Office, shall be deemed not to have been submitted:
(1) where the document is not presented in the prescribed form or the indications therein are not in conformity with the prescriptions;
(2) where no supporting document is submitted as prescribed. The applicant shall be notified that the document is deemed not to have been submitted.
Rule 46.
Where the applicant requests an earlier publication of its or his application for a patent for invention, a declaration shall be made to the Patent Office. The Patent Office shall, after preliminary examination of the application and, unless it is to be rejected, publish it immediately.
Rule 47.
The applicant shall, when indicating in accordance with Article 27 of the Patent Law the product incorporating the design and the class to which that product belongs, refer to the classification of products for designs published by the Patent Office. Where no indication, or an incorrect indication, of the class to which the product incorporating the design
belongs is made, the Patent Office shall supply the indication or correct it.
Rule 48.
Any person may, from the date of publication of an application for a patent for invention till the date of announcing the grant of the patent right, submit to the Patent Office observations, with the reasons therefor, on the application which is not in conformity with the provisions of the Patent Law.
Rule 49.
Where the applicant for a patent for invention cannot furnish, for justified reasons, the documents concerning any search or the results of any examination under Article 36 of the Patent law, it or he shall make a statement to that effect and submit them when the said documents are available.
Rule 50.
The Patent Office shall, when proceeding on its own initiative to examine an application for a patent for invention in accordance with the provisions of Article 35, paragraph two, of the Patent Law, notify the applicant accordingly.
Rule 51.
When a request for examination as to substance is made, or when a response is made in regard to the first communication of the observations of the Patent Office after examination as to substance, the applicant may amend the application for a patent for invention on its or his own initiative.
Within three months from the date of filing, the applicant for a patent for utility model or design may amend the application for a patent for utility model or design on its or his own initiative.
Rule 52.
When an amendment to the description or the claims in an application for a patent for invention or utility model is made, a replacement sheet in prescribed form shall be submitted, unless the amendment concerns only the alteration, insertion or deletion of a few words. Where an amendment to the drawings or photographs of an application for a patent for design is made, a replacement sheet in prescribed form shall be submitted.
Rule 53.
According to the provisions of the Patent Law and these Implementing Regulations, the situations where after examination as to substance an application for patent for invention shall be rejected by the Patent Office shall comprise the following:
(1) where the application does not comply with the provisions of Rule 2, paragraph one, of these Implementing Regulations;
(2) where the application falls under the provisions of Articles 5 or 25 of the Patent Law; or it does not comply with the provisions of Article 22 of the Patent Law and Rule 12, paragraph one, of these Implementing Regulations, or the applicant cannot obtain a patent right according to the provisions of Article 9 of the Patent Law;
(3) where the application does not comply with the provisions of Article 26, paragraphs three or four, or Article 31, paragraph one, of the Patent Law;
(4) where the amendment to the application or the divisional application goes beyond the scope of disclosure contained in the initial description and the claims.
Rule 54.
After the Patent Office issues the notification to grant the patent right, the applicant shall go through the formalities of registration within two months from the date of receipt of the notification. If the applicant goes through the formalities of registration within the said time limit, the Patent Office shall grant the patent right, issue the patent certificate, and announce it. The patent right shall come into force upon the date of issue of the patent certificate. If the time limit for going through the formalities of registration is not met, the applicant shall be deemed to have abandoned its or his right to obtain the patent right.
Rule 55.
The grounds on which a revocation may be requested under Article 41 of the Patent Law of a patent right, which is announced and granted by the Patent Office, shall comprise the following:
(1) where the invention or utility model for which the patent right is granted does not comply with the provisions of Article 22 of the Patent Law;
(2) where the design for which the patent right is granted does not comply with the provisions of Article 23 of the Patent Law.
Rule 56.
Anyone requesting revocation of a patent right in accordance with the provisions of Article 41 of the Patent Law shall submit to the Patent Office a request and the relevant documents in two copies, stating the facts and reasons on which the request is based. The person requesting revocation may withdraw his request before the Patent Office makes a decision on it.
Rule 57.
After the receipt of the request for revocation of the patent right, the Patent Office shall make an examination of it. Where the request does not conform to the prescribed requirements, the Patent Office shall notify the person making the request to rectify it within the specified time limit. If the time limit for making rectification is not met, the request for revocation shall be deemed not to have been filed. Where, in the request for revocation of the patent right, no facts and reasons have been given to support the request or the reasons given do not conform to the provisions of Rule 55 of these Implementing Regulations, the request shall be declared to be unacceptable.The Patent Office shall send a copy of the request for revocation of the patent right and copies of the relevant documents to the patentee and invite it or him to present its or his observations within a specified time limit. The patentee may amend its or his patent specification, but may not broaden the scope of patent protection. If no response is made within the time limit, the examination procedure of the Patent office will not be affected.
Rule 58.
The Patent Reexamination Board shall consist of experienced technical and legal experts designated by the Patent Office. The Director General of the Patent Office shall be the Director of the Board.
Rule 59.
Where the applicant requests the Patent Reexamination Board to make a reexamination in accordance with the provisions of Article 43, paragraph one, of the Patent Law, it or he shall file a request for reexamination and state the reasons therefor, together with the relevant supporting documents. The request and the supporting documents shall be in two copies. The applicant or the patentee may amend its or his application, which has been rejected, or its or his patent specification, which has been revoked, at the time when it or he requests reexamination, but the amendments shall be limited only to the part to which the decision of rejection of the application or the decision of revocation of the patent right relates.
Rule 60.
Where the request for reexamination does not comply with the prescribed form, the person making the request shall rectify it within the time limit fixed by the Patent Reexamination Board. If the time limit for making rectification is not met, the request for reexamination shall be deemed not to have been filed.
Rule 61.
The Patent Reexamination Board shall send the request for reexamination which the Board has received to the examination department which has made the examination to make an examination. Where the examination department agrees to revoke its former decision upon the request of the person requesting reexamination, the Patent Reexamination Board shall make a decision accordingly and notify that person.
Rule 62.
Where the Patent Reexamination Board finds after reexamination that the request does not comply with the provisions of the Patent Law, it shall invite the person requesting reexamination to submit his observations within the specified time limit. If the time limit for making response is not met, the request for reexamination shall be deemed to have been withdrawn.
Rule 63.
At any time before the Patent Reexamination Board makes its decision on the request for reexamination, the person making the request may withdraw his request for reexamination.
Rule 64.
The Patent Office may amend the obvious mistakes which it finds in the title of the invention-creation, the abstract or the request of the application, and notify the applicant. The patent office shall correct promptly the mistakes in the Patent Gazettes and documents issued by it once they are discovered.
Chapter IV INVALIDATION OF PATENT RIGHT
Rule 65.
Anyone requesting invalidation or part invalidation of a patent right according to the provisions of Article 48 of the Patent Law shall submit the request and the relevant documents in two copies, stating the facts and reasons on which the request is based, to the Patent Reexamination Board.
The person requesting invalidation may withdraw his request before the Patent Reexamination Board makes a decision on it.
Rule 66.
Where the request for invalidation of the patent right does not comply with the prescribed form, the person making the request shall rectify it within the time limit fixed by the Patent Reexamination Board. If the rectification fails to be made within the time limit, the request for invalidation shall be deemed not to have been filed. The grounds on which the request for invalidation may be based shall comprise that the invention-creation for which the patent right is granted does not comply with the provisions of Articles 22 or 23, Article 26, paragraphs three or four, or Article 33 of the Patent Law, or Rule 2, or Rule 12, paragraph one of these Implementing Regulations; or it falls under the provisions of Articles 5 or 25 of the Patent Law; or the person to whom the patent was granted cannot obtain a patent right according to the provisions of Article 9 of the Patent Law. Where, in the request for invalidation, no facts and reasons have been given to support the request or the reasons given do not conform to the provisions of the preceding paragraph, or where invalidation is requested after the request for revocation is made but no decision on that request has yet been rendered, or where, after decision on any request for revocation or invalidation of the patent right was made, invalidation based on the same facts and reasons is requested again, the request shall be declared to be unacceptable by the Patent Reexamination Board.
