1.Patent Law of the People's Republic of China
(2000 Revision)

Chapter I
General Provisions

Article 1． This Law is enacted to protect patent rights for inventions-creations，to encourage invention-creation，to foster the spreading and application of inventions-creations，and to promote the development and innovation 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．

Article3． The Patent Administration Department Under the State Council is responsible for the patent work throughout the country. It receives and examines patent applications and grants patent rights for inventions-creations in accordance with law.
The administrative authority for patent affairs under the people's governments of provinces, autonomous regions and municipalities directly under the Central Government are responsible for the administrative work concerning patents in their respective administrative areas.

Article 4． Where an invention-creation for which a patent is applied for relates to the security or other vital interests of the State and is required to be kept secret, the application shall be treated in accordance with the relevant prescriptions of the State．

Articles 5． No patent right shall be granted for any invention-creation that is contrary to the laws of the State or social morality or that is detrimental to public interest．

Article 6． An invention-creation, made by a person in execution of the tasks of the entity to which he belongs, or made by him mainly by using the material and technical means of the entity is a service invention-creation. For a service intention-creation, the right to apply for a patent belongs to the entity. After the application is approved, the entity shall be the patentee.
For a non-service invention-creation, the right to apply for a patent belongs to the inventor or creator. After the application is approved, the inventor or creator shall be the patentee.
In respect of an invention-creation made by a person using the material and technical means of an entity to which he belongs, where the entity and the inventor or creator have entered into a contract in which the right to apply for and own a patent is provided for, such a provision shall apply.

Article 7. No entity or individual shall prevent the inventor or creator from filing an application for a patent for a non-service invention-creation.

Article 8. For an invention-creation jointly made by two or more entities or individuals, or made by an entity or individual in execution of a commission given to it or him by another entity or individual, the right to apply for a patent belongs, unless otherwise agreed upon, to the entity or individual that made, or to the entities or individuals that jointly made, the invention-creation. After the application is approved, the entity or individual that applied for it shall be the patentee.

Article 9. Where two or more applicants file applications for patent for the identical invention-creation, the patent right shall be granted to the applicant whose application was filed first.

Article 10. The right to apply for a patent and the patent right may be assigned.
Any assignment, by a Chinese entity or individual, of the right to apply for a patent, or of the patent right, to a foreigner must be approved by the competent department concerned of the State Council.
Where the right to apply for a patent or the patent right is assigned, the parties shall conclude a written contract and register it with the Patent Administration Department Under the State Council. The Patent Administration Department Under the State Council shall announce the registration. The assignment shall take effect as of the date of registration.

Article 11. After the grant of the patent right for an invention or utility model, except where otherwise provided for in this Law, no entity or individual may, without the authorization of the patentee, exploit the patent, that is, make, use, offer to sell, sell or import the patented product; or use the patented process, and use, offer to sell, sell or import the product directly obtained by the patented process, for production or business purposes.
After the grant of the patent right for a design, no entity or individual may, without the authorization of the patentee, exploit the patent, that is, make, sell or import the product incorporating its or his patented design, for production or business purposes.

Article 12. Any entity or individua1 exploiting the patent of another shall 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. Where any patent for invention, belonging to any state-owned enterprises or institution, is of great significance to the interest of the State or to the public interest, the competent departments concerned under the State Council and the people's governments of provinces, autonomous regions or municipa1ities directly under the Central Government may, after approval by the State Council, decide that the patented invention be spread and applied within the approved limits, and allow designated entities to exploit that invention. The exploiting entity shall, according to the regulations of the State, pay a fee for exploitation to the patentee.
Any patent for invention belonging to a Chinese individual or an entity under collective ownership, which is of great significance to the interest of the State or to the public interest and is in need of spreading and application, may be treated alike by making reference to the provisions of the preceding paragraph.

Article l5. The patentee has the right to affix a patent marking and to indicate the number of the patent on the patented product or on the packing of that product.

Article 16. The entity that is granted a 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 pay the inventor or creator a reasonable remuneration based on the extent of spreading and application and the economic benefits yielded.

Article l7. 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 l9. 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, it or he shall appoint a patent agency designated by the Patent Administrative Department Under the State Council to act as his or its agent.
Where any Chinese entity or individual applies for a patent or has other patent matters to attend to in the country, it or he may appoint a patent agency to act as its or his agent.
The patent agency shall comply with the provisions of laws and administrative regulations and handle patent applications and other patent matters according to the instructions of its clients. In respect of the contents of its clients’ inventions-creations, except for those that have been published or announced, the agency shall bear the responsibility of keeping them confidential. The administrative regulations governing the patent agency shall be formulated by the State Council.

Article 20. Where any Chinese entity or individual intends to file an application in a foreign country for a patent for invention-creation made in China, it or he shall file first an application for patent with the Patent Administration Department Under the State Council, appoint a patent agency designated by the said department to act as its or his agent, and comply with, the provisions of Article 4 of this Law.
Any Chinese entity or individual may file an international application for patent in accordance with any international treaty concerned to which China is party. The applicant filing an international application for patent shall comply with the provisions of the preceding paragraph.
The Patent Administration Department Under the State Council shall handle any international application for patent in accordance with the international treaty concerned to which China is party, this Law and the relevant regulations of the State Council.

Article 21. The Patent Administration Department Under the State Council and its Patent Reexamination Board shall handle any patent application and patent-related request according to law and in conformity with the requirements for being objective, fair, correct and timely.
Until the publication or announcement of the application for a patent, staff members of the Patent Administration Department Under the State Council and other persons involved have the duty to keep its contents 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 app1icability.
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 Administration Department Under the State Council an application which described the identical invention or utility mode1 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 and simi1ar to any design which, before the date of filing, has been publicly disclosed in publications in the country or abroad or has been publicly used in the country, and must not be in conflict with any prior right of any other person.

Article 24. An invention-creation for which a patent is applied for does not lose its novelty where, within six months before the date of filing, one of the following events occurred:
(l) 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 disc1osed by any person without the consent of the applicant.

Article 25. For any of the following, no patent right shall be granted:
(1) scientific discoveries;
(2) rules and methods for mental activities;
(3) methods for the diagnosis or for the treatment of diseases;
(4) animal and plant varieties;
(5) substances obtained by means of nuclear transformation.
For processes used in producing products referred to in items (4) of the preceding paragraph, patent right may be granted in accordance with the provisions of this Law.

CHAPTER III
APPLICATION FOR PATENT

Article 26. Where an application for a patent for invention or utility model is filed, a request, a description and its abstract, and claims shall be submitted.
The request shall state the title of the invention or utility model, the name of the inventor or creator, the name and the address of the applicant and other related matters.
The description shall set forth the invention or utility model in a manner sufficiently clear and complete so as to enable a person ski11ed in the re1evant field of techno1ogy 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 app1ication 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 be1ongs shall be indicated.

Article 28. The date on which the Patent Administration Department Under the State Council receives the app1ication shall be the date of filing. If the app1ication is sent by mai1, the date of mailing indicated by the postmark shall be the date of filing.

Article 29. Where , within twelve months from the date on which any applicant first filed in a foreign country an application for a patent for invention or utility model, or within six months from the date on which any applicant first filed in a foreign country an application for a patent for design, he or it files in China an application for a patent for the same subject matter, he or it may, in accordance with any agreement concluded between the said foreign country and China, or in accordance with any international treaty to which both countries are party, or on the basis of the principle of mutual recognition of the right of priority, enjoy a right of priority.
Where, within twelve months from the date on which any applicant first filed in China an application for a patent for invention or utility model, he or it files with the Patent Administration Department Under the State Council an application for a patent for the same subject matter, he or it may enjoy a right of priority.

Article 30. Any applicant who claims the right of priority shall make a written declaration when the application is filed, and submit, within three months, a copy of the patent application document which was first filed; if the applicant fails to make the written declaration or to meet the time limit for submitting the patent application document, the claim to the right of priority shall be deemed not to have been made.

Article 3l. An application for a patent for invention or utility model shall be limited to one invention or uti1ity mode1. Two or more inventions or utility mode1s belonging to a single genera1 inventive concept may be filed as one application.
An app1ication for a patent for design shall be limited to one design incorporated in one product. Two or more designs which are incorporated in products belonging to the same c1ass and are sold or used in sets may be filed as one application.

Article 32. An applicant may withdraw his or its application for a patent at any time before the patent right is granted.

Article 33. An applicant may amend his or its application for a patent, but the amendment to the application for a patent for invention or utility model may not go beyond the scope of the disclosure contained in the initial description and claims, and the amendment to the application for a patent for design may not go beyond the scope of the disclosure as shown in the initial drawings or photographs.

CHAPTER IV
EXAMINATION AND APPROVAL
OF APPLICATION FOR PATENT

Article 34. Where, after receiving an application for a patent for invention, the Patent Administration Department Under the State Council, upon preliminary examination, finds the application to be in conformity with the requirements of this Law, it shall publish the application promptly after the expiration of eighteen months from the date of filing. Upon the request of the applicant, the Patent Administration Department Under the State Council publishes the application earlier.

Article 35. Upon the request of the applicant for a patent for invention, made at any time within three years from the date of filing, the Patent Administration Department Under the State Council will proceed to examine the application as to its substance. If, without any justified reason, the applicant fails to meet the time limit for requesting examination as to substance, the application shall be deemed to have been withdrawn.
The Patent Administration Department Under the State Council may, on its own initiative, proceed to examine any application for a patent for invention as to its substance when it deems it necessary.

Article 36. When the applicant for a patent for invention requests examination as to substance, he or it shall furnish pre-filing date reference materials concerning the invention.
For an application for a patent for invention that has been already filed in a foreign country, the Patent Administration Department Under the State Council may ask the app1icant to furnish within a specified time limit documents concerning any search made for the purpose of examining that application, or concerning the results of any examination made, in that country. If, at the expiration of the specified time limit, without any justified reason, the said documents are not furnished, the application shall be deemed to have been withdrawn.

Article 37. Where the Patent Administration Department Under the State Council, after it has made the examination as to substance of the application for a patent for invention, finds that the application is not in conformity with the provisions of this Law, it shall notify the applicant and request him or it to submit, within a specified time limit, his or its observations or to amend the application. If, without any justified reason, the time limit for making response is not met, the application shall be deemed to have been withdrawn.

Article 38. Where, after the applicant has made the observations or amendments, the Patent Administration Department Under the State Council finds that the application for a patent for invention is still not in conformity with the provisions of this Law, the application shall be rejected.

Article 39. Where it is found after examination as to substance that there is no cause for rejection of the application for a patent for invention, the Patent Administration Department Under the State Council shall make a decision to grant the patent right for invention, issue the certificate of patent for invention, and register and announce it. The patent right for invention shall take effect as of the date of the announcement.

Article 40. Where it is found after preliminary examination that there is no cause for rejection of the application for a patent for utility model or design, the Patent Administration Department Under the State Council shall make a decision to grant the patent right for utility model or the patent right for design, issue the relevant patent certificate, and register and announce it. The patent right for utility model or design shall take effect as of the date of the announcement.

Article 41. The Patent Administration Department Under the State Council shall set up a Patent Reexamination Board. 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 Reexamination Board to make a reexamination. The Patent Reexamination Board shall, after reexamination, make a decision and notify the applicant for patent.
Where the applicant for patent is not satisfied with the decision of the Patent Reexamination Board, it or he may, within three months from the date of receipt of the notification, institute legal proceedings in the people’s court.

CHAPTER V
DURATION, CESSATION AND
INVALIDATION OF PATENT RIGHT

Article 42. The duration of patent right for inventions shall be twenty years, the duration of patent right for utility models and patent right for designs shall be ten years, counted from the date of filing.

Article 43. The patentee shall pay an annual fee beginning with the year in which the patent right was granted.

Article 44. In any of the following cases, the patent right shall cease before the expiration of its duration:
(1) where an annual fee is not paid as prescribed;
(2) where the patentee abandons his or its patent right by a written declaration.
Any cessation of the patent right shall be registered and announced by the Patent Administration Department Under the State Council.

Article 45. Where, starting from the date of the announcement of the grant of the patent right by the Patent Administration Department Under the State Council, any entity or individual considers that the grant of the said patent right is not in conformity with the relevant provisions of this Law, it or he may request the Patent Reexamination Board to declare the patent right invalid.

Article 46. The Patent Reexamination Board shall examine the request for invalidation of the patent right promptly, make a decision on it 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 Administration Department Under the State Council.
Where the patentee or the person who made the request for invalidation is not satisfied with the decision of the Patent Reexamination Board declaring the patent right invalid or upholding the patent right, such party may, within three months from receipt of the notification of the decision, institute legal proceedings in the people's court. The people's court shall notify the person that is the opponent party of that party in the invalidation procedure to appear as a third party in the legal proceedings.

Article 47. Any patent right which has been declared invalid shall be deemed to be non-existent from the beginning.
The decision declaring the patent right invalid shall have no retroactive effect on any judgement or ruling of patent infringement which has been pronounced and enforced by the people’s court, on any decision concerning the handling of a dispute over patent infringement which has been complied with or compulsorily executed, or on any contract of patent license or of assignment of patent right which has been performed, prior to the declaration of the patent right invalid; however, the damage 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, the patentee or the assignor of the patent right makes no repayment to the licensee or the assignee of the patent right of the fee for the exploitation of the patent or of the price for the assignment of the patent right, which 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 of the price for the assignment of the patent right to the licensee or the assignee of the patent right.

CHAPTER VI
COMPULSORY LICENSE FOR
EXPLOITATION OF THE PATENT

Article 48. Where any entity which is qualified to exploit the invention or utility model has made requests for authorization from the patentee of an invention or utility model to exploit its or his patent on reasonable terms and conditions and such efforts have not been successful within a reasonable period of time, the Patent Administration Department Under the State Council may, upon the request of that entity, grant a compulsory license to exploit the patent for invention or utility model.

Article 49. Where a national emergency or any extraordinary state of affairs occurs, or where the public interest so requires, the Patent Administration Department Under the State Council may grant a compulsory license to exploit the patent for invention or utility model.

Article 50. Where the invention or utility model for which the patent right has been granted involves important technical advance of considerable economic significance in relation to 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 Administration Department Under the State Council may, upon the request of the later patentee, grant a compulsory license to exploit the earlier invention or utility model.
Where, according to the preceding paragraph, a compulsory license is granted, the Patent Administration Department Under the State Council may, upon the request of the earlier patentee, also grant a compulsory license to exploit the later invention or utility model.

Article 51. The entity or individual requesting, in accordance with the provisions of this Law, a compulsory license for exploitation shall furnish proof that it or he has not been able to conclude with the patentee a license contract for exploitation on reasonable terms and conditions.

Article 52. The decision made by the Patent Administration Department Under the State Council granting a compulsory license for exploitation shall be notified promptly to the patentee concerned, and shall be registered and announced.
In the decision granting the compulsory license for exploitation, the scope and duration of the exploitation shall be specified on the basis of the reasons justifying the grant. If and when the circumstances which led to such compulsory license cease to exist and are unlikely to recur, the Patent Administration Department Under the State Council may, after review upon the request of the patentee, terminate the compulsory license.

Article 53. Any entity or individual that is granted a compulsory license for exploitation shall not have an exclusive right to exploit and shall not have the right to authorize exploitation by any others.

