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The Regulation on National Defense Patents is hereby promulgated and shall come into force as of November 1, 2004.

 

Chapter I General Provisions

 

Article 1 In order to protect the patent rights for inventions related to national defense, ensure state secrets, facilitate the popularization and application of inventions and creations, promote the development of national defense science and technology, and meet the needs of national defense modernization, these regulations are formulated in accordance with the the People's Republic of China Patent Law.

Article 2 National defense patents refer to patents for inventions that involve national defense interests and have potential effects on national defense construction that need to be kept confidential.

Article 3 The national defense patent institution (hereinafter referred to as the national defense patent institution) shall be responsible for accepting and examining applications for national defense patents. Where the provisions of these Regulations are found to be in conformity with upon examination by the national defense patent authority, the patent administration department under the State Council shall grant the national defense patent right.

The competent department of science, technology and industry for national defense under the State Council and the General Armament Department of the Chinese People's Liberation Army (hereinafter referred to as the General Armament Department) are responsible for the administration of national defense patents in local systems and military systems, respectively.

Article 4 No national defense patent may be applied for for inventions that involve national defense interests or have potential effects on national defense construction and are determined to be top secret state secrets.

Applications for national defense patents and the secrecy of national defense patents shall be managed in accordance with the Law of the the People's Republic of China on Guarding State Secrets and relevant state regulations before declassification.

Article 5 The term of protection of a national defense patent right shall be 20 years, counting from the date of filing.

Article 6 During the protection period of a national defense patent, if the classification level needs to be changed or declassified due to changes in circumstances, or the confidentiality period needs to be extended after the termination of the national defense patent right, the national defense patent agency may make a decision to change the classification level, declassify or extend the confidentiality period; However, if it has been determined as a state secret before applying for a national defense patent, it shall obtain the consent of the organ or unit that originally determined the secret classification and confidentiality period.

The unit or individual that has been granted a national defense patent right (hereinafter collectively referred to as the national defense patentee) may submit a written application to the national defense patent agency to change the classification, declassify or extend the confidentiality period; if it belongs to a state-owned enterprise, institution or military unit, it shall be accompanied by the original determination of the classification and confidentiality period. Opinions of the agency, unit or its superior agency.

The national defense patent agency shall publish the decision to change the classification, decrypt or extend the confidentiality period in the "National Defense Patent Internal Bulletin" published by the agency, and notify the national defense patentee, and at the same time submit the declassified national defense patent to the patent administration department of the State Council for conversion to ordinary patent. The patent administration department under the State Council shall promptly announce the declassified national defense patent to the public.

Article 7 The right to apply for a national defense patent and the national defense patent right may be transferred to Chinese units and individuals in China upon approval.

The transfer of national defense patent application rights or national defense patent rights shall ensure that state secrets are not leaked, that national defense and military construction are not affected, and submit a written application to the national defense patent agency, which shall conduct a preliminary examination in accordance with Article 3 of these regulations. The division of responsibilities stipulated in the second paragraph shall be submitted to the competent department of science, technology and industry for national defense under the State Council and the General Armament Department for approval.

The competent department of science, technology and industry for national defense under the State Council and the General Armament Department shall, within 30 days from the date of acceptance of the application by the national defense patent institution, make a decision on approval or disapproval; if a decision is made on disapproval, it shall notify the applicant in writing and explain the reasons.

Where the transfer of the right to apply for a national defense patent or the national defense patent right is approved, the parties concerned shall conclude a written contract and register it with the national defense patent institution, which shall publish it in the Internal Circular on National Defense Patent. The assignment of the right to apply for a national defense patent or the national defense patent right shall take effect as of the date of registration.

Article 8 It is prohibited to transfer the right to apply for national defense patents and the right to national defense patent to units and individuals abroad and to foreigners and foreign institutions in China.

Article 9 Where it is necessary to entrust a patent agency to apply for a national defense patent and handle other national defense patent affairs, it shall entrust a patent agency designated by the national defense patent agency to handle the matter. Patent agencies and their staff shall have the obligation to keep confidential the state secrets they learn in the process of handling national defense patent applications and other national defense patent affairs.

Chapter II Application, Examination and Authorization of National Defense Patents

 

Article 10 Anyone who applies for a national defense patent shall submit documents such as a request, a description and its abstract, and claims to the national defense patent agency.

The applicant for a national defense patent shall write the application documents in accordance with the requirements and uniform format prescribed by the national defense patent institution, and send them in person or through confidential communication or other confidential means to the national defense patent institution, and shall not send them by ordinary mail.

The date on which the national defense patent institution receives the national defense patent application documents shall be the date of application; if the application documents are mailed by confidential communication, the date of the postmark shall be the date of application.

Article 11 The national defense patent agency regularly sends personnel to the patent administration department of the State Council to check the general patent application. If it finds that there are national defense interests or potential effects on national defense construction that need to be kept confidential, it shall be converted into a national defense patent application with the consent of the patent administration department of the State Council, and notify the applicant.

