Patent Law of the People's Republic of China (Revised in 2000)
(Adopted at the Fourth Meeting of the Standing Committee of the Sixth National People's Congress on March 12, 1984, based on The "Decision on Amending the Patent Law of the People's Republic of China" at the 27th Meeting of the Standing Committee of the Seventh National People's Congress on September 4, 1992 was first revised in accordance with the first amendment on August 25, 2000. "Decision on Amending the Patent Law of the People's Republic of China" at the 17th Meeting of the Standing Committee of the Ninth National People's Congress (Second Amendment)
Contents
Chapter 1 General Provisions
Chapter 2 Conditions for Granting Patent Rights
Chapter 3 Patent Application
Chapter 4 Review and Approval of Patent Application
p>Chapter 5: Term, termination and invalidity of patent rights
Chapter 6: Compulsory license for patent implementation
Chapter 7: Protection of patent rights
< p>Chapter 8 Supplementary Provisions------------------------------------------ ---------------------------------------------
Chapter 1 General Provisions
Article 1 In order to protect the patent rights of inventions and creations, encourage inventions and creations, facilitate the promotion and application of inventions and creations, promote scientific and technological progress and innovation, and adapt to the needs of socialist modernization, this is formulated this law.
Article 2 The inventions and creations referred to in this Law refer to inventions, utility models and designs.
Article 3 The Patent Administration Department of the State Council is responsible for managing patent work nationwide; it shall uniformly accept and examine patent applications and grant patent rights in accordance with the law.
The patent management departments of the people's governments of provinces, autonomous regions, and municipalities directly under the Central Government are responsible for patent management within their respective administrative regions.
Article 4 If the invention-creation for which a patent is applied for involves national security or major interests and needs to be kept confidential, it shall be handled in accordance with relevant national regulations.
Article 5 No patent rights will be granted for inventions and creations that violate national laws, social ethics or harm public interests.
Article 6 Inventions and creations completed while performing the tasks of the unit or mainly utilizing the material and technical conditions of the unit are service inventions and creations. The right to apply for a patent for a service invention-creation belongs to the unit; after the application is approved, the unit becomes the patentee.
For non-service inventions, the right to apply for a patent belongs to the inventor or designer; after the application is approved, the inventor or designer becomes the patentee.
For inventions and creations completed by utilizing the unit’s material and technical conditions, if the unit has a contract with the inventor or designer and stipulates the right to apply for a patent and the ownership of the patent right, such agreement shall prevail.
Article 7 No unit or individual may suppress an inventor or designer’s non-service invention-creation patent application.
Article 8 For inventions and creations completed by cooperation between two or more units or individuals, or for inventions and creations completed by one unit or individual under the entrustment of other units or individuals, unless otherwise agreed upon, the right to apply for a patent shall belong to The unit or individual who completes or co-completes the application; after the application is approved, the unit or individual who applied is the patentee.
Article 9 If two or more applicants apply for patents for the same invention and creation, the patent right shall be granted to the person who applies first.
Article 10 The right to apply for a patent and the patent right may be transferred.
Any transfer of patent application rights or patent rights by Chinese entities or individuals to foreigners must be approved by the relevant competent authorities of the State Council.
To transfer patent application rights or patent rights, the parties shall enter into a written contract and register it with the patent administration department of the State Council, which shall make an announcement. The transfer of patent application rights or patent rights takes effect from the date of registration.
Article 11 After an invention or utility model patent right is granted, except as otherwise provided in this Law, no unit or individual may exploit the patent without the permission of the patentee, that is, it shall not For the purpose of production and business operations, manufacture, use, offer for sale, sell, and import its patented products, or use its patented method and use, offer for sale, sell, and import products directly obtained according to the patented method.
After the design patent right is granted, no unit or individual may exploit the patent without the permission of the patentee, that is, it may not manufacture, sell, or import its design patented products for production and business purposes.
Article 12 Any unit or individual that exploits another person’s patent shall enter into a written license contract with the patentee and pay patent royalties to the patentee. The licensee has no right to allow any unit or individual other than those specified in the contract to exploit the patent.