Article 54. The entity or individual that is granted a compulsory license for exploitation shall pay to the patentee a reasonable exploitation fee, the amount of which shall be fixed by both parties in consultations. Where the parties fail to reach an agreement, the Patent Administration Department Under the State Council shall adjudicate.

Article 55. Where the patentee is not satisfied with the decision of the Patent Administration Department Under the State Council granting a compulsory license for exploitation, or where the patentee or the entity or individual that is granted the compulsory license for exploitation is not satisfied with the ruling made by the Patent Administration Department Under the State Council regarding the fee payable for exploitation, it or he may, within three months from the receipt of the date of notification, institute legal proceedings in the people's court.

CHAPTER VII
PROTECTION OF PATENT RIGHT

Article 56. The extent of protection of the patent right for invention or utility model shall be determined by the terms of the claims. The description and the appended drawings may be used to interpret the claims.
The extent of protection of the patent right for design shall be determined by the product incorporating the patented design as shown in the drawings or photographs.

Article 57. Where a dispute arises as a result of the exploitation of a patent without the authorization of the patentee, that is, the infringement of the patent right of the patentee, it shall be settled through consultation by the parties. Where the parties are not willing to consult with each other or where the consultation fails, the patentee or any interested party may institute 1egal proceedings in the people's court, or request the administrative authority for patent affairs to hand1e the matter. When the administrative authority for patent affairs handling the matter considers that the infringement is established, it may order the infringer to stop the infringing act immediately. If the infringer is not satisfied with the order, he may, within 15 days from the date of receipt of the notification of the order, institutes legal proceedings in the people's court in accordance with the Administrative Procedure Law of the People's Republic of China. If, within the said time limit, such proceedings are not instituted and the order is not complied with, the administrative authority for patent affairs may approach the peop1e's court for compulsory execution. The said authority handling the matter may, upon the request of the parties, mediate in the amount of compensation for the damage caused by the infringement of the patent right. If the mediation fails, the parties may institute legal proceedings in the people's court in accordance with the Civil Procedure Law of the People's Republic of China.
When any infringement dispute relates to a patent for invention for a process for the manufacture of a new product, any entity or individual manufacturing the identical product shall furnish proof to show that the process used in the manufacture of its or his product is different from the patented process. Where the infringement relates to a patent for utility model, the people's court or the administrative authority for patent affairs may ask the patentee to furnish a search report made by the Patent Administration Department Under the State Council.

Article 58. Where any person passes off the patent of another person as his own, he shall, in addition to bearing his civil liability according to law, be ordered by the administrative authority for patent affairs to amend his act, and the order shall be announced. His illegal earnings shall be confiscated and, in addition, he may be imposed a fine of not more than three times his illegal earnings and, if there is no illegal earnings, a fine of not more than RMB 50 000 yuan. Where the infringement constitutes a crime, he shall be prosecuted for his criminal liability.

Article 59. Where any person passes any non-patented product off as patented product or passes any non-patented process off as patented process, he shall be ordered by the administrative authority for patent affairs to amend his act, and the order shall be announced, and he may be imposed a fine of not no more than RMB 50 000 yuan.

Article 60. The amount of compensation for the damage caused by the infringement of the patent right shall be assessed on the basis of the losses suffered by the patentee or the profits which the infringer has earned through the infringement. If it is difficult to determine the losses which the patentee has suffered or the profits which the infringer has earned, the amount may be assessed by reference to the appropriate multiple of the amount of the exploitation fee of that patent under contractual license.

Article 61. Where any patentee or interested party has evidence to prove that another person is infringing or will soon infringe its or his patent right and that if such infringing act is not checked or prevented from occurring in time, it is likely to cause irreparable harm to it or him, it or he may, before any legal proceedings are instituted, request the people’s court to adopt measures for ordering the suspension of relevant acts and the preservation of property.
The people's court, when dealing with the request mentioned in the preceding paragraph, shall apply the provisions of Article 93 through Article 96 and of Article 99 of the Civil Procedure Law of the People's Republic of China.

Article 62. Prescription for instituting legal proceedings concerning the infringement of patent right is two years counted from the date on which the patentee or any interested party obtains or should have obtained knowledge of the infringing act.
Where no appropriate fee for exploitation of the invention, subject of an application for patent for invention, is paid during the period from the publication of the application to the grant of patent right, prescription for instituting legal proceedings by the patentee to demand the said fee is two years counted from the date on which the patentee obtains or should have obtained knowledge of the exploitation of his invention by another person. However, where the patentee has already obtained or should have obtained knowledge before the date of the grant of the patent right, the prescription shall be counted from the date of the grant.

Article 63. None of the following shall be deemed an infringement of the patent right:
(l) Where, after the sale of a patented product that was made or imported by the patentee or with the authorization of the patentee, or of a product that was directly obtained by using the patented process, any other person uses, offers to sell or sells that product;
(2) Where, before the date of filing of the application for patent, any person who has already made the identical product, used the identical process, or made necessary preparations for its making or using, continues to make or use it within the original scope only;
(3) Where any foreign means of transport which temporarily passes through the 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;
(4) Where any person uses the patent concerned solely for the purposes of scientific research and experimentation.
Any person who, for production and business purposes, uses or sells a patented product or a product that was directly obtained by using a patented process, without knowing that it was made and sold without the authorization of the patentee, shall not be liable to compensate for the damage of the patentee if he can prove that he obtains the product from a legitimate source.

Article 64. Where any person, in violation of the provisions of Article 20 of this Law, 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. Where a crime is established, the person concerned shall be prosecuted for his criminal liability according to the law.

Article 65. Where any person usurps the right of an inventor or creator to apply for a patent for a non-service invention-creation, or usurps any other right or interest of an inventor or creator, prescribed by this Law, he shall be subject to disciplinary sanction by the entity to which he belongs or by the competent authority at the higher level.

Article 66. The administrative authority for patent affairs may not take part in recommending any patented product for sale to the public or any such commercial activities.
Where the administrative authority for patent affairs violates the provisions of the preceding paragraph, it shall be ordered by the authority at the next higher level or the supervisory authority to correct its mistakes and eliminate the bad effects. The illegal earnings, if any, shall be confiscated. Where the circumstances are serious, the persons who are directly in charge and the other persons who are directly responsible shall be given disciplinary sanction in accordance with law.

Article 67. Where any State functionary working for patent administration or any other State functionary concerned neglects his duty, abuses his power, or engages in malpractice for personal gain, which constitutes a crime, shall be prosecuted for his criminal liability in accordance with law. If the case is not serious enough to constitute a crime, he shall be given disciplinary sanction in accordance with law.

CHAPTER VIII
SUPPLEMENTARY PROVISIONS

Article 68. Any application for a patent filed with, and any other proceedings before, the Patent Administration Department Under the State Council shall be subject to the payment of a fee as prescribed.

Article 69. This Law shall enter into force on April l, 1985.

2.Implementing Regulations of the Patent Law of the People's Republic of China
(2000 Revision)

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, or their combination and the combination of color and shape or design, 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 or in any other form prescribed by the Patent Administrative Organ under the State Council.

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 language, and where the Patent Administrative Organ under the State Council finds it necessary, it may request for 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 Administrative Organ under the State Council, 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 Administrative Organ under the State Council receives the document shall be the date of filing, except where the date of mailing is proved by the addresser.
Any document of the Patent Administrative Organ under the State Council may be served by mail, by personal delivery or by any other means. 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 indicated in the request.
For any document sent by mail by the Patent Administrative Organ under the State Council, 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 Administrative Organ under the State Council, the date of delivery is the date on which the addressee receives the document.
Where the address of a document is not clear and 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 following that official holiday.

Rule 7. Where a time limit prescribed in the Patent Law or these Implementing Regulations or specified by the Patent Administrative Organ under the State Council is not observed because of force majeure, resulting in 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 Administrative Organ under the State Council to restore his or its rights.
Where a time limit prescribed in the Patent Law or these Implementing Regulations or specified by the Patent Administrative Organ under the State Council is not observed because of any justified reason, resulting in 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 Administrative Organ under the State Council, state the reasons and request the Patent Administrative Organ under the State Council to restore his or its rights.
Where the party concerned makes a request for an extension of a time limit specified by the Patent Administrative Organ under the State Council, he or it shall, before the time limit expires, state the reasons to the Patent Administrative Organ under the State Council 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, 42, and 62 of the Patent Law.

Rule 8. Where an application for patent for invention relates to the security of the State concerning national defence and is required to be kept secret, the application shall be filed with the patent organization of the national defence system. Where any application for patent for invention relating to the secrets of the State concerning national defense and requiring to be kept classified is received by the Patent Administrative Organ under the State Council, the Patent Administrative Organ under the State Council shall transfer the application to the said patent organisation of the national defence system. The Patent Administrative Organ under the State Council shall make a decision on the basis of the observations of the examination of the application presented by the said patent organisation of the national defence system.
Subject to the preceding paragraph, the Patent Administrative Organ under the State Council, 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 Administrative Organ under the State Council. Where the invention for which a patent is applied for is required to be kept secret, the Patent Administrative Organ under the State Council shall handle it as an application for secret patent and notify the applicant accordingly.

Rule 9. The invention-creations contrary to the laws of the State referred to in Article 5 of the Patent Law do not include invention-creations the exploitation of which is prohibited under the laws of the State.

Rule 10. The date of filing referred to in the Patent Law, except that mentioned in Articles 28 and 42, means the priority date where a right of priority is claimed.
The date of filing referred to in these Implementing Regulations means the date of filing provided for in Article 28 of the Patent Law, unless otherwise provided for.

Rule 11. "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.
The entity to which one belongs mentioned in Article 6 of the Patent Law includes the entity one temporarily works for; "material and/or technical 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 12. "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 and/or technical means, or who takes part in other auxiliary functions, shall not be considered as inventor or creator.

Rule 13. 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, according to Article 9 of the Patent Law, shall, after receipt of a notification from the Patent Administrative Organ under the State Council, hold consultation among themselves to decide on the person or persons who shall be entitled to file the application.

Rule 14. Where a Chinese entity or individual assigns the right to apply for patent or the patent right to a foreigner, the assignment shall be approved by the competent Organ for Foreign Trade and Economic Cooperation under the State Council in conjunction with the Administrative Organ for Science and Technology under the State Council.

Rule 15. Where a patent right is transferred for reasons other than the assignment of a patent right as provided for in Article 10 of the Patent Law, the interested party shall perform the formalities for change of the name of the patentee with the Patent Administrative Organ under the State Council on the basis of relevant certified document or legal instrument.
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 Administrative Organ under the State Council for recordal.

Chapter II
Application for Patent

Rule 16. Anyone who applies for a patent in written form shall submit application documents in two copies to the Patent Administrative Organ under the State Council.
Any application filed in any other form prescribed by the Patent Administrative Organ under the State Council shall conform to the requirement.
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 Administrative Organ under the State Council, shall submit a power of attorney indicating the scope of the power entrusted.
Where there are two or more applicants of one application and where they have not appointed any patent agency, the first applicant indicated in the request shall be the representative unless otherwise stated in the request.

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 shall be indicated; where the applicant has not appointed a patent agency, the name, address, postal code and telephone number of his or its person to be contacted;
(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.

Rule 18. The description of an application for a patent for invention or utility model shall indicate the title of the invention or utility model, and the title shall be consistent with the one appearing in the request. The description shall contain:
(1) technical field: indicating the technical field the technical solution falls into for which protection is claimed;
(2) background art: indicating the background art which facilitates the understanding, searching and examination of the invention or utility model, and citing, if available, the documents reflecting such art;
(3) contents of invention: stating the technical problem to be solved by the invention or utility model and the technical solution adopted for solving the technical problem, and indicating the advantageous effects of the invention or utility model with reference to the prior art;
(4) Drawings: briefly explaining each of the drawings where the description is accompanied therewith;
(5) Specific mode for carrying out the invention or utility model: indicating in detail the optimum 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 and a subtitle is given at the beginning of each portion of the description, unless, because of the nature of the invention or utility model, a different manner or order would afford an accurate understanding and a more economical presentation.
The description of the invention or utility model shall be written in standard terms and straightforward sentences, and shall not contain such references to the claims as: "as described in part - of the claim", nor shall it contain commercial advertising.
Where an application for patent for invention covers one or more sequences of nucleotides or of amino acids, the description thereof shall contain a table of sequence complying with the prescription of the Patent Administrative Organ under the State Council. The applicant shall submit the table of sequence as a separate portion of the description, together with a computer-readable copy in the form prescribed by the Patent Administrative Organ under the State Council.

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 distinguishable.
Drawing reference signs not appearing in the text of the description of the invention or utility model shall not appear in the drawings. Drawing reference 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 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 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 solving the technical problems.
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 subject matter of the technical solution of the invention or utility model for which protection is sought, and the necessary technical features common to the invention or utility model and the closest 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 closest 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 shall refer only to the preceding claim or claims. A multiple dependent claim referring to two or more preceding claims shall only refer to any one of the preceding claims, and shall not be taken as the basis of any multiple dependent claim.

Rule 24. The abstract of the description shall outline the contents disclosed in the application for patent for invention or utility model, namely indicating the title and the technical field of the invention or utility model, and clearly states the technical problems to be solved, the essential technical features and the major use or uses of the technical solution solving the problems.
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 300 Chinese characters. There shall be no commercial advertising in the abstract.

Rule 25. Where an application for a patent for invention concerns a new biological material which is not accessible to the public, and the description of which is not sufficient enough to enable skilled artisans of the art to carry out the invention, the applicant shall, in addition to fulfilling the requirements set out in the Patent Law and these Implementing Regulations, complete the following formalities.
(1) deposit a sample of the biological material with a depository institution designated by the Patent Administrative Organ under the State Council before the date of filing, or, at the latest, on the date of filing (or the priority date, where priority is claimed), and submit, at the time of filing, or, at the latest, within four 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 shall be deemed not to have been deposited;
(2) give in the application document relevant information of the characteristics of the biological material;
(3) indicate, where the application relates to the deposit of a sample of the biological material in the request and the description, the scientific name of classification (with its Latin name) of the biological material and the name and address of the depository institution of the biological material, the date and accession number of the deposit; where, at the time of filing, they are not indicated, they shall be supplied within four months from the date of filing; where, after the expiration of the prescribed time limit they are not supplied, the sample of the biological material shall be deemed not to have been deposited.

Rule 26. Where an applicant for patent for invention deposits a sample of biological material in accordance with Rule 25 of these Implementing Regulations, after the publication of the application for a patent for invention relating to a biological material, any entity which, or individual who, needs to make use of the biological material covered in the application for the purpose of experiment shall make a request to the Patent Administrative Organ under the State Council containing the following:
(1) the name and address of the entity or individual making the request;
(2) an undertaking not to make the biological material available to any other person;
(3) an undertaking to use the biological material 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 in two copies.
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 design elements of the product incorporating the design, the colors for which protection is sought and the omission of the view thereof. 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 Administrative Organ under the State Council 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 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, 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 of 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 invention-creation for which an application for a patent is filed 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 organises 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 invention-creation for which an application for a patent is filed falls under the provisions of item (3) of Article 24 of the Patent Law, the Patent Administrative Organ under the State Council may, when necessary, require the applicant to submit the relevant proof within the prescribed time limit.
Where the applicant fails to make the declaration or submit the certified document pursuant to paragraph two of this Rule, or fails to submit the proof within the prescribed time limit according to paragraph three of this Rule, the provision of Article 24 of the Patent Law shall not be applicable to his or its application.

