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全国人民代表大会常务委员会关于修改《中华人民共和国专利法》的决定 附:第二次修正本 Decision of the Standing Committee of the National People's Congress on Revision of the Patent Law of the People's Republic of China

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(Adopted at the 17th Meeting of the Standing Committee of the Ninth National People's Congress on August 25, 2000)
颁布日期:20000825  实施日期:20010701  颁布单位:全国人大常委会

  Order of the President of the People's Republic of China No. 36

  The Decision of the Standing Committee of the National People's Congress on Revision of the Patent Law of the People's Republic of China, adopted at the 17th Meeting of the Standing Committee of the Ninth National People's Congress of the People's Republic of China on August 25, 2000, is hereby promulgated and shall go into effect as of July 1, 2001.

  Jiang Zemin

  President of the People's Republic of China August 25, 2000

  At its 17th Meeting, the Standing Committee of the Ninth National People's Congress decides to revise the Patent Law of the People's Republic of China as follows:

  1. Article 1 is revised as follow: "This Law is enacted in order to protect patent rights for inventions-creations, encourage invention-creation, to facilitate the wide application of inventions-creations, promote the progress and innovation of science and technology, and meet the needs of the socialist modernization drive."

  2. Article 3 is revised as follows: "The patent administration department under the State Council is responsible for the patent work throughout the country. It accepts and examines patent applications and grants patent rights for inventions-creations in accordance with law.

  "The administrative authority for patent affairs under the people's governments of provinces, autonomous regions and municipalities directly under the Central Government are responsible for the administrative work concerning patents in their respective administrative areas."

  3. Article 6 is revised as follows: "An 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 and technical means of the entity is a service invention-creation. For a service intention-creation, the right to apply for a patent belongs to the entity. After the application is approved, the entity shall be the patentee.

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

  "In respect of an invention-creation made by a person using the material and technical means of an entity to which he belongs, where the entity and the inventor or creator have entered into a contract in which the right to apply for and own a patent is provided for, such a provision shall apply."

  4. Article 8 is revised as follows: "For an invention-creation jointly made by two or more entities or individuals, or made by an entity or individual in execution of a commission given to it or him by another entity or individual, the right to apply for a patent belongs, unless otherwise agreed upon, to the entity or individual that made, or to the entities or individuals that jointly made, the invention-creation. After the application is approved, the entity or individual that applies for it shall be the patentee."

  5. The second paragraph of Article 10 is deleted, the third paragraph is changed to be the second paragraph; the fourth paragraph is changed to be the third paragraph and revised as follows: "Where the right to apply for a patent or the patent right is assigned, the parties shall conclude a written contract and register it with the patent administration department under the State Council. The patent administration department under the State Council shall announce the registration. The assignment shall take effect as of the date of registration."

  6. Article 11 is revised as follows: "After the grant of the patent right for an invention or utility model, except where otherwise provided for in this Law, no entity or individual may, without the authorization of the patentee, exploit the patent, that is, make, use, offer to sell, sell or import the patented product, or use the patented process, or use, offer to sell, sell or import 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, exploit the design, that is, make, sell or import the product incorporating its or his patented design, for production or business purposes."

  7. Article 14 is revised as follows: "Where any patent for invention, which belongs to any State-owned enterprise or institution, is of great significance to the interests of the State or the public, the competent departments concerned under the State Council and the people's governments of provinces, autonomous regions or municipalities directly under the Central Government may, after approval by the State Council, decide that the patented invention be widely applied within the approved limits, and allow designated entities to exploit that invention. The exploiting entity shall, according to the regulations of the State, pay a fee for exploitation to the patentee.

  "Any patent for invention belonging to a Chinese individual or and entity under collective ownership, which is of great significance to the interests of the State or the public and needs to be widely applied, may be treated alike by making reference to the provisions of the preceding paragraph."

  8. Article 16 is revised as follows: "The entity that is granted a patent right shall reward to the inventor or creator of a service invention-creation and , upon exploitation of the patented invention-creation, shall give the inventor or creator a reasonable remuneration based on the extent the invention-creation is applied and the economic benefits it yields."