After an ordinary patent application is converted into a national defense patent application, the national defense patent agency shall examine the national defense patent application in accordance with the relevant provisions of these Regulations.

Article 12 An invention for which a national defense patent right is granted shall be novel, inventive and practical.

Novelty means that the same invention has not been publicly published in foreign publications, published in domestic publications, used in China or otherwise known to the public before the filing date, nor has the same invention been filed by others and obtained a national defense patent right after the filing date.

Inventiveness means that the invention has outstanding substantive characteristics and significant progress compared with the technology existing before the date of application.

Practicality means that the invention can be made or used and can produce positive effects.

Article 13 An invention for which a national defense patent is applied for shall not lose its novelty if, within six months prior to the filing date, one of the following circumstances occurred:

(I) exhibited for the first time at an internal exhibition held by the relevant competent department of the State Council and the relevant competent department of the Chinese People's Liberation Army;

(II) first published at an internal academic or technical conference convened by the relevant competent department of the State Council or the relevant competent department of the Chinese People's Liberation Army;

(III) others to divulge its contents without the consent of the applicant for a national defense patent.

Under the circumstances listed in the preceding paragraph, the applicant for a national defense patent shall make a statement at the time of application and provide relevant supporting documents within 2 months from the date of application.

Article 14 If, after examining an application for a national defense patent, the national defense patent agency finds that it does not comply with the provisions of these Regulations, it shall notify the applicant for a national defense patent to state its opinions within a specified time limit or to amend or correct its application for a national defense patent; if it fails to respond within the time limit without justifiable reasons, the application for a national defense patent shall be deemed to have been withdrawn.

The applicant for a national defense patent may, within six months from the date of filing or when replying to the notice of the first examination opinion, amend its application for a national defense patent on its own initiative.

The applicant shall not modify its national defense patent application documents beyond the scope of the original description and claims.

Article 15 After the applicant for a national defense patent has stated his opinions or made amendments or corrections to the application for a national defense patent, if the national defense patent agency considers that it still does not comply with the provisions of these Regulations, it shall reject it.

Article 16 The national defense patent agency shall establish a National Defense Patent Reexamination Board, which shall be responsible for the reexamination and invalidation of national defense patents.

The National Defense Patent Reexamination Board is composed of technical experts and legal experts, and its chairman is concurrently served by the person in charge of the national defense patent agency.

Article 17 If an applicant for a national defense patent is not satisfied with the decision of the national defense patent institution to reject the application, he may, within three months from the date of receipt of the notification, request a reexamination by the National Defense Patent Reexamination Board. The National Defense Patent Reexamination Board shall, after reexamination and making a decision, notify the applicant for a national defense patent.

Article 18 If the application for a national defense patent is found to have no reason for rejection after examination or should not be rejected after reexamination, the patent administration department of the State Council shall make a decision to grant a national defense patent right, entrust the national defense patent institution to issue a national defense patent certificate, and announce the application date, authorization date and patent number of the national defense patent in the patent bulletin published by the patent administration department of the State Council. The national defense patent agency shall register the relevant matters of the national defense patent and publish them in the Internal Bulletin of National Defense Patent.

Article 19 If any unit or individual considers that the grant of a national defense patent right does not conform to the provisions of these Regulations, it may make a request to the National Defense Patent Reexamination Board to declare the national defense patent right invalid.

Article 20 After examining the request for invalidation of the national defense patent right and making a decision, the National Defense Patent Reexamination Board shall notify the requester and the national defense patentee. The decision declaring the national defense patent right invalid shall be registered by the national defense patent institution and published in the Internal Circular on National Defense Patent, and the patent administration department of the State Council shall publish it in the patent gazette.

Chapter III Implementation of National Defense Patents

 

Article 21 The national defense patent agency shall, within three months from the date of granting the national defense patent right, send copies of the relevant documents on the national defense patent to the relevant competent department of the State Council or the relevant competent department of the Chinese People's Liberation Army. The department that receives the copy of the document shall, within 4 months, submit a written opinion on the implementation of the national defense patent and notify the national defense patent agency.

Article 22 The relevant competent department of the State Council and the relevant competent department of the Chinese People's Liberation Army may allow the units designated by them to implement national defense patents in this system or within this department; if it is necessary to designate the implementation of national defense patents other than this system or department, it shall be submitted to the National Defense Patent Agency. The defense patent agency shall submit a written application to the national defense science, technology and industry department of the State Council and the General Armament Department for approval before implementation.

The National Defense Patent Agency shall register the designated implementation of national defense patents and publish it in the Internal Bulletin of National Defense Patents.

Article 23 An entity that implements another person's national defense patent shall enter into a written implementation contract with the national defense patentee, pay the national defense patentee fees in accordance with the provisions of Article 25 of these Regulations, and report to the national defense patent agency for the record. The implementing unit shall not allow any unit other than that specified in the contract to implement the national defense patent.

