Chinese Patent Law-General Provisions

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Release time:2016-07-19

(Adopted at the Fourth Meeting of the Standing Committee of the Sixth National People's Congress on March 12, 1984, amended for the first time according to the Decision on Amending the Patent Law of the 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, amended for the first time according to the Decision on Amending the Patent Law of the the People's Republic of China at the 17th Meeting of the Standing Committee of the Eleventh National People's Congress on August 25, 2000, amended for the second time decision Amending the Patent Law of the the People's Republic of China Third Amendment)

Chapter I General Provisions

Article 1 This Law is enacted to protect the legitimate rights and interests of patentees, encourage inventions and creations, promote the application of inventions and creations, improve innovation capabilities, and promote scientific and technological progress and economic and social development.

Article 2 Inventions and creations referred to in this Law refer to inventions, utility models and designs.

Invention refers to a new technical solution proposed for a product, method or improvement thereof.

The utility model refers to a new technical solution suitable for practical use proposed for the shape, structure or combination of the product.

Appearance design, refers to the shape of the product, pattern or its combination and color and shape, pattern of the combination of the rich aesthetic and suitable for industrial applications of the new design.

Article 3 The administrative department for patent under the State Council shall be responsible for the administration of patent work throughout the country, accept and examine patent applications in a unified manner, and grant patent rights in accordance with the law.

The administrative departments for patent affairs under the people's governments of provinces, autonomous regions and municipalities directly under the Central Government shall be responsible for the administration of patents within their respective administrative areas.

Article 4 Where the invention-creation for which a patent is applied 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 to any invention-creation that violates the law or social morality or impairs the public interest.

No patent right shall be granted to an invention-creation that obtains or utilizes genetic resources in violation of the provisions of laws and administrative regulations and relies on such genetic resources.

Article 6 An invention-creation accomplished in the performance of the tasks of the unit or mainly by making use of the material and technical conditions of the unit is a service invention-creation. The right to apply for a patent for a service invention-creation belongs to the unit; after the application is approved, the unit is the patentee.

For a non-service invention-creation, the right to apply for a patent belongs to the inventor or designer; after the application is approved, the inventor or designer shall be the patentee.

For inventions and creations completed by using the material and technical conditions of the unit, if the unit has a contract with the inventor or designer to make an agreement on the right to apply for a patent and the ownership of the patent right, the agreement shall be followed.

Article 7 No unit or individual may suppress an inventor's or designer's application for a patent for a non-service invention-creation.

Article 8 For an invention-creation completed by two or more units or individuals in cooperation, or an invention-creation completed by one unit or individual under the entrustment of another unit or individual, unless otherwise agreed, the right to apply for a patent belongs to the unit or individual that completed or jointly completed the invention-creation; after the application is approved, the unit or individual applying shall be the patentee.

Article 9 Only one patent right can be granted for the same invention-creation. However, if the same applicant applies for both a utility model patent and an invention patent for the same invention-creation on the same day, the utility model patent obtained first has not been terminated, and the applicant declares to waive the utility model patent right, the invention patent right may be granted.

Where two or more applicants respectively apply for a patent for the same invention-creation, the patent right shall be granted to the person who applied first.

Article 10 The right to apply for a patent and the patent right may be assigned.

Where a Chinese unit or individual transfers the right to apply for a patent or the patent right to a foreigner, foreign enterprise or other foreign organization, it shall go through the formalities in accordance with the provisions of the relevant laws and administrative regulations.

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 under the State Council, which shall make a public 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 grant of a patent right for an invention or utility model, unless otherwise provided in this Law, no unit or individual may, without the permission of the patentee, implement the patent, that is, may not manufacture, use, promise to sell, sell or import the patented product, or use the patented method and use, promise to sell, sell or import the product directly obtained by the patented method for production and business purposes.

After the grant of the patent right for a design, no unit or individual may, without the permission of the patentee, implement the patent, that is, may not manufacture, promise to sell, sell or import the patented design product for the purpose of production and operation.

Article 12 Any entity or individual who implements another person's patent shall conclude a licensing contract with the patentee and pay the patentee royalties. The licensee shall not have the right to allow any entity or individual other than those stipulated in the contract to implement the patent.

Article 13 After the publication of an application for a patent for invention, the applicant may require the entity or individual implementing the invention to pay an appropriate fee.

Article 14 Where a patent for an invention of a State-owned enterprise or institution is of great significance to the interests of the State or the public interest, the competent department concerned under the State Council and the people's government of a province, autonomous region or municipality directly under the Central Government may, upon approval by the State Council, decide to popularize and apply it within the approved scope and allow it to be implemented by a designated unit, and the implementing unit shall pay a royalty to the patentee in accordance with the provisions of the State.
 
Article 15 Where the co-owners of the right of patent application or the patent right have an agreement on the exercise of the right, such agreement shall be followed. In the absence of an agreement, the co-owners may implement the patent alone or license others to implement the patent by ordinary license.

Except for the circumstances specified in the preceding paragraph, the exercise of a common patent application right or patent right shall obtain the consent of all the co-owners.

Article 16 The entity to which the patent right is granted shall reward the inventor or designer of the service invention-creation; after the patent for the invention-creation is implemented, it shall pay the inventor or designer reasonable remuneration according to the scope of its popularization and application and the economic benefits obtained.

Article 17 The inventor or designer shall have the right to state in the patent document that he is the inventor or designer.

The patentee shall have the right to indicate the patent mark on the patented product or the packaging of the product.

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 the country to which he belongs and China or the international treaty to which he is a party, or in accordance with the principle of reciprocity.

Article 19 Foreigners, foreign enterprises or other foreign organizations that do not have a habitual residence or business office in China shall entrust a patent agency established according to law to apply for a patent and handle other patent affairs in China.

Chinese units or individuals that apply for patents and handle other patent affairs in China may entrust a patent agency established according to law to handle the matter.

Patent agencies shall abide by laws and administrative regulations, handle patent applications or other patent affairs in accordance with the entrustment of the agent, and have the responsibility to keep confidential the content of the agent's invention-creation, except for the patent application that has been published or announced. The specific measures for the administration of patent agencies shall be formulated by the State Council.

Article 20 Any unit or individual that applies to a foreign country for a patent for an invention or utility model completed in China shall report to the patent administration department under the State Council for confidentiality examination in advance. The procedures and time limit for confidentiality review shall be implemented in accordance with the provisions of the State Council.

Chinese units or individuals may file international applications for patents in accordance with the relevant international treaties to which the People's Republic of China is a party. Where an applicant makes an international application for patent, it shall comply with the provisions of the preceding paragraph.

The administrative department for patent under the State Council shall handle international applications for patents in accordance with the relevant international treaties to which the the People's Republic of China is a party, this Law and the relevant provisions of the State Council.

No patent right shall be granted to an invention or utility model for which a patent has been applied for in a foreign country in violation of the provisions of the first paragraph of this Article.

Article 21 The patent administration department under the State Council and its Patent Reexamination Board shall handle applications and requests for patents in accordance with the requirements of objectivity, fairness, accuracy and timeliness.

The patent administration department under the State Council shall publish patent information in a complete, accurate and timely manner and publish patent gazettes on a regular basis.

Before the publication or announcement of the patent application, the staff of the patent administration department under the State Council and other relevant personnel shall have the duty to keep the contents of the application confidential.