Patent Law of the People's Republic of China

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Updated: 2009-04-14 18:45

All the English versions of the Chinese laws provided are for your information only. Should there be any discrepency between the Chinese and the English version, the Chinese version shall prevail.

(Adopted at the 4th Session of the Standing Committee of the Sixth National People's Congress on March 12, 1984 Amended by the Decision Regarding the Revision of the Patent Law of the People's Republic of China, adopted at the 27th Session of the Standing Committee of the Seventh National People's Congress on September 4, 1992)

Important Notice: In case of discrepancy, the original version in Chinese shall prevail.

Whole Document

PATENT LAW OF THE PEOPLE''S REPUBLIC OF CHINA

(Adopted at the 4th Session of the Standing Committee of the Sixth National People's Congress on March 12, 1984 Amended by the Decision Regarding the Revision of the Patent Law of the People''s Republic of China, adopted at the 27th Session of the Standing Committee of the Seventh National People''s Congress on September 4, 1992)

(Translated by the Patent Office of the People's Republic of China. In case of discrepancy, the original version in Chinese shall prevail.)

Chapter I GENERAL PROVISIONS

Article 1.

This Law is enacted to protect patent rights for inventions-creations, to encourage inventions-creations, to foster the spreading and application of inventions-creations, and to promote the development of science and technology, for meeting the needs of the construction of socialist modernization.

Article 2.

In this Law, "inventions-creations" mean inventions, utility models and designs.

Article 3.

The Patent Office of the People''s Republic of China receives and examines patent applications and grants patent rights for inventions-creations that conform with the provisions of this Law.

Article 4.

Where the invention-creation for which a patent is applied for relates to the security or other vital interests of the State and is required to be kept secret, the application shall be treated in accordance with the relevant prescriptions of the State.

Article 5.

No patent right shall be granted for any invention-creation that is contrary to the laws of the State or social morality or that is detrimental to public interest.

Article 6.

For a service invention-creation, made by a person in execution of the tasks of the entity to which he belongs or made by him mainly by using the material means of the entity, the right to apply for a patent belongs to the entity. For any non service invention-creation, the right to apply for a patent belongs to the inventor or creator. After the application is approved, if it was filed by an entity under ownership by the whole people, the patent right shall be held by the entity; if it was filed by an entity under collective ownership or by an individual, the patent right shall be owned by the entity or individual.

For a service invention-creation made by any staff member or worker of a foreign enterprise, or of a Chinese-foreign joint venture enterprise, located in China, the right to apply for a patent belongs to the enterprise. For any non service invention-creation, the right to apply for a patent belongs to the inventor or creator. After the application is pproved, the patent right shall be owned by the enterprise or the individual that applied for it.

The owner of the patent right and the holder of the patent right are referred to as "patentee".

Article 7.

No entity or individual shall prevent the inventor or creator from filing an application for a patent for a non service invention-creation.

Article 8.

For an invention-creation made in cooperation by two or more entities, or made by an entity in execution of a commission for research or designing given to it by another entity, the right to apply for a patent belongs, unless otherwise agreed upon, to the entity which made, or to the entities which jointly made, the invention-creation. After the application is approved, the patent right shall be owned or held by the entity or entities that applied for it.

Article 9.

Where two or more applicants file applications for patent for the identical invention-creation, the patent right shall be granted to the applicant whose application was filed first.

Article 10.

The right to apply for a patent and the patent right may be assigned. Any assignment, by an entity under ownership by the whole people, of the right to apply for a patent, or of the patent right, must be approved by the competent authority at the higher level.

Any assignment, by a Chinese entity or individual, of the right to apply or a patent, or of the patent right, to a foreigner must be approved by the competent department concerned of the State Council.

Where the right to apply for a patent or the patent right is assigned, the parties must conclude a written contract, which will come into force after it is registered with and announced by the Patent Office.

Article 11. [*2] [*3]

After the grant of the patent right for an invention or utility model, except as otherwise provided for in the law, no entity or individual may, without the authorization of the patentee, make, use or sell the patented product, or use the patented process and use or sell the product directly obtained by the patented process, for production or business purposes.

After the grant of the patent right for a design, no entity or individual may, without the authorization of the patentee, make or sell the product, incorporating its or his patented design, for production or business urposes.

After the grant of the patent right, except as otherwise provided for in the law, the patentee has the right to prevent any other person from importing, without its or his authorization, the patented product, or the product directly obtained by its or his patented process, for the uses mentioned in the preceding two paragraphs.

Article 12.

Any entity or individual exploiting the patent of another must, except as provided for in Article 14 of this Law, conclude with the patentee a written license contract for exploitation and pay the patentee a fee for the exploitation of the patent. The licensee has no right to authorize any entity or individual, other than that referred to in the contract for exploitation, to exploit the patent.

Article 13.

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

Article 14.

The competent departments concerned of the State Council and the people's governments of provinces, autonomous regions or municipalities directly under the Central Government have the power to decide, in accordance with the State plan, that any entity under ownership by the whole people that is within their system or directly under their administration and that holds the patent right to an important invention-creation is to allow designated entities to exploit that invention-creation; and the exploiting entity shall, according to the prescriptions of the State, pay a fee for exploitation to the entity holding the patent right.

