People's Republic of China (PRC) Patent Law (August 25th, 2000)
Release date: August 25, 2000
(Adopted at the 4th meeting of the Standing Committee of the 6th NPC on March, 2000 1984, revised for the first time according to the Decision on Amending the Patent Law of People's Republic of China (PRC) at the 27th meeting of the 7th NPC Standing Committee on September 4, 2002 and revised according to the Decision on Amending the Patent Law of People's Republic of China (PRC) at the 17th meeting of the 9th NPC Standing Committee on August 25, 2000).
catalogue
Chapter I General Provisions
Chapter II Conditions for Granting Patent Rights
Chapter III Patent Application
Chapter IV Examination and Approval of Patent Applications
Chapter V Duration, Termination and Invalidation of Patent Right
Chapter VI Compulsory License for Patent Exploitation
Chapter VII Protection of Patent Right
Chapter VIII Supplementary Provisions
Chapter I General Provisions
Article 1 This Law is formulated for the purpose of protecting the patent right of invention and creation, encouraging invention and creation, promoting the popularization and application of invention and creation, promoting scientific and technological progress and innovation, and meeting the needs of socialist modernization.
Article 2 Inventions and creations mentioned in this Law refer to inventions, utility models and designs.
Article 3 The patent administrative department of the State Council is responsible for the management of patent work throughout the country; Accept and examine patent applications in a unified manner and grant patent rights according to law.
The departments for patent administration under the people's governments of provinces, autonomous regions and municipalities directly under the Central Government shall be responsible for patent administration within their respective administrative areas.
Article 4 Where an invention-creation applying for a patent involves national security or vital interests and needs to be kept confidential, it shall be handled in accordance with the relevant provisions of the state.
Article 5 No patent right shall be granted for inventions and creations that violate state laws, social ethics or harm public interests.
Article 6 Inventions and creations made by performing the tasks of the unit or mainly using 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 entity shall be the patentee.
The right to apply for a patent for a non-service invention-creation belongs to the inventor or designer; After the application is approved, the inventor or designer shall be the patentee.
Where an invention-creation completed by making use of the material and technical conditions of the entity has a contract with the inventor or designer to stipulate the right to apply for a patent and the ownership of the patent, such agreement shall prevail.
Article 7 No unit or individual may suppress an inventor or designer's application for a patent for non-service invention-creation.
Article 8. Unless otherwise agreed, the right to apply for a patent belongs to an invention-creation completed in cooperation with two or more units or individuals, or an invention-creation entrusted by other units or individuals. After the application is approved, the applicant unit or individual shall be the patentee.
Article 9 Where two or more applicants apply for a patent for the same invention-creation, the patent right shall be granted to the first applicant.
Article 10 The right to apply for a patent and the patent right may be transferred.
Where a unit or individual in China transfers the patent application right or patent right to a foreigner, it must be approved by the relevant competent department in the State Council.
Where the right to apply for a patent or the patent right is transferred, the parties concerned shall conclude a written contract and register it with the patent administration department of the State Council, which shall make an announcement. The transfer of the right to apply for a patent or the patent right shall take effect from the date of registration.
Article 11 After the patent right for invention and utility model 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 may not manufacture, use, promise to sell, sell or import the patented product for production and business purposes, nor may it use the patented method and use, promise to sell, sell or import the product directly obtained according to the patented method.
After the design patent is granted, no unit or individual may exploit the patent without the permission of the patentee, that is, may not manufacture, sell or import its patented products for production and business purposes.
Article 12 Any unit or individual that exploits the patent of others shall conclude a written licensing contract with the patentee and pay the patentee the royalties. The licensee has no right to allow any unit or individual other than those stipulated in the contract to exploit the patent.
Article 13 After the publication of an application for a patent for invention, the applicant may require the entity or individual who exploited the invention to pay an appropriate fee.
Article 14 Where an invention patent of a state-owned enterprise or institution is of great significance to national interests or public interests, with the approval of the State Council, the relevant competent department of the State Council and the people's governments of provinces, autonomous regions and municipalities directly under the Central Government may decide to popularize and apply it within the approved scope, allowing designated units to implement it, and the implementing units shall pay royalties to the patentee in accordance with state regulations.
Invention patents of collectively owned units and individuals in China are of great significance to national interests or public interests, and need to be popularized and applied, and shall be handled with reference to the provisions of the preceding paragraph.
Article 15 The patentee has the right to indicate the patent mark and patent number on his patented product or the package of the product.