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 name or the title of the applicant of the earlier application is not consistent with that of the applicant of the subsequent application in the certified material, a proof of the assignment of the right of priority shall be submitted; where the domestic priority is claimed, the copy of the earlier application document shall be prepared by the Patent Administrative Organ under the State Council.

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 counted 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; where 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 subject matter of 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 establishment in China, the Patent Administrative Organ under the State Council may, when finding it 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 establishment or the headquarters, if the applicant is an enterprise or any other organization;
(3) a testimonial showing that the country, to which the applicant belongs, recognizes that Chinese entities and individuals 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 identical 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.

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, the designs shall be numbered consecutively and the numbers shall be placed before 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 Administrative Organ under the State Council a declaration, indicating 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 made by the Patent Administrative Organ under the State Council for publication of the application documents, the application shall be announced as scheduled; however, the declaration to withdraw an application for a patent shall be published on the Patent Gazette published later on.

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, 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.
(4) where a member of the Patent Reexamination Board has taken part in the examination of the application.

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 Administrative Organ under the State Council shall accord the date of filing and a filing number and notify the applicant accordingly.

Rule 40. In any of the following situations, the Patent Administrative Organ under the State Council 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 120, 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 difficult to be discerned.

Rule 41. Where the description mentions that it contains "explanatory notes to the drawings" but the drawings or some of them are missing, the applicant shall, within the time limit specified by the Patent Administrative Organ under the State Council, 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 Administrative Organ under the State Council 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, before the expiration of the time limit specified in Rule 54, paragraph 1, of these Implementing Regulations, submit to the Patent Administrative Organ under the State Council a divisional application; however, where the application for a patent has been rejected, withdrawn or deemed withdrawn, the divisional application shall not be filed.
If the Patent Administrative Organ under the State Council finds that an application for a patent is not in conformity with the provisions of Article 31 of the Patent Law and Rule 35 or Rule 36 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 initial 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 applications
The divisional application shall be subject to the revelant 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, of the Patent Law 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, Rule 18 and Rule 20 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, of the Patent Law or is obviously not in conformity with the provisions of Article 26, paragraphs 3 and 4, Article 31, paragraph one, or Article 33 of the Patent Law, or Rule 2, paragraph two, or Rule 13, paragraph 1, or Rules 18 to 23, or Rule 43, paragraph one 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, of the Patent Law, 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 13, paragraph one, or Rule 43, 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 Administrative Organ under the State Council 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 specified 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 Administrative Organ under the State Council still finds that the application is not in conformity with the provisions of the Articles and the Rules referred in the relevant preceding sub-paragraphs, the application shall be rejected.

Rule 45. In any of the following situations, any other document relating to a patent application, not including the patent application document which is submitted to the Patent Administrative Organ under the State Council, 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; or
(2) where no supporting document is submitted as prescribed.
The Patent Administrative Organ under the State Council shall notify the applicant of its observation 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 Administrative Organ under the State Council. The Patent Administrative Organ under the State Council 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 Administrative Organ under the State Council. Where no indication, or an incorrect indication, of the class to which the product incorporating the design belongs is made, the Patent Administrative Organ under the State Council shall supply the indication or make the correction.

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 Administrative Organ under the State Council 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 to the Patent Administrative Organ under the State Council and submit them when the said documents are available.

Rule 50. The Patent Administrative Organ under the State Council 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 requesting for examination as to substance or within three months from the date of receipt of the notification from the Patent Administrative Organ under the State Council that the application for a patent for invention has entered the stage of examination as to substance, the applicant may amend the application for a patent for invention on its or his 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 an applicant amends the document of its or his patent application for a patent after receipt of the notification of the observations from the Patent Administrative Organ under the State Council of the examination, the amendment shall be made according to the requirements in the notified observations.
The Patent Administrative Organ under the State Council may, on its own initiative, correct obvious lexical or graphic errors in the patent application document, where the Patent Administrative Organ under the State Council makes the corrections on its own initiative, it shall notify the applicant of the corrections.

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 the 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 the prescribed form shall be submitted.

Rule 53. According to the provisions of Article 38 of the Patent Law, the situations where after examination as to substance of an application for patent for invention shall be rejected by the Patent Administrative Organ under the State Council 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 13, paragraph one, Rule 20, paragraph one, or Rule 21, paragraph two, 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 is not in conformity with the provision of Article 33 of the Patent Law or the divisional application is not in conformity with the provision of Rule 43, paragraph one, of these Implementing Regulations.

Rule 54. After the Patent Administrative Organ under the State Council 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 Administrative Organ under the State Council shall grant the patent right, issue the patent certificate, and announce it.
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. After the decision to grant the patent right for utility model is announced, the patentee of the utility model may file a request with the Patent Administrative Organ under the State Council to make a search report for the patent for utility model.
Where the search report for a patent for utility model is requested for, a request shall be filed and the patent number of the patent for utility model be indicated. Each request shall be limited to one patent for utility model only.
After receipt of the request for the search report for a patent for utility model, the Patent Administrative Organ under the State Council shall examine the request. If the request is not in conformity with the specified requirements, the applicant filing the request shall be notified to make corrections within the specified time limit.

Rule 56. If the request for the search rport for a patent for utility model complies with the prescription upon examination, the Patent Administrative Organ under the State Council shall promptly make the report on the search of th patent for utility model.
Where, the Patent Administrative Organ under the State Council, upon the search, finds that the related patent for utility model does not comply with the provision of Article 22 of the Patent Law concerning novelty or inventiveness, reference documents shall be cited, reasons be stated, together with a copy of the cited reference documents.

Rule 57. The Patent Administrative Organ under the State Council shall promptly correct any errors in the Patent Gazette or patent documents once they are found, and announce the correction.

Chapter IV
Reexamination of Patent Application and Invalidation of Patent Right

Rule 58. The Patent Reexamination Board shall consist of experienced technical and legal experts designated by the Patent Administrative Organ under the State Council. The Head of the Patent Administrative Organ under the State Council 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 41 of the Patent Law, it or he shall file a request for reexamination and state the reasons therefor. The relevant supporting documents shall be provided when necessary.
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 60. When filing the request for reexamination or responding to the notification of reexamination by the Patent Reexamination Board, the person making the request may amend the patent application document; however, the amendment shall be limited to the elimination of the defects pointed out in the decision of rejection or the notification of reexamination.
The amended patent application document shall be submitted in two copies.

Rule 61. The Patent Reexamination Board shall send the request for reexamination which the Board has received to the examination department of the Patent Administrative Organ under the State Council 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 relevant provisions of the Patent Law and these Implementing Regulations, 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; after the observations or amendment, the Patent Reexamination Board still finds that the patent application document does not comply with the relevant provisions of the Patent Law and these Implementing Regulations, it shall make its reexamination decision to uphold the initial decision of rejection.
Where the Patent Reexamination Board finds after reexamination that the decision of rejection does not comply with the relevant provisions of the Patent Law and these Implementing Regulations, or finds that the amended patent application document has eliminated the defects pointed out in the decision of rejection, it shall revoke the initial decision of rejection, and the examination department which has made the examination shall proceed with the examination proceeding.

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.
Where the person making the request for reexamination withdraws his request for reexamination before the Patent Reexamination Board makes its decisions, the reexamination proceeding terminates.

Rule 64. Anyone requesting invalidation or partial invalidation of a patent right according to the provisions of Article 45 of the Patent Law shall submit the request and the necessary evidence in two copies. The request for invalidation, together with all the evidence submitted, specifically states the reasons on which the request is based and the proofs each of the reasons is based on.
The reasons on which the request for invalidation is based mentioned in the proceding paragraph 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, paragraph three or four, or Article 33 of the Patent Law, or Rule 2, or Rule 13, paragraph one, or Rule 20, paragraph one, or Rule 21, paragraph two, 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.

Rule 65. Where the request for invalidation of patent right does not comply with the provisions of Rule 64 of these Implementing Regulations, the Patent Reexamination Board shall not accept it.
Where the request for invalidation of a patent is submitted on the same reason and evidence after the Patent Reexamination Board makes its decision on the request for invalidation of the patent, the Patent Reexamination Board shall not accept it.
Where a request is filed for invalidation of a patent for design on the ground that the patented design collides with the legistimate right another person has acquired earlier, but no effective decision or judgement is submitted which proves the handling of the collision of rights in question,the Patent Administrative Organ under the State Council shall not accept it.
Where the request for invalidation of the patent right does not comply with the prescribed form, the person making the request shall rectify it within the time limit 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.

Rule 66. After the Patent Reexamination Board receives the request for invalidation, the person making the request may give additional reasons or evidence within one month from the date of submission of the request for invalidation. Where additional reasons or evidence are given after the expiration of the time limit, the Patent Reexamination Board may disregard the reasons or evidence.

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 and the person making the request for invalidation shall respond to the notification of the transmital of documents or the notification of examination of the request for invalidation from the Patent Reexamination Board within the prescribed time limit. Where no response is made within the time limit, the hearing procedure of the Patent Reexamination Board will not be affected.

Rule 68. In the process of examination of the request for invalidation, the patentee of a patent for invention or utility model may amend its or his patent claims, but may not broaden the scope of protection of the initial patent.
The patentee of a patent for invention or utility model may not amend the patent description and the drawings, and the patentee of a patent for design may not amend the drawings, photographs and brief explanations thereof.

Rule 69. The Patent Reexamination Board may, at the request of an interested party or as the facts of a case so require, decide to conduct oral hearing of the request for invalidation.
Where the Patent Reexamination Board decides to orally hear the request for invalidation, it shall send a notification of oral hearing to the interested parties, informing the date and place of the oral hearing. The interested parties shall respond within the time limit fixed in the notification.
Where the person making the request for invalidation fails to respond to the notification of the oral hearing from the Patent Reexamination Board, nor attends the oral hearing, its or his request for invalidation shall be deemed to have been withdrawn; where the patentee does not attend the oral hearing, the hearing may be held in its or his absence.

Rule 70. In the proceeding for examination of the request for invalidation, the time limit fixed by the Patent Reexamination Board shall not be extended.

Rule 71. The person requesting invalidation may withdraw his request before the Patent Reexamination Board makes a decision on it.
Where the person requesting invalidation withdraws his request before the Patent Reexamination Board makes its decision, the procedure for the examination of the request for invalidation terminates.

Chapter V
Compulsory License for Exploitation of Patent

Rule 72. After the expiration of three years from the grant of the patent right, any entity may, in accordance with the provisions of Article 48 of the Patent Law, request the Patent Administrative Organ under the State Council to grant a compulsory license.
Any entity or individual requesting a compulsory license shall submit to the Patent Administrative Organ under the State Council a request for compulsory license and state the reasons therefor, together with relevant supporting documents. The request and supporting documents shall be in two copies respectively.
The Patent Administrative Organ under the State Council 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 Administrative Organ under the State Council. Where no response is made within the time limit, the Patent Administrative Organ under the State Council will not be affected in making a decision to grant a compulsory license.
The decision of the Patent Administrative Organ under the State Council granting a compulsory license for exploitation shall provide that the exploitation shall be predominately for the supply of the domestic market; where the invention-creation covered by the compulsory license relates to a semi-conductor technology, the exploitation under the compulsory license is limited to public and non-commercial use or to the use in remedy of an action against unfair competition as determined by the judicial or administrative procedure.

Rule 73. Any party requesting, in accordance with the provisions of Article 54 of the Patent Law, the Patent Administrative Organ under the State Council 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 Administrative Organ under the State Council 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 74. Any state-owned enterprise or institution granted a patent right shall award to the inventors or creators of the invention-creation a sum of money as prize within three months from the date of the announcement of the patent grant. The sum of money prize for a patent for invention shall not be less than 2000 yuan; the sum of money prize for a patent for utility model or design shall not be less than 500 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, the state-owned enterprise or institution granted the right 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 75. Any stated-owned enterprise or institution granted 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 not less than 2％ due to the exploitation of the said patent for invention or the utility model, or a percentage of not less than 0.2％ due to the exploitation of the said patent for design, and award it to the inventor or creator as remuneration. The enterprise or institution shall, otherwise, by making reference to the said percentage, award a lump sum of money to the inventor or creator as remuneration.

Rule 76. Where any state-owned enterprise or institution granted patent right authorizes other entities or individuals to exploit its or his patent, it shall, after taxation, draw a percentage of not less than 10％ from the fees for the authorisation of exploitation of the said patent it received and award it to the inventor or creator as remuneration.

Rule 77. The other Chinese entities or institutions may award to the inventor or creator money prize and remuneration by making reference to the provisions in this Chapter.

Chapter VII
Protection of Patent Right

Rule 78. "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 people's governments of the provinces, autonomous regions and municipalities directly under the Central Government and the people's governments of the other municipalities which have a lot of patent- related work to administer and are capable of handling the work.

Rule 79. Except provided for in Article 57 of the Patent Law, the administrative authorities for patent affairs may also, on the request of an interested party, make mediation of patent-related disputes as follows:
(1) disputes over the right to apply for patent and ownership of patent right;
(2) disputes over the qualification of inventors or creator;
(3) disputes over the rewards and remuneration for inventors or creators of service inventions; and
(4) disputes over the exploitation of an invention without paying appropriate fees after the publication of the applications for patents for the invention and before the grant of the patent right.
In respect of the disputes mentioned in the preceding subparagraph (4), any patentee requesting the administrative authority for patent affairs for a mediation shall submit its or his request after the grant of the patent right.

Rule 80. The Patent Administrative Organ under the State Council shall provide operational guidance for the administrative authorities for patent affairs to handle and mediate patent disputes.

Rule 81. Where any interested party requests for handling or mediation of a patent dispute, the request is under the jurisdiction of the administrative authority of the place which the respondent has its or his domicile or of the place where the infringing act takes place.
Where two or more administrative authorities for patent affairs have the jurisdiction over a patent dispute, an interested party may file request with one of them; where the interested party files its or his request with two or more administrative authorities for patent affairs having the jurisdiction, the dispute is under the jurisdiction of the administrative authority for patent affairs which first receives the request.
Where a dispute arises over the jurisdiction of the administrative authorities for patent affairs, the dispute is put under the jurisdiction designated by the administrative authority for patent affairs under the people's government at their mutually next higher level; in the absence of such an administrative authority for patent affairs, the dispute is under the jurisdiction designated by the Patent Administrative Organ under the State Council.

Rule 82. Where, in the course of handling a dispute arising from patent infringement, the respondent submits a request for invalidation of the patent in question and it is received by the Patent Reexamination Board, it or he may request the administrative authority for patent affair to suspend the handling.
Where the administrative authority for patent affairs finds that the grounds raised by the respondent for the suspension is obviously untenable, it may not suspend the handling.

Rule 83 Where any patentee puts a patent indication on its or his patented product or the package thereof pursuant to the provision of Article 15 of the Patent Law, it or he shall make the indication in the manner prescribed by the Patent Administrative Organ under the State Council.

Rule 84. The following acts are the acts of counterfeiting patents of other persons:
(1) indicating, without authorisation, another person's patent number on the products which one manufactures or sells or on the package thereof;
(2) using, without authorisation, another person's patent number in advertisement or other promotional material, causing the related technology to be mistaken for the patented technology of another person;
(3) using, without authorisation, another person's patent number in a contract, causing the technology mentioned in the contract to be mistaken for the patented technology of another person; and
(4) forging, or mutilating patent certificates, patent documents or patent application documents.