Rule 67.
The Patent Reexamination Board shall send a copy of the request for invalidation of the patent right and copies of the relevant documents to the patentee and invite it or him to present its or his observations within a specified time limit. The patentee may amend its or his patent specification, but may not broaden the scope of patent protection. Where no response is made within the time limit, the hearing procedure of the Patent Reexamination Board will not be affected.
Chapter V COMPULSORY LICENSE FOR EXPLOITATION OF PATENT
Rule 68.
After the expiration of three years from the grant of the patent right, any entity may, in accordance with the provisions of Article 51 of the Patent Law, request the Patent Office to grant a compulsory license. Any entity or individual requesting a compulsory license shall submit to the Patent Office a request for compulsory license and state the reasons therefor, together with relevant supporting documents. The request and the supporting documents shall be in two copies respectively. The Patent Office shall send a copy of the request for compulsory license to the patentee. He or it shall make his or its observations within the time limit specified by the Patent Office. Where no response is made within the time limit, the Patent Office will not be affected in making a decision to grant a compulsory license. Where a national emergency or any extraordinary state of affairs occurs, or in cases of public non- commercial use, the Patent Office may grant a compulsory license. The decision of the Patent Office granting a compulsory license for exploitation shall limit the scope and duration of the exploitation on the basis of the reasons justifying the grant, and provide that the exploitation shall be predominately for the supply of the domestic market. The decision of the Patent Office granting a compulsory licence shall be notified to the patentee as soon as reasonably practicable, and shall be registered and announced by the Patent Office. If and when the circumstances which led to such compulsory license cease to exist and are unlikely to recur, the Patent Office may, upon the request of the patentee, review the continued existence of these circumstances, and terminate the compulsory license.
Rule 69.
Any party requesting, in accordance with the provisions of Article 57 of the Patent Law, the Patent Office to adjudicate the fees for exploitation, shall submit a request for adjudication and furnish documents showing that the parties have not been able to conclude an agreement in respect of the amount of the fees. The Patent Office shall make an adjudication within three months from the date of receipt of the request and notify the parties accordingly.
Chapter VI REWARDS TO INVENTOR OR CREATOR OF SERVICE INVENTION-CREATION
Rule 70.
"Rewards" mentioned in Article 16 of the Patent Law includes money prizes and remunerations which are to be awarded to inventors and creators.
Rule 71.
Any entity holding a patent right shall, after the grant of the patent right, award to inventors or creators of a service invention-creation a sum of money as prize. The sum of money prize for a patent for invention shall not be less than 200 yuan; the sum of money prize for a patent for utility model or design shall not be less than 50 yuan. Where an invention-creation was made on the basis of an inventor's or creator's proposal adopted by the entity to which he belongs, after the grant of the patent right, the entity holding it shall award to him a money prize liberally. Any enterprise holding the patent right may include the said money prize paid to such inventors or creators into its production cost; any institution holding the patent right may disburse the said money prize out
of its operating expenses.
Rule 72.
Any entity holding a patent right shall, after exploiting the patent for invention-creation within the duration of the patent right, draw each year from any increase in profits after taxation a percentage of 0.5%-2% due to the exploitation of the invention or the utility model, or a percentage of 0.05%-0.2% due to the exploitation of the design, and award it to the inventor or creator as remuneration. The entity shall, otherwise, by making reference to the said percentage, award a lump sum of money to the inventor or creator as remuneration.
Rule 73.
Where any entity holding a patent right for invention-creation authorizes other entities or individuals to exploit its or his patent, it shall, after taxation, draw a percentage of 5%-10% from the fees for exploitation it received and award it to the inventor or creator as remuneration.
Rule 74.
The remuneration provided for in these Implementing Regulations shall be disbursed out of the profits derived from the making of patented products or the use of patented process and out of the fees obtained for the exploitation of the patents. The remuneration shall not be included in the amount of the normal bonuses of the entity, nor subject to the bonus tax. But the inventor or creator shall pay tax for his income.
Rule 75.
The Chinese entities under collective ownership and other enterprises may award to the inventor or creator money prize and remuneration by making reference to the provisions in this chapter.
Chapter VII ADMINISTRATIVE AUTHORITY FOR PATENT AFFAIRS
Rule 76.
"The administrative authority for patent affairs" mentioned in the Patent Law and these Implementing Regulations refers to the administrative authorities for patent affairs set up by the competent departments concerned of the State Council and the people's governments in the localities.
Rule 77.
Where, after the publication of an application for a patent for invention and before the grant of the patent right, any entity or individual has exploited the invention without paying appropriate fees, the patentee may, after the grant of the patent right, request the administrative authorityfor patent affairs to handle the matter, or may directly institute legal proceedings in the people's court. The administrative authority handling the matter shall have the power to decide that the entity or individual shall pay appropriate fees within the specified time limit. Where any of the parties concerned is not satisfied with the decision of the said authority, it or he may institute legal proceedings in the people's court. Where any dispute arises between any inventor or creator, and the entity to which he belongs, as to whether an invention-creation is a service invention-creation, or whether an application for a patent is to be filed in respect of a service invention-creation, or where the entity owning or holding the patent right has not according to law awarded a reward or paid remuneration to the inventor or creator of service invention-creation, the inventor or creator may request the competent department at the higher level or the administrative authority for patent affairs of the region in which the entity is located to handle the matter. The prescription for requesting the administrative authority for patent affairs to handle patent disputes is two years counted from the date on which the patentee or any interested party obtains or should have obtained knowledge of the relevant fact.
Rule 78.
Pursuant to the provisions of Article 63, paragraph two, of the Patent Law, where any person passes any unpatented product off as patented product or passes any unpatented process off as patented process, the administrative authority for patent affairs may, according to the circumstances, order such person to stop the passing off, to eliminate its ill effects and, in addition, to pay a fine of 1000 yuan to 50000 yuan or a fine from 100% to 300% of the amount of his illegal income.
Rule 79.
Where parties to any transdepartmental or transregional infringement dispute request the administrative authority for patent affairs to handle the matter, the said dispute shall be handled by the administrative authority for patent affairs of the region in which the infringement has taken place, or by the administrative authority for patent affairs of the higher competent department of the infringing entity.
Chapter VIII PATENT REGISTER AND PATENT GAZETTE
Rule 80.
The Patent Office shall maintain a Patent Register in which shall be recorded the following matters relating to any patent right:
(1) any grant of the patent right;
(2) any assignment and succession of the patent right;
(3) any revocation and invalidation of the patent right;
(4) any cessation of the patent right;
(5) any restoration of the patent right;
(6) any compulsory license for exploitation of the patent;
(7) any changes in the name, the nationality and the address of the patentee;
Rule 81.
The Patent Office shall publish the Patent Gazette at regular intervals, publishing or announcing the following;
(1) the bibliographic data contained in patent applications;
(2) the abstract of the description of an invention or utility model, the drawings or photographs of a design and its brief explanation;
(3) any request for examination as to substance of an application for a patent for invention and any decision made by the Patent Office to proceed on its own initiative to examine as to substance an application for a patent for invention;
(4) any declassification of secret patents;
(5) any rejection, withdrawal and being deemed withdrawal of an application for a patent for invention after its publication;
(6) any assignment and succession of an application for a patent for invention after its publication;
(7) any grant of the patent right;
(8) any revocation and invalidation of the patent right;
(9) any cessation of the patent right;
(10) any assignment and succession of the patent right;
(11) any grant of compulsory license for exploitation of the patent;
(12) any restoration of a patent application or patent right;
(13) any change in the name or address of the patentee;
(14) any notification to the applicant whose address is not known;
(15) any other related matters.
The description, its drawings and the claims of an application for a patent for invention or utility model shall be published in pamphlet form.
Chapter IX FEES
Rule 82.