Article 16 A unit that has been granted a patent right shall reward the inventor or designer of a service invention-creation; After the patent for invention-creation is implemented, the inventor or designer shall be given reasonable remuneration according to the scope of its popularization and application and the economic benefits obtained.
Article 17 An inventor or designer has the right to state clearly in the patent document that he is an inventor or designer.
Article 18 Where a foreigner, foreign enterprise or other foreign organization without a habitual residence or business office in China applies for a patent in China, it shall be handled in accordance with this Law in accordance with the agreement signed between his country and China or the international treaties to which he is a party, or in accordance with the principle of reciprocity.
Article 19 If a foreigner, foreign enterprise or other foreign organization without a habitual residence or business office in China applies for a patent and handles other patent affairs in China, it shall entrust a patent agency designated by the patent administration department in the State Council to handle it.
China units or individuals may entrust patent agencies to apply for patents and handle other patent affairs in China.
Patent agencies shall abide by laws and administrative regulations, accept the entrustment of clients, and handle patent applications or other patent affairs; The contents of the client's invention and creation shall be kept confidential, except that the patent application has been published or announced. Specific measures for the administration of patent agencies shall be formulated by the State Council.
Article 20 Where a unit or individual in China applies for a patent for an invention-creation made in China to a foreign country, it shall first file an application with the patent administration department of the State Council, and entrust the patent agency designated by it to handle it, and abide by the provisions of Article 4 of this Law.
Units or individuals in China may file an international patent application in accordance with the relevant international treaties to which People's Republic of China (PRC) is a party. The applicant who files an international application for a patent shall abide by the provisions of the preceding paragraph.
The patent administration department of the State Council shall handle international patent applications in accordance with the relevant international treaties to which People's Republic of China (PRC) is a party, this Law and the relevant provisions of the State Council.
Article 21 The patent administrative department of the State Council and its Patent Reexamination Board shall handle patent-related applications and requests in accordance with the requirements of objectivity, fairness, accuracy and timeliness.
Before the patent application is published or announced, the staff of the patent administration department in the State Council and relevant personnel shall be responsible for keeping the contents confidential.
Chapter II Conditions for Granting Patent Rights
Article 22 An invention or utility model that has been granted a patent right shall be novel, creative and practical.
Novelty means that before the filing date, no identical invention or utility model was published in publications at home and abroad, used in China or known to the public in other ways, and no identical invention or utility model was applied to the patent administration department in the State Council by others and recorded in the patent application documents published after the filing date.
Creativity means that compared with the prior art before the filing date, the invention has outstanding substantive features and remarkable progress, and the utility model has substantive features and progress.
Practicality means that the invention or utility model can be manufactured or used and can produce positive effects.
Article 23. The design for which the patent right has been granted shall be different from or similar to the design that has been published in domestic and foreign publications or publicly used in China before the application date, and shall not conflict with the legal rights previously obtained by others.
Article 24 An invention-creation applying for a patent shall not lose its novelty in any of the following circumstances within six months before the date of filing:
(1) It was exhibited for the first time at an international exhibition sponsored or recognized by the China Municipal Government;
(2) It was first published at a specific academic conference or technical conference;
(3) Others disclose the contents of the application without the consent of the applicant.
Article 25 No patent right shall be granted to the following projects:
(1) scientific discoveries;
(2) rules and methods of intellectual activities;
(3) Methods of diagnosis and treatment of diseases;
(4) Species of animals and plants;
(5) substances obtained by nuclear transformation.
The production method of the products listed in Item (4) of the preceding paragraph may be granted a patent right in accordance with the provisions of this Law.
Chapter III Patent Application
Article 26 Where an applicant applies for a patent for invention or utility model, he shall submit the written request, specification and its abstract, patent right and other documents.
The request shall specify 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 specification shall give a clear and complete description of the invention or utility model, which shall be subject to the realization of the technical personnel in the technical field; Attached drawings shall be attached when necessary. The technical points of the invention or utility model shall be briefly explained.
The patent claim shall be based on the specification and indicate the scope of patent protection.
Article 27 Where an applicant applies for a patent for design, he shall submit a written request, pictures or photographs of the design and other documents, and specify the products using the design and their categories.
Article 28 The date when the patent administrative department in the State Council receives the patent application documents shall be the filing date. If the application documents are mailed, the postmark date of mailing shall be the application date.
