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(Adopted at the 4th Session of the Standing Committee of the Sixth National
People's Congress on 12 March, 1984)
Article 1 This Law is enacted to protect patent rights for inventions-creations,to encourage inventions-creations, to foster the spreading and application of Inventions-creations,and to promote the development 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. Article 3 The Patent Administrative Organ under the State Council
is responsible for the patent work nationwide, receives and examines patent
applications and grants patent rights for inventions-creations that conform
with the provisions of this Law. Article 4 Where an invention-creation for which a patent is applied relates to the security or other vital interests of the State and is required to be kept secret, the application shall be treated in accordance with the relevant prescriptions of the State. 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 by mainly
using the material and technical means of the entity, is a service invention.
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. Article 7 No entity or individual shall prevent the inventor or creator from filing an application for a patent for a non-service invention-creation. Article 8 For an invention-creation jointly made by two or more entities or individuals, or made by an entity or individual in execution of a commission for another entity or individual, the right to apply for a patent belongs, unless otherwise agreed upon, to the entity or individual which made, or to the entities or individuals which jointly made, the invention-creation. After the application is approved, the entity or individual that applied for it shall be the patentee. Article 9 Where two or more applicants file applications for patent for the identical invention-creation, the patent right shall be granted to the applicant whose application was filed first. Article 10 The right to apply for a patent and the patent right
may be assigned. Article 11 After the grant of the patent right for an invention
or utility model, except as otherwise provided for in the law, no entity
or individual may, without the authorisation of the patentee, exploit
the patent, that is, make, use, offer for sale, sell or import the patented
product; or use the patented process or use, offer for sale, sell and
import the product directly obtained by the patented process, for production
or business purposes. Article 12 Any entity or individua1 exploiting the patent of another person 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 For patent for invention belonging to state-owned enterprises
or entities, which are of great significance to national or public interests,
the competent departments concerned of the State Council as well as the
people's governments of provinces, autonomous regions or municipa1ities
directly under the Central Government have the power to decide, after
approved by the State Council, the said patented invention be spread and
exploited within the prescribed scope and to allow designated entities
to exploit it. The entities that exploit it shall, according to the prescriptions
of the State, pay exploitation fees to the patentee. 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 the patent right shall award to the inventor or creator of a service invention--creation a reward and, upon the exploitation of the patented invention-creation, shall award to the inventor or creator an appropriate remuneration based on the extent of exploitation and application and the economic benefits yielded. Article 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 sha1l 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,
he or it shall appoint a patent agency designated by the patent administrative
organ under the State Council to act as his or its agent. Article 20 Where any Chinese entity or individual intends to file
an application in a foreign country for a patent for its or his domestic
invention-creation, it or he shall file first an application for patent
with the patent administrative organ under the State Council and, shall
appoint a patent agency designated by the said organ to act as its or
his agent. In this regard, the prescriptions of Article 4 in this law
shall apply. Article 21 The patent administrative organ under the State Council
and the Patent Reexamination Board subordinated thereto shall handle patent
applications and requests concerned according to law and in the spirit
of objectiveness, justice, precision and punctuality. Chapter II requirements for grant of patent rignt Article 22 Any invention or utility model for which patent right
may be granted must possess novelty, inventiveness and practical app1icability.
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 collide
with any legal prior rights obtained by any other person.
Article 25 For any of the following, no patent right shall be granted:
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. Article 27 Where an app1ication for a patent for design is filed,
a request, drawings or photographs of the design sha1l be submitted, and
the product incorporating the design and the class to which that product
be1ongs sha1l be indicated. 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. 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 sha11 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.
Article 33 An applicant may amend his or its application for a patent, but the amendment to the application for a patent for invention or utility model may not go beyond the scope of the disclosure contained in the initial description and claims, and the amendment to the application for a patent for design may not go beyond the scope of the disclosure as shown in the initial drawings or photographs. Chapter IV examination and approval of application for patent Article 34 Where, after receiving an application for a patent for invention, the patent administrative organ under the State Council, upon preliminary examination, finds the application to be in conformity with the requirements of this Law, it shall publish the application promptly after the expiration of eighteen months from the date of filing. Upon the request of the applicant, the patent administrative organ under the State Council publishes the application earlier. Article 35 Upon the request of the applicant for a patent for
invention, made at any time within three years from the date of filing,
the patent administrative organ under the State Council will proceed to
examine the application as to its substance. If, without any justified
reason, the applicant fails to meet the time limit for requesting examination
as to substance, the application shall be deemed to have been withdrawn.
