Articles in Patent Law of China
Article 2 In this Law, "inventions-creations" mean inventions, utility models and designs.
"Invention" means any new technical solution relating to a product, a process or improvement thereof.
"Utility model" means any new technical solution relating to the shape, the structure, or their combination, of a product, which is fit for practical use.
"Design" means any new design of the shape, the pattern, or their combination, or the combination of the color with shape or pattern, of a product, which creates an aesthetic feeling and is fit for industrial application.
Article 5 No patent right shall be granted for any invention-creation that is contrary to the laws or social morality or that is detrimental to public interest.
No patent right shall be granted for any invention-creation where acquisition or use of the genetic resources, on which the development of the invention-creation relies, is not consistent with the provisions of the laws or administrative regulations.
Article 9 For any identical invention-creation, only one patent right shall be granted. Where an applicant files on the same day applications for both patent for utility model and patent for invention relating to the identical invention-creation, and the applicant declares to abandon the patent for utility model which has been granted and does not terminate, the patent for invention may be granted.
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 22 Any invention or utility model for which patent right may be granted must possess novelty, inventiveness and practical applicability.
Novelty means that, the invention or utility model does not form part of the prior art; nor has any entity or individual filed previously before the date of filing with the patent administration department under the State Council an application relating to the identical invention or utility model disclosed in patent application documents published or patent documents announced after the said date of filing.
Inventiveness means that, as compared with the prior art, 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.
The prior art referred to in this Law means any technology known to the public before the date of filing in China or abroad.
Article 25 For any of the following, no patent right shall be granted:
(1) scientific discoveries;
(2) rules and methods for mental activities;
(3) methods for the diagnosis or for the treatment of diseases;
(4) animal and plant varieties;
(5) nuclear transformation methods and substances obtained by means of nuclear transformation;
(6) designs of two-dimensional printing goods, made of the pattern, the colour or the combination of the two, which serve mainly as indicators.
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.
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, 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 define the extent of the patent protection sought for in a clear and concise manner.
Where an invention-creation is developed relying on the genetic resources, the applicant shall indicate, in the application documents, the direct and original source of such genetic resources; where the applicant fails to indicate the original source, he or it shall state the reasons thereof.
Article 31 An application for a patent for invention or utility model shall be limited to one invention or utility model. Two or more inventions or utility models belonging to a single general inventive concept may be filed as one application.
An application for a patent for design shall be limited to one design. Two or more similar designs for the same product or two or more designs which are incorporated in products belonging to the same class and sold or used in sets may be filed as one application.
Article 33 An applicant may amend his or its application for a patent, but the amendment to the application for a patent for invention or utility model may not go beyond the scope of 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.
Article 41 Where an applicant for patent is not satisfied with the decision of the said department rejecting the application, the applicant may, within three months from the date of receipt of the notification, request the patent administration department under the State Council to make a reexamination. The patent administration department under the State Council shall, after reexamination, make a decision and notify the applicant for patent.
Where the applicant for patent is not satisfied with the decision of the patent administration department under the State Council, it or he may, within three months from the date of receipt of the notification, institute legal proceedings in the people's court.
Rules in the Implementing Regulations of the Patent Law
Rule 20: The description of an application for a patent for invention or a patent for utility model shall state the title of the invention or utility model, which shall be the same as it appears in the request. The description shall include the following:
(1) technical field: specifying the technical field to which the technical solution for which protection is sought pertains;
(2) background art: indicating the background art which can be regarded as useful for the understanding, searching and examination of the invention or utility model, and when possible, citing the documents reflecting such art;
(3) contents of the invention: disclosing the technical problem the invention or utility model aims to settle and the technical solution adopted to resolve the problem; and stating, with reference to the prior art, the advantageous effects of the invention or utility model;
(4) description of figures: briefly describing each figure in the drawings, if any;
(5) mode of carrying out the invention or utility model: describing in detail the optimally selected mode contemplated by the applicant for carrying out the invention or utility model; where appropriate, this shall be done in terms of examples, and with reference to the drawings, if any.