Article 29 Where an applicant applies for a patent for invention or utility model for the first time in a foreign country within 12 months, or applies for a patent for design for the first time in a foreign country within 6 months, and applies for a patent on the same subject in China, he may enjoy the priority according to the agreement signed between that country and China or the international treaties to which both countries are parties, or according to the principle of mutual recognition of priority.
An applicant who files an application for a patent for invention or utility model with the administrative department for patent in the State Council within 12 months from the date when he first filed an application in China may enjoy priority.
Article 30 Where an applicant claims priority, he shall make a written statement at the time of application and submit a copy of the first patent application document within three months; Failing to submit a written statement or a copy of the patent application documents within the time limit shall be deemed as not claiming priority.
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 a general inventive concept may be filed as one application.
An application for a patent for a design shall be limited to a design used by a product. Two or more designs of products sold or used in the same category in sets may be filed as one application.
Article 32 An applicant may withdraw his patent application at any time before being granted the patent right.
Article 33 An applicant may modify the patent application documents, but the modification of the application documents for patents for inventions and utility models shall not exceed the scope recorded in the original specifications and claims, and the modification of the application documents for patents for designs shall not exceed the scope shown in the original pictures or photographs.
Chapter IV Examination and Approval of Patent Applications
Article 34 After receiving an application for a patent for invention, the administrative department for patent in the State Council, after preliminary examination, finds that it conforms to the provisions of this Law, and shall publish it after 18 months from the date of filing. The patent administration department of the State Council may publish its application at an early date upon the request of the applicant.
Article 35 Within 3 years from the date of filing, the administrative department for patent in the State Council may, upon the request of the applicant at any time, make a substantive examination of the application; If the applicant fails to request substantive examination within the time limit without justifiable reasons, the application shall be deemed to have been withdrawn.
The patent administrative department of the State Council may, when it deems it necessary, examine the application for a patent for invention on its own.
Article 36 When requesting substantive examination, an applicant for a patent for invention shall submit reference materials related to his invention before the date of application.
Where an application for a patent for invention is filed in a foreign country, the patent administration department of the State Council may require the applicant to submit the information retrieved during the examination of his application in that country or the information on the examination results within a specified time limit; If the application is not submitted within the time limit without justifiable reasons, the application shall be deemed to have been withdrawn.
Article 37. After examining the application for a patent for invention in substance, the administrative department for patent in the State Council considers that it does not conform to the provisions of this Law, it shall notify the applicant and ask him to state his opinions or amend his application within a specified time limit; If no reply is made within the time limit without justifiable reasons, the application shall be deemed to be withdrawn.
Article 38 If an application for a patent for invention is still not in conformity with the provisions of this Law after the applicant has stated his opinions or made amendments, it shall be rejected.
Article 39 If the application for a patent for invention is not found to be rejected after substantive examination, the administrative department for patent in the State Council shall make a decision to grant a patent right for invention, issue a patent certificate for invention, and register and announce it at the same time. The invention patent right shall take effect as of the date of announcement.
Article 40 If the application for a patent for utility model or design is not found to be rejected after preliminary examination, the administrative department for patent in the State Council shall make a decision to grant the patent right for utility model or design, issue the corresponding patent certificate, and register and announce it at the same time. The patent right for utility model and the patent right for design shall take effect as of the date of announcement.
Article 41 The patent administration department in the State Council shall set up a patent reexamination board. If the applicant for a patent refuses to accept the decision of the patent administrative department of the State Council to reject the application, he may, within three months from the date of receiving the notice, request a reexamination with the Patent Reexamination Board. After reexamination, the Patent Reexamination Board shall make a decision and notify the patent applicant.
If the patent applicant refuses to accept the reexamination decision of the Patent Reexamination Board, he may bring a lawsuit to the people's court within three months from the date of receiving the notice.
Chapter V Duration, Termination and Invalidation of Patent Right
Article 42 The term of patent right for invention is 20 years, and the term of patent right for utility model and patent right for design is 10 years, counting from the date of application.
Article 43 The patentee shall pay the annual fee from the year when the patent right is granted.
Article 44 In any of the following circumstances, the patent right shall be terminated before the expiration of the time limit:
(a) failing to pay the annual fee in accordance with the provisions;
(2) The patentee waives his patent right in writing.
Where the patent right is terminated before the expiration of the time limit, it shall be registered and announced by the patent administration department of the State Council.
Article 45 From the date when the patent administrative department of the State Council announced the grant of the patent right, any unit or individual may request the Patent Reexamination Board to declare the patent right invalid if it considers that the grant of the patent right is not in conformity with the relevant provisions of this Law.