  9. The first paragraph of Article 19 is revised as follows: "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 patent administration department under the State Council to act as his or its agent."

  A new paragraph is added as the third paragraph, which reads as follows: "The patent agency shall comply with the provisions of laws and administrative regulations, and handle patent applications and other patent matters according to the instructions of its clients. In respect of the contents of its clients' invention-creations, except for those that have been published or announced, the agency shall bear the responsibility of keeping them confidential. The administrative regulations governing the patent agency shall be formulated by the State Council."

  10. Article 20 is revised as follows: "Where any Chinese entity or individual intends to file an application in a foreign country for a patent for invention-creation made in China, it or he shall file first an application for patent with the patent administration department under the State Council, appoint a patent agency designated by the said department to act as its or his agent, and comply with the provisions of Article 4 of this Law.

  "Any Chinese entity or individual may file an international application for patent in accordance with any international treaty concerned to which China is party. The applicant filing an international application for patent shall comply with the provisions of the preceding paragraph.

  "The patent administration department under the State Council shall handle any international application for patent in accordance with the international treaty concerned to which China is party, this Law and the relevant regulations of the State Council."

  11. Article 21 is revised as follows: "The patent administration department under the State Council and the Patent Reexamination Board under the department shall handle any patent application and patent-related request according to law and in conformity with the requirements for being objective, fair, correct and timely.

  "Until the publication or announcement of the application for a patent, staff members of the patent administration department under the State Council and other persons involved have the duty to deep its content secret."

  12. Article 23 is revised as follows: "No design for which patent right is to be granted may 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, or be in conflict with any prior legal rights of any other person."

  13. The second paragraph of Article 36 is revised as follows: "For an application for a patent for invention that has been already filed in a foreign country, the patent administration department under the State Council may ask the applicant to furnish within a specified time limit documents concerning any search made for the purpose of examining that application, or concerning the results of any examination made, in the country. If, at the expiration of the specified time limit, without any justified reason, the said documents are not furnished, the application shall be deemed to have been withdrawn."

  14. Article 39 is revised as follows: "Where it is found after examination as to substance that there is no cause for rejection of the application for a patent for invention, the patent administration department under the State Council shall make a decision to grant the patent right for invention, issue the certificate of patent for invention, and register and announce it. The patent right for invention shall take effect as of upon the date of the announcement."

  15. Article 40 is revised as follows: "Where it is found after preliminary examination that there is no cause for rejection of the application for a patent for utility model or design, the patent administration department under the State Council shall make a decision to grant the patent right for utility model or the patent right for design, issue the relevant patent certificate, and register and announce it. The patent right for utility model or design shall take effect as of the date of the announcement."

  16. Articles 41, 42 and 44 are deleted.

  17. Article 43 is changed to be Article 41 and is revised as follows: "The patent administration department under the State Council shall set up a Patent Reexamination Board. Where an applicant for patent is not satisfied with the decision of the patent administration department under the State Council reject his or its application for patent, such applicant may, within three months from the date of receipt of the notification, request the Patent Reexamination Board to make a reexamination. The Patent Reexamination Board shall, after reexamination, make a decision and notify the applicant for patent of the decision.

  "Where the applicant for patent who is not satisfied with the decision of the Patent Reexamination Board, he or it may, within three months from the date of receipt of the notification, institute legal proceedings in the people's court."

  18. Article 48 is changed to be Article 45 and revised as follows: "Where, starting from the date of the announcement of the grant of a patent right by the patent administration department under the State Council, any entity or individual considers that the grant of the said patent right is not in conformity with the relevant provisions of this Law, it or he may request the Patent Reexamination Board to declare the patent right invalid."

  19. Article 49 is changed to be Article 46 and revised as follows: "For any request for invalidation of a patent right, the Patent Reexamination Board shall examine it promptly, make a decision on it and notify the person who makes the request and the patentee of the decision. The decision declaring the patent right invalid shall be registered and announced by the patent administration department under the State Council.