Article 13 After the invention patent application is published, the applicant may require the unit or individual who implements the invention to pay appropriate fees.
Article 14 If the invention patents of state-owned enterprises and institutions are of great significance to national interests or public interests, the relevant competent departments of the State Council and the people's governments of provinces, autonomous regions, and municipalities directly under the Central Government shall report to the State Council for approval. It can be decided to promote the application within the approved scope and allow designated units to implement it. The implementing unit will pay royalties to the patentee in accordance with national regulations.
If the invention patents of China's collective ownership units and individuals are of great significance to national interests or public interests and need to be promoted and applied, they shall be handled in accordance with the provisions of the preceding paragraph.
Article 15 The patentee has the right to indicate the patent mark and patent number on its patented product or the packaging of the product.
Article 16 The unit that is granted the patent right shall reward the inventor or designer of the service invention-creation; after the invention-creation patent is implemented, the unit shall reward the invention-creation patent based on the scope of its promotion and application and the economic benefits achieved. The inventor or designer shall be given reasonable remuneration.
Article 17 The inventor or designer has the right to indicate that he or she is the inventor or designer in the patent document.
Article 18 If a foreigner, foreign enterprise or other foreign organization without a habitual residence or business office in China applies for a patent in China, he shall participate in the patent application in accordance with the agreement signed between his country of residence and China or the ***. international treaties, or in accordance with the principle of reciprocity and in accordance with this law.
Article 19 If a foreigner, foreign enterprise or other foreign organization without a habitual residence or business office in China applies for a patent or handles other patent matters in China, he or she shall entrust a patent agent designated by the patent administration department of the State Council. Institutional handling.
Chinese entities or individuals that apply for patents and handle other patent matters domestically can entrust a patent agency to handle them.
Patent agencies shall abide by laws and administrative regulations and handle patent applications or other patent matters as entrusted by the agent; except for the contents of the agent’s inventions and creations, except those where the patent application has been published or announced, Have a duty of confidentiality. The specific management measures for patent agencies shall be stipulated by the State Council.
Article 20 If a Chinese entity or individual applies for a patent in a foreign country for an invention or creation completed domestically, it shall first apply for a patent to the patent administration department of the State Council, entrust its designated patent agency to handle the matter, and comply with the provisions of Article 4 of this Law.
Chinese entities or individuals may file international applications for patents in accordance with relevant international treaties to which the People’s Republic of China is a party. When an applicant files an international application for a patent, he or she shall comply with the provisions of the preceding paragraph.
The Patent Administration Department of the State Council handles international applications for patents in accordance with relevant international treaties to which the People's Republic of China is a party, this Law and relevant provisions of the State Council.
Article 21 The patent administration department of the State Council and its Patent Reexamination Committee shall handle patent-related applications and requests in accordance with the requirements of objectivity, fairness, accuracy and timeliness.
Before a patent application is published or announced, the staff and relevant personnel of the Patent Administration Department of the State Council shall be responsible for keeping its contents confidential.
Chapter 2 Conditions for Granting Patent Rights
Article 22 Inventions and utility models for which patent rights are granted shall possess novelty, creativity and practicality.
Novelty means that before the filing date, the same invention or utility model has not been published in domestic or foreign publications, publicly used in China, or otherwise known to the public, nor has it been the same. The invention or utility model has been applied for by others to the patent administration department of the State Council and is recorded in the patent application documents published after the application date.
Creativity means that compared with the existing technology before the filing date, the invention has outstanding substantive features and significant progress, and the utility model has substantive features and progress.
Practiceability means that the invention or utility model can be manufactured or used and can produce positive effects.
Article 23 The design for which a patent right is granted shall be different from or similar to the design that has been publicly published in domestic and foreign publications or has been publicly used domestically before the filing date, and shall not be identical or similar to the design. Conflicts with the previously acquired legal rights of others.