Article 46 The Patent Reexamination Board shall promptly examine the request for invalidation of the patent right and make a decision, 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.
Anyone who refuses to accept the decision of the Patent Reexamination Board to declare the patent right invalid or maintain the patent right may bring a lawsuit to the people's court within three months from the date of receiving the notice. The people's court shall notify the other party to the procedure for requesting invalidation to participate in the proceedings as a third party.
Article 47 An invalid patent right shall be regarded as nonexistent from the beginning.
The decision to declare the patent right invalid has no retrospective effect on the judgments and rulings of patent infringement made and executed by the people's court before the patent right is declared invalid, the decisions on handling patent infringement disputes that have been performed or executed, and the patent licensing and patent transfer contracts that have been performed. However, if the patentee's malice causes losses to others, it shall make compensation.
In accordance with the provisions of the preceding paragraph, if the patentee or the patentee's transferor fails to return the patent royalty or patent transfer fee to the licensee or the patentee, which obviously violates the principle of fairness, the patentee or the patentee's transferor shall return all or part of the patent royalty or patent transfer fee to the licensee or the patentee's transferee.
Chapter VI Compulsory License for Patent Exploitation
Article 48 Where a unit with implementation conditions requests the patentee of an invention or utility model to license the exploitation of its patent on reasonable terms, but fails to obtain the license within a reasonable period of time, the patent administration department of the State Council may, upon the application of the unit, grant a compulsory license to exploit the invention patent or utility model patent.
Article 49 In case of national emergency or special circumstances, or for the purpose of public interest, the patent administration department in the State Council may grant a compulsory license to exploit a patent for invention or utility model.
Article 50 Where the invention or utility model for which a patent right has been granted is a significant technological progress with great economic significance compared with the invention or utility model previously granted with a patent right, and its implementation depends on the implementation of the previous invention or utility model, the patent administration department of the State Council may, upon the application of the latter patentee, grant a compulsory license to exploit the previous invention or utility model.
Where a compulsory license is granted in accordance with the provisions of the preceding paragraph, the administrative department for patent in the State Council may also grant a compulsory license to exploit the latter invention or utility model upon the application of the former patentee.
Article 51 A unit or individual applying for compulsory license in accordance with the provisions of this Law shall provide proof that it has not signed a license contract with the patentee on reasonable terms.
Article 52 The decision made by the patent administration department in the State Council to grant a compulsory license for exploitation shall be notified to the patentee in time, and shall be registered and announced.
The decision to grant compulsory license shall stipulate the scope and time of implementation according to the reasons for compulsory license. When the reasons for compulsory license are eliminated and no longer exist, the administrative department for patent in the State Council shall, at the request of the patentee, make a decision to terminate the compulsory license after examination.
Article 53 A unit or individual that has obtained a compulsory license for exploitation shall not enjoy the exclusive right to exploit it, nor shall it have the right to allow others to exploit it.
Article 54 A unit or individual that has obtained a compulsory license for exploitation shall pay the patentee a reasonable royalty, the amount of which shall be determined by both parties. If both parties fail to reach an agreement, it shall be decided by the patent administration department of the State Council.
Article 55 If the patentee refuses to accept the decision of the patent administrative department of the State Council on compulsory license, and if the patentee and the unit or individual that obtained the compulsory license refuse to accept the decision of the patent administrative department of the State Council on compulsory license fee, they may bring a lawsuit to the people's court within three months from the date of receiving the notice.
Chapter VII Protection of Patent Right
Article 56 The scope of protection of the patent right for invention or utility model shall be subject to the contents of the claims, and the description and drawings may be used to interpret the claims.
The scope of protection of the patent right of design shall be subject to the patented product of design shown in pictures or photographs.
Article 57 Where a patent is exploited without the permission of the patentee, that is, the patent right is infringed and a dispute arises, the parties concerned shall settle it through consultation; Unwilling to negotiate or failing to do so, the patentee or interested party may bring a suit in a people's court or request the administrative department for patent affairs to handle it. When the administrative department for patent affairs finds that the infringement is established, it may order the infringer to stop the infringement immediately. If a party refuses to accept the decision, he may bring a lawsuit to the people's court in accordance with the Administrative Procedure Law of the People's Republic of China within 15 days from the date of receiving the notice of handling. If the infringer fails to prosecute and stop the infringement upon expiration of the time limit, the administrative department for patent affairs may apply to the people's court for compulsory execution. At the request of the parties concerned, the administrative department for patent affairs may mediate the amount of compensation for patent infringement; If mediation fails, the parties may bring a lawsuit to the people's court in accordance with the Civil Procedure Law of People's Republic of China (PRC).