  "Where the patentee or the person who makes the request for invalidation is not satisfied with the decision of the Patent Reexamination Board declaring the patent right invalid or upholding the patent right, such party may, within three months from receipt of the notification of the decision, institute legal proceedings in the people's court. The people's court shall notify the person that is the opponent party of that party in the invalidation procedure to appear as a third party in the legal proceedings."

  20. Article 50 is changed to be Article 47 and revised as follows: "Any patent right which has been declared invalid shall be deemed to be non- existent from the beginning.

  "Prior to the declaration of the patent right invalid, the decision to declare the patent right invalid shall have no retroactive effect on any judgement or ruling of patent infringement which has been pronounced and enforced by the people's court, on any decision concerning the handling of a dispute over patent infringement which has been complied with or compulsorily executed, or on any contract of patent license or of assignment of patent right which has been performed. However, the damage caused to other persons in bad faith on the part of the patentee shall be compensated.

  "If, pursuant to the provisions of the preceding paragraph, the patentee or the assignor of the patent right makes no repayment to the licensee or the assignee of the patent right of the fee for the exploitation of the patent or of the price for the assignment of the patent right, which is obviously contrary to the principle of equity, the patentee or the assignor of the patent right shall repay the whole or part of the fee for the exploitation of the patent or of the price for the assignment of the patent right to the licensee or the assignee of the patent right."

  21. Article 53 is changed to be Article 50, the first paragraph of which is revised as follows: "Where the invention or utility model for which the patent right has been granted constitutes important technical advance of considerable economic significance compared with another invention or utility model for which a patent right has been granted earlier and the exploitation of the later invention or utility model depends on the exploitation of the earlier invention or utility model, the patent administration department under the State Council may, upon the request of the later patentee, grant a compulsory license to exploit the earlier invention or utility model."

  22. Article 55 is changed to be Article 52 and is revised as follow: "The decision made by the patent administration department under the State Council granting a compulsory license for exploitation shall be notified promptly to the patentee concerned, and shall be registered and announced.

  "In the decision granting the compulsory license for exploitation, the scope and duration of the exploitation shall be specified on the basis of the reasons justifying the grant. If and when the circumstances which lead to such compulsory license cease to exist and are unlikely to recur, the patent administration department under the State Council may, upon the request of the patentee, terminate the compulsory license after examination."

  23. Article 58 is changed to be Article 55 and is revised as follows: "Where the patentee is not satisfied with the decision of the patent administration department under the State Council granting a compulsory license for exploitation, or where the patentee or the entity or individual that is granted the compulsory license for exploitation is not satisfied with the ruling made by the patent administration department under the State Council regarding the fee payable for exploitation, he or it may, within three months from the date of receipt of the notification, institute legal proceedings in the people's court."

  24. Article 60 is changed to be Article 57 and is revised as follows: "Where a dispute arises as a result of the exploitation of a patent without the authorization of the patentee, that is, the infringement of the patent right of the patentee, it shall be settled through consultation by the parties.Where the parties are not willing to consult with each other or where the consultation fails, the patentee or any interested party may institute legal proceedings in the people's court, or request the administrative authority for patent affairs to handle the matter, When the administrative authority for patent affairs handling the matter considers that the infringement is established, it may order the infringer to stop the infringing act immediately. If the infringer is not satisfied with the order, he may, within 15 days from the date of receipt of the notification of the order, institutes legal proceedings in the people's court in accordance with the Administrative Procedure Law of the People's Republic of China. If, within the said time limit, such proceedings are not instituted and the order is not complied with, the administrative authority for patent affairs may approach the people's court for compulsory execution. The said authority handling the matter may, upon the request of the parties, mediate in the amount of compensation for the infringement of the patent right. If the mediation fails, the parties may institute legal proceedings in the people's court in accordance with the Civil Procedure Law of the People's Republic of China.