When any person files an application for a patent with, or has other formalities to perform in, the Patent Office, he or it shall at the same time pay the following fees;
(1) filing fee and maintenance fee of an application;
(2) examination fee and reexamination fee;
(3) annual fee;
(4) fee for a change in the bibliographic data, fee for claiming priority, fee for a request for restoration of rights, fee for a request for revocation, fee for a request for invalidation, fee for a request for compulsory license, fee for a request for adjudication on exploitation fee of a compulsory license, fee for patent registration, and additional fees as prescribed. The amount of the fees mentioned in the preceding paragraph shall be prescribed separately by the Patent Office in conjunction with the competent departments concerned of the State Council.
Rule 83.
The fees provided for in the Patent Law and in these Implementing Regulations may be paid directly to the Patent Office or paid by way of bank or postal remittance, but not by telegraphic remittance. Where fees are paid by way of bank or postal remittance, the applicant or the patentee shall indicate on the money order the filing number or the patent number, the name of the applicant or the patentee, the purpose of the payment and the title of the invention-creation. Where fees are paid by way of bank or postal remittance, the date on which the transfer of such fee is ordered shall be the date of payment. Where the time between such a date and the date of receipt of the order at the Patent Office lasts more than fifteen days, unless the date of remittance is proved by the bank or the post office, the date of receipt at the Patent Office shall be the date of payment. The payment which is not made in accordance with the provisions of the second paragraph of this Rule shall be deemed not to have been made.
Where any patent fee is paid more than as prescribed, paid once again or wrongly paid, the person making the payment may claim a refund, but the request for such refund shall be made within one year from the date of payment.
Rule 84.
The applicant shall, after receipt of the notification of acceptance of the application from the Patent Office, pay the filing fee at the latest within two months from the filing date. If the fee is not paid or not paid in full within the time limit, the application shall be deemed to have
been withdrawn. Where the applicant claims the right of priority, he or it shall pay the fee for claiming priority at the same time with the payment of the filing fee. If the fee is not paid or not paid in full within the time limit, the claim to the right of priority shall be deemed not to have been made.
Rule 85.
Where a request for an examination as to substance, a restoration of right, a reexamination or revocation of patent right is made, by the party concerned, the relevant fee shall be paid within the time limit as prescribed respectively for such requests by the Patent Law. If the fee is not paid or not paid in full within the time limit, the request is deemed
not to have been made.
Rule 86.
Where the applicant for a patent for invention has not been granted a patent right within two years from the date of filing, it or he shall pay a fee for the maintenance of the application from the third year. The first maintenance fee shall be paid within the first month of the third year. The subsequent maintenance fees shall be paid in advance within the month before the expiration of the preceding year.
Rule 87.
When the applicant goes through the formalities of patent registration, it or he shall pay a fee for patent registration, and the annual fee of the year in which the patent right was granted. Where the maintenance fee of the application of the year in which the patent right was granted has been paid, the annual fee of that year shall not be paid. If such fees are not paid in the prescribed time limit, the patent registration shall be deemed not to have been made. The subsequent annual fees shall be paid in advance within the month before the expiration of the preceding year.
Rule 88.
Where the maintenance fee of the application or the annual fee of the years after the year in which the patent was granted is not paid in due time by the applicant or the patentee, or the fees are not paid in full, the Patent Office shall notify the applicant or the patentee to pay the fee or to make up the insufficiency within six months from the expiration of the time limit within which the maintenance fee or the annual fee was to be paid, and at the same time pay a surcharge which amounts to 25% that of the maintenance fee or the annual fee. Where the fees are not paid within the time limit, the application shall be deemed to have been withdrawn or the patent right shall be deemed lapsed from the expiration of the time limit within which the maintenance fee or the annual fee should be paid.
Rule 89.
The fee for a change in the bibliographic data, fee for a request for compulsory license, fee for a request for adjudication on exploitation fee of a compulsory license and fee for a request for invalidation shall be paid as prescribed within one month from the date on which such request is filed. If the fee is not paid or not paid in full within the time limit, the request shall be deemed not to have been made.
Rule 90.
Where any person filing an application for a patent or having other formalities to go through, has difficulties in paying the various fees prescribed by Rule 82 of these Implementing Regulations, that person may, according to prescriptions, submit a request to the Patent Office, asking for a reduction or postponement of the payment. The conditions for the reduction and postponement of the payment shall be prescribed by the Patent Office.
Chapter X SUPPLEMENTARY PROVISIONS
Rule 91.
Any person may, after approval by the Patent Office, inspect or copy the files of the published or announced patent applications and the Patent Register. Any person may request the Patent Office to issue a copy of extracts from the Patent Register. The files of patent applications which have been withdrawn or deemed to have been withdrawn or which have been rejected, shall not be preserved after expiration of two years from the date on which they cease to be valid. Where the patent right ceases or has been revoked, abandoned or invalidated, the files shall not be preserved after expiration of three years from the date on which the patent right ceases to be valid.
Rule 92.
Any patent application which is filed with, and any formalities which are performed in the Patent Office, shall be made in the prescribed form of the Patent Office and signed or sealed by the applicant, the patentee, any other interested person or his or its representative. Where any patent agency is appointed, it shall be sealed by such agency. Where a change of the name of the inventor, the name, nationality and address of the applicant or the patentee, or the name of the patent agency and patent agent is requested, a rquest for a change in the bibliographic data shall be made to the Patent Office, together with the relevant supporting documents.
Rule 93.
The documents relating to a patent application or patent right which are mailed to the Patent Office shall be mailed by registered letter, not by parcel. When any document (not including any patent application filed for the first time) is submitted to and any formalities are performed in the Patent Office, the filing number or the patent number, the title of the invention-creation and the name of the applicant or the patentee shall be indicated. Only documents relating to the same application shall be included in one letter.
Rule 94.
Any sheets constituting an application for patent shall be typed or printed. All the characters shall be in black ink, neat and clear. They shall be free from any alterations. Drawings shall be made in black ink with the aid of drafting instruments. The lines shall be uniformly thick and well-defined, and free from alterations. The request, description, claim, drawings and abstract shall be numbered separately in Arabic numerals and arranged in numerical order. The written language shall run from left to right. Only one side of each sheet shall be used.
Rule 95.
The Patent Office shall be responsible for interpreting these Implementing Regulations.
Rule 96.
These Implementing Regulations shall enter into force on January 1, 1993. The applications for patent filed before the entry into force of these Implementing Regulations and the patent rights granted on the basis of the said applications shall continue to be governed by the provisions of the Patent Law before they were amended by the Decision Regarding the Revision of the Patent Law of the People's Republic of China, adopted at the 27 th Session of the Standing Committee of the Seventh National People's Congress on September 4, 1992 and the relevant provisions of the Implementing Regulations of the Patent Law of the People's Republic of China, approved by the State Council on January 19, 1985 and promulgated by the Patent Office on the same day. However, the procedures provided by the amended Articles 39 to 44 and the amended Article 48 of the Patent Law concerning the approval of applications for patent, and the revocation and invalidation of the patent right and the relevant provisions of these Implementing Regulations shall apply to the said applications which, before the entry into force of these Implementing Regulations, are not announced according to the provisions of Articles 39 and 40 of the Patent Law before they were amended.
* This Table of Contents was established for the convenience of the reader by the Patent Laws Research Institute of the Chinese Patent Office. The text of the Implementing Regulations of the Patent Law approved by the State Council does not contain such a table and the rules have no titles in the Regulations.