Article 24 If an invention-creation for which a patent is applied for falls under any of the following circumstances within six months before the filing date, the novelty will not be lost:
(1) In China Exhibited for the first time at an international exhibition sponsored or recognized by the government;
(2) Published for the first time at a prescribed academic conference or technical conference;
(3) Others have not The content is disclosed with the consent of the applicant.
Article 25 No patent rights shall be granted for the following items:
(1) Scientific discoveries;
(2) Rules and regulations of intellectual activities Methods;
(3) Diagnosis and treatment methods of diseases;
(4) Animal and plant varieties;
(5) Obtained by nuclear transformation method substance.
Patent rights may be granted in accordance with the provisions of this Law for the production methods of the products listed in item (4) of the preceding paragraph.
Chapter 3 Patent Application
Article 26 When applying for an invention or utility model patent, a request, description, abstract, claims and other documents shall be submitted.
The request shall state the name of the invention or utility model, the name of the inventor or designer, the name and address of the applicant, and other matters.
The description shall provide a clear and complete description of the invention or utility model, which shall be subject to the ability of a skilled person in the relevant technical field to realize it; when necessary, there shall be accompanying drawings. The abstract should briefly describe the technical key points of the invention or utility model.
The claims should be based on the description and describe the scope of patent protection required.
Article 27 When applying for a design patent, a request and documents such as pictures or photos of the design shall be submitted, and the products using the design and the categories to which they belong shall be specified.
Article 28 The date when the patent administration department of the State Council receives the patent application documents is the filing date. If the application documents are mailed, the postmark date shall be the date of application.
Article 29 Within 12 months from the date the applicant first files a patent application for an invention or utility model in a foreign country, or from the date a design first files a patent application in a foreign country, If another patent application is filed in China on the same subject matter within six months of the date of filing, the foreign country may enjoy priority in accordance with the agreement signed by the foreign country with China or an international treaty to which both countries are parties, or in accordance with the principle of mutual recognition of priority.
If the applicant files another patent application for the same subject with the Patent Administration Department of the State Council within twelve months from the date of first filing a patent application for an invention or utility model in China, the applicant may enjoy priority.
Article 30 If the applicant claims priority, he shall submit a written statement when applying and submit a copy of the first patent application document within three months; if the applicant fails to submit a written statement or If a copy of the patent application document is not submitted within the time limit, it will be deemed that priority has not been claimed.
Article 31 An application for a patent for an invention or utility model shall be limited to one invention or utility model. Two or more inventions or utility models belonging to one general inventive concept can be filed as one application.
A design patent application shall be limited to one design used in one product. Two or more designs for products of the same category that are sold or used as a set can be submitted as one application.
Article 32 The applicant may withdraw his patent application at any time before the patent right is granted.
Article 33: Applicants may modify their patent application documents. However, modifications to invention and utility model patent application documents shall not exceed the scope recorded in the original description and claims. Modifications to patent application documents shall not exceed the scope of the original pictures or photos.
Chapter 4 Review and Approval of Patent Applications
Article 34: After receiving an invention patent application, the patent administration department of the State Council deems upon preliminary examination that it meets the requirements of this Law. The application will be announced after eighteen months from the date of application.
The patent administration department of the State Council may publish the application as early as possible upon the applicant's request.
Article 35 Within three years from the date of application for an invention patent, the patent administration department of the State Council may conduct a substantive examination of the application based on the request made by the applicant at any time; the applicant fails to make the request within the time limit without justifiable reasons. If the application is subject to substantive examination, the application will be deemed to have been withdrawn.
When the patent administration department of the State Council deems it necessary, it may conduct a substantive examination of an invention patent application on its own.
Article 36 When an applicant for an invention patent requests substantive examination, he shall submit reference materials related to his invention before the filing date.
If an application for an invention patent has been filed in a foreign country, the patent administration department of the State Council may require the applicant to submit within a specified time limit the information retrieved by that country for the purpose of examining the application or the information on the examination results; if the application is overdue without justifiable reasons, If not submitted, the application will be deemed withdrawn.
