China
BIZCHINA / Intellectual property
Implementing Regulations of the Patent Law of the People's Republic of
China
Updated: 2006-04-17 14:40
Article 3l The academic or technological meeting referred to in Article
24, subparagraph (2) of the Patent Law means any academic or
technological meeting organized by a competent department concerned of
the State Council or by a national academic or technological association.
Where any invention-creation for which a patent is applied falls under
the provisions of Article 24, subparagraph (l) or (2) of the Patent Law,
the applicant shall, when filing the application, make a declaration and,
within a time limit of two months from the date of filing, submit
certifying documents issued by the entity which organized the
international exhibition or academic or technological meeting, stating
the fact that the invention-creation was exhibited or published and with
the date of its exhibition or publication.
Where any invention-creation for which a patent is applied falls under
the provisions of Article 24, subparagraph (3) of the Patent Law, the
Patent Administration Department under the State Council may, when it
deems necessary, require the applicant to submit the relevant certifying
documents within the specified time limit.
Where the applicant fails to make a declaration and submit certifying
documents as required in paragraph two of this Rule, or fails to submit
certifying documents within the specified time limit as required in
paragraph three of this Rule, the provisions of Article 24 of the Patent
Law shall not apply to the application.
Article 32 Where any applicant goes through the formalities of claims
priority in accordance with the provisions of Article 30 of the Patent
Law, he or it shall, in his or its written declaration, indicate the date
and the number of the application which was first filed (hereinafter
referred to as the earlier application) and the country in which the
application was filed. If the written declaration does not contain the
filing date of the earlier application and the name of the country in
which the application was filed, the declaration shall be deemed not to
have been made.
Where the foreign priority is claimed, the copy of the earlier
application documents submitted by the applicant shall be certified by
the competent authority of the foreign country in which the application
was filed. Where in the certifying material submitted, the name of the
earlier applicant is not the same as that of the later one, the applicant
shall submit document certifying the assignment of priority. Where the
domestic priority is claimed, the copy of the earlier application
document shall be prepared by the Patent Administration Department under
the State Council.
Article 33 An applicant may claim one or more priorities for an
application for a patent; where multiple priorities are claimed, the
priority period for the application shall be calculated from the earliest
priority date.
Where an applicant claims the right of domestic priority, if the earlier
application is one for a patent for invention, he or it may file an
application for a patent for invention or utility model for the same
subject matter; if the earlier application is one for a patent for
utility model, he or it may file an application for a patent for utility
model or invention for the same subject matter. However, when the later
application is filed, if the subject matter of the earlier application
falls under any of the following, it may not be taken as the basis for
claiming domestic priority:
(1) where the applicant has claimed foreign or domestic priority;
(2) where it has been granted a patent right;
(3) where it is the subject matter of a divisional application filed as
prescribed.
Where the domestic priority is claimed, the earlier application shall be
deemed to be withdrawn from the date on which the later application is
filed.
Article 34 Where an application for a patent is filed or the right of
foreign priority is claimed by an applicant having no habitual residence
or business office in China, the Patent Administration Department under
the State Council may, when it deems necessary, require the applicant to
submit the following documents:
(1) a certificate concerning the nationality of the applicant;
(2) a document certifying the seat of the business office or the
headquarters, if the applicant is an enterprise or other organization;
(3) a document certifying that the country, to which the foreigner,
foreign enterprise or other foreign organization belongs, recognizes that
Chinese entities and individuals are, under the same conditions as those
applied to its nationals, entitled to the patent right, the right of
priority and other related rights in that country.
Article 35 Two or more inventions or utility models belonging to a single
general inventive concept which may be filed as one application in
accordance with the provision of Article 3l, paragraph one of the Patent
Law shall be technically inter-related and contain one or more of the
same or corresponding special technical features. The expression "special
technical features" shall mean those technical features that define a
contribution which each of those inventions or utility models, considered
as a whole, makes over the prior art.
Article 36 The expression "the same class" referred to in Article 3l,
paragraph two of the Patent Law means that the product incorporating the
designs belongs to the same subclass in the classification of products
for designs. The expression "be sold or used in sets" means that the
products incorporating the designs have the same designing concept and
are customarily sold and used at the same time.
Where two or more designs are filed as one application in accordance with
the provision of Article 3l, paragraph two of the Patent Law, they shall
be numbered consecutively and the numbers shall precede the titles of the
view of the product incorporating the design.
Rule 37 When withdrawing an application for a patent, the applicant
shall submit to the Patent Administration Department under the State
Council a declaration to that effect stating the title of the
invention-creation, the filing number and the date of filing.
Where a declaration to withdraw an application for a patent is submitted
after the preparations for the publication of the application document
has been completed by the Patent Administration Department under the
State Council, the application document shall be published as scheduled.
However, the declaration withdrawing the application for patent shall be
published in the next issue of the Patent Gazette.
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