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COPYRIGHT LAW OF THE PEOPLE'S REPUBLIC OF CHINA [*1]
(Adopted at the 15th Meeting of the Standing Committee of theSeventh National People's Congress on September 7, 1990, promulgated byOrder No. 31 of the President of the People's Republic of China on September 7, 1990, and effective as of June 1, 1991)
Contents
Chapter I General Provisions
Chapter II Copyright
Section 1 Copyright Owners and Their Rights
Section 2 Ownership of Copyright
Section 3 Term of Protection of Rights
Section 4 Limitations on Rights
Chapter III Copyright Licensing Contracts
Chapter IV Publication, Performance, Sound Recording, Video Recordingand Broadcasting
Section 1 Publication of Books, Newspapers and Periodicals
Section 2 Performance
Section 3 Sound Recording and Video Recording
Section 4 Broadcasting by Radio Station or Television
Station
Chapter V Legal Liability
Chapter VI Supplementary Provisions
Chapter I General Provisions
Article 1
This Law is enacted, in accordance with the Constitution for the purposesof protecting the copyright of authors in their literary, artistic andscientific works and rights and interests related to copyright, ofencouraging the creation and dissemination of works which would contributeto the building of an advanced socialist culture and ideology and tosocialist material development, and of promoting the development andflourishing of socialist culture and sciences.
Article 2
Works of Chinese citizens, legal persons or entities without legalpersonality, whether published or not, shall enjoy copyright in accordancewith this Law. Works of foreigners first published in the territory ofthe People's Republic of China shall enjoy copyright in accordance withthis Law.
Any work of a foreigner published outside the territory of the People'sRepublic of China which is eligible to enjoy copyright under an agreementconcluded between the country to which the foreigner belongs and China , orunder an international treaty to which both countries are parties, shallbe protected in accordance with this Law.
Article 3
For the purpose of this Law, the term "works" includes works ofliterature, art, natural science, social science, engineering technologyand the like which are created in the following forms:
(1) written works;
(2) oral works;
(3) musical, dramatic, quyi and choreographic works;
(4) Works of fine art and photographic works;
(5) cinematographic, television and video-graphic works;
(6) drawings of engineering designs and product designs, and descriptionsthereof;
(7) maps, sketches and other graphic works;
(8) computer software;
(9) other works as provided for in law and administrative rules andregulations.
Article 4
Works the publication or distribution of which is prohibited by law shallnot be protected by this law.
Copyright owners, in exercising their copyright, shall not violate the Constitution or laws or prejudice the public interests.
Article 5
This law shall not be applicable to:
(1) laws; regulations; resolutions, decisions and orders of state organs;other documents of legislative, administrative and judicial nature; andtheir official translations;
(2) news on current affairs; and
(3) calendars, numerical tables, forms of general use and formulas.
Article 6
Measures for the protection of copyright in works of folk literature andart shall be established separately by the State Council.
Article 7
Where any scientific or technological work is protected under the PatentLaw, the Law on Technology Contracts or similar laws, the provisions ofthose laws shall apply.
Article 8
The copyright administration department under the State Council shall beresponsible for the nationwide administration of copyright. The copyrightadministration department under the people's government of each province,autonomous region and municipality directly under the Central Governmentshall be responsible for the administration of copyright in its respectiveadministrative area.
Chapter II Copyright
Section 1 Copyright Owners and Their Rights
Article 9
The term "copyright owners" shall include:
(1) authors; and
(2) other citizens, legal persons and entities without legal personalityenjoying copyright in accordance with this Law.
Article 10
The term "copyright" shall include the following personal rights and property rights:
(1) the right of publication, that is, the right to decide whether to make a work available to the public;
(2) the right of authorship, that is, the right to claim authorship and to have the author's name indicated on his works;
(3) the right of alternation, that is, the right to alter or authorize others to alter one's work;
(4) the right of integrity, that is, the right to protect one's work against distortion and mutilation;
(5) the right of exploitation and the right to remuneration, that is, the right of exploiting one's work by means of reproduction, performance, broadcasting, exhibition distribution, making cinematographic, television or video production, adaptation, translation, annotation, compilation and the like, and the right of authorizing others to exploit one's work by the above-mentioned means, and of receiving remuneration therefor.
Section 2 Ownership of Copyright
Article 11
Except where otherwise provided in this Law, the copyright in a work shall belong to its author.
The author of a work is the citizen who has created the work.
Where a work is created according to the will and under the sponsorship and the responsibility of a legal or entity without legal personality, such legal person or entity without legal personality shall be deemed to be the author of the work. The citizen, legal person or entity without legal personality whose name is indicated on a work shall, in the absence of proof to the contrary, be deemed to be the author of the work
Article 12
Where a work is created by adaptation, translation, annotation or arrangement of a pre-existing work, the copyright in the work thus created shall be enjoyed by the adaptor, translator or arranger, provided that the exercise of such copyright shall not prejudice the copyright in the original work.
Article 13
Where a work is created jointly by two or more co-authors, the copyright in the work shall be enjoyed jointly by those co-authors. Any person who has not participated in the creation of the work may not claim the coauthorship.
If a work of joint authorship can be separated into independent parts and exploited separately, each co-author may be entitled to independent copyright in the parts that he has created, provided that the exercise of such copyright shall not prejudice the copyright in the joint work as a whole.
Article 14
The copyright in a work created by compilation shall be enjoyed by the compiler, provided that the exercise of such copyright shall not prejudice the copyright in the preexisting works included in the compilation.The authors of such works included in a compilation as can be exploited separately shall be entitled to exercise their copyright in their works independently.
Article 15
The director, screenwriter, lyricist, composer, cameraman and other authors of a cinematographic, television or video-graphic work shall enjoy the right of authorship in the work, while the other rights included in the copyright shall be enjoyed by the producer of the work.
The authors of screenplay, musical works and other works that are included in a cinematographic, television or video-graphic work and can be exploited separately shall be entitled to exercise their copyright independently.
Article 16
A work created by a citizen in the fulfillment of tasks assigned to him by a legal person or entity without legal personality shall be deemed to be a work created in the course of employment. The copyright in such a work shall, subject to the provisions of the second paragraph of this Article, be enjoyed by the author, provided that the legal person or entity without legal personality shall have a right of priority to exploit the work within the scope of its professional activities. During the two years after the completion of the work, the author may not, without the consent of the legal person or entity without legal personality, authorize a third party to exploit the work int the same way as the legal person or entity without legal personality does. The author of a work created in the course of employment in one of the following circumstances shall enjoy the right of authorship, while the legal person or entity without legal personality shall enjoy the other rights included in the copyright and may reward the author:
(1) drawings of engineering designs and product designs and descriptions thereof; computer software; maps and other works created in the course of employment mainly with the material and technical resources of the legal person or entity without legal personality and under its responsibility;
(2) works created in the course of employment where the copyright is, in accordance with laws, administrative rules and regulations or contracts concerned, enjoyed by the legal person or entity without legal personality.
Article 17
The ownership of copyright in a commissioned work shall be agreed upon in a contract between the commissioning and the commissioned parties. In the absence of a contract or of an explicit agreement in the contract, the copyright in such a work shall belong to the commissioned party.
Article 18
The transfer of ownership of the original copy of a work of fine art, or other works, shall not be deemed to include the transfer of the copyright in such work, provided that the right to exhibit the original copy of a work of fine art shall be enjoyed by the owner of such original copy.
Article 19
Where the copyright in a work belongs to a citizen, the right of exploitation and the right to remuneration in respect of the work shall, after his death, during the term of protection provided for in this Law, be transferred in accordance with the provisions of the Law of Succession.
Where the copyright in a work belongs to a legal person or entity without legal personality, the right of exploitation and the right to remuneration shall, after the change or the termination of the legal person or entity without legal personality, during the term of protection provided for in this Law, be enjoyed by the succeeding legal person or entity without legal personality which has taken over the former's rights and obligations, or, in the absence of such a successor entity, by the state. Section 3 Term of Protection of Rights
Article 20
The term of protection of the rights of authorship, alteration, and integrity of an author shall be unlimited.