Article 37 If, after conducting a substantive examination of an invention patent application, the patent administration department of the State Council deems that it does not comply with the provisions of this Law, it shall notify the applicant and require him to state his opinions within a specified time limit, or to The application shall be revised; if no reply is made within the time limit without justifiable reasons, the application shall be deemed to have been withdrawn.
Article 38 If the patent administration department under the State Council still considers that the application for an invention patent does not comply with the provisions of this Law after the applicant has stated its opinions or made modifications, it shall be rejected.
Article 39: If no reason for rejection of an invention patent application is found after substantive examination, the patent administration department of the State Council shall make a decision to grant the invention patent right, issue an invention patent certificate, and register and announce it at the same time. The invention patent right shall take effect from the date of announcement.
Article 40: If no reason for rejection is found after preliminary examination of a utility model or design patent application, the patent administration department of the State Council shall make a decision to grant the utility model patent right or the design patent right and issue the corresponding The patent certificate shall be registered and announced at the same time. Utility model patent rights and design patent rights take effect from the date of announcement.
Article 41 The patent administration department of the State Council shall establish a patent reexamination committee. If a patent applicant is dissatisfied with the decision of the Patent Administration Department of the State Council to reject the application, he may request a reexamination to the Patent Reexamination Board within three months from the date of receipt of the notice. After review, the Patent Reexamination Board will make a decision and notify the patent applicant.
If a patent applicant is dissatisfied with the reexamination decision of the Patent Reexamination Board, he may file a lawsuit with the People's Court within three months from the date of receipt of the notice.
Chapter 5 Term, Termination and Invalidity of Patent Rights
Article 42 The term of invention patent rights is twenty years. Utility model patent rights and design patent rights are limited to 20 years. The period is ten years, calculated from the date of application.
Article 43 The patentee shall pay annual fees starting from the year when the patent right is granted.
Article 44 If any of the following circumstances occurs, the patent right shall be terminated before the expiration of the term:
(1) Failure to pay annual fees in accordance with regulations; (2) Patent right A person has given up his patent rights in a written statement.
If the patent right is terminated before the expiration of the term, it shall be registered and announced by the patent administration department of the State Council.
Article 45 From the date when the Patent Administration Department of the State Council announces the grant of a patent right, any unit or individual that believes that the grant of the patent right does not comply with the relevant provisions of this Law may request the Patent Reexamination Board to declare the grant of the patent right. The patent is invalid.
Article 46 The Patent Reexamination Board shall promptly examine and make a decision on a request to declare the patent right invalid, and notify the requester and the patentee. The decision to declare the patent right invalid shall be registered and announced by the patent administration department of the State Council.
If you are dissatisfied with the decision of the Patent Reexamination Board to declare the patent right invalid or maintain the patent right, you may file a lawsuit in the People's Court within three months from the date of receipt of the notice. The people's court shall notify the other party in the invalidation request procedure to participate in the litigation as a third party.
Article 47 A patent right declared invalid shall be deemed to have ceased to exist from the beginning.
The decision to declare the patent right invalid, the judgment or ruling on patent infringement made by the people's court before the patent right was declared invalid and has been executed, the decision to resolve the patent infringement dispute that has been executed or enforced, and the executed decision The patent implementation license contract and the patent rights transfer contract do not have retroactive effect. However, compensation should be provided for losses caused to others due to the bad faith of the patentee.
If, in accordance with the provisions of the preceding paragraph, the patentee or patent right transferor fails to return the patent royalties or patent right transfer fees to the licensed patentee or patent right transferee, which is a clear violation of the principle of fairness, the patent The right holder or patent right transferor shall return all or part of the patent royalties or patent right transfer fees to the licensed patentee or patent right transferee.
Chapter 6 Compulsory License for Patent Exploitation
Article 48 An entity that meets the conditions for implementation shall request the invention or utility model patentee for permission to exploit its patent under reasonable conditions, and If such permission cannot be obtained within a reasonable period of time, the patent administration department of the State Council may grant a compulsory license to implement the invention patent or utility model patent based on the unit's application.