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. Article 37 Where the patent administrative organ under the State Council , after it has made the examination as to substance of the application for a patent for invention, finds that the application is not in conformity with the provisions of this Law, it shall notify the applicant and request him or it to submit, within a specified time limit, his or its observations or to amend the application. If, without any justified reason, the time limit for making response is not met, the application shall be deemed to have been withdrawn. Article 38 Where, after the applicant has made the observations or amendments, the patent administrative organ under the State Council finds that the application for a patent for invention is still not in conformity with the provisions of this Law, the application shall be rejected. Article 39 Where it is found after examination as to substance that there is no cause for rejection of the application for a patent for invention, the patent administrative organ under the State Council shall make a decision to grant the patent right for invention, issue the certificate of patent for invention, and register and announce it. The patent right for invention shall come into force upon the date of the announcement. Article 40 Where it is found after preliminary examination that there is no cause for rejection of the application for a patent for utility model or design, the patent administrative organ under the State Council shall make a decision to grant the patent right for utility model or the patent right for design, issue the relevant patent certificate, and register and announce it. The patent right for utility model or design shall come into effect upon the date of the announcement. Article 41 The patent administrative organ under the State Council
shall set up a Patent Reexamination Board. Where an applicant is not satisfied
with the decision of the patent administrative organ under the State Council
rejecting his application for patent, such applicant may, within three
months from the date of receipt of the notification, request the Patent
Reexamination Board to make a reexamination. The Patent Reexamination
Board shall, after reexamination, make a decision and notify the applicant
for patent. 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:
Article 45 Where, starting from the date of the announcement of the grant of the patent right by the patent administrative organ under the State Council, any entity or individual considers that the grant of the said patent right is not in conformity with the relevant provisions of this Law, it or he may request the Patent Reexamination Board to declare the patent right invalid. Article 46 The Patent Reexamination Board shall, in a timely manner,
examine the request for invalidation of the patent right, make a decision
and notify the person who made the request and the patentee. The decision
declaring the patent right invalid shall be registered and announced by
the patent administrative organ under the State Council . Article 47 Any patent right which has been declared invalid shall
be deemed to be non-existent from the beginning. 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 such efforts have not been successful within a reasonable period of time, the patent administrative organ under the State Council may, upon the application of that entity, grant a compulsory license to exploit the patent for invention or utility model. Article 49 Where a national emergency or any extraordinary state of affairs occurs, or where the public interest so requires, the patent administrative organ under the State Council may grant a compulsory license to exploit the patent for invention or utility model. Article 50 Where the invention or utility model for which the
patent right was granted is of important technical advance of considerable
economic significance compared with another invention or utility model
for which a patent right has been granted earlier and the exploitation
of the later invention or utility model depends on the exploitation of
the earlier invention or utility model, the patent administrative organ
under the State Council may, upon the request of the later patentee, grant
a compulsory license to exploit the earlier invention or utility model.