Rule 85. The following acts are the acts of passing off patents of other persons:
(1) manufacturing or marketing a non-patent product marked with a patent indication;
(2)continuing to put a patent indication on products one manufactures or sells after invalidation of the patent right;
(3) calling a non-patented technology a patented technology in advertisement or other promotional materials;
(4) calling a non-patented technology a patented technology in a contract; and
(5) forging, or mutilating patent certificates, patent documents or patent application documents.

Rule 86. Where any interested party has requested the administrative authority for patent affairs to handle the matter of, or instituted legal proceedings in the people's court for, a dispute over the ownership of the right to apply for patent or of the patent right, it or he may request the Patent Administrative Organ under the State Council to suspend the relevant procedure.
Where any party requests for suspension of the relevant procedure in accordance with the foregoing paragraph, it or he shall file the request with the Patent Administrative Organ under the State Council together with a copy of the relevant documents received by the administrative authority for patent affairs or the people's court.
After the decision made by the administrative authority for patent affairs in handling the matter or the ruling made by the people's court takes effect, the interested party shall perform the formalities at the Patent Administrative Organ under the State Council for resuming the relevant procedure. If the dispute over the ownership of the right to apply for patent or of the patent right fails to be closed within one year starting from the date of suspension and continued suspension is necessary, the person making the request shall request for the continuation of the suspension within the time limit. Where no request for continuation is submitted at the expiration of the time limit, the Patent Administrative Organ under the State Council shall automatically resume the relevant procedure.

Rule 87. Where the people's court decides to adopt measures to preserve the patent right in a civil case it is hearing, the Patent Administrative Organ under the State Council, when assisting in the execution of these measures, suspends the procedure relevant to the patent right preserved. Where, after the expiration of the term of preservation, the people's court does not decide to continue to adopt the preservative measures, the Patent Administrative Organ under the State Council shall automatically resume the relevant procedure.

Chapter VIII
Patent Register and Patent Gazette

Rule 88. The Patent Administrative Organ under the State Council shall maintain a Patent Register in which the following matters relating to patent applications and any patent right shall be recorded:
(1) any grant of the patent right;
(2) any transfer of the right to apply for patent, or the patent right;
(3) any hypothecation and preservation of the patent right and their termination;
(4) any recordal of the licensing contracts for exploitation of the patent;
(5) any invalidation of the patent right;
(6) any cessation of the patent right ;
(7) any restoration of the patent right;
(8) any compulsory license for exploitation of the patent; and
(9) any changes in the name, the nationality and the address of the patentee.

Rule 89. The Patent Administrative Organ under the State Council 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 Administrative Organ under the State Council 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 grant of the patent right;
(7) any invalidation of the patent right;
(8) any cessation of the patent right;
(9) any transfer of the right to apply for patent, or the patent right;
(10) any recordal of the licensing contracts for exploitation of the patent;
(11) any hypothecation and preservation of the patent right and their termination;
(12) any grant of compulsory license for exploitation of the patent;
(13) any restoration of a patent application or patent right;
(14) any change in the name or address of the patentee;
(15) any notification to the interested party whose address is not known;
(16) any correction made by the Patent Administrative Organ under the State Council; and
(17) 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 by the Patent Administrative Organ under the State Council.

Chapter IX
Fees

Rule 90. When any person files an application for a patent with, or has other formalities to perform at, the Patent Administrative Organ under the State Council, he or it shall at the same time pay the following fees:
(1) filing fee, additional application fee as prescribed and application publication fee;
(2) fee for examination as to substance and fee for reexamination of application for patent for invention;
(3) patent registration fee, patent publication fee, application maintenance fee and annual fee;
(4) fee for a change in the bibliographic data, fee for claiming priority, fee for a request for restoration of right, fee for a request for extention of time limit and fee for a search report for the patent for utility model; and
(5) fee for a request for invalidation, fee for a request for suspension of a procedure, fee for a request for compulsory license and fee for a request for adjudication on exploitation fee of compulsory license.
The rates of the fees mentioned in the preceding paragraph shall be prescribed by the competent Pricing Department of the State Council in conjunction with the Patent Administrative Organ under the State Council.

Rule 91. The fees provided for in the Patent Law and in these Implementing Regulations may be paid directly to the Patent Administrative Organ under the State Council or paid by way of bank or postal remittance, or in any other manner specified by the Patent Administrative Organ under the State Council.
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, and the titles of the fees to be paid; where it or he fails to comply with this provision, the fee-payment formality is deemed not to have been performed.
Where fees are paid directly to the Patent Administrative Organ under the State Council, the very date on which the fees are paid is the date of payment. Where fees are paid by way of postal remittance, the date of the postmark showing the postal remittance of such fee shall be the date of payment. Where fees are paid by way of bank remittance, the date on which the transfer of such fee is actually ordered shall be the date of payment. However, where the time between such a date and the date of receipt of the order at the Patent Administrative Organ under the State Council 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 Administrative Organ under the State Council shall be the date of payment.

Where any patent fee is paid more than as prescribed, paid once again or wrongly paid, the person making the payment may, within one year from the date of payment, request the Patent Administrative Organ under the State Council for a refund.

Rule 92. The applicant shall, after receipt of the notification of acceptance of the application, pay the filing fee, the application publication fee and the additional fee as prescribed at the latest within two months from the date of filing. 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 time when paying 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 93. Where a request for an examination as to substance, a restoration of right or a reexamination 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 in the Patent Law and these Implementing Regulations. 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 94. 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.

Rule 95. When the applicant goes through the formalities of patent registration, it or he shall pay the patent registration fee, the patent publication fee and the annual fee of the year in which the patent right was granted. The applicant for patent for invention shall pay all the maintenance fees of the application for each year, excluding that for the year in which the patent right was granted. 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 96. Where the annual fee of the years after the year in which the patent was granted is not paid in due time by the patentee, or the fees are not paid in full, the Patent Administrative Organ under the State Council shall notify 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 annual fee was to be paid, and at the same time pay a surcharge; the amount of the surcharge is computed by an addition of 5％ of the total amount of the annual fee of the same year for each month lapsed after the time limit prescribed for the payment. Where the fees are not paid within the time limit, the patent right shall be deemed lapsed from the expiration of the time limit within which the annual fee should be paid.

Rule 97. The fee for a change in the bibliographic data, fee for a search report on a patent for utility model, fee for a request for suspension of procedure, 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. The fee for a request for extension of time limit shall be paid before the date on which the corresponding time limit expires. 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 98. Where any applicant or patentee has difficulties in paying the various fees prescribed in these Implementing Regulations, it or he may, according to prescriptions, submit a request to the Patent Administrative Organ under the State Council, 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 Administrative Organ under the State Council in consultation with the competent Financial Department and the competent Pricing Department of the State Council.

Chapter X
Special Provisions for International Applications

Rule 99. In accordance with Article 20 of the Patent Law, the Patent Administrative Organ under the State Council receives international patent applications filed under the Patent Cooperation Treaty.
The Provisions of this Chapter are applicable to the requirements and procedure for international applications filed and designating China pursuant to the Patent Cooperat Treaty (hereinafter referred to as the international applications) to enter the national phase in China; where it is provided for in this Chapter, the relevant provisions of the Patent Law and the other Chapters of these Implementing Regulations shall apply.

Rule 100. Any international application designating China as of the international filing date accorded under the Patent Cooperat Treaty is considered a patent application filed with the Patent Administrative Organ under the State Council, and the filing date of the international application is deemed the filing date referred to in Article 28 of the Patent Law.
Where, in the international phase, an international application or the designation of China in an international application is withdrawn or deemed to have been withdrawn, the effect of the international application shall cease in China.

Rule 101. Any applicant of an international application shall, within 30 months from the priority date referred to in Article 2 of the Patent Cooperation Treaty (referred to as priority date in the Chapter), perform the following procedures for international application to enter the national phase in China in the Patent Administrative Organ under the State Council; where any international application elected China within 19 months from the priority date and the election remains valid, the applicant of the international application shall, within 30 months from the priority date, perform the following procedure for an international application to enter the national phase in China in the Patent Administrative Organ under the State Council:
(1) submit a declaration in writing for the international application to enter the national phase in China, in which shall be indicated the international application number,and, in Chinese, the kind of patent right to be sought, the title of the invention-creation, the name or title of the applicant, the address of the applicant and the name of the inventor. All these information shall be consistent with the records of the International Bureau;
(2) pay the filing fee, additional application fee and application publication fee specified in Rule 90, paragraph one, of these Implementing Regulations;
(3) for any international application filed in a language other than Chinese, the Chinese translation of the description, claims, any text matter of the drawings, and the abstract of the original international application shall be submitted; where an international application is filed in Chinese, a copy of the abstract of the international publication shall be submitted; and
(4) where an international application is accompanied with drawings, a copy of the drawings shall be submitted. Where an international application is filed in Chinese, a copy of the figure for the abstract of the international publication shall be submitted.
Where any applicant fails to perform the procedure for entering the national phase in China within the time limit specified in the foregoing paragraph, it or he may, after payment of the grace-period fee, do so before the expiration of the corresponding time limit of twenty-two or thirty-two months from the priority date.

Rule 102. Any applicant fails to perform the procedure for entering the national phase in China within the time limit prescribed in Rule 101, paragraph two, of these Implementing Regulations or falls under any one of the provisions thereof within the time limit, the effect of its or his international application shall cease in China:
(1) the international application number is not indicated in the declaration for entering the national phase in China;
(2) the filing fee, application publication fee prescribed in Rule 90, paragraph one. and the grace-period fee prescribed in Rule 101, paragraph two, of these Implementing Regulations; or
(3) where the international application is filed in a language other than Chinese, the Chinese translation of the description and claims of the original international application is not submitted.
The provision of Rule 7, paragraph two, of these Implementing Regulations does not apply to any international application which has ceased to be valid in China.

Rule 103. Where any applicant falls under any one of the following subprovisions when entering the national phase in China, the Patent Administrative Organ under the State Council shall notify the applicant to make corrections within the prescribed time limit:
(1) where the Chinese translation or a copy of the abstract is not submitted;
(2) where a copy of the drawings or the figure for the abstract is not submitted;
(3) where indications are not given in Chinese in the declaration for entering the national phase in China of the title of the invention-creation, the name or title of the applicant, the address of the applicant and the name of the inventor; or
(4) where the declaration for entering the national phase in China does not comply with the prescription in content or in form.
Where the corrections are not made within the prescried time limit, the application is deemed to have been withdrawn.

Rule 104. Where an international application was amended in the international phase, and the applicant requests that the examination is made on the basis of the amended application document, the applicant shall submit the amended Chinese translation of the amended application document before the Patent Administrative Organ under the State Council completes the preparation for national publication. Where the Chinese translation is not submitted within the time limit, the Patent Administrative Organ under the State Council shall disregard the amendments made by the applicant in the international phase.

Rule 105. Any applicant, when performing the procedure for entering the national phase in China, shall meet the following requirements:
(1) where the inventor is not indicated in the international application, the name of the inventor shall be indicated in the declaration for entering the national phase in China;
(2) where a procedure is performed to change the applicant at the International Bureau in the international phase, proofs that the changed applicant enjoys the right to apply for patent shall be submitted;
(3) where the applicant and the applicant of the earlier application on which the right of priority is based are not the same person, or the applicant changed its or his name after filing the earlier application, the proofs shall be submitted, if necessary, that the applicant enjoys the right of priority; and
(4) where the invention-creation of the international application falls under any of the provisions of Article 24 (1) or (2) of the Patent Law and a declaration thereof was made when filing the international application, a statement thereof shall be made in the declaration for entering the national phase in China, and the relevant proofs prescribed in Rule 3, paragraph 2, of these Implementing Regulations shall be submitted within two months from the date of performance of the procedure for entering the national phase in China.
Where the applicant fails to meet the requirements of (1), (2) and (3) of the preceding paragraph, the Patent Administrative Organ under the State Council shall invite it or him to make correction within the prescribed time limit. Where the correction under (1) and (2) is not made, the application is deemed to have been withdrawn; where the correction under (3) is not made, the claim for the priority right is deemed not to have been made.
Where the applicant fails to meet the requirement of (4) in paragraph one of this Rule, the provision of Article 24 of the Patent Law does not apply to the application.

Rule 106. Where any applicant makes an indication of the deposit of a sample of biological material in accordance with the provisions of the Patent Cooperation Treaty, the applicant is deemed to have met the requirement under Rule 25 (3) of these Implementing Regulations. The applicant shall indicate the document recording the deposit of a sample of biological material and the specific place in the declaration for entering the national phase in China.
Where the applicant records the deposit of a sample of the biological material in the description of the originally filed international application, but did not make the indication in the declaration for entering the national phase in China, it or he shall make rectification within four months from the date of performance of the procedure for entering the national phase in China. Where the correction is not made within the prescribed time limit, the biological material is deemed not to have been deposited.
Where the applicant submits the receipt of deposit and the viability proof of a sample of the biological material to the Patent Administrative Organ under the State Council within four months from the date of performance of the procedure for entering the national phase in China, the deposit is deemed to have been filed within the time limit prescribed in Rule 25 (1) of these Implementing Regulations.

Rule 107. Where the applicant claimed one or more priorities in the international phase and the right of priority remains valid when entering the national phase in China, the written declaration is deemed to have been made in accordance with the provision of Article 30 of the Patent Law.
Where the applicant finds that there are writing errors or the filing number of the earlier application is not indicated in the written declaration of the right of priority submitted in the international phase, it or he may request for correction of the errors or for indicating the filing number of the earlier application when performing the procedure for entering the national phase in China. The applicant filing a request for the correction shall pay the fee for request for correction in the claim for right of priority.
Where the applicant submitted a copy of the earlier application document in the international phase according to the provisions of the Patent Cooperation Treaty, it is not necessary to submit it to the Patent Administrative Organ under the State Council when performing the procedure for entering the national phase in China. Where the applicant did not submit it in the international phase, the Patent Administrative Organ under the State Council, when finding it necessary, may invite it or him to submit it within the specified time limit. Where the applicant fails to do so after the expiration of the time limit, its or his claim for priority right is deemed not to have been made.
Where the claim for right of priority is deemed not to have been made in the international phase, which has been announced by the International Bureau, the applicant may, with justified reasons, file a request with the Patent Administrative Organ under the State Council to restore its or his claim to the right of the priority.

Rule 108. Where any applicant requests the Patent Administrative Organ under the State Council for early processing and examining its or his international application prior to the expiration of 30 months starting from the priority date, it or he shall, in addition to performing the procedure for entering the national phase in China, file a request pursuant to Article 23 (2)of the Patent Cooperation Treaty. Where the International Bureau does not transmit the international application to the Patent Administrative Organ under the State Council, the applicant shall submit a certified copy of the international application.

Rule 109. In respect of any international application for patent right for utility model, the applicant may file a request with the Patent Administrative Organ under the State Council for amending the description, the drawings and the claims within one month from the date of performing the procedure for entering the national phase in China.
To any international application for patent for invention, the provision of Rule 51, paragraph one, of these Implementing Regulations applies.