  "Where any infringement dispute relates to a patent for invention for a process for the manufacture of a new product, any entity or individual manufacturing the identical product shall furnish proof to show that the process used in the manufacture of its or his product is different from the patented process. Where the infringement relates to a patent for utility model, the people's court or the administrative authority for patent affairs model, the people's court or the administrative authority for patent affairs may ask the patentee to furnish a search report made by the patent administration department under the State Council."

  25. The first paragraph of Article 63 is changed to be Article 58 and is revised as follows: "Where any person passes the patent of another person off as his own, he shall, in addition to bearing his civil liability according to law, be ordered by the administrative authority for patent affairs to make rectification, and the order shall be announced. His illegal earnings shall be confiscated and, in addition, he may be imposed a fine of not more than three times his illegal earnings and, if there is no illegal earnings, a fine of not more than RMB 50,000 yuan. Where the infringement constitutes a crime, he shall be investigated for his criminal liability."

  26. The second of Article 63 is changed to be Article 59 and is revised as follows: "Where any person passes any non-patented product off as patented product or passes any non-patented process off as patented process, he shall be ordered by the administrative authority for patent affairs to make rectification, and the order shall be announced, in addition, he may be imposed a fine of not ore than RMB 50,000 yuan."

  27. A new article is added as Article 60, which reads: "The amount of compensation for the damage caused by the infringement of the patent right shall be assessed on the basis of the losses suffered by the patentee whose right was infringed or the profits which the infringer has earned through the infringement. If it is difficult to determine the losses which the patentee has suffered or the profits which the infringer has earned, the amount may be assessed by reference to the appropriate multiple of the amount of the exploitation fee of that patent under contractual license."

  28. A new article is added as article 61, which reads: "Where any patentee or interested party has evidence to prove that another person is infringing or will soon infringe its or his patent right and that if such infringing act is not checked or prevented from occurring in time, it is likely to cause irreparable harm to it or him, it or he may, before any legal proceedings are instituted, request the people's court to adopt measures for ordering the suspension of relevant acts and the preservation of property.

  "The people's court, when dealing with the request mentioned in the preceding paragraph, shall apply the provisions of Article 93 through Article 96 and of Article 99 of the Civil Procedure Law of the People's Republic of China."

  29. Article 61 is changed to be Article 62, and a new paragraph is added as the second paragraph, which reads:" Where no appropriate fee for exploitation of the invention, subject of an application for patent for invention, during the period from the publication of the application for the patent to the grant of patent right to the said invention is paid, prescription for instituting legal proceedings by the patentee to demand the said fee is two years counted from the date which the patentee obtains or should have obtained knowledge of the exploitation of his invention by another person. However, where the patentee has already obtained or should have obtained knowledge before the date of the grant of the patent right, the prescription shall be counted from the date of the grant."

  30. Article 62 is changed to be Article 63 and is revised as follows: "None of the following shall be deemed an infringement of the patent right:

  "(1) Where, after the sale of a patented product that was made or imported by the patentee or with the authorization of the patentee, or that was directly obtained by using the patented process, any other person uses, offers to sell or sells that product;

  "(2) Where, before the date of filing of the application for patent, any person who has already made the identical product, used the identical process, or made the necessary preparation for its making or using, continues to make or use it within the original scope only;

  "(3) Where any foreign means of transport which temporarily passes through the territory, territorial waters or territorial airspace of China uses the patent concerned, in accordance with any agreement concluded between the country to which the foreign means of transport 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, for its own needs, in its devices and installations;

  "(4) Where any person uses the patent concerned solely for the purposes of scientific research and experimentation.

  "Any person who, for production and business purposes, uses or sells a patented product without knowing that it was made and sold without the authorization of the patentee or that it was directly obtained by a patented process, shall not be liable to compensate for the damage of the patentee if he can prove that he obtains the product from a legitimate source."

  31. A new article is added as Article 66, which reads as follows: "The administrative authority for patent affairs may not take part in recommending any patented product for sale to the public or any such commercial activities.