Article 49 In the event of a national emergency or extraordinary situation, or for the purpose of public interest, the patent administration department of the State Council may grant a compulsory license to exploit an invention patent or utility model patent.
Article 50 A patented invention or utility model is a major technological advancement of significant economic significance compared with a previously patented invention or utility model, and its implementation depends on the previous invention or utility model. For the implementation of a utility model, the patent administration department of the State Council may grant a compulsory license to implement the previous invention or utility model based on the application of the latter patentee.
In the case where a compulsory license for implementation is granted in accordance with the provisions of the preceding paragraph, the patent administration department of the State Council may also grant a compulsory license for the implementation of the subsequent invention or utility model based on the application of the previous patentee.
Article 51 An entity or individual that applies for a compulsory license in accordance with the provisions of this Law shall provide proof of failure to sign a licensing contract with the patentee on reasonable terms.
Article 52: When the patent administration department of the State Council makes a decision to grant a compulsory license, the patentee shall be notified in a timely manner, and shall be registered and announced.
The decision to grant a compulsory license shall specify the scope and time of implementation based on the reasons for the compulsory license. When the reasons for compulsory licensing are eliminated and no longer occur, the patent administration department under the State Council shall make a decision to terminate the compulsory license upon review at the request of the patentee.
Article 53 A unit or individual that obtains a compulsory license for implementation does not enjoy the exclusive right to implement it and has no right to allow others to implement it.
Article 54 The unit or individual that has obtained the compulsory license shall pay the patentee a reasonable royalty, the amount of which shall be negotiated by both parties; if the two parties cannot reach an agreement, the patent administration department of the State Council shall make a ruling.
Article 55 If the patentee is dissatisfied with the decision of the Patent Administration Department of the State Council on the implementation of compulsory license, the patentee and the unit or individual who obtained the compulsory license shall appeal to the Patent Administration Department of the State Council on the implementation of compulsory license. If you are dissatisfied with the ruling on the use fee, you may file a lawsuit with the People's Court within three months from the date of receipt of the notice.
Chapter 7 Protection of Patent Rights
Article 56 The scope of protection of patent rights for inventions or utility models shall be based on the content of the claims. The description and drawings may be used on interpreting claims.
The scope of protection of design patent rights shall be subject to the design patent product shown in pictures or photos.
Article 57: Exploiting the patent without the permission of the patentee shall infringe upon the patent right and cause disputes, which shall be settled through negotiation by the parties; if the parties are unwilling to negotiate or the negotiation fails, the patentee or Interested parties may file a lawsuit in the People's Court or request the patent management department to handle the matter. When the patent management department handles the matter, if it determines that the infringement is established, it may order the infringer to immediately stop the infringement. If the party is dissatisfied, it may, within 15 days from the date of receipt of the handling notice, comply with the "Administrative Litigation of the People's Republic of China and the People's Republic of China" Law of the People's Republic of China; if the infringer does not file a lawsuit or stop the infringement upon expiration of the time limit, the department managing patent affairs may apply to the People's Court for compulsory enforcement. At the request of the parties concerned, the handling patent management department may mediate the amount of compensation for patent infringement; if mediation fails, the parties may file a lawsuit in the People's Court in accordance with the Civil Procedure Law of the People's Republic of China.
If a patent infringement dispute involves an invention patent for a new product manufacturing method, the unit or individual that manufactures the same product shall provide proof that its product manufacturing method is different from the patented method; if it involves a utility model patent, the people's court or the administrative The patent administration department may require the patentee to issue a search report prepared by the patent administration department of the State Council.
Article 58 Anyone who counterfeits someone else’s patent shall, in addition to bearing civil liability in accordance with the law, be ordered to make corrections by the patent administrative department and make an announcement, confiscate the illegal gains, and may also impose a fine of not more than three times the illegal gains. , if there is no illegal income, a fine of not more than 50,000 yuan may be imposed; if a crime is constituted, criminal liability shall be pursued in accordance with the law.