Article 24: Where a national defense patentee permits a foreign unit or individual to implement its national defense patent, it shall ensure that state secrets are not leaked, that national defense and military construction are not affected, and submit a written application to the national defense patent agency, which shall be issued by the national defense patent agency. After conducting a preliminary review, the agency shall promptly submit it to the competent department of national defense science, technology and industry and the General Armament Department of the State Council for approval in accordance with the division of responsibilities stipulated in Article 3.

The competent department of science, technology and industry for national defense under the State Council and the General Armament Department shall, within 30 days from the date of acceptance of the application by the national defense patent institution, make a decision on approval or disapproval; if a decision is made on disapproval, it shall notify the applicant in writing and explain the reasons.

Article 25 Anyone who implements another person's national defense patent shall pay the national defense patent royalties to the national defense patentee. If the implementation of national defense patents generated by the use of national defense scientific research funds or other national defense funds directly invested by the state for scientific research activities is in line with the purpose of using the funds for which the national defense patents are generated, only the necessary national defense patent implementation fees may be paid; however, unless otherwise agreed in the scientific research contract or otherwise stipulated in the scientific research mission statement.

The term "national defense patent implementation fee" as mentioned in the preceding paragraph refers to the expenses incurred in the implementation of national defense patents for the provision of technical materials, the training of personnel and the further development of technology.

Article 26 The amount of the implementation fee or royalty for the designated implementation of a national defense patent shall be determined by the national defense patentee through consultation with the implementing unit; if no agreement can be reached, the national defense patent agency shall make a ruling.

Article 27 The State shall compensate the national defense patentee. The national defense patent institution shall, after issuing the national defense patent certificate, pay the national defense patent compensation fee to the national defense patentee, the specific amount of which shall be determined by the national defense patent institution. If it is a service invention, the national defense patentee shall pay not less than 50% of the compensation to the inventor.

Chapter IV Administration and Protection of National Defense Patents

 

Article 28 The Internal Notice on National Defense Patents published by the national defense patent agency is a state secret document, and the scope of its knowledge shall be determined by the national defense patent agency.

The Internal Bulletin on National Defense Patents publishes the following:

(I) the bibliographic items recorded in national defense patent applications;

Claims (II) national defense patents;

A summary of the description of the (III) invention;

(IV) the grant of national defense patent rights;

(V) the termination of national defense patent rights;

the invalidation of the (VI) national defense patent right;

(VII) the transfer of national defense patent application rights and national defense patent rights;

(VIII) the designated implementation of national defense patents;

(IX) the record of the licensing contract for the implementation of national defense patents;

(X) the classification and decryption of national defense patents;

(11) extension of the term of confidentiality of the national defense patent;

(12) change of the name or address of the national defense patentee;

(13) Other related matters.

Article 29 After the national defense patent right is granted, under any of the following circumstances, the specification of the national defense patent may be consulted with the consent of the national defense patent institution:

The (I) makes a request for invalidation of the national defense patent right;

(II) the need to implement national defense patents;

(III) disputes over national defense patents occur;

(IV) because of national defense scientific research needs.

The examiner shall have the obligation to keep confidential the state secrets that he or she learns in the course of his or her inspection.

Article 30 the relevant competent departments of the State Council, the relevant competent departments of the Chinese people's Liberation Army and the administrative departments of science, technology and industry for national defense of all provinces, autonomous regions and municipalities directly under the central government shall designate an institution to manage the work of national defense patents and notify the national defense patent institutions. The agency that manages the defense patent work is operationally guided by the Defense Patent Agency.

Military units that undertake national defense scientific research and production tasks and participate in military orders, enterprises that perform the duties of investors under the State Council, and institutions directly under the State Council shall designate corresponding institutions to manage their own national defense patent work.

Article 31 The national defense patent agency may, at the request of the parties, mediate the following national defense patent disputes:

(I) disputes over the right to apply for national defense patents and the attribution of national defense patent rights;

(II) disputes over the qualification of national defense patent inventors;

Disputes over awards and remuneration for inventors of (III) service inventions;

(IV) disputes over defense patent royalties and implementation fees.

Article 32 Except as otherwise provided in the the People's Republic of China Patent Law and these Regulations, if a national defense patent is infringed upon without the permission of the national defense patentee, the dispute shall be resolved by the parties concerned through consultation; if they are unwilling to negotiate or fail to negotiate, the national defense patentee or interested party may bring a suit in the people's court or request the national defense patent agency to deal with it.

Article 33 Whoever, in violation of the provisions of these Regulations, divulges state secrets shall be dealt with in accordance with the Law of the the People's Republic of China on Guarding State Secrets and the relevant provisions of the State.

Chapter V Supplementary Provisions

 

Article 34 The application for a national defense patent and other formalities with the national defense patent agency shall be subject to payment of fees in accordance with the provisions.

Article 35 The relevant provisions of the the People's Republic of China Patent Law and the Implementing Regulations of the the People's Republic of China Patent Law shall apply to national defense patents, but if there are special provisions in these Regulations, these Regulations shall apply.

Article 36 These Regulations shall enter into force as of November 1, 2004. The Regulations on National Defense Patents approved by the State Council and the Central Military Commission on July 30, 1990 shall be annulled simultaneously.