Article 21
The term of protection of the right of publication, the right of exploitation and the right to remuneration in respect of a work of a citizen shall be the life time of the author and fifty years after his death, expiring on December 31 of the fiftieth year after his death. In the case of a work of joint authorship, such term shall expire on December 31 of the fiftieth year after the death of the last surviving author. The term of protection of the right of publication, the right of exploitation and the right to remuneration in respect of a work where the copyright belongs to a legal person or entity without legal personality, or in respect of a work created in the course of employment where the legal person or entity without legal personality enjoys the copyright (except the right of authorship), shall be fifty years, expiring on December 31 of the fiftieth year after the first publication of such work, provided that any such work that has not been published within fifty years after the completion of its creation shall no longer be protected under this Law. The term of protection of the right of publication, the right of exploitation and the right to remuneration in respect of a cinematographic, television, video-graphic or photographic work shall be fifty years, expiring on December 31 of the fiftieth year after the first publication of such work, provided that any such work that has not been published within fifty years after the completion of its creation shall no longer be protected under this Law. Section 4 Limitations on Rights
Article 22
In the following cases, a work may be used without permission from, and without payment of remuneration to, the copyright owner, provided that the name of the author and the title of the work shall be indicated and the other rights enjoyed by the copyright owner by virtue of this Law shall not be prejudiced:
(1) use of a published work of others for the user's own private study, research or self entertainment;
(2) appropriate quotation from a published work of others in one's work for the purposes of introduction to, or comment on, a work, or demonstration of a point;
(3) use of a published work in newspapers, periodicals, radio programmes, television programmes or newsreels for the purpose of reporting current affairs;
(4) reprinting by newspapers or periodicals, or rebroadcasting by radio stations or television stations, of editorials or commentator's articles published by other newspapers, periodicals, radio stations or television stations;
(5) publication in newspapers or periodicals, or broadcasting by radio stations or television stations, of a speech delivered at a public gathering, except where the author has declared that the publication or broadcasting is not permitted;
(6) translation or reproduction in a small quantity of copies, of a published work for use by teachers or scientific researchers, in classroom teaching or scientific research, provided that the translation or reproduction shall not be published or distributed;
(7) use of a published work by a state organ for the purpose of performing its official duties;
(8) reproduction of a work in its collections by a library, an archives center, a memorial hall, a museum, an art gallery or a similar institution, for the purposes of display, or preservation of a copy, of the work;
(9) free performance of a published work;
(10) copying, drawing, photographing, or video recording of an artistic work located or on display in an outdoor public place;
(11) translation of a published work from the language of the Han nationality into minority nationality languages for publication and distribution in the country;
(12) transliteration of a published work into Braille and publication of the work so transliterated. The above limitations on rights shall be applicable also to the rights of publishers, performers, producers of sound recordings and video recordings, radio stations and television stations.
Chapter III Copyright Licensing Contracts
Article 23
Anyone who exploits a work created by others shall, except where no permission is required in accordance with the provisions of this Law, conclude a contract with, or otherwise obtain permission from, the copyright owner.
Article 24
A contract shall include the following basic clauses:
(1) the manner of exploitation of the work covered by the license;
(2) the exclusive or nonexclusive nature of the right to exploit the work covered by the license;
(3) the scope and term of the license;
(4) the amount of remuneration and the method of its payment;
(5) the liability for breach of contract; and
(6) any other matter which the contracting parties consider necessary.
Article 25
Without permission from the copyright owner, the other party to the contract shall not exercise the right which the copyright owner has not explicitly licensed in the contract.
Article 26
The term of validity of a contract shall not exceed ten years. The contract may be renewed on expiration of that term.
Article 27
The tariffs of remuneration for the exploitation of works shall be established by the copyright administration department under the State Council jointly with other departments concerned. Where otherwise agreed to in a contract, remuneration may be paid in accordance with the terms of the said contract.
Article 28
Publishers, performers, producers of sound recordings and video recordings, radio stations, television stations and other entities who or which have, pursuant to this Law, obtained the right of exploitation included in the copyright of others, shall not prejudice such authors' rights of authorship, alteration, integrity and their right to remuneration.
Chapter IV Publication, Performance, Sound Recording, Video Recor- ding and Broadcasting Section 1 Publication of Books, Newspapers and Periodicals
Article 29
A book publisher who publishes a book shall conclude a publishing contract with, and pay remuneration to, the copyright owner.
Article 30
A book publisher shall, during the term of the contract, have an exclusive right to publish the work delivered to him for publication by the copyright owner. The term of the exclusive right to publish the work, enjoyed by the book publisher as specified in the contract, shall not exceed ten years. The contract may be renewed on expiration of that term.The exclusive right to publish a work enjoyed by the book publisher shall, during the term specified in the contract, be protected by law, and the work may not be published by others.
Article 31
The copyright owner shall deliver the work to the publisher within the time limit specified in the contract. The book publisher shall publish thework according to the quality requirements and within the time limit specified in the contract. The book publisher shall bear the civil liability in accordance with the provisions of Article 47 of this Law if he fails to publish the work within the time limit specified in the contract.
The book publisher shall notify, and pay remuneration to, the copyright owner when the work is to be reprinted or republished. If the book publisher refuses to reprint or republish the work when the stocks of the book are exhausted, the copyright owner shall have the right to terminate the contract.
Article 32
Where a copyright owner has submitted the manuscript of his work to a newspaper or a periodical publisher for publication and has not received any notification of the said publisher's decision to publish the work, within fifteen days from the newspaper publisher or within thirty days from the periodical publisher from the date of submission of the manuscript, the copyright owner may submit the manuscript of the same work to another newspaper or periodical publisher for publication unless the two parties have agreed otherwise. After a work is published in a newspaper or a periodical, other newspaper or periodical publisher may, except where the copyright owner has declared that reprinting or excerpting is not permitted, reprint the work or print an abstract of it or print it as reference material, but such other publishers shall pay remuneration to the copyright owner as prescribed in regulations.
Article 33
A book publisher may alter or abridge a work with the permission of the copyright owner. A newspaper publisher or periodical publisher may make editorial modifications and abridgments in a work, but shall not make any modifications in the content of the work unless permission has been obtained from the author.
Article 34
When publishing a work created by adaptation, translation, annotation, arrangement or compilation of a pre-existing work, the publisher shall pay remuneration both to the owner of the copyright in the work created by adaptation, translation, annotation, arrangement or compilation, and to the owner of the copyright in the original work. Section 2 Performance
Article 35
A performer (an individual performer or a performing troupe) who for a performance exploits an unpublished work created by others shall obtain permission from, and pay remuneration to, the copyright owner. A performer who for a commercial performance exploits a published work created by others does not need permission from, but shall, as prescribed by regulations, pay remuneration to the copyright owner; such work shall not be exploited where the copyright owner has declared that such exploitation is not permitted. A performer who for a commercial performance exploits a work created by adaptation, translation, annotation or arrangement of a pre-existing work shall pay remuneration both to the owner of the copyright in the work created by adaptation, translation, annotation or arrangement and to the owner of the copyright in the original work. Where a performer performs a work created by others for the purpose of producing a sound recording, video recording, radio programme or television programme, the provisions of Article 37 and 40 of this Law shall apply.
Article 36
A performer shall, in relation to his performance, enjoy the right:
(1) to claim performership;
(2) to protect the image inherent in his performance from distortion;
(3) to authorize others to make live broadcasts; and
(4) to authorize others to make sound recordings and video recordings for commercial purposes, and to receive remuneration therefor. Section 3 Sound Recording and Video Recording
Article 37
A producer of sound recordings who, for the production of a sound recording, exploits an unpublished work created by others shall obtain permission from, and pay remuneration to, the copyright owner. A producer of sound recordings who, for the production of a sound recording, exploits a published work created by others, does not need permission from, but shall, as prescribed by regulations, pay remuneration to, the copyright owner; such work shall not be exploited where the copyright owner has declared that such exploitation is not permitted. A producer of video recordings who, for the production of a video recording, exploits a work created by others shall obtain permission from, and pay remuneration to, the copyright owner. A producer of sound recordings or video recordings who exploits a work created by adaptation, translation, annotation or arrangement of a preexisting work shall pay remuneration both to the owner of the copyright in the work created by adaptation, translation, annotation or arrangement, and to the owner of the copyright in the original work.
Article 38
When producing a sound recording or video recording, the producer shall conclude a contract with, and pay remuneration to, the performer.