Article 59 If a non-patented product is passed off as a patented product or a non-patented method is passed off as a patented method, the department in charge of patent affairs shall order corrections and make an announcement, and may impose a fine of not more than 50,000 yuan.
Article 60 The amount of compensation for infringement of patent rights shall be determined based on the losses suffered by the right holder due to the infringement or the benefits obtained by the infringer due to the infringement; the losses suffered by the infringed party or the benefits obtained by the infringer If it is difficult to determine, it shall be reasonably determined by referring to the multiple of the patent license fee.
Article 61 The patentee or interested party has evidence proving that others are committing or about to commit acts that infringe upon its patent rights. If not stopped in time, their legitimate rights and interests will be irreparably damaged. , you may apply to the People's Court to take measures to order the cessation of relevant behavior and property preservation before filing a lawsuit.
When the people's court handles the application in the preceding paragraph, it shall apply the provisions of Articles 93 to 96 and 99 of the "Civil Procedure Law of the People's Republic of China".
Article 62 The statute of limitations for infringement of patent rights is two years, starting from the date when the patentee or interested party learns or should have learned of the infringement.
If appropriate royalties are not paid for using the invention between the publication of the invention patent application and the grant of the patent right, the statute of limitations for the patentee to demand payment of royalties is two years. The calculation shall be calculated from the date when the patentee knows that others are using the invention. However, if the patentee has known or should have known about it before the date of grant of patent right, the calculation shall be from the date of grant of patent right.
Article 63 Any of the following circumstances will not be deemed as infringement of patent rights: (1) Patented products manufactured or imported by the patentee or manufactured or imported with the permission of the patentee or in accordance with After the product directly obtained by the patented method is sold, the product is used, offered for sale or sold;
(2) The same product has been manufactured, used the same method or has been prepared for manufacture and use before the date of patent application Necessary preparations are made, and they will only continue to be manufactured and used within the original scope;
(3) Foreign transportation vehicles that temporarily pass through China’s territorial land, territorial waters, and airspace shall be in accordance with the agreement signed between the country to which they belong and China or The *** uses relevant patents in its devices and equipment for the needs of the means of transportation in accordance with the international treaties to which it is a party, or in accordance with the principle of reciprocity;
(4) Use of relevant patents exclusively for scientific research and experiments Patented.
If you use or sell for production and business purposes a patented product that is not known to be manufactured and sold without the permission of the patentee, or a product directly obtained according to a patented method, and you can prove the legal origin of the product, you will not be liable. Liability.
Article 64 Anyone who violates the provisions of Article 20 of this Law by applying for a patent in a foreign country or leaking state secrets shall be subject to administrative sanctions by his/her unit or the superior authority; if a crime is constituted, criminal liability shall be pursued in accordance with the law.
Article 65 Whoever infringes upon the inventor's or designer's right to apply for a patent for non-service inventions and creations and other rights and interests stipulated in this Law shall be subject to administrative sanctions by the unit where he or she belongs or the superior authority.
Article 66: Departments that manage patent work shall not participate in business activities such as recommending patented products to the public.
If a department managing patent work violates the provisions of the preceding paragraph, its superior authority or supervisory authority shall order it to make corrections and eliminate the impact, and any illegal income shall be confiscated; if the case is serious, the directly responsible person in charge and other persons shall be punished. Those directly responsible shall be given administrative sanctions in accordance with the law.
Article 67 If staff of state agencies and staff of other relevant state agencies engaged in patent management neglect their duties, abuse their powers, engage in malpractice for personal gain, which constitutes a crime, they shall be investigated for criminal responsibility in accordance with the law; it does not constitute a crime. , administrative sanctions will be imposed in accordance with the law.
Chapter 8 Supplementary Provisions
Article 68 When applying for a patent and handling other procedures with the patent administration department of the State Council, fees must be paid in accordance with regulations.
Article 69 This Law shall come into effect on July 1, 2001.