Article 51 The entity or individual requesting, in accordance with the provisions of this Law, a compulsory license for exploitation shall furnish proof that it or he has not been able to conclude with the patentee a license contract for exploitation on reasonable terms. Article 52 The decision made by the patent administrative organ
under the State Council granting a compulsory license for exploitation
shall be notified to the patentee concerned as soon as reasonably practicable
and shall be registered and announced. Article 53 Any entity or individual that is granted a compulsory license for exploitation shall not have an exclusive right to exploit and shall not have the right to authorize exploitation by any others. Article 54 The entity or individual that is granted a compulsory license for exploitation shall pay to the patentee a reasonable exploitation fee, the amount of which shall be fixed by both parties in consultations. Where the parties fail to reach an agreement, the patent administrative organ under the State Council shall adjudicate. Article 55 Where the patentee is not satisfied with the decision of the patent administrative organ under the State Council granting a compulsory license for exploitation, or where the patentee or the entity or individual that is granted the compulsory license is not satisfied with the adjudication made by the patent administrative organ under the State Council regarding the exploitation fee payable for exploitation, he or it may, within three months from the receipt of the notification, institute legal proceedings in the people's court. Chapter VII protection of patent right Article 56 The extent of protection of the patent right for invention
or utility model shall be determined by the terms of the claims. The description
and the appended drawings may be used to interpret the claims. Article 57 Where anyone exploits a patent without the authorization
of the patentee, he or it constitutes an infringement on the patent right
of the patentee. For the disputes resulting from the infringement, the
parties concerned may settle it by themselves through consultation. Where
the parties are not willing to settle the disputes through consultation
or where the consultation fails to reach an agreement, the patentee or
any interested party may institute 1egal proceedings in the people's court
or to request the authorities for patent work to hand1e the matter. Where
the authorities for patent work considers the infringement well found,
it has the power to order the infringer to stop infringement acts immediately.
In case the party concerned is not satisfied with the decision, he or
it may, within 15 days from the receipt of the notification of the order,
institutes legal proceedings in the people's court, according to the Administrative
Procedure Law of the People's Republic of China. If such proceedings are
not instituted within the time limit and if the order is not complied
with, the authority for patent work may approach the peop1e's court for
compulsory execution. The authorities for patent work may, upon the request
of the parties concerned, mediate on the damages concerned. If mediation
does not work, the parties concerned may lodge a lawsuit with the people's
court according to the Civil Procedure Law of the People's Republic of
China. Article 58 Where any person passes off the patent of another person,
except for bearing civil liabilities according to law, he shall be ordered
to amend his acts by the authorities for patent work and the order shall
be announced. The illegal income of the said person shall be confiscated.
He may be coupled with a fine of no more than 3 times of his illegal income
and, where there is no illegal income, he may be imposed a fine of no
more than 50,000 RMB. Where the infringement constitutes a crime, he shall
be prosecuted for his criminal liability. Article 60 The amount of damages for infringing a patent right shall be calculated according to the losses suffered by the patentee or the profits gained by the infringer out of the infringement. If it is too difficult to determine the damages based on such losses of the patentee or the profits of the infringer, the appropriate times of the royalties for licenses for the said patent may be applied mutatis mutandis. Article 61 Where a patentee or any interested party who can provide
any reasonable evidence that his right is being infringed or that such
infringement is imminent, and any delay to stop the acts is likely to
cause irreparable harm to his or its legitimate rights, he or it may,
before instituting legal proceedings, request the people's court to order
the suspension of related acts and to provide property preservation. 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. Article 63 None of the following shall be deemed an infringement on the patent right:
Article 64 Where any person, in violation of the provisions of Article 20 of this Law, unauthorizedly files in a foreign country an application for a patent that divulges an important secret of the State, he shall be subject to disciplinary sanction by the entity to which he belongs or by the competent authority concerned at the higher level. If the circumstances are serious, he shall be prosecuted for his criminal liability according to law. Article 65 Where any person usurps the right of an inventor or creator to apply for a patent for a non-service invention-creation, or usurps any other right or interest of an inventor or creator, prescribed by this Law, he shall be subject to disciplinary sanction by the entity to which he belongs or by the competent authority at the higher level. Article 66 The authorities for patent work should not participate
in any such commercial activities as to recommend patented products to
the public. Article 67 Where any staff member of the government organs for patent administration or of other related government organs constitutes a crime by ignoring his duty, abusing his official power, acting wrongfully out of personal considerations or committing fraudulent acts, he shall be subject to criminal sanction. If a crime is not constituted, he shall be subject to disciplinary sanction according to law. Chapter VIII supplementary provisions Article 68 Any application for a patent filed with, and any other proceedings before, the patent administrative organ under the State Council shall be subject to the payment of a fee as prescribed. Article 69 This Law shall enter into force on April l, 1985. |
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