The manner and order referred to in the preceding paragraph shall be followed by the applicant for a patent for invention or a patent for utility model, and each of the parts shall be preceded by a heading, unless, because of the nature of the invention or utility model, a different manner or order would result in a better understanding and a more economical presentation.
The description of the invention or utility model shall use standard terms and be in clear wording, and shall not contain such references to the claims as : "as described in claim…", nor shall it contain commercial advertising.
Where an application for a patent for invention contains disclosure of one or more nucleotide and/or amino acid sequences, the description shall contain a sequence listing in compliance with the standard prescribed by the patent administration department under the State Council.
The description of a patent application of utility model shall contain a drawing of the shape, structure or a combination thereof of the product requiring protection.
Rule 21 The figures of drawings of the invention or utility model shall be numbered and arranged in numerical order consecutively as "Figure 1, Figure 2, ... ".
Reference signs not mentioned in the text of the description of the invention or utility model shall not appear in the drawings. Reference signs not mentioned in the drawings shall not appear in the text of the description. Reference signs for the same composite part shall be used consistently throughout the application document.
The drawings shall not contain any other explanatory notes, except words which are indispensable.
Rule 22 The claims shall specify the technical features of the invention or utility model.
If there are several claims, they shall be numbered consecutively in Arabic numerals.
The scientific and technical terms used in the claims shall be consistent with that used in the description. The claims may contain chemical or mathematical formulae 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 claims, make reference to the corresponding reference signs in the drawings. Such reference signs shall follow the corresponding technical features and be placed in parentheses. The reference signs shall not be construed as limiting the claims.
Rule 23 The claims shall have an independent claim, and may also contain dependent claims.
The independent claim shall outline the technical solution of an invention or utility model and state the essential technical features necessary for the solution of its technical problem.
The dependent claim shall, by additional technical features, further define the claim which it refers to.
Rule 24 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 technical solution of the invention or utility model, and those technical features which are necessary for the definition of the claimed subject matter but which, in combination, are part of the most related 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 most related prior art. Those features, in combination with the features stated in the preamble portion, serve to define the extent of protection of the invention or utility model.
Where the manner specified in the preceding paragraphs is not appropriate to be followed because of the nature of the invention or utility model, an independent claim may be presented in a different manner.
An 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 25 Any dependent claim of an invention or utility model shall contain a reference portion and a characterizing portion, and be presented in the following manner:
(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.
Any dependent claim shall only refer to the preceding claim or claims. Any multiple dependent claims, which refers to two or more claims, shall refer to the preceding claims in the alternative only, and shall not serve as a basis for any other multiple dependent claims.
Rule 26 The abstract shall consist of a summary of the disclosure as contained in the application for patent for invention or utility model. The summary shall indicate the title of the invention or utility model, and the technical field to which the invention or utility model pertains, and shall be drafted in a way which allows the clear understanding of the technical problem, the gist of the technical solution of that problem, and the principal 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 designate in the request a drawing from the description that best illustrates the technical features of the invention or utility model as the abstract drawing. There shall be no commercial advertising in the abstract.
Rule 49 A divisional application filed in accordance with the provisions of Rule 48 of these Implementing Regulations shall be entitled to the filing date and, if priority is 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 go through all the formalities 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 the divisional application.
Rule 57 At the time when a request for examination as to substance is made, and when, within the time limit of three months after the receipt of the notification of the patent administration department under the State Council on the entry into examination as to substance of the application, the applicant for a patent for invention may amend the application for a patent for invention on his or its own initiative.
Within two 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.
Where the applicant amends the application after receiving the notification of opinions of the examination as to substance of the patent administration department under the State Council, he or it shall make the amendment directed to the defects pointed out by the notification.
The patent administration department under the State Council may, on its own initiative, correct the obvious clerical mistakes and symbol mistakes in the documents of application for a patent. Where the patent administration department under the State Council corrects mistakes on its own initiative, it shall notify the applicant.