Any patent of a Chinese individual or entity under collective ownership, which is of great significance to the interests of the State or to the public interest and is in need of spreading and application, may, after approval by the State Council at the solicitation of its competent department concerned, be treated alike by making reference to the provisions of the preceding paragraph.

Article 15.

The patentee has the right to affix a patent marking and to indicate the number of the patent on the patented product or on the packing of that product.

Article 16.

The entity owning or holding the patent right shall award to the inventor or creator of a service invention-creation a reward and, upon exploitation of the patented invention-creation, shall award to the inventor or creator a reward based on the extent of spreading and application and the economic benefits yielded.

Article 17.

The inventor or creator has the right to be named as such in the patent document.

Article 18.

Where any foreigner, foreign enterprise or other foreign organization having no habitual residence or business office in China files an application for a patent in China, the application shall be treated under this Law in accordance with any agreement concluded between the country to which the applicant belongs and China, or in accordance with any international treaty to which both countries are party, or on the basis of the principle of reciprocity.

Article 19.

Where any foreigner, foreign enterprise or other foreign organization having no habitual residence or business office in China applies for a patent, or has other patent matters to attend to, in China, he or it shall appoint a patent agency designated by the State Council of the People's Republic of China to act as his or its agent. Where any Chinese entity or individual applies for a patent or has other patent matters to attend to in the country, it or he may appoint a patent agency to act as its or his agent.

Article 20.

Where any Chinese entity or individual intends to file an application in a foreign country for a patent for invention-creation made in the country, it or he shall file first an application for patent with the Patent Office and, with the sanction of the competent department concerned of the State Council, shall appoint a patent agency designated by the State Council to act as its or his agent.

Article 21.

Until the publication or announcement of the application for a patent, staff members of the Patent Office and persons involved have the duty to keep its content secret.

Chapter II REQUIREMENTS FOR GRANT OF PATENT RIGHT

Article 22.

Any invention or utility model for which patent right may be granted must possess novelty, inventiveness and practical applicability. Novelty means that, before the date of filing, no identical invention or utility model has been publicly disclosed in publications in the country or abroad or has been publicly used or made known to the public by any other means in the country, nor has any other person filed previously with the Patent Office an application which described the identical invention or utility model and was published after the said date of filing.

Inventiveness means that, as compared with the technology existing before the date of filing the invention has prominent substantive features and represents a notable progress and that the utility model has substantive features and represents progress. Practical applicability means that the invention or utility model can be made or used and can produce effective results.

Article 23.

Any design for which patent right may be granted must not be identical with or similar to any design which, before the date of filing, has been publicly disclosed in publications in the country or abroad or has been publicly used in the country.

Article 24.

An invention-creation for which a patent is applied for does not lose its novelty where, within six months before the date of filing, one of the following events occurred:

(1) where it was first exhibited at an international exhibition sponsored or recognized by the Chinese Government;

(2) where it was first made public at a prescribed academic or technological meeting;

(3) where it was disclosed by any person without the consent of the applicant.

Article 25. [*4]

For any of the following, no patent right shall be granted:

(1) scientific discoveries;

(2) rules and methods for mental activities;

(3) methods for the diagnosis or for the treatment of diseases;

(4) animal and plant varieties;

(5) substances obtained by means of nuclear transformation.

For processes used in producing products referred to in items (4) of the preceding paragraph, patent right may be granted in accordance with the provisions of this Law.

Chapter III APPLICATION FOR PATENT

Article 26.

Where an application for a patent for invention or utility model is filed, a request, a description and its abstract, and claims shall be submitted. The request shall state the title of the invention or tility model, the name of the inventor or creator, the name and the address of the applicant and other related matters.

The description shall set forth the invention or utility model in a manner sufficiently clear and complete so as to enable a person skilled in the relevant field of technology to carry it out; where necessary, drawings are required. The abstract shall state briefly the main technical points of the invention or utility model.

The claims shall be supported by the description and shall state the extent of the patent protection asked for.

Article 27.

Where an application for a patent for design is filed, a request, drawings or photographs of the design shall be submitted, and the product incorporating the design and the class to which that product belongs shall be indicated.

Article 28.

The date on which the Patent Office receives the application shall be the date of filing. If the application is sent by mail, the date of mailing indicated by the postmark shall be the date of filing.

Article 29. [*5]

Where, within twelve months from the date on which any applicant first filed in a foreign country an application for a patent for invention or utility model, or within six months from the date on which any applicant first filed in a foreign country an application for a patent for design, he or it files in China an application for a patent for the same subject matter, he or it may, in accordance with any agreement concluded between the said foreign country and China, or in accordance with any nternational treaty to which both countries are party, or on the basis of the principle of mutual recognition of the right of priority, enjoy a right of priority.

Where, within twelve months from the date on which any applicant first filed in China an application for a patent for invention or utility model, he or it files with the Patent Office an application for a patent for the same subject matter, he or it may enjoy a right of priority.

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