Rule 110. Where any applicant finds any error in the Chinese translation of the description, the claims or any text matter of the drawings, it or he may submit the correction based on the original text of the international application within the prescribed time limit as follows:
(1) before the preparation for national publication is completed by the Patent Administrative Organ under the State Council; and
(2) within three months from the date of receipt of the notification of an application for a patent for invention to enter into the substantive examination proceeding issued by the Patent Administrative Organ under the State Council.
The applicant correcting the translation errors shall file a request in writing, submit the correction sheet of the translation and pay the prescribed translation correction fee.
Where the applicant is required to correct the translation in the notification of the Patent Administrative Organ under the State Council, it or he shall perform the formality within the time limit prescribed in (2) of this Rule; where the prescribed formality is not performed within the time limit, the application is deemed to have been withdrawn.

Rule 111. For an international application for patent for invention, the Patent Administrative Organ under the State Council, upon preliminary examination, finds it to be in conformality with the relevant provisions of the Patent Law and these Implementing Regula- tions and shall publish the application in the Patent Gazette; where the international application is filed in a language other than Chinese, the Chinese translation of the application document shall be published.
For the international application for patent for invention published in Chinese internationally by the International Bureau, the provision of Article 13 of the Patent Law applies from the date of international publication; for the international application published internationally in a language other than Chinese by the International Bureau, the same provision applies from the date of publication by the Patent Administrative Organ under the State Council.
For the purpose of international application, the publication or announcement mentioned in Articles 21 and 22 of the Patent Law means the publication specified in paragraph one of this Rule.

Rule 112. When any international application contains two or more inventions or utility models the applicant may, after performing the procedure for entering the national phase in China, file a divisional application pursuant to the provision of Rule 42, paragraph one, of these Implementing Regulations.
Where, in the international phase, the International Searching Authority or the International Preliminary Examination Authority finds that an international application does not comply with the requirement of unity under the Patent Cooperation Treaty and the applicant fails to pay the additional fee as prescribed, resulting in some part of the international application not being subjected to the international search or the international preliminary examination, or where the applicant, entering the national phase in China, requests that the said parts be taken as the basis for the examination, and the Patent Administrative Organ under the State Council finds the International Searching Authority or the International Preliminary Examination Authority is right in the judgement of the unity of the invention in question, it shall notify the applicant to pay the unity restoration fee within the prescribed time limit. If the fee is not paid or not paid in full within the time limit, the part of the international application which has not been searched or subjected to the international preliminary examination is deemed to have been withdrawn.

Rule 113. Where the applicant submits the documents and pays the fees according to the provision of Rule 101 of these Implementing Regulations, the date on which the Patent Administrative Organ under the State Council receives the documents is the submitting date and the date of receipt of the fees is the date of payment.
Where there is a delay in the postal delivery of the submitted documents and the applicant proves that the documents are sent by mail five days before the expiration of the time limit specified in Rule 101 of these Implementing Regulations within one month from the date on which the delay is found, the documents are deemed to have been received on the date of the expiration of the time limit. However, the applicant shall not furnish the proof later than six months after the expiration of the time limit specified in Rule 101 of these Implementing Regulations.
The applicant may submit, by fax, the documents required in Rule 101 of these Implementing Regulations. Where the applicant submits them by fax, the date on which the Patent Administrative Organ under the State Council receives the fax is the submitting date. The applicant shall submit the original of the faxed documents to the Patent Administrative Organ under the State Council within fourteen days from the date of submission by fax. If the original is not submitted after the expiration of the time limit, the documents are deemed not to have been submitted.

Rule 114. Where the right of priority is claimed in the international application, the applicant shall pay the fee for claiming the right of priority when performing the procedure for entering the national phase in China; if the fee is not paid or not paid in full, the Patent Administrative Organ under the State Council shall notify the applicant to make the payment within the specified time limit; if the fee is still not paid or not paid in full after the expiration of the time limit, the claim for right of priority is deemed to have not been made.

Rule 115. Where any international application is refused by the relevant international authority to be accorded the international filing date or is declared to have been withdrawn, the applicant may, within two months from the date of receipt of the notification, request the International Bureau to transmit copies of any documents in the file of the international application to the Patent Administrative Organ under the State Council and perform the procedure as specified in Rule 101 of these Implementing Regulations in the Patent Administrative Organ under the State Council within the time limit. The Patent Administrative Organ under the State Council shall, after receipt of the documents transmitted by the International Bureau, make review as to whether the decision made by the international authority is right or not.

Rule 116. Where, owing to any translation errors, any patent right granted on the basis of an international application makes its scope of protection determined in accordance with the provision of Article 56 of the Patent Law go beyond the scope expressed in the original text of the international application, the scope of protection limited according to the original text prevails. Where the scope of protection is made less than the scope stated in the original text of the international application, the scope of protection established when granting the right prevails.

Chapter XI
Supplementary Provisions

Rule 117. Any person may, after approval by the Patent Administrative Organ under the State Council, inspect or copy the files of the published or announced patent applications and the Patent Register. Any person may request the Patent Administrative Organ under the State Council 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 abandoned or invalidated in whole, the files shall not be preserved after expiration of three years from the date on which the patent right ceases to be valid.

Rule 118. Any patent application which is filed with, and any formalities which are performed at the Patent Administrative Organ under the State Council, shall be made in the form prescribed by the Patent Administrative Organ under the State Council 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 and address of the patent agency and the name of the patent agent is requested, a request for a change in the bibliographic data shall be made to the Patent Administrative Organ under the State Council, together with the relevant supporting documents.

Rule 119. The documents relating to a patent application or patent right which are mailed to the Patent Administrative Organ under the State Council 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 Administrative Organ under the State Council, 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 120. Any sheets constituting an application for patent shall be typed or printed. All the characters shall be in black ink, neat and clear and 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 121. The Patent Administrative Organ under the State Council shall formulate the Guidelines for Patent Examination in accordance with the Patent Law and these Implementing Regulations.

Rule 122. These Implementing Regulations shall enter into force on 1 July 2001. The Implementing Regulations of the Patent Law of the People's Republic of China revised with approval by the State Council on 12 December 1992 and promulgated by the Patent Administrative Organ under the State Council on 21 December the same day shall be simultaneously abolished.

3.Measures for Administrative Enforcement of Patent
(Promulgated on 17 December 2001 by the State Intellectual Property Office)

Chapter Ⅰ
General Provisions

Article 1. These Measures are formulated according to the Patent Law of the People's Republic of China, the Implementing Regulations of the Patent Law of the People's Republic of China and other relevant laws and regulations with a view to effectively resolving patent infringement disputes, mediating patent disputes, investigating and handling acts of passing off others' patents and counterfeiting patents, protecting the patent right, maintaining and regulating the order of the socialist market economy.

Article 2. The administrative authority for patent affairs shall resolve patent infringement disputes, investigate and handle acts of passing off others' patents and counterfeiting patents in accordance with facts, in line with the law and in the light of the principles of impartiality and promptness.
The administrative authority for patent affairs shall mediate patent disputes according to law and regulations, encouraging mutual understanding between interested parties to reach mediation agreement on the basis of ascertained facts and distinguished right and wrong.

Article 3. The administrative authority for patent affairs shall set up special division or arrange special staff members for resolving patent infringement disputes, mediating patent disputes, investigating and handling acts of passing off others' patents and counterfeiting patents.
Staff members handling a case shall have with them the Patent Administrative Enforcement Certificate issued by the State Intellectual Property Office, and be formally dressed when performing their duties.

Article 4. In respect of cases of patent infringement disputes and cases of passing off others' patents and counterfeiting patents of great influence, the State Intellectual Property Office may organize the relevant administrative authority for patent affairs to handle, investigate and punish them if necessary.
Where an administrative authority for patent affairs runs into difficulties when handling patent infringement disputes, mediating patent disputes and investigating and handling acts of passing off others' patents and counterfeiting patents, the State Intellectual Property Office shall provide guidance.

Chapter Ⅱ
Handling of Patent Infringement Disputes

Article 5. Following requirements shall be satisfied when filing request with the administrative authority for patent affairs for handling a patent infringement dispute:
(1) The requester is the patentee or an interested party;
(2) The respondent is clearly identified;
(3) The matter in respect of which the request is filed is specific, and the facts and reasons definite;
(4) The case falls into the scope of acceptance by and under the jurisdiction of the administrative authority for patent affairs receiving it; and
(5) The interested party has not instituted proceedings in the People's Court in respect of the patent infringement dispute.
The interested parties mentioned in (1) including, among others, the licensee of a licensing contract for exploitation of a patent and the legitimate successor of a patent right. Of the former, the exclusive licensee of a licensing contract for exploitation of a patent may file the request alone; and the sole licensee of a licensing contract for exploitation of a patent may do so when the patentee does not file the request. Unless otherwise agreed upon in a contract, an ordinary licensee of a licensing contract for exploitation of a patent shall not file a request alone.

Article 6. Where the administrative authority for patent affairs is requested for handling a patent infringement dispute, the requester shall submit a Request and a copy of the Patent Certificate of the patent right in respect of which the request is filed and furnish the same number of copies of the Request as that of the respondents.
When necessary, the administrative authority for patent affairs may check with the State Intellectual Property Office the legal status of the patent right in respect of which the request is filed. Where a patent infringement dispute involves a patent for utility model, the administrative authority for patent affairs may require the requester to hand in the search report issued by the State Intellectual Property Office.

Article 7. The Request shall contain, among other things, the following information:
(1) name or title and address of the requester, and the name and position of the legal representative of the requester, the name of agent or title and address of the agency where an agent has been appointed;
(2) name or title and address of the respondent(s); and
(3) the matter in respect of which and the facts and reasons for which the request is filed,
Relevant evidence and proofs may be submitted in the form of appendixes attached to the Request.
The Request shall be signed or sealed by the requester.

Article 8. Where the request meets the requirements of Article 5 of these Measures, the administrative authority for patent affairs shall put it on file for handling and notify the requester within 7 days from the receipt of the Request, and, meanwhile, appoint three or more staff members (in odd number) to handle the patent infringement dispute; where the request does not meet the requirements of Article 5 of these Measures, the administrative authority for patent affairs shall inform the requester that the request is not accepted and tell the reason for the non-acceptance within 7 days from the receipt of the Request.

Article 9. The administrative authority for patent affairs shall forward the copies of the Request and the appendixes thereto to the respondent by postal or direct delivery or by other means within 7 days from the date of putting it on file for handling, requiring him to submit his written defence in duplicate. The respondent's failure to do so at the expiration of the time limit does not affect the handling of the case by the administrative authority for patent affairs.
Where the respondent submits his written defence, the administrative authority for patent affairs shall forward the copies of the written defence to the requester by postal or direct delivery or by other means within 7 days from the date of receipt thereof.

Article 10. In handling a patent infringement dispute, the administrative authority for patent affairs may, as required by the facts of a case, decide whether or not an oral hearing should be conducted. Where it decides to do so, the administrative authority for patent affairs shall inform the interested parties of the time and place of the oral hearing 3 days before the oral hearing is to be conducted. Where the requester or the respondent refuses to show up without a good reason, or leaves when oral hearing is not over, as in the former case, the request shall be deemed to have been withdrawn, and as in the latter case, the respondent is deemed to be absent.

Article 11. Where the administrative authority for patent affairs holds an oral hearing, it shall make a record of the participants and main points thereof, and the staff members handling the case and the participants shall sign or seal the records after they are examined and found error free.

Article 12. Article 56, paragraph one, “the extent of protection of the patent right for invention or utility model shall be determined by the terms of the claims”of the Patent Law means that the extent of protection of the patent right should be determined by the extent of the technical features as stated in the claims, including also the extent as determined by those equivalent to the claimed technical features. By the equivalent features are meant those using basically the same means, performing basically the same function and achieving basically the same effect as the claimed technical features, and which can be contemplated by a person ordinarily skilled in the art without inventive labour.

Article 13. Unless the interested parties reach a mediation or conciliation agreement or the requester withdraws his request, the administrative authority for patent affairs handling a patent infringement dispute shall prepare the Resolution Decision, in which the following information is given:
(1) names or titles and addresses of the interested parties;
(2) facts and reasons given by the interested parties;
(3) reasons for which and bases on which the determination is made as to whether the infringing acts is constituted;
(4) where the Decision determines the constitution of the infringing act, the category, object and scope of the infringing act shall be indicated which the respondent is ordered to cease performing; where Decision does not determines the constitution of the infringing act, the request by the requester shall be rejected; and
(5) approach of and time limit for instituting administrative proceedings if a party is not satisfied with the Decision.
The Resolution Decision shall be signed by the staff members handling the case, and sealed by the administrative authority for patent affairs.

Article 14. Where, after the administrative authority for patent affairs makes the decision or the People's Court renders the judgement on the constitution of the infringing act, the respondent commits again the same infringing act of the same patent right, and the patentee or the interested party requests for handling the matter, the administrative authority for patent affairs may directly decide to order the cessation of the infringing act.

Chapter Ⅲ
Mediation of Patent Disputes

Article 15. One requesting the administrative authority for patent affairs for mediation of a dispute shall submit the Request, in which following information shall be given:
(1) name or title and address of the requester, and the name and position of the legal representative of the requester, name of agent or title and address of the agency where an agent has been appointed;
(2) name or title and address of the respondent; and
(3) the matter in respect of which and reason for which the request is filed,
One alone requesting for mediation on the amount of damages for an infringement of the patent right shall submit a copy of the Resolution Decision made by the relevant administrative authority for patent affairs on the determination of the constitution of the infringing act.

Article 16. After receiving the Mediation Request, the administrative authority for patent affairs shall promptly forward the copy of the Request to the respondent by postal or direct delivery or by other means, requesting him to submit his statement of opinion within 15 days from the date of receipt of the copy.

Article 17. Where the respondent submits the statement of opinion and agrees on mediation, the administrative authority for patent affairs shall promptly put it on file for handling, and notify the requester and respondent of the time and place of the mediation.
Where the respondent fails to submit the statement of opinions after the expiration of the time limit, or expresses therein his non-acceptance of mediation, the administrative authority for patent affairs does not put it on file for handling, and notifies the requester thereof.

Article 18. The administrative authority for patent affairs may invite a relevant entity or individual to assist in the mediation of patent dispute, and the relevant entity or individual invited shall assist in the mediation.

Article 19. Where the interested parties reach an agreement upon mediation, a Mediation Agreement shall be prepared, signed or sealed thereby, and submitted to the administrative authority for patent affairs for filing. Where the agreement is not reached, the administrative authority for patent affairs closes the case as if the case were withdrawn, and notifies both parties thereof.

Article 20. Where a request is filed for mediation of a dispute over the ownership of the right to apply for the patent or of the patent right, an interested party may request, with the Acceptance Notification issued by the administrative authority for patent affairs, the State Intellectual Property Office to suspend the relevant procedure of the patent application or the patent right.
Where an agreement is reached upon mediation, the interested party shall go, with the Mediation Agreement, through the procedure for resuming the procedure with the State Intellectual Property Office; where the agreement is not reached, the interested party shall go, with the Notification on Withdrawal of the Case issued by the administrative authority for patent affairs, through the procedure for resuming the procedure with the State Intellectual Property Office. Where no request is filed for renewal of the suspension at the expiration of one year from the date of the request for the suspension, the State Intellectual Property Office automatically resumes the relevant procedure.

Chapter Ⅳ
Investigation and Handling of Acts of Passing off the Patent of Another Person and Counterfeiting Patent

Article 21. Upon finding out or receiving a report of an act of passing off the patent of another person or counterfeiting patent, the administrative authority for patent affairs shall promptly put it on file for handling and appoint two or more staff members to investigate and handle the case.