Where a patent infringement dispute involves an invention patent of 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; Where a patent for utility model is involved, the people's court or the administrative department for patent affairs may require the patentee to issue a search report made by the patent administrative department of the State Council.
Article 58 Whoever counterfeits another person's patent shall bear civil liability according to law, and the administrative department for patent affairs shall order it to make corrections and make a public announcement, confiscate its illegal income, and may concurrently impose a fine of less than three times its illegal income. If there is no illegal income, a fine of not more than 50,000 yuan may be imposed. If a crime is constituted, criminal responsibility shall be investigated according to law.
Article 59 Where a non-patented product is passed off as a patented product or a non-patented method is passed off as a patented method, the administrative department for patent affairs shall order it to make corrections and make a public announcement, and may impose a fine of less than 50,000 yuan.
Article 60 The amount of compensation for infringement of a patent right shall be determined according to the losses suffered by the obligee or the interests gained by the infringer. If it is difficult to determine the loss of the infringer or the interests of the infringer, it shall be reasonably determined by reference to the multiple of the patent license fee.
Article 61 Where the patentee or interested party has evidence to prove that others are committing or will commit acts infringing on his patent right, and his legitimate rights and interests will be irretrievably damaged if he does not stop them in time, he may apply to the people's court for measures to order the relevant acts to stop and property preservation before bringing a lawsuit.
The people's court shall apply the provisions of Articles 93 to 96 and 99 of the Civil Procedure Law of People's Republic of China (PRC) in handling the application mentioned in the preceding paragraph.
Article 62 The limitation of action for patent infringement is two years, counting from the date when the patentee or interested party knows or should know about the infringement.
If the patentee fails to pay the appropriate royalty before the patent right is granted after the publication of the application for a patent for invention, the limitation period for requesting the royalty is two years, counting from the date when the patentee knows or should know that others are using his invention. However, if the patentee knows or should know before the patent right is granted, it shall be counted from the date when the patent right is granted.
Article 63 Any of the following circumstances shall not be regarded as infringement of the patent right:
(1) After the patented product manufactured or imported by the patentee or manufactured or imported with the permission of the patentee or the product directly obtained according to the patented method is sold, the patentee uses, promises to sell or sells the product;
(2) Having manufactured the same product, used the same method or made necessary preparations for its manufacture and use before the patent application date, and continuing to manufacture and use it only within the original scope;
(3) Foreign means of transport temporarily passing through China's territorial waters and airspace use the relevant patents in their devices and equipment for their own needs in accordance with the agreements signed between their countries and China or international treaties to which they are both parties, or on the principle of reciprocity;
(four) the use of relevant patents for scientific research and experiments.
If the use or sale of a patented product that is not known to be manufactured or sold without the permission of the patentee or a product directly obtained by a patented method is used for production and business purposes, it shall not be liable for compensation if it can prove the legal source of the product.
Article 64 Whoever, in violation of the provisions of Article 20 of this Law, applies for a patent in a foreign country and divulges state secrets shall be given administrative sanctions by his unit or the competent authority at a higher level; If a crime is constituted, criminal responsibility shall be investigated according to law.
Article 65 Whoever infringes on the inventor's or designer's right to apply for a patent for non-service invention-creation and other rights and interests as stipulated in this Law shall be given administrative sanctions by his unit or the competent authority at a higher level.
Article 66 The department in charge of patent work shall not participate in business activities such as recommending patented products to the society.
Where the administrative department for patent affairs violates the provisions of the preceding paragraph, it shall be ordered by its superior organ or supervisory organ to make corrections, eliminate the influence and confiscate the illegal income; If the circumstances are serious, the directly responsible person in charge and other directly responsible personnel shall be given administrative sanctions according to law.
Article 67. State functionaries engaged in patent management and other relevant state functionaries who neglect their duties, abuse their powers or engage in malpractices for selfish ends, which constitutes a crime, shall be investigated for criminal responsibility according to law; If it does not constitute a crime, it shall be given administrative sanctions according to law.
Chapter VIII Supplementary Provisions
Article 68 To apply for a patent and go through other formalities with the patent administration department in the State Council, the fees shall be paid in accordance with the regulations.
Article 69 This Law shall come into force as of April 2005 1985.
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