  "Where the administrative authority for patent affairs violates the provisions of the preceding paragraph, it shall be ordered by the authority at the next higher level or the supervisory authority to correct its mistakes and eliminate the bad effects. The illegal earnings, if any, shall be confiscated.Where the circumstances are serious, the persons who are directly in charge and the other persons who are directly responsible shall be given disciplinary sanction in accordance with law."

  32. Article 66 is changed to be Article 67 and is revised as follows: "Where any State functionary working for patent administration or any other State functionary working for patent administration or any other State functionary concerned neglects his duty, abuses his power, or engages in malpractice for personal gain, which constitutes a crime, shall be investigated for his criminal liability in accordance with law. If the case is not serious enough to constitute a crime, he shall be given disciplinary sanction in accordance with law."

  33. Article 68 is deleted.

  34. The term " Patent Office " in the relevant Articles is replaced by "patent administration department under the State Council".

  In addition, the words in the relevant Articles shall be amended in accordance with this Decision and the order of some articles shall be adjusted accordingly.

  This Decision shall go into effect as of July 1, 2001.

  The Patent Law of the People's Republic of China shall be revised correspondingly according to this Decision and republished.

  Appendix:

  Patent Law of the People's republic of China

  (Adopted at the 4th Meeting of the Standing Committee of the Sixth National People's Congress on March 12, 1984 and amended in accordance with the Decision of the Standing Committee of the Seventh National People's Congress on Amending the Patent Law of the People's Republic of China at its 27th Meeting on September 4, 1992 and amended again in accordance with the Decision of the Standing Committee of the Ninth National People's Congress on Amending the Patent Law of the People's Republic of China adopted at its 17 the Meeting on August 25,2000)

  Contents

  Chapter I General Provisions

  Chapter II Conditions for the Grant of Patent Rights

  Chapter III Application for Patents

  Chapter IV Examination and Approval of Patent

  Applications

  Chapter V Term, Termination and Invalidation of

  Patent Rights

  Chapter VI Compulsory Licence for exploitation of a

  Patent

  Chapter VII Protection of Patent Rights

  Chapter VIII Supplementary Provisions

  Chapter I

  General Provisions

  Article 1 This Law is enacted in order to protect patent rights for inventions-creations, encourage invention-creation, to facilitate the wide application of inventions-creations, promote the progress and innovation of science and technology, and meet the needs of the socialist modernization drive.

  Article 2 For the purpose of this Law, "invention-creation" means inventions, utility models and designs.

  Article 3 The patent administration department under the State Council is responsible for the patent work throughout the country. It accepts and examines patent applications and grants patent rights for inventions- creations in accordance with law.

  The administrative authority for patent affairs under the people's governments of provinces, autonomous regions and municipalities directly under the Central Government are responsible for the administrative work concerning patents in their respective administrative areas.

  Article 4 If an invention-creation for which a patent is applied involves national security or other vital interests of the State that require secrecy, the matter shall be treated in accordance with the relevant provisions of the State.

  Article 5 No patent right shall be granted for any invention- creation that violates the laws of the State, goes against social morals or is detrimental to the public interest.

  Article 6 An 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 and technical means of the entity is a service invention- creation. For a service intention-creation, the right to apply for a patent belongs to the entity. After the application is approved, the entity shall be the patentee.

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

  In respect of an invention-creation made by a person using the material and technical means of an entity to which he belongs, where the entity and the inventor or creator have entered into a contract in which the right to apply for and own a patent is provided for, such a provision shall apply.

  Article 7 No entity or individual may suppress the application of an inventor or designer for a patent in respect of an invention-creation that is not job-related.

  Article 8 For an invention-creation jointly made by two or more entities or individuals, or made by an entity or individual in execution of a commission given to it or him by another entity or individual, the right to apply for a patent belongs, unless otherwise agreed upon, to the entity or individual that made, or to the entities or individuals that jointly made, the invention-creation. After the application is approved, the entity or individual that applies for it shall be the patentee.

  Article 9 If two or more applicants apply separately for a patent on the same invention-creation, the patent right shall be granted to the person who applied first.