Article 22. Investigating and handling acts of passing off the patent of another person and counterfeiting patent are under the jurisdiction of the administrative authority for patent affairs of the place where the act has taken place.
Where the administrative authorities for patent affairs have a dispute over their jurisdiction, the administrative authority for patent affairs of their higher level People's Government shall designate administrative authority for patent affairs to exercise the jurisdiction; if there is no such administrative authority for patent affairs of their higher level People's Government, the State Intellectual Property Office shall designate administrative authority for patent affairs to exercise the jurisdiction.

Article 23. Before making a decision on administrative penalty, the administrative authority for patent affairs shall inform the interested party of the facts and reasons for and bases on which the penalty decision is made and tell them the rights they are entitled to under the law.

Article 24. An interested party has the right to voice his opinion and defend himself, and the administrative authority for patent affairs shall examine the facts, reasons and evidence raised thereby.

Article 25. Where an act of passing off the patent of another person or counterfeiting patent is constituted upon investigation, the administrative authority for patent affairs shall prepare the Decision on Penalty, in which information as to the following shall be indicated:
(1) title or name and address of the interested party;
(2) facts and reasons for and bases on which the constitution of the act of passing off the patent of another person or counterfeiting patent is established;
(3) penalty and mode of execution thereof; and
(4) approach of and time limit for instituting administrative proceedings out of dissatisfaction of the decision on penalty.
The Decision on Penalty shall be sealed by the administrative authority for patent affairs.

Article 26. Where an act of passing off the patent of another person or counterfeiting patent is not constituted upon investigation, the administrative authority for patent affairs closes the case as if the case were withdrawn.

Chapter Ⅴ
Investigation and Evidence Collection

Article 27. In the process of handling patent infringement dispute and investigating and handling the act of passing off the patent of another person or counterfeiting patent, the administrative authority for patent affairs may, if necessary, make investigation and collect evident according to its functions and authority.

Article 28. The administrative authority for patent affairs making investigation and collecting evidence may consult and copy contracts, account books and other relevant documents relating to the case; question the interested parties and witnesses; and conduct on-site inspection by way of measurement-taking, photography-taking and videotape-recording. Where an infringement of the patent right for process of manufacture is suspected, the administrative authority for patent affairs may require the person being investigated to conduct on-site demonstration.
The administrative authority for patent affairs making investigation and collecting evidence shall take notes, which shall be signed and sealed by the staff members handling the case and the entity or individual investigated. Where the entity or individual being investigated refuses to sign or seal, this information shall be indicated in the notes.

Article 29. The administrative authority for patent affairs making investigation and collecting evidence may collect evidence by way of sampling.
In the case of patent for product, a part of the products suspected of infringement may be collected as the sample; in the case of patent for process, a part of the products directly obtained by the process may be collected as the sample. The quantity of the sample taken shall be enough to testify the fact.
The administrative authority for patent affairs collecting evidence by way of sampling shall take notes, indicating the name, features and quantity of the sample taken. The notes shall be signed or sealed by the staff members handling the case and the entity or individual investigated.

Article 30. Where the evidence is likely to be lost or difficult to obtain afterward, and where it is impossible to collect evidence by way of sampling, the administrative authority for patent affairs may keep and take a record of the evidence, and make a decision within 7 days.
The entity or individual being investigated shall not destroy or transfer the evidence so kept and recorded.
The administrative authority for patent affairs keeping and taking a record of evidence shall take notes, indicating the name, features, quantity and place of recording and keeping the evidence. The notes shall be signed or sealed by the staff members handling the case and the entity or individual investigated.

Article 31. Where the administrative authority for patent affairs investigates and collects evidence and examine evidential materials, the relevant entity or individual shall furnish true evidence and materials, and assists in the investigation.

Article 32. The administrative authority for patent affairs which needs to entrust another administrative authority for patent affairs for assistance in the investigation and evidence collection shall clearly make the request. The administrative authority for patent affairs accepting the entrustment shall promptly and conscientiously assist in the investigation and evidence collection, and make its reply as soon as possible.

Chapter Ⅵ
Legal Responsibilities

Article 33. Where it establishes that an act constitutes an act of patent infringement, the administrative authority for patent affairs shall order the infringer to immediately cease the infringing act and take the following measures to stop the infringing act.
(1) Ordering the infringer manufacturing a patented product to immediately cease the act of manufacture, destroy the equipment or moulds specially used for the manufacture of the infringing products, and not to sell and use the infringing products that have not been sold or not to market them in any other form; where the infringing products are difficult to be kept, ordering the infringer to destroy them;
(2) Ordering the infringer using a patented process to immediately cease the act of using the patent, destroy the equipment or moulds specially used for the exploitation of the patented process, and not to sell and use the infringing products that have not been sold and which have been directly obtained by the patented process, or not to market them in any other form; where the infringing products are difficult to be kept, ordering the infringer to destroy them;
(3) Ordering the infringer selling patented products or products directly obtained by the patented process to immediately cease the act of sale, and not to use the infringing products that have not been sold and which have been directly obtained by the patented process, or not to market them in any other form; where the infringing products are difficult to be kept, ordering the infringer to destroy them;
(4) Ordering the infringer offering for sale of patented products or products directly obtained by the patented process to immediately cease the act of offering for sale, to eliminate ill effects and not to permit any act of actual sale;
(5) Ordering the infringer importing patented product or products directly obtained by the patent process to immediately cease the act of importation; where the infringing products are imported into the territory of China, ordering not to sell and use the infringing products, or to market them in any other form; where the infringing products are difficult to be kept, ordering the infringer to destroy the products; where the infringing products are not imported into the territory of China, the relevant customs may be notified of the Resolution Decision; and
(6) Taking other measures necessary to cease the infringing act.

Article 34. Where the respondent institutes administrative proceedings in the people's court after the administrative authority for patent affairs establishes that an act constitutes a patent infringement, the enforcement of the decision shall not be suspended during the proceedings.
Where the infringer does not institute proceedings against the Resolution Decision by the administrative authority for patent affairs establishing constitution of the infringing act, nor does he cease his infringing act after the expiration of the time limit, the administrative authority for patent affairs may apply the People's Court for compulsory enforcement.

Article 35. Where an act of passing off the patent of another person is suspect of violating Article 216 of the Criminal Law, the administrative authority for patent affairs shall transfer the case to the judicial authority to be prosecuted for criminal liability.
Where an act of counterfeiting or transforming any patent certificate is suspect of violating Article 280 of the Criminal Law, the administrative authority for patent affairs shall transfer the case to the judicial authority to be prosecuted for criminal liability.

Article 36. Where it establishes the constitution of an act of passing off the patent of another person or counterfeiting patent, the administrative authority for patent affairs shall order the actor to take the following rectifying measures;
(1) Where the number of another person's patent is indicated on the products manufactured and marketed or on the packages thereof, or non-patented products are manufactured and marketed with a patent marking attached, the actor shall immediately remove the marking and number of the patent; where the marking and number of the patent are difficult to be detached from the products, ordering the actor shall destroy the products.
(2) Where the number of another person's patent is used in advertisement or other promotional materials, or a non-patented technology is called a patented one in advertisement or other promotional materials, ordering the actor shall immediately stop issuing the advertisement or circulating the promotional materials, eliminate ill effect, and hand in the remaining promotional materials.
(3) Where the number of another person's patent is used or a non-patented technology is called a patented one in contract, ordering the actor shall immediately notify the other party thereof, and rectify the relevant contents of the contract.
(4) Where an act of counterfeiting or transforming the patent certificate, patent document or patent application document of another person or act of counterfeiting or transforming the patent certificate, patent document or patent application document is committed, the actor shall immediately cease the act, hand in his counterfeited or transformed patent certificate, patent document or patent application document.
(5) Any other necessary rectifying measures.

Article 37. Where the administrative authority for patent affairs establishes the constitution of an act of passing off the patent of another person or counterfeiting patent and makes a decision on the punishment thereof, the decision shall be published.

Article 38. When the administrative authority for patent affairs establishes the constitution of an act of passing off the patent of another person, it may determine the illicit income of the actor by the following approaches:
(1) Where products are sold that pass off the patent of another person, the sales price thereof times the quantity of the products sold is the illicit income of the actor; or
(2) Where a contract is concluded for a passing-off patent, the fees collected therefor is illicit income of the actor.
Article 39 Where after the administrative authority for patent affairs makes the decision on punishment, an interested party institutes administrative proceedings in the people's court, the enforcement of the decision shall not be suspended during the proceedings.

Article 40. An actor of the act of passing off the patent of another person or counterfeiting patent shall pay the fine indicated in the decision on punishment at a designated bank within 15 days from the date of receipt of the Decision on Punishment; where the fees are not paid after the expiration of the time limit, an addition fine shall be imposed a day that is 3 per cent of the amount of the initial fine.

Article 41. Where one disallows and blocks the administrative authority for patent affairs to carry or from carrying on the duty according to law, penalty shall be imposed thereon according to the Rules by the Social Security Authority on Penalty for the Purpose of Administration of Social Security; where the circumstances are so serious as to constitute a crime, the judicial authority imposes criminal liabilities according to law.

Chapter Ⅶ
Supplementary Provisions

Article 42. Where the regulations and rules issued by the former Patent Office and the State Intellectual Property Office are not consistent with these Measures, these Measures shall prevail.

Article 43. The State Intellectual Property Office is responsible for the interpretation of these Measures.

Article 44. These Measures enter into force on the day of promulgation thereof.

4.Opinions on Several Issues Relating to Patent Infringement
(For Trial Implementation-2001)

I. Determination of Scope of Protection of Patent Right for Invention and Utility Model
(I). Objects of Interpretation for Determination of Scope of Protection

1. The scope of protection of the patent right for invention or utility model is based on the contents of the claims thereof. The description and drawings may be used to interpret the claims, but the contents of the description and drawings should not be incorporated into the claims.

2. The independent claims of a patent reflects, in general terms, the technical solution of the patent for invention or utility model, records the technical features necessary for solving technical problem, and its scope of protection is more extensive than the dependent claims. For this reason, in determining the scope of protection of the patent right, interpretation should be made of the independent claims of the patent, which has the most extensive scope of protection.

3. There may be two or more independent claims in a patent. The interpretation should be made according to the litigation claim made by the right holder in the legal proceedings as arising from a patent infringement only of the scope of protection as determined in the relevant independent claims.

4. Where a right holder accuses the defendant of infringement on the basis of the dependent claims of a patent, the Court may also interpret and define the scope of protection of the dependent claims.

(II). Principles Underlying Interpretation of Determination of Scope of Protection

5. The patent right validity principle. What the plaintiff claims protection for must be a valid patent right under the protection of the Patent Law, but not any invention-creation that has been revoked by the Chinese Patent Office (CPO), invalidated by the Patent Reexamination Board (PRB), or abandoned by the patentee.

6. The scope of protection for the patent right should be determined on the basis of the contents of the claims. The eclectic interpretation principle should be followed for the interpretation of claims made according to the description and drawings; avoid acting on the “peripheral limitation” principle, namely the scope of patent protection is exactly the same as the scope of protection verbally stated in the claims, with the description and drawings used only to clarify some confusions in the claims; and, as well, avoid adopting the “central defining” principle, namely the claims only defines the general core of the invention, and the scope of protection may be extended to what a technical expert presumes to be the scope of protection clamed by the patentee upon reading the description and drawings. The eclectic interpretation should be somewhere in between the two extreme interpretation principles, and due protection of the patentee should be combined with the legal certainty of the public and their due interests.

7. The principle for treating the technical contents in the claims of a patent as an integrated technical solution. That is, all the technical contents as stated in the technical features in the independent claims of the patent should be treated as a whole, and the technical features in the preamble portion and those in the characteristic portion should be of the same use in defining the scope of patent protection.

8. The principle for basing the interpretation of the claims of the patent right on the basis of the technical contents stated in the claims of the patent right in any interpretation of the claims, rather than on the basis of the verbal expressions or wording of the claims. The technical contents thereof should be determined with reference to and through study of the description and drawings and on the basis of the comprehensive consideration of the technical field of the invention or utility model, the art known to the public before the filing date, its technical solution, use and effect.

9. The claims of the patent should be interpreted in line with the equitable principle. Account should be taken of both the contribution which the patentee has made over the prior art, so as to duly determine the scope of the patent protection and to protect the rights and interests of the patentee, without prejudice to the public interests. The art known to the public should not be “interpreted” as the scope of protection of the patent right, nor should the patented technology as the known art.

(III). Methods for Interpretation of Determination of Scope of Protection

10. In determining the scope of protection of the patent right, the determination should be based on the text of the clams of the patent right as finally published by the State patent granting authority as determined in the legally effective reexamination decision, revocation decision, or invalidation decision.

11. The description and drawings may be used to make duly extended or narrowed interpretation of the scope of protection of the technical solution as verbally defined in the claims of the patent right, i.e. the features equivalent to the necessary technical features are interpreted as the scope of protection of the patent right, or some necessary technical features are defined on the basis of the claims and drawings of the patent.

12. Where the independent claims and description of the patent are not consistent with one another, or mutually contradictory, the patent does not comply with the provision of Article 26, paragraph four, of the Patent Law, and the interested party should resolve the matter through the patent invalidation proceeding.
Where the interested party is reluctant to resolve the matter through the patent invalidation proceeding, the Court should act in line with the patent validity principle and the patent claims priority principle, but not “rectify” the technical contents in the claims on the basis of the disclosure of the description and drawings.

13. Where the technical features in the independent claims of the patent are confusing, interpretation may be made to clarify the confusion in combination with the dependent claims or the description and drawings.

14. If the dependent claims contain the technical features necessary to solve the technical problem which should have been recorded in the independent claims (lack of these technical features would render the technical solution in the independent claims incomplete), the patent is not in compliance with the provision of Rule 21, paragraph two, of the Implementing Regulations of the Patent Law.
Where the interested party is reluctant to go through the invalidation proceeding, the Court may define the scope of protection of the patent right in accordance with the corresponding dependent claims on the request of the interested party.

15. A technical solution that is only stated in the description and drawings, but in the claims of the patent should not be put into the scope of protection of the patent right. That is, the scope of protection of the patent right should not be determined on the basis of the description and drawings.
1) If a technical solution is fully disclosed, specifically described or embodied in the description of the patent, but not stated in the claims, then it should be determined that the technical solution falls outside the scope of protection, and it is not permissible to put it within the scope of protection of the patent right when the claims of patent right is interpreted.
2) If the technical contents stated in the claims of the patent right is somewhat different from the description or embodiment of the description of the patent, the statements made in the claims of the patent right have the priority, and the contents of the claims should not be “rectified” on the basis of the contents as recorded in the description and drawings.
3) If the technical contents disclosed in the claims and drawings of the patent is of wide scope, but the scope of protection claimed for the patent is narrow, then, in principle, the scope of protection should be determined for the patent right according to the technical contents of the claims.

16. If there lack the technical features necessary to solve the technical problem which the invention or utility model is intended to in the independent claims and dependent claims of the patent, and the necessary technical features are disclosed only in the description and drawings, then the patent contravenes the provision of Rule 21, paragraph two, of the Implementing Regulations of the Patent Law, and the interested party should resolve the matter through the patent invalidation proceeding.