Article 39
A producer of sound recordings or video recordings shall have the right to authorize others to reproduce and distribute his sound recordings or video recordings and the right to receive remuneration therefor. The term of protection of such rights shall be fifty years, expiring on December 31 of the fiftieth year after the first publication of the recordings. A producer of sound recordings or video recordings who is authorized to reproduce and distribute a sound recording or video recording created by others shall also pay remuneration to the copyright owner and to the performer as prescribed by regulations. Section 4 Broadcasting by Radio Station or Television Station
Article 40
A radio station or television station which exploits, for the production of a radio or television programme, an unpublished work created by others, shall obtain permission from, and pay remuneration to, the copyright owner. A radio station or television station which exploits, for the production of a radio or television programme, a published work created by others does not need permission from the copyright owner, but such a work shall not be exploited where the copyright owner has declared that such exploitation is not permitted. In addition, remuneration shall be paid as prescribed by regulations unless this Law provides that no remuneration needs to be paid. A radio station or television station which exploits, for the production of a radio or television programme, a work created by adaptation, translation, annotation, or arrangement of a pre-existing work, shall pay remuneration both to the owner of the copyright in the work created by adaptation, translation, annotation or arrangement and to the owner of the copyright in the original work.
Article 41
When producing a radio or television programme, the radio station or television station shall conclude a contract with, and pay remuneration to, the performer.
Article 42
A radio station or television station shall, in respect of a programme produced by it, enjoy the right:
(1) to broadcast the programme;
(2) to authorize others to broadcast the programme, and to receive remuneration therefor; and
(3) to authorize others to reproduce and distribute the radio or television programme, and to receive remuneration therefor. The term of protection of the rights specified in the preceding paragraph shall be fifty years, expiring on December 31 of the fiftieth year after the first broadcasting of the programme. A producer of sound recordings or video recordings who is authorized to reproduce and distribute a radio or television programme shall also pay remuneration to the copyright owner and the performer as prescribed by regulations.
Article 43
A radio station or television station may broadcast, for noncommercial purposes, a published sound recording without seeking permission from, or paying remuneration to, the copyright owner, performer and producer of the sound recording.
Article 44
A television station which broadcasts a cinematographic, television or video-graphic work produced by others shall obtain permission from, and pay remuneration to, the producer of the cinematographic, television or video-graphic work.
Chapter V Legal Liability
Article 45
Anyone who commits any of the following acts of infringement shall bear civil liability for such remedies as ceasing the infringing act, eliminating its ill effects, making a public apology or paying compensation or damages, etc., depending on the circumstances:
(1) publishing a work without the permission of the copyright owner;
(2) publishing a work of joint authorship as a work created solely by oneself without the permission of the other co-authors;
(3) having one's name indicated on a work created by others, in order to seek personal fame and gain, where one has not participated in the creation of the work;
(4) distorting or mutilating a work created by others;
(5) exploiting a work by performance, broadcasting, exhibition, distribution, making cinematographic, television or video productions, adaptation, translation, annotation, and compilation, or by other means, without the permission of the copyright owner, unless otherwise provided in this Law;
(6) exploiting a work created by others without paying remuneration as prescribed by regulations;
(7) broadcasting a live performance without the permission of the performer; or (8) committing other acts of infringement of copyright and of other rights and interests related to copyright.
Article 46
Anyone who commits any of the following acts of infringement shall bear civil liability for such remedies as ceasing the infringing act, eliminating its ill effects, making a public apology or paying compensation for damages, etc., depending on the circumstances, and may, in addition, be subjected by the copyright administration department to such administrative penalties as confiscation of unlawful income from the act, or imposition of a fine:
(1) plagiarizing a work created by others;
(2) reproducing and distributing a work, for commercial purposes, without the permission of the copyright owner;
(3) publishing a book where the exclusive right of publication belongs to another publisher;
(4) producing and publishing a sound recording or video recording of aperformance without the permission of the performer;
(5) reproducing and distributing a sound recording or video recording produced by others without the permission of its producer;
(6) reproducing and distributing a radio programme or television programme without the permission of the radio station or television station which has produced that programme; or
(7) producing or selling a work of fine art where the signature of the author is forged.
Article 47
A party who fails to perform his contractual obligations, or performs them in a manner which is not in conformity with the agreed terms shall bear civil liability in accordance with the relevant provisions of the General Principles of the Civil Law.
Article 48
A dispute over copyright infringement may be settled by mediation. If mediation is unsuccessful, or if one of the parties retracts from his promise after a mediation agreement is reached, proceedings may be instituted in a people's court. Proceedings may also instituted directly in a people's court if the parties do not wish to settle the dispute by mediation.
Article 49
A dispute over a copyright contract may be settled by mediation. It may also, in accordance with the arbitration clause of contract, or a written arbitration agreement concluded after the contract has been signed, be submitted to a copyright arbitration body for arbitration. The parties shall implement the arbitration award. If one of the parties fails to implement the award, the other party may apply to a people's court for execution. If the people's court which has been requested to execute an arbitration award finds that the arbitration award is contrary to law, it shall have the right to refuse the execution. Where the people's court refuses to execute an arbitration award, the parties may institute proceedings in a people's court for contractual dispute.
Where no arbitration clause is stipulated in the contract and no written arbitration agreement is concluded after the contract has been signed, any party may institute proceedings directly in a people's court.
Article 50
Any party who is not satisfied with an administrative penalty may institute proceedings in a people's court within three months from receipt of the written decision of the administrative penalty. If the party neither institutes proceedings nor executes the decision within the time limit, the copyright administration department may apply to a people's court for execution.
Chapter VI Supplementary Provisions
Article 51
For the purpose of this Law, the term "zhuzuoquan" (author's rights) is synonymous with the term "banquan" (copyright).
Article 52
The term "reproduction" as used in this Law means the act of producing one or more copies of a work by printing, photocopying, copying, lithographing, making a sound recording or video recording, duplicating a recording, or duplicating a photographic work or by other means. The term "reproduction" as used in this Law does not cover the construction or manufacture of industrial products on the basis of drawings of engineering designs and product designs, and descriptions thereof.
Article 53
Measures for the protection of computer software shall be established separately by the State Council.
Article 54
The implementing regulations of this Law shall be drawn up by the copyright administration department under the State Council and shall enter into force after approval by the State Council.
Article 55
The rights of copyright owners, publishers, performers, producers of sound recordings and video recordings, radio stations and television stations as provided for in this Law shall, if their term of protection as specified in this Law has not yet expired on the date of entry into force of this Law, be protected in accordance with this Law. Any act of infringement or breach of contract committed prior to the entry into force of this Law shall be dealt with in accordance with the relevant regulations or policies in force at the time when such act was committed.
Article 56
This Law shall enter into force as of June 1, 1991.
Note:
[*1] This English version is the preliminary English translation provided by the Legislative Affairs Commission of the Standing Committee of the National People's Congress of the People's Republic of China . It shall be republished after being further revised and finalized by the Legislative Affairs Commission of the Standing Committee of the National People's Congress of the People's Republic of China . - The Editor
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REGULATIONS FOR THE IMPLEMENTATION OF THE COPYRIGHT LAW OF THEPEO
PLE'S REPUBLIC OF CHINA
(Promulgated on May 30, 1991)
Whole Doc.
Chapter I General Provisions
Article 1
The present Regulations are formulated according to the Article 54 of the Copyright Law of the People's Republic of China (hereinafter referred to as the Copyright Law).
Article 2
The term "works" used in the Copyright Law refers to original intellectual creations in the literary, artistic and scientific domain, in so far as they are capable of being reproduced in a certain tangible form.
Article 3
The term "creation" mentioned in the Copyright Law refers to intellectual activities from which literary, artistic and scientific works are directly resulted.
The making of arrangement and the provision of consultation, material means or supporting service, done for others in their creating activities, shall not be deemed as acts of creating.
