(2) Having an interest in the patent application or patent right;
(3) Having other relations with the parties or their agents, which may affect the impartial examination and trial;
(4) Members of the Patent Reexamination Board have participated in the examination of the original application.
Article 38 The patent administration department in the State Council shall, after receiving the request, specification (the utility model must be attached with attached drawings) and claim of an application for a patent for invention or utility model, or the request, picture or photograph of design and a brief description, specify the date of application, give the application number and notify the applicant.
Article 39 Under any of the following circumstances, the patent administration department in the State Council shall not accept the patent application documents and notify the applicant:
(1) An application for a patent for invention or utility model lacks a request, a specification (the utility model has no appended drawings) or a claim, or an application for a patent for design lacks a request, a picture or a photograph and a brief explanation;
(2) Do not use Chinese;
(three) does not comply with the provisions of the first paragraph of Article 121st of these rules;
(four) the name or address of the applicant is missing in the request;
(5) It is obviously not in conformity with the provisions of Article 18 or Paragraph 1 of Article 19 of the Patent Law;
(6) The category of the patent application (invention, utility model or design) is unclear or difficult to determine.
Article 40. Where the appended drawings are stated in the specification, but there are no appended drawings or some of them are missing, the applicant shall submit the appended drawings or declare that the appended drawings are cancelled within the time limit specified by the patent administration department of the State Council. Where the applicant submits the appended drawings, the date of submitting or mailing the appended drawings to the patent administration department of the State Council shall be the application date; If the explanation of the appended drawings is cancelled, the original application date shall be retained.
Forty-first two or more applicants on the same day (refers to the date of application; Where there is priority, it refers to the priority date), where an application for a patent for the same invention-creation is filed, the applicant shall be determined through consultation after receiving the notice from the patent administration department of the State Council.
Where the same applicant applies for a patent for utility model and a patent for invention on the same day (the date of filing), it shall separately state that he has applied for another patent for the same invention-creation; If there is no explanation, it shall be handled in accordance with the provisions of the first paragraph of Article 9 of the Patent Law that only one patent right can be granted to the same invention-creation.
When the patent administration department of the State Council announces the grant of the patent right for utility model, it shall also announce that the applicant has applied for a patent for invention in accordance with the provisions of the second paragraph of this article.
If the application for a patent for invention is not rejected after examination, the administrative department for patent in the State Council shall notify the applicant to give up the patent right for utility model within the prescribed time limit. If the applicant gives up, the patent administration department in the State Council shall make a decision to grant the patent right for invention, and announce the statement of the applicant giving up the patent right for utility model together with the announcement of granting the patent right for invention. If the applicant does not agree to give up, the patent administration department of the State Council shall reject the application for a patent for invention; If the applicant fails to reply within the time limit, it shall be deemed to have withdrawn the application for a patent for invention.
The patent right for utility model shall terminate as of the date of announcement of the patent right for invention.
Article 42 Where an application for a patent includes two or more inventions, utility models or designs, the applicant may file a divisional application with the patent administration department of the State Council before the expiration of the time limit specified in the first paragraph of Article 54 of these Rules; However, if the patent application has been rejected, withdrawn or regarded as withdrawn, a divisional application cannot be filed.
Where the administrative department for patent in the State Council considers that the patent application is not in conformity with Article 31 of the Patent Law and Article 34 or Article 35 of these Rules, it shall notify the applicant to amend its application within a specified time limit; If the applicant fails to reply within the time limit, the application shall be deemed to be withdrawn.
The divisional application shall not change the category of the original application.
Article 43 An application for division filed in accordance with the provisions of Article 42 of these Rules may retain the original filing date, and if it enjoys priority, it may retain the priority date, but it shall not exceed the scope recorded in the original application.
The divisional application shall go through the relevant formalities in accordance with the provisions of the Patent Law and these Rules.
The request for divisional application shall indicate the application number and date of the original application. When submitting a divisional application, the applicant shall submit a copy of the original application documents; Where the original application enjoys priority, a copy of the priority document of the original application shall be submitted.
Article 44 The term "preliminary examination" as mentioned in Articles 34 and 40 of the Patent Law refers to examining whether the patent application has the documents and other necessary documents specified in Article 26 or 27 of the Patent Law and whether these documents conform to the prescribed format, and examining the following matters:
(1) Whether the application for a patent for invention obviously falls under the circumstances stipulated in Articles 5 and 25 of the Patent Law, whether it does not conform to the provisions of Articles 18, 19, paragraph 1 and 20 of the Patent Law or Article 16 and 26, paragraph 2 of these Rules, and whether it obviously does not conform to the provisions of Articles 2, 26, paragraph 5, 31, paragraph 1 and 33 of the Patent Law or Articles 17 to 21 of these Rules;
(2) Whether the application for a patent for utility model obviously falls under the circumstances stipulated in Articles 5 and 25 of the Patent Law, whether it does not conform to the provisions of Articles 18, 19, paragraph 1 and 20 of the Patent Law or Articles 16 to 19 and 21 to 23 of these Rules, and whether it obviously does not conform to the provisions of Article 2, paragraph 3, paragraph 2 and paragraph 4 of Article 22, paragraph 3 and paragraph 4 of Article 26 and Article 31 of the Patent Law.
(3) Whether the application for a patent for design obviously falls under the circumstances specified in Article 5 and Item (6) of Paragraph 1 of Article 25 of the Patent Law, whether it does not conform to the provisions of Article 18 and Paragraph 1 of Article 19 of the Patent Law or Articles 16, 27 and 28 of these Rules, and whether it obviously does not conform to Paragraph 4 of Article 2, Paragraph 1 of Article 23, Paragraph 2 of Article 27, Paragraph 2 of Article 31, Article 33 or this Patent Law.