17. When indications of the drawings are cited in the claims of the patent, the technical features should not be defined by the specific structure as shown in the drawings, nor is the scope of patent protection subject to the specific examples as disclosed in the description.

18. The abstract should not be used to determine the scope of protection of the patent right, nor to interpret the claims.

19. The file of the patent application and those of the patent reexamination, revocation or invalidation may be used to prohibit the patentee from going back on his or its words at the time of interpreting the scope of protection of the patent.

20. The file of the patent application and that of the patent reexamination, revocation or invalidation may be used to correct the printing errors in the patent document. When the printing errors in the patent documents affect the determination of the scope of the patent protection, the original documents in the file of the patent prevail.

21. Any obvious writing errors in the claims or description of the patent should be correctly interpreted according to the practical circumstances.

II. Establishment of Infringement of Patent Right for Invention or Utility Model
(I). Comparison for Establishment of Infringement

22. In establishing infringement, a full comparison should be made between all the necessary technical features of the technical solution as stated in the claims of the patent and those of the alleged fringing article (product or process).

23. In establishing infringement, the patented product is generally not directly compared with the infringing article to decide on the infringement. The former may be used to help understand the relevant technical features and technical solution.

24. When the plaintiff and defendant both have their respective patent right, their patented products or the claims of the patents generally should not compared with one another to decide on the infringement.

25. As a rule, no account is taken of whether the infringing article and the patented technology are in the same area of application in comparison between the product invention or utility model to establish the patent infringement.

(II). Application of Full-coverage Principle

26. By full coverage is meant that the alleged infringing article (product or process) reproduces all the necessary technical features of said technical solution in the claims of the patent right, and the alleged infringing article (product or process) is in full correspondence and identical with all the necessary technical features in the independent claims of the patent.

27. The full-coverage principle is the entire technical features coverage principle or the literal infringement principle. That is, if the technical features of the alleged infringing article (product or process) contain all the necessary technical features of the claims of the patent right, then it falls into the scope of protection of the patent right.

28. Where said necessary technical features in the independent claims of the patent use the superordinate features, but the alleged infringing article (product or process) use the corresponding subordinate features, the alleged infringing article (product or process) falls into the scope of protection of the patent right.

29. The alleged infringing article (product or process) which uses all the necessary technical features in the claims of the patent right, and, besides, adds new technical features thereto, falls into the scope of protection of the patent right. Then, no account should be taken of whether or not the technical effect of the alleged infringing article (product or process) is identical with that of the patented technology.

30. The alleged infringing article (product or process) which contains improved technical features, as far as the prior patented technology is concerned, and has been granted the patent right is a dependent patent. Carrying out, without the authorization of the prior patentee, the dependent patent also covers the scope of protection of the prior patent right.

(III). Application of Equivalent Principle

31. In establishing patent infringement, where the alleged infringing article (product or process) does not constitute an infringement of the patent right when applying full-coverage principle, the equivalent principle should apply to the infringement establishment.

32. By the equivalent principle is meant that one or more technical features of the alleged infringing article (product or process) appear literally different as compared with the claimed technical features in the independent claims of the patent, but the two can be established as containing equivalent technical features upon analysis. This being the case, it should be established that the alleged infringing article (product or process) falls into the scope of protection of the patent right.

33. The scope of protection of the patent right also includes the scope as determined on the basis of the technical features equivalent to the necessary technical features in the claims of the patent.

34. The equivalent features are also known as equivalents. The technical features in the alleged infringing article (product or process) that simultaneously meet following two conditions are the equivalents of the corresponding technical features claimed in the patent.
1). Compared with the corresponding claimed technical features, the technical features of the alleged infringing article use basically the same means, perform basically the same function and achieve basically the same effect; and
2). The ordinarily skilled artisans in the art of the patent can think of the technical features upon reading the claims and description of the patent without inventive labour.

35. The equivalents should be the mutual replacement of specific technical features, but not the mutual substitution of the entire technical solutions.

36. The equivalent replacement includes substitution of the distinctive technical features claimed in the patent right and that of the technical features in the preamble portion of the claims of the patent.

37. Establishment whether the technical features of the alleged infringing article (product or process) are equivalent to the technical features in the independent claims of the patent should be subject to the time when the infringing act takes place.

38. In applying the equivalent principle to the establishment of infringement, the principle is applicable to whether the specific technical features of the alleged infringing article (product or process) are equivalent to the corresponding necessary technical features as claimed in the patent, but not to whether the entire technical solution of the alleged infringing article (product or process) is equivalent to the technical solution as defined in the independent claims.

39. Equivalent infringement is established on the basis of the level of professional knowledge of the people ordinarily skilled, but not on the basis of that of the high-level experts in the art of the patent.

40. In establishing equivalent infringement in respect of a significant edge-cutting invention patent, the determined scope of equivalent protection may be appropriately broader; in respect of a composite invention or selective invention, the scope of equivalent protection may be strictly determined.

41. Where some individual necessary technical feature in the claims of the patent is intentionally omitted, so that the resulting technical solution becomes an altered technical solution that is inferior to the patented technical solution in performance and effect, and it is obvious that this altered inferior technical solution results from the omission of the necessary technical feature, the equivalent principle should apply, and infringement of the patent right is established.

42. In establishing patent infringement, the following circumstances should not apply in establishing, according to the equivalent principle, that the alleged infringing article (product or process) falls into the scope of protection of the patent right.
1). The technical solution of the alleged infringing article is a known technology before the filing date;
2). The technical solution of the alleged infringing article is a conflicting application or a prior patent for which an application is filed; and
3). The technical features of the alleged infringing article are the technical contents which the patentee specifically preclude from the patent protection in the course of patent application, examination for patenting and maintenance of the validity of the patent right .

(IV). Application of Estoppel Principle

43. By estoppel principle is meant that, in the patent examination, revocation or invalidation proceeding, the patentee promises to limit the scope of protection claimed in the patent or partially abandon the protection by way of written statement or amendment of the patent document to ensure that the patent possesses novelty and inventiveness, and obtains the patent right as a result, but the Court should, when applying the equivalent principle in determining the scope of protection of the patent right in the legal proceedings involving patent infringement, prohibit the patentee from reincorporating the limited, removed or abandoned contents into the scope of protection under the patent right .

44. when the equivalent principle runs into conflict with the estoppel principle during the application thereof, that is, where the plaintiff claims that the equivalent principle apply to establish that the defendant infringes its or his patent right , whereas the defendant claims that the estoppel principle apply in order to establish that it or he does not infringe the patent right , the application of the estoppel principle should first apply.

45. The following conditions should be satisfied for the estoppel principle to apply:
1). The promise of limitation or abandonment by the patentee in respect of the relevant technical features must be explicitly stated, and written down in the patent file; and
2). The technical contents in respect of which the promise of limitation or abandonment of protection is made must have an essential effect on the grant of the patent right or on the maintenance of the validity of the patent right.

46. The estoppel principle should apply on the request of the defendant, and the defendant should furnish the relevant evidence of the plaintiff’s estoppel.

(V). Application of Redundant Designation Principle

47. The redundant designation principle is one whereby, when interpreting the independent claims of the patent and determining the scope of protection of the patent right in establishing patent infringement, the obviously added technical features (i.e. redundant features) in the independent claims of the patent are deleted, the scope of protection of the patent right is determined and whether the alleged infringing article (product or process) covers the scope of protection of the patent right is established on the basis of the necessary technical features in the independent claims of the patent.

48. Whether a particular technical feature in the independent claims of the patent is an additional technical feature should be determined through a comprehensive analysis of this technical feature’s function of and effect on achieving the aim of the invention or on solving the technical problem and the statement made by the patentee to the CPO or PRB in the proceeding for patent examination and approval, revocation or invalidation examination.

49. Anything that is explicitly stated in the independent claims of the patent, but in respect of which no specification is made of the technical features as to the function or use should not be established as an additional technical feature.

50. Following factors should be taken into consideration in applying the redundant designation principle to establish the additional technical features:
1).Whether the technical feature is necessary for distinguishing the patented technical solution from the existing technical solution before the date of application for the patent, whether it is the technical feature embodying the novelty or inventiveness of the patent, namely whether the patent remains novel or inventive if this technical feature is omitted in the claims of the patent; and
2).Whether the technical feature is necessary for realizing the aim of the invention, for solving the technical problem the invention is intended to and for achieving the technical effect of the invention, namely whether the patent remain capable of realizing or basically realizing the aim of the invention or achieving the technical effect of the invention if the technical feature is omitted in the technical solution of the independent claims of the patent; and
3).There should not exist the circumstance of the patentee’s estoppel in respect of the technical feature.

51. In the alleged infringing article (product or process), there only lacks some additional technical feature in the independent claims that is not relevant to or has no effect on the solution of the technical problem the patent is intended to, nor affects the patentability, which renders the alleged infringing article (product or process) obviously inferior to the patented technology in technical effect, but obviously superior to the known technology before the date of filing, the redundant designation principle should not apply, but the equivalent principle should, to the establishment that the alleged infringing article (product or process) falls into the scope of the patent protection.

52. The Court should not apply the redundant designation principle on its own initiative, but does so at the request of the plaintiff and on the basis of the relevant evidence.

53. In respect of the claims of the patent right for utility model incorporating non-utility-model technical features, the scope of protection of the patent right should defined strictly according to the words of the claims of the patent, and the non-utility-model technical features in the claims of the patent should not be established as the necessary technical features. That is the alleged infringing article (product or process), which lacks the non-utility-model technical features in the claims of the patent for utility model, does not constitute an infringement of the patent right.

54. As for the patent for utility model at a low level of inventiveness, the redundant designation principle generally does not apply to the establishment of the scope of patent protection.

55. In applying the redundant designation principle, account should be taken of the patentee’s liability with fault, and this be reflected in the compensation of damages.

III. Establishment of Infringement of Patent Right for Design

(I). Determination of Scope of Protection of Designs

56. The scope of protection of the patent right for design is based on the design as shown in the drawings or photographs of the patented product. The brief description of the design may be used to understand the scope of protection of the design.

57. In any infringement proceedings, the design patentee should submit the “draft” of its or his design, and indicate the part and contents of originality protected under the design; where the patentee submits to CPO the “draft” when filing the application for the patent for design, the patent file may be used as the evidence for determining the main elements of the design.

58. Where protection of colours is claimed under the patent right for design, the right holder should furnish the relevant evidence accepted by CPO to be used to determine the scope of protection of the design. The Court should, if necessary, compare the colours with those in the file kept at CPO.

59. Where protection of colours is claimed under the patent right for design, the claimed colour should be used as one of the key elements for determining the scope of protection of the patent right for the design. That is, in deciding on the infringement, the one-for-one comparison should be made of the shape, device, colour and the combination thereof incorporated therein with those of the alleged infringing product.

60. The scope of protection of the patent right for design should not be extended to any content of a design known to the public before the date of application for the patent for the design or before the date of priority.

61. Any content of design should be excluded from the scope of protection of the patent right for design that only has a function or effect, but cannot be discerned by or has no aesthetic appeal to consumers.

(II). Establishment of Infringement of Patent Right for Design

62. In establishing infringement of the patent for design, it should first be examined whether the alleged infringing product and the patented product are of the same category. Where they are not, the former does not constitute an infringement of the patent right for design.

63. Reference should be made of the classification of designs and account be taken of the objective circumstances of the sale of the goods in the examination of whether the product of the patent for design and the alleged infringing product are of the same category.

64. The pre-condition for establishing an infringement of patent for design is that the products involved are of the same category, without precluding the special circumstance in which the designs of the similar products may also be determined as a case of infringement.

65. The establishment of infringement of patent for design, that is, determining the alleged infringing products is identical with or similar to the product of a design patent, should be based on the aesthetic and observational capability of the ordinary consumers, not on that of the persons skilled in the art of the design patent.

66. The ordinary consumers as a group of particular consumers mean the group who buy or use the products identical with or similar to, in category, the product of the design patent.

67. A comparison is made between the alleged infringing product and the design of the patented product. A general observation and comprehensive determination should be made to find out whether the two has the same aesthetic appeal. The comparison should focus on the essential design part (essential part) created by the patentee that is rich in aesthetic appeal and on the corresponding part of the alleged infringing product to see whether the defendant has plagiarized or imitated the part created by the plaintiff.

68. Where both plaintiff and defendant have obtained and exploited the patent right for the design, it may be decided that the act of exploitation of the subsequent patent right for design infringes the prior patent right for design if the two are identical or similar.

69. The equivalent principle applicable to the establishment of infringement of the patent for invention or utility model does not apply to the establishment of infringement of the patent for design.

(III). Determination of Identicalness and Similarity

70. Whether or not the design of a patented product is identical with or similar to the design of an alleged infringing product, a comparison should be made between the two:
1). If the two are identical in shape, device, colour or any other essential part, the two designs should be deemed identical;
2). If the essential parts (portions) are identical or similar, but the non-essential part is different, the two designs should be deemed similar; or
3). If the essential parts (portions) of the two are not identical or similar, the two designs should be deemed not identical or similar.

71. The size, material, internal structure and performance of the design of the patented product and the alleged infringing product should not be the basis for establishing whether the two are identical or similar.

72. In respect of a design claiming protection of its colour, it should be first determined whether the shape of the design is known to the public. If yes, the determination should be made as to its device and colour only; if the shape, device and colour are all of novel design, the determination should be made as to the combination of the shape, device and colour.

IV. Establishment of Other Acts of Infringement of Patent Right
(I). Indirect Infringement

73. By indirect infringement is meant that the act of the actor does not constitute a direct infringement of another person’s patent right, but it or he intentionally induce, aid and abet others to exploit another person’s patent, thus resulting in an act of direct infringement. The actor has the subjective intention to induce or aid and abet others to infringe another person’s patent right, and objectively create the necessary conditions for another person’s act of direct infringement to take place.

74. The objects of the indirect infringement are not articles in general use, but those used for special purpose by which is meant the key part used only to exploit another person’s product or the intermediate product of a process patent. It constitutes a part of the exploitation of another person’s patented technology (product or process) without use for any other purposes.

75. As far as a product patent is concerned, indirect infringement is to provide, sell or import the raw material or spare parts for the manufacture of the patent product; as regards a process patent, indirect infringement means providing, selling or importing the material, apparatus or specialised equipment used for the patent process.

76. The indirect infringer has the intention to induce or aid and abet others to directly infringe another person’s patent right.

77. The actor, knowing that another person prepares to exploit an act of infringement of the patent right, but creating the condition for the infringement, commits indirect infringement.

78. Indirect infringement, in general, presupposes the emergence of direct infringement, without which there exists no indirect infringement.

79. Where the following circumstances arise in which an act of direct infringement is not investigated and handled, or is not deemed an infringement of the patent right, the indirect infringer may be directly investigated and handled for its or his liability for the infringement:
1). The act deemed to be an act of infringement of the patent right under Article 63 of the Patent Law; and
2). The act is a personal act to manufacture or use the patented product or use the patented process for non-profit purposes.

80. Where an act of direct infringement as established under the Chinese law takes place or is likely to take place overseas, the actor of the indirect infringement may be investigated and handled for its or his liability for the infringement.