Article 4
These works mentioned in the Copyright Law and the present Regulations mean the following:
(1) Written works are works expressed in writing, such as novels, poems, essays and thesis;
(2) Oral works are works, such as unprepared speeches, lectures and court debates, which are created in spoken words and have not been fixed on any material carrier;
(3) Musical works are works, with or without accompanying words, which can be sung or performed, such as symphony and songs;
(4) Dramatic works are works, such as dramas, operas and local art forms, which are created for stage performance;
(5) Qu Yi works are works created mainly for being performed in a way involving recitation, singing, or both, such as cross talk, clapper talk, ballad singing and story telling;
(6) Choreographic works are works which are or can be expressed in successive body movements, gestures and facial movements;
(7) Works of fine art are two-or three-dimensional works created in lines, colours or other medium which, when being viewed, impart aesthetic effect, such as paintings, works of calligraphy, sculptures and works of architecture;
(8) Photographic works are the kind of artistic works created by recording images on light-sensitive materials with the aid of devices;
(9) Cinematographic, television and videographic works are works which, being recorded on some material, consist of a series of frames of images, with or without accompanying sound, and can be projected with the aid of devices suitable in relation to a specific works;
(10) Drawings of engineering designs and product designs and the accompanying descriptions are drawings made for the purpose of actual construction and manufacturing and descriptive works contained in the said design drawings;
(11) Maps, diagrams and other graphic works refer to two-or three-dimensional works showing geographical phenomenon and demonstrating the fundamental or the structure of a thing or an object, such as geographical maps, plan of electrical circuit or an anatomical drawings.
Article 5
The exploitation referred to in the present Law in relation to works shall mean the doing of the following acts:
(1) Reproduction is the making of if one or more copies of a work by means like printing, photocopying, copying by hand, rubbing, audio-recording, video-recording, re- recording or photographing;
(2) Performance is the public presentation of a work through vocal sound, facial movements and body movements, directly or with the aid of technical devices;
(3) Broadcasting is the communication of works through wireless radio waves and cable television system;
(4) Exhibition is the public display of works of fine art and photography, whether their original copies or reproductions;
(5) Distribution is the provision of copies of a work to the public by means such as sale and rental, in so far as the number of copies satisfy the reasonable need of the public;
(6) Publication is the public distribution of copies of the edited version of a work;
(7) Making of cinematographic, television and video works means the fixation for the first time of a work on some materials by means of cinematographic production or analogous process. This subsection shall not apply to the mere mechanical recording of performance or scenes or material objects;
(8) Adaptation is the creation of new original works on the basis of pre-existing ones by changing their original form of expression or the purposes they are originally designed to serve;
(9) Translation is the conversion of the language of a work into another langu age;
(10) A notation is the explanation of characters, words and sentences used ina
literary work;
(11) Compilation is the creation of a work by assembling a number of selected pre-existing works, in whole or in parts, according to an arrangement designed for a specific purpose;
(12) Sorting-out is the rearrangement of pre-existing works or materials by changing their former state of being fragmented and poorly-ordered into a one of being systematic and orderly, such as the glossing and repairing of ancient classics.
Article 6
As used in the Law, the terms listed below shall mean the following:
(1) News of current events refers to the mere report of facts or happenings conveyed by newspapers, periodicals and radio and television stations;
(2) Sound recordings refers to the original recordation of any sounds;
(3) Video recordings refers to the original recordation of a series of related images, with or without accompanying sounds, other than cinematographic and television and videographic works;
(4) Radio and television broadcasts refer to the programme communicated by radio or television station by means of diffusing signals carrying sound or images or both;
(5) Producer of sound recordings refers to a person who makes sound recordings ;
(6) Producer of video recordings refers to a person who makes video recordings;
(7) Performer refers to persons who perform literary and artistic works professionally or not professionally.
Chapter II Copyright Administrative Authorities
Article 7
The national Copyright Administration, being an administrative department for copyright matters under the State Council, is responsible for the nation-wide work of administration of copyright by mainly carrying out the following functions:
(1) To implement copyright-related laws and regulations and to promulgate rules in relation to copyright administration;
(2) To investigate and redress cases of infringement of copyright that are of nation-wide influence;
(3) To approve the formation of and to supervise the operation of collective administration of copyright, copyright agent business dealing with cross-border transactions and arbitrations scheme for disputes arose
in relation to copyright contracts;
(4) To undertake administration as far as external copyright relation is conce rned;
(5) To administer copyright of which the State is the owner;
(6) To provide guidance for local copyright authorities with their performance
of administrative functions;
(7) To carry out other duties assigned by the State Council in relation to copyright administration.
Article 8
The copyright department under the local governments are responsible for copyright administration within their respective jurisdiction, whose duties shall be determined by the government of each of the provinces, autonomous regions and municipalities directly under the central government.
Chapter III Ownership and Exercise of Copyright
Section 1. Ownership of Copyright
Article 9
Unless the Law provided otherwise, copyright shall belong to citizens who have created works and the legal and non-legal entities who are deemed authors by virtue of the Law.
The conditions laid down by the General Principles of the Civil Law of the People's Republic of China must be satisfied to be a legal entity. Social institutions and economic organizations, by not being able to meet the conditions to be legal entities, and the relatively independent departments forming a legal entity are non-legal entities for the purpose
of the Law.
Article 10
Persons who have glossed or sorted-out pre-existing works shall enjoy the copyright in the works thus created, in so far as they are not entitled to copyright in the works they used and do not have the right to prohibit the glossing or sorting-out done by other person in relation to the same pre-existing work.
Article 11
Where joint authors failed to reach an agreement on the exercise of copyright in a work of joint authorship which can not be used piecemeal, any party may not unreasonably prohibit the exercise by others of the said copyright.
Article 12
In the case of works of compilation, being in the form of encyclopaedias, dictionaries, text books or photo books of large size, as the case may be, copyright in the work as a whole shall belong to legal entities or non-legal entities who have arranged manpower or provided financial aid and material means for their creation and bear the responsibility in relation to the said work.
Article 13
Permission to make necessary alteration shall be implied where the copyright owner has authorized the making cinematographic, television or videographic work based on his or her work, in so far as such alteration does not distort or mutilate the original work.
Article 14
Where copyright in a work created within the fulfillment of duties belongs to the author, the author may ask his institution to permit a third party to use the work in the same manner as the institution might have done. if the institution does not use the work in the course of its business within 2 years after the creation of the work.
Within 2 years after the creation of the work, the author may, with the permission of the institution, permit a third party to use the work in the manner as the institution may have done. Remunerations thus obtained shall be divided between them according to agreed proportion.
Even after the expiry of the said 2 years, the institution may continue with use of the work in the course of its business.
The aforementioned 2 years period after the creation of the work shall be calculated from the date on which the work concerned is submitted to the institution.
Article 15
Material and technical conditions mentioned in paragraph 2 of Article 16 (1) of the Law shall mean fund, equipments or materials provided expressly for the creation of a work.
Article 16
In the case of a work of unknown author, the copyright, except the right of indication of authorship, shall be exercised by the lawful holder of the original copy of the work. With the restoration of authorship, the copyright shall be exercised by the author or his heir in title.
Article 17
Article 18 of the Law, which says that transfer of ownership of the original copy of a work of fine art shall not be deemed as transfer of copyright in the work, is applicable to all works the ownership of original copy of which can be transferred.
Section 2. Inheritance of Copyright
Article 18
Inheritance of economic rights contained in copyright shall be executed in accordance with the Law of Inheritance.
Article 19
In the case where one of the co-authors of a work of joint authorship dies without having heir in title or other beneficiary, the economic rights he enjoyed in relation to his contribution to the work shall be exercised by the other co-authors.
Article 20
Right of indication of authorship, right of revision and right of integrity contained in copyright shall, after the death of the author, be protected by the heir in title and other person to whom the economic rights are granted.
In the absence of heir in title or other beneficiary, right of indication of authorship, right of revision and right of integrity contained in copyright shall be protected by the copyright administrative authority.
Article 21
Copyright enjoyed by the State shall be enforced by the copyright administrative authority on behalf of the State.