(4) Whether the application documents comply with the provisions of Article 2 and Paragraph 1 of Article 3 of these Rules.
The patent administration department of the State Council shall notify the applicant of the examination opinions and ask him to state his opinions or make corrections within a specified time limit; If the applicant fails to reply within the time limit, his application shall be deemed to have been withdrawn. If, after the applicant has stated his opinions or made corrections, the administrative department for patent in the State Council still considers that it does not meet the requirements listed in the preceding paragraph, it shall reject it.
Article 45 Except for the patent application documents, other documents related to the patent application submitted by the applicant to the patent administration department of the State Council shall be deemed to have not been submitted under any of the following circumstances:
(a) do not use the prescribed format or fill in the form that does not meet the requirements;
(2) Failing to submit the certification materials as required.
The administrative department for patent in the State Council shall notify the applicant that the examination opinions have not been submitted.
Article 46 Where an applicant requests the early publication of his application for a patent for invention, he shall make a statement to the patent administration department of the State Council. In addition to rejecting the application, the administrative department for patent in the State Council shall publish the application immediately after preliminary examination.
Article 47 Where an applicant designates a product using a design and its category, it shall use the classification table of design products published by the patent administration department of the State Council. Where the category of the product using the design is not specified or the specified category is inaccurate, the administrative department for patent in the State Council may supplement or modify it.
Article 48 From the date of publication of an application for a patent for invention to the date of announcement of the grant of a patent right, any person may submit an opinion to the patent administration department of the State Council on an application that does not conform to the provisions of the Patent Law, and explain the reasons.
Article 49 Where an applicant for a patent for invention is unable to submit the retrieval materials or examination results specified in Article 36 of the Patent Law for justifiable reasons, he shall make a statement to the administrative department for patent in the State Council and pay the fees after obtaining the relevant materials.
Article 50 The patent administration department of the State Council shall notify the applicant when examining the patent application on its own in accordance with the provisions of paragraph 2 of Article 35 of the Patent Law.
Article 51 An applicant for a patent for invention may, within three months from the date of receiving the notice from the patent administration department of the State Council that the application for a patent for invention has entered the substantive examination stage, take the initiative to propose amendments to the application for a patent for invention.
An applicant for a patent for utility model or design may, within 2 months from the date of application, put forward amendments to the application for a patent for utility model or design.
Where the applicant modifies the patent application documents after receiving the notice of examination opinions issued by the patent administrative department of the State Council, it shall modify the defects pointed out in the notice.
The patent administration department in the State Council can correct the obvious errors of words and symbols in the patent application documents by itself. Where the administrative department for patent in the State Council modifies it by itself, it shall notify the applicant.
Article 52. In the modified part of the specification or the claims of an application for a patent for invention or utility model, a replacement page shall be submitted in the prescribed format, except for individual text modification or addition or deletion. Where a picture or photograph of an application for a patent for design is modified, a replacement page shall be submitted in accordance with the provisions.
Article 53 According to Article 38 of the Patent Law, the circumstances in which an application for a patent for invention should be rejected after substantive examination refer to:
(1) The application falls under the circumstances specified in Articles 5 and 25 of the Patent Law, or the patent right cannot be obtained in accordance with Article 9 of the Patent Law;
(2) The application does not conform to the provisions of the second paragraph of Article 2, the first and third paragraphs of Article 20, the fourth and fifth paragraphs of Article 26, the first paragraph of Article 31 or the second paragraph of Article 20 of these Rules;
(3) The amendment of the application does not conform to the provisions of Article 33 of the Patent Law, or the divisional application does not conform to the provisions of Paragraph 1 of Article 43 of these Rules.
Article 54 After the patent administrative department of the State Council issues a notice of granting the patent right, the applicant shall go through the registration formalities within 2 months from the date of receiving the notice. Where the applicant goes through the registration formalities on schedule, the patent administrative department of the State Council shall grant the patent right, issue the patent certificate and make an announcement.
Failure to go through the registration formalities at the expiration of the period shall be deemed as giving up the right to obtain the patent right.
Article 55 If the application for a confidential patent is rejected after examination, the administrative department for patent in the State Council shall make a decision to grant the confidential patent right, issue a confidential patent certificate and register the relevant matters of the confidential patent right.
Article 56 After the announcement of the decision to grant the patent right for utility model or design, the patentee or interested party specified in Article 60 of the Patent Law may request the patent administration department of the State Council to make a patent evaluation report.
Where a patent evaluation report is requested, a request for a patent evaluation report shall be submitted, and the patent number shall be indicated. Each request shall be limited to one patent right.
If the request for patent evaluation report is not in conformity with the provisions, the administrative department for patent in the State Council shall notify the claimant to make corrections within a specified time limit; If the claimant fails to make corrections within the time limit, it shall be deemed that he has not made a request.
Article 57 The patent administrative department in the State Council shall make a patent evaluation report within 2 months after receiving the request for patent evaluation report. For the same utility model or design patent right, if multiple obligees request to make a patent evaluation report, the patent administrative department of the State Council will only make a patent evaluation report. Any unit or individual may consult or copy the patent evaluation report.
Article 58 The administrative department for patent in the State Council shall correct the mistakes in the patent announcement and patent specification once it finds them, and announce the corrections made.