(II). Counterfeiting Patent

81. Counterfeiting the patent of another person means an act to use the representations of the patent of the patentee without the authorization thereof, including:
1). Indicating another person’s patent number on the products it or he manufactures or sells or on the packages thereof,;
2). Using, in advertisements or other promotional material, another person’s patent number and making people misidentify the involved technology as another person’s patented technology;
3). Using another person’s patent number in contract and making people misidentify the technology concerned in the contract as another person’s patented technology; and
4). Forging or mutilating another person’s patent certificate, patent documents or patent application documents.

82. Acts of counterfeiting patent should, meanwhile, fall under the provisions as the following:
1). There must be committed an act of counterfeiting, namely, somehow indicating, without the authorization of the patentee, that its or his products are the patented products of another person for which legal protection had been obtained, or the patented technology of another person for which legal protection had been obtained, thus misleading the public;
2). What is counterfeited must be the patent which another person has obtained and which is in actual existence; and
3). The act of counterfeiting another person’s patent must be an intentional act.

83. The object of infringement by virtue of an act of counterfeiting another person’s patent is the patentee’s right in the patent representation; hence, whether its or his patented technology is exploited is taken as the element. That is, the alleged infringing article (product or process) may not necessarily have exploited another person’s patented technology, the counterfeiting product may not be identical with the patented product, nor may the process with the patented process.

84. The technology exploited pursuant to a patent licensing contract is not consistent with the licensor’s patent in technical contents, but the patentee’s patent number is indicated on the packages of the products. The act is one that is executed without the authorization of the patentee and that counterfeits another person’s patent.

85. After the patent administrative department imposes the administrative sanction on an act of counterfeiting another person’s patent, the patentee remains entitled to instituting legal proceedings and to requesting the patent counterfeiter to bear civil liabilities for the infringement.

86. With regard to any act of counterfeiting another person’s patent, the People’s Court may, besides ordering the infringer to bear civil liabilities according to law, impose administrative sanction on the patent counterfeiter according to law.

87. In respect of any person directly responsible for counterfeiting a patent who falls under any of the following provisions, the right holder should be told to directly institute private civil proceedings, and the counterfeiter may also be transferred to the public security authority for prosecution for its or his criminal liabilities:
1). The amount of the illicit income exceeds RMB 100,000 yuan;
2). The amount of direct economic damages to the patentee exceeds RMB 500,000 yuan;
3). The counterfeiter who has been imposed the administration sanction twice for counterfeiting patent has carried out the act of counterfeiting, once again, another person’s patent; or
4). There has been caused ill effect.

V. Counterclaim to Patent Infringement
(I). Counterclaim based on Abuse of Patent Right

88. The defendant, making its or his counterclaim on the ground that the duration of protection of the plaintiff’s patent right has expired, the patent right has been abandoned by the right holder, revoked by CPO, or invalidated by PRB, should furnish the relevant evidence.

89. Where the defendant contends that the plaintiff’s patent right should be invalidated for failure to meet the patentability requirements or for failure to complying with other laws or regulations, its or his request for invalidation should be filed with PRB.

90. The defendant, instituting the infringement proceedings on the grounds that the plaintiff has acquired the patent right in bad faith and abused the patent right, should furnish the relevant evidence.
Acquisition of the patent right in bad faith means the acquisition of the patent right for an invention-creation that one clearly knows it should not obtain the patent protection through intentional circumvention of the law or by any other unfair means for the purpose of obtaining unlawful interests or of prohibiting other people’s lawful act of exploitation.

91. Where the defendant proves that it or he has also acquired the valid patent right for an invention or utility model identical with that of the plaintiff, the Court, when it may establish, upon hearing, that the two patents are identical in technical contents, should make its decision according to the principle for the protection of the prior right.

(II). Counterclaim Based on Non-infringement

92. The alleged infringing article (product or process) which lacks the necessary technical features in the claims of the plaintiff’s patent right for invention or utility model does not constitute an infringement of the patent right.

93. The alleged infringing article (product or process) having one or more technical features that are substantively distinct as compared with the corresponding technical features in the claims of the plaintiff’s patent right does not constitute an infringement of the patent right.
Here, being substantively distinct means:
1). The technical feature or features constitute the distinctive technical features(s) of a new technical solution; or
2). The technical feature or features make the technical features used in the alleged infringing article (product or process) obviously superior to the corresponding technical features in the independent claims of the plaintiff’s patent right in function or in effect, and the ordinarily skilled artisans in the same art hold that this distinction is a substantive improvement and that it is not obvious.

94. A person’s act of manufacture or use for non-profit purposes does not constitute an infringement of the patent right.
But any entity that manufactures or uses another person’s patented product without the authorization thereof should not make its counterclaim on the basis of “for non-profit purposes”, and should be held liable for the infringement.

(III). Counterclaim Based on Not Being Deemed an Infringement

95. Exhaustion of the patent right. After a patented product is sold which is manufactured by or with the authorization of the patentee, the act of using or reselling the product is not deemed an infringement of the patent right, including:
1). After a part of the patented product is sold which is manufactured by or with the authorization of the patentee, the act of using or reselling the part should be deemed to have received the implied consent of the patentee; and
2). After the equipment is sold which is manufactured by the patentee of the patent for the manufacture process or which another person is allowed to manufacture to be used for the exploitation of its or his patented process, it is an act to use the equipment to exploit the patent for the manufacture process.

96. Right of prior use. Acts, before the date of application for the patent, of having manufactured an identical product, used an identical process, or made the necessary preparation for the manufacture or use, and of continuing to manufacture or use within the original scope, are not deemed infringements of the patent right.
The conditions for enjoying the right of prior use are:
1). Making the necessary preparation for the manufacture or use. The necessary preparation means having accomplished the design of the product drawings and the document of work process, prepared the specialised equipment and moulds or finalized the trial manufacture of the prototype and other preparatory work;
2). Continuing to manufacture or use within the original scope. The original scope refers to the actual production output or the scope of production capacity of the specialised production equipment prepared before the date of application for the patent. The act of exceeding the original scope of manufacture or use constitutes an infringement of the patent right;
3). The prior process for the manufacture of the products or for use should be independently developed by the holder of the prior right or acquired thereby by lawful means, but not plagiarized, stolen or obtained from the patentee by other unfair means before the date of application for the patent; and
4). The holder of the prior right cannot transfer its or his prior technology, unless it is transferred together with the enterprise it or he belongs to.
The act to sell the products manufactured according to the prior right is not deemed an infringement of the patent right, either.

97. Temporarily passing through the border. The act for any foreign means of transport which temporarily passed through the territory, territorial waters or territorial airspace of China to use 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 is not deemed an infringement of the patent right. The exception to this, however, is the act in which a means of transport is used to “transport” the patented product, i.e. the act of transferring them from one means of transport to another.

98. Use for the purpose of scientific research and experimentation. Any act of using the patent concerned solely for the purpose of scientific research and experimentation is not deemed an infringement of the patent right. In this regard, a distinction should be made between the experimentation on the patented product and use of the patented product in experimentation.
1). The use of the patent concerned solely for the purpose of scientific research and experimentation should include the act of manufacturing the patented product solely for the purpose of scientific research and experimentation;
2). The use solely for the purpose of scientific research and experimentation is for the purpose of studying, testing or improving another person’s patented technology and the result of this use is the making of a new technology achievement on the basis of the existing patented technology; and
3). The manufacture with or use of another person’s patented technology in the course of scientific research and experimentation which is not for the purpose of research or improvement of another person’s patented technology, with the result being not directly related to the patented technology, constitutes an infringement of the patent right.

99. Non-intentional act. The act, for the purpose of production and business purposes, of using or selling a patented product or a product that was directly obtained by using a patented process, without knowing that it was made and sold without the authorization of the patentee, is an act of infringement of the patent right.
However, the user or seller who can prove that he obtains the product from a legitimate source is not liable for compensation, but should bear the legal liability to stop the infringing act. The “legitimate source ” means that the user or seller made the purchase through legitimate supplying channel, under a normal trade contract and at a reasonable price.

(IV). Counterclaim Based on Prior Art

100. Counterclaim based on prior art means that in patent infringement proceedings, where the alleged infringing article (product or process) is equivalent to the patented technical solution in the claims of the patent, the defendant’s act does not constitute an infringement of the plaintiff’s patent right if it or he makes a defense and furnish the relevant evidence to prove that the alleged infringing article (product or process) is equivalent to an prior art.

101. When the counterclaim is made on the basis of the prior art, the prior art should be an independent technical feature available before the date of application for the patent, or people ordinarily skilled in the art hold that the patent is a technical feature obtained through obvious and simple combination of the prior art.

102. The counterclaim based on the prior art only applies to equivalent patent infringement, not to the identical patent infringement.

103. When the patented technical solution, the alleged infringing article (product or process) and the cited prior technical solution are obviously identical, the defendant should not make the counterclaim on the basis of the prior art, but may file a request with PRB for invalidation of the patent right.

(V). Counterclaim Based on Contract

104. By counterclaim based on contract is meant that the defendant of the patent infringement proceedings makes its or his counterclaim on the ground that the technology it or he exploited is legitimately obtained from a third person by virtue of a technology transfer contract. This ground for the counterclaim is not a ground for defending against the infringement of the patent right, but one for making counterclaim against the liability for the infringement.

105. Where the transferee of the technology transfer contract exploits the transferred technology according to what is agreed upon in the contract and infringes another person’s patent right, the transferor and transferee of the contract commit joint and several infringement. When the two parties to the contract are the co-defendants in the patent infringement proceedings, except that they agreed otherwise in the contract, the transferor should first bear the infringement liabilities when establishing the liabilities, and the transferee bear the ordinary joint and several liabilities.

106. Where the defendant in making the counterclaim based on the contract in the patent infringement proceedings requests for adding the transferor of the contract as co-defendant, if the plaintiff agrees on the addition, the transferor of the contract should be added as a co-defendant in the proceedings as; if the plaintiff insists on its or his disagreement on the addition, the contractual dispute may be separately settled through contract proceedings or arbitration after the contract transferee bears the liabilities for the infringement.

(VI). Counterclaim Based on Prescription for Instituting Legal Proceedings

107. Prescription for instituting legal proceedings concerning the infringement of patent right is two years counting from the date on which the patentee or any interested party obtains or should have obtained the knowledge of the infringing act. The defendant may make a counterclaim on the ground that the patentee’s action exceeds the prescription for instituting legal proceedings.

108. Where the defendant makes counterclaim on the ground that the act of patent infringement that has been carrying out has exceeds the prescription for instituting legal proceedings, the Court may order the alleged infringer to stop the infringement at the request of the plaintiff, but the amount of damages caused by the infringement should be counted from the two years starting from the date on which the plaintiff institutes the legal proceedings in the People’s Court.

109. Where it has been two years since the date on which the infringer ended its or his execution of the infringing act, the patentee will lose its or his right to win the case.

VI. Understanding of Relevant Concepts

110. The eclectic principle, also known as the subject matter restriction principle, whereby the scope of protection of the patent right is determined according to the claims, and the description and drawings may be used to interpret the claims.

111. The peripheral defining principle, whereby the scope of protection of the patent right is limited to the object of the purely verbal description in the claims, and the verbal statements of the claims are the maximum scope of protection of the patent right .

112. The central defining principle, whereby the scope of protection of the patent right may not be confined to the verbal statements of the claims, but centered on the claims, and the scope of protection may be extended to the scope that the people skilled in the art think may cover upon careful study of the description and drawings.

113. The manufacture of the product means the realization of said technical features of the product in the claims of the patent right , which may include:
1). The quantity and quality of the product and the process for the manufacture thereof do not affect the determination of the act of manufacture;
2). The manufacture by entrusting another person with the manufacture or indicating “manufacture under the supervision” on the product is deemed participation in the manufacture;
3). Act to assemble the parts into the patented product is manufacture; and
4). Act to repair, by way of replacement, the parts of the patented product, or to repair the patented product that has passed the operation life thereof is an act of manufacture.

114. The use of the product means application of the technical function of the technical solution of the product in the claims of the patent.

115. The use of the process means the act of realizing each and every step of the technical solution of said patented process in the claims of the patent. Except the process for the manufacture of new product, the result of using the process does not affect the determination of its nature.

116. The sale of the product means the transfer, from the seller to the buyer with payment of fees, of the ownership of the product manufactured according to said technical solution in the claims of the patent right. Any act to create the conditions (e.g. warehousing) for the sale is deemed sale.

117. The offering for sale means the expression of the will to sell the product by way of advertisement and display in shop windows or at exhibition.

118. The importation of the product means the transport, passing in space through the border from overseas into the territory of China, of the product manufactured according to said technical solution in the claims of the patent right or manufactured directly by the patented process.

119. The extension from process to product means that, after the patent right for invention of process for the manufacture of a product is granted, any entity or individual should, without the authorization of the patentee, not use, sell or import the product directly obtained by the patented process for the production or business purposes, besides not using the patented process for the production or business purposes.

120. The double patenting means that the patent right is separately applied for and granted for two or more invention-creations the subject matters of which are identical and the technical features of which in the claims are basically identical.

121. The dependent patent, also known as the improvement patent, means that the technical solution of a patented technology incorporates a former valid patent, namely the necessary technical features of the basic patent, and the exploitation thereof will inevitably fall into the scope of protection or cover the technical features of the former patent, and inevitably depends on the exploitation of the former patented technology.
The forms of the dependent patent are namely: (1) addition of new technical features to those of the former patent for product; (2) discovery of a new use not discovered before on the basis of the technical features of the former patent for product; and (3) discovery of a new use not discovered before on the basis of the technical solution of the former patent for product process.

122. New product. The new product provided for in Article 57, paragraph two, of the Patent Law means a product that is manufactured for the first time in the country and which is obviously distinct in composition, structure or quality, performance or function as compared with the existing product of the same category before the date of application for the patent.
It is up to the plaintiff to furnish evidence as to whether it is a new product.

123. The ordinarily skilled artisans in the art means the skilled people having, before the date on which the infringement takes place, the generally known knowledge in the art, being able to acquire the general knowledge known in the art and having the means and capability to do the work of normal experimentation and analysis.

124. The prior art means the technology which 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, i.e. the prior art.

125. The necessary technical feature means a technical component or combination thereof, in the technical solution, which is capable of independently generating the technical effect in solving the technical problem the invention or utility model is intended to. For example, the technical features of the product patent comprises the parts of the product and the correlation between the parts, the technical features of the process patent comprise steps, the interrelations and conditions of the steps.

126. The additional technical feature means the technical feature relevant to the technology of the invention or utility model, further limiting the citation of the technical features of the technical solution, or of the technical features that are newly added.

127. The edge-cutting invention means a brand new, technically unprecedented technical solution that opens a new epoch in a period of development of the science and technology of the humanity.

128. The redundant designation means that the patentee writes down in the independent claims something that are obviously not the necessary technical features for solving the technical problem of the invention or utility model for lack of experience in exploiting the patented technology when drafting the documents of the application for the patent for the edge-cutting invention or for the significant improvement patent, and the technical features are not the conditions necessary for rendering the independent claims novel or inventive. Thus, these non-necessary technical features become redundant restrictions on the scope of protection for the independent claims. For the redundant designation may greatly narrow down that scope of protection of the patent right, or even put the patent right outside protection.

129. The non-utility model technical features mean the technical features, such as use, manufacture process, method of use or material components (composition or portion) stated in the independent claims of the patent for utility model that are not the technical features comprising the technical solution of the shape, structure or combination thereof of the product of the patent for utility model.