Article 22
In the case of posthumous works, the right of disclosure may be exercised by the author's heir in title or other beneficiary for a period of 50 years, unless a prior statement by the author says expressly to the contrary. In the absence of heir in title or other beneficiary, the said right shall be exercised by the lawful holder of the original copy of the work.
Section 3. Coming into existence of copyright and Calculation of the of Protection
Article 23
Copyright protected under this Law shall emerge on the date when a work is created.
Article 24
In the case of a work of unknown author, the term of protection in relation to economic rights shall be 50 years ending on December 31 of the fiftieth year after the first publication of the work. Article 21 of the Law shall be applicable after authorship of the work becomes ascertained.
Article 25
In the case of works by foreign authors that have first published in China , the term of protection shall be calculated from the date of first publication of the work.
The first publication in China mentioned in the paragraph 2 of Article 2 of the Law in relation to works of foreigners refer to the situation where unpublished works of foreigners have been published for the first time in China by lawful means.
Works of foreigners first published outside China shall be deemed first published in China if it is published in China within 30 days after its first publication.
Unpublished works of foreigners shall also be deemed first published in China if their authorized adaptations or translations are first published in China .
Section 4. Limitations on Rights
Article 26
As used in the Law, a published work refers to a work which has been made known to the public by means stipulated in the Law.
Article 27
The following conditions have to be satisfied for an act to be deemed appropriate quotation of published works by act to be deemed appropriate quotation of published works by others mentioned in Article 22 (2) of the Law:
(1) The quotation is made solely for the purpose of introducing or reviewing the source works or making clear a point;
(2) What has been quoted does not form a major or substantial part of the work of the quoter;
(3) The interests of the copyright owner of the work being quoted shall not be prejudiced.
Article 28
Article 22 (3) of the Law refers to unavoidable inclusion of published works as is justified by the purpose of reporting current events.
Article 29
Making use of published works of other persons by virtue of Article 22 (6) and (7) shall not harm the normal exploitation of the works concerned and shall not unreasonably prejudice the legitimate interests of the copyright owners.
Article 30
In the case of performance of published works as is permitted by Article 22 (9) of the Law, no fees shall be charged on viewing or hearing audience and no remuneration shall be paid to the performers.
Article 31
Article 22 (11) of the Law shall be applicable only to works originally created in Chinese.
Chapter IV Copyright Licencing Contracts
Article 32
It is a requirement that contracts with copyright owners and licence obtained for using their works be made in writing, except the cases where works are to be published by newspaper and periodicals.
Article 33
In default of a clear indication in a contract in relation to the grant of exclusive right to use, only non-exclusive right to use by the licensee shall be implied, unless the Law stipulated otherwise.
Article 34
The provision of standard forms of various copyright licencing contracts shall be the responsibility of the National Copyright Administration.
Article 35
The person who has obtained exclusive right in relation to the use in a certain way of a work shall have the right to prevent any other person including the copyright owner as licensor from using the work in the same way. However, the sublicencing of the same right to a third party shall be subject to permission by the copyright owner, unless the contracting parties agreed otherwise.
Chapter V Exercise of and Limitations on Rights Related to Copy- right
Article 36
As is used in the Law and the Regulation, rights related to copyright mean the right enjoyed by publishers in their publications, the right enjoying by performers in their performances, the right enjoyed by producers of audio and video recordings in their products and the right enjoyed by radio and television stations in their broadcasts.
Article 37
Publishers, performers, producers of audio and video recordings and radio and television stations, in the course of exercising their rights, shall not prejudice copyrights their owners enjoyed in the works being used.
Article 38
Publishers shall enjoy exclusive right of exploitation in typographical design of the books, newspapers and periodicals they have published.
Article 39
By virtue of Article 30 of the Law, legal protection shall be available for the exclusive right a publisher obtained to publish, within the term of validity of and the territory of execution defined by the contract, a work in its original language and in the form of original edition, revised version or condensed version.
Article 40
In the case where manuscripts was submitted to a publisher on the author's own initiative, the publisher shall, within 6 months, notify the author whether he will publish the work or not. In the case of acceptance, a contract shall be made; in the case of refusal, notification shall be sent to the author in a timely manner. In the case where no notification is served and no contract is made, the author may, upon expiry of the said 6 months, demand that the manuscripts be returned and economic compensation be made. The said 6 months shall be calculated from the date of receipt by the publisher of the manuscripts.
Article 41
Articles 29, 30, 31 and 33 of the Law shall not be applicable to the case where the cost of publication of a work is born by the author.
Article 42
The state of being out of print in relation to a work mentioned in Article 31 of the Law shall be established if a period of 6 months after two subscription forms were mailed by the author to the publisher expires without action being taken to satisfy the subscription.
Article 43
To object to the reprinting of his or her work in whole or in part by virtue of paragraph 2 of Article 32 of the Law, the copyright owner is required to make a statement to that effect at the same time when the work is first published in a newspaper or a periodical.
Article 44
No time limit shall be set on the term of protection in relation to the rights provided for in Article 36 (1) and (2) of the Law.
In the case of the term of protection in relation to the right of remuneration the performers enjoyed by virtue of paragraph 2 of Article 39 and paragraph 3 of Article 42 of the Law, paragraph 1 of Article 39 and paragraph 2 of Article 42 of the Law shall apply.
Article 45
With reference to Article 35 of the Law, payment of remuneration by performers to copyright owner shall be done through the person who has organized the performance in question.
Article 46
Performance by foreign performers taking place in China shall be protected by the Law.
Article 47
Audio and video recordings produced and distributed in China by foreign producers shall be protected by the Law.
Article 48
To object to the performance, recording or making broadcasts of his or her work by virtue of paragraph 2 of Article 35, paragraph 1 of Article 37 and paragraph 2 of Article 40 of the Law, the copyright owner is required to make a statement to that effect at the same time when his or her work is published, or have the statement carried in copyright bulletin issued by the National Copyright Administration.
Article 49
To use published works of other persons by virtue of paragraph 2 of Article 32, paragraph 2 of Article 35, paragraph 1 of Article 37 and paragraph 2 of Article 40 of the Law, the user is required to pay remuneration to the copyright owner. In the case where the copyright owner is not identifiable or the address of the copyright owner is not available, the remuneration payable shall be remitted to the body designated by the National Copyright Administration for further transfer to the due copyright owner within 1 month.
Chapter VI Administrative Sanctions
Article 50
Infringements against copyright enumerated in Article 46 of the Law shall be liable to the administrative sanctions to be imposed by copyright administrative authority in the form of public warning, injunction in relation to the production and distribution of infringing copies, confiscation of unlawful gains and seizure of infringing copies and equipments used for making infringing copies, as well as fine.
Article 51
The amount of the fine to be imposed for infringements against copyright enumerated in Article 46 of the Law shall be the following, depending on situation of each of the cases:
(1) Infringing act given by Article 46 (1) of the Law shall be liable to a fine of from 100 to 5000 yuan in RMB;
(2) Infringing acts given by Article 46 (2), (3), (4), (5), and (6) of the Law shall be liable to a fine of 10000 to 100000 yuan in RMB, or an amount of 2 to 5 times as much as the entire price of the infringing copies;
(3) Infringing act given by Article 46 (7) of the Law shall be liable to a fine of from 1000 to 50000 yuan in RMB
Article 52
Copyright administrative authorities under the local governments shall be empowered to redress the infringements against copyright enumerated in Article 46 of the Law.
The National Copyright Administration shall investigate and redress the following infringements against copyright:
(1) Infringements against copyright that are of nationwide influence;
(2) Infringements against copyright where a foreign party is involved;
(3) Infringements against copyright that should be redressed by the National Copyright Administration, as the Administration might think.
Article 53
In exercising its right of imposing administrative sanctions, copyright administrative authority may order the infringer to compensate the loss the infringed party suffered.
Chapter VII Supplementary Provisions
Article 54
Copyright owners may exercise their copyrights by way of collective administration.
Article 55
The interpretation of this Regulation shall be the responsibility of the National Copyright Administration.
Article 56
This Implementing Regulation shall enter in force on June 1, 1991
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