  Article 10 The right of patent application and the patent right itself may be assigned.

  If a Chinese entity or individual wishes to assign a right of patent application or a patent right to a foreigner, it or he must obtain the approval of the relevant competent department under the State Council.

  Where the right to apply for a patent or the patent right is assign, the parties shall conclude a written contract and register it with the patent administration department under the State Council. The patent administration department under the State Council shall announce the registration. The assignment shall take effect as of the date of registration.

  Article 11 After the grant of the patent right for an invention or utility model, except where otherwise provided for in this Law, no entity or individual may, without the authorization of the patentee, exploit the patent, that is, make, use, offer to sell, sell or import the patented product, or use the patented process, or use, offer to sell, sell or import 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, exploit the design that is, make, sell or import the product incorporating its or his patented design, for production or business purposes.

  Article 12 Except as provided for in Article 14 of this Law, any entity or individual exploiting the patent of another must conclude a written licensing contract with the patentee and pay the patentee a fee for the exploitation of its or his patent. The licensee shall not have the right to authorize any entity or individual other than that referred to in the contract to exploit the patent.

  Article 13 After the application for an invention patent has been publicly announced, the applicant may require the entities or individuals exploiting the invention to pay an appropriate fee.

  Article 14 Where any patent for invention, which belongs to any State-owned enterprise or institution, is of great significance to the interests of the State or the public, the competent departments concerned under the State Council and the people's governments of provinces, autonomous regions or municipalities directly under the Central Government may, after approval by the State Council, decide that the patented invention be widely applied within the approved limits, and allow designated entities to exploit that invention. The exploiting entity shall, according to the regulations of the State, pay a fee for exploitation to the patentee.

  Any patent for invention belonging to a Chinese individual or an entity under collective ownership, which is of great significance to the interests of the State or the public and needs to be widely applied, may be treated alike by making reference to the provisions of the preceding paragraph.

  Article 15 The patentee shall have the right to affix a patent marking and indicate the patent number on the patented product or on the packaging of that product.

  Article 16 The entity that is granted a patent right shall reward to the inventor or creator of a service invention-creation and, upon exploitation of the patented invention-creation, shall give the inventor or creator a reasonable remuneration based on the extent the invention-creation is applied and the economic benefits it yields.

  Article 17 An inventor or designer shall have the right to name himself as such in the patent document.

  Article 18 If a foreigner, foreign enterprise or other foreign organization having no regular residence or place of business in China files and application for a patent in China, the application shall be handled under this Law in accordance with any agreement concluded between the country to which the applicant belongs and China, or 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 patent administration department under the State Council to act as his or its agent.

  If any Chinese entity or individual applies for a patent or has other patent matters to attend to in the country, it or he may entrust a patent agency to act on its or his behalf.

  The patent agency shall comply with the provisions of laws and administrative regulations, and handle patent applications and other patent matters according to the instructions of its clients. In respect or the contents of its clients' inventions-creations, except for those that have been published or announced, the agency shall bear the responsibility of keeping them confidential. The administrative regulations governing the patent agency shall be formulated by the State Council.

  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 China, it or he shall file first an application for patent with the patent administration department under the State Council, appoint a patent agency designated by the said department to act as its or his agent, and comply with the provisions of Article 4 of this Law.

  Any Chinese entity or individual may file an international application for patent in accordance with any international treaty concerned to which China is party. The applicant filing an international application for patent shall comply with the provisions of the preceding paragraph.

  The patent administration department under the State Council shall handle any international application for patent in accordance with the international treaty concerned to which China is party, this law and the relevant regulations of the State Council.

  Article 21 The patent administration department under the State Council and the Patent Reexamination Board under the department shall handle any patent application and patent-related request according to law and in conformity with the requirements for being objective, fair, correct and timely.

  Until the publication or announcement of the application for a patent, staff members of the patent administration department under the State Council and other persons involved have the duty to keep its content secret.

  Chapter II

  Conditions for the Grant of Patent Rights

  Article 22 Any invention or utility model for which a patent right may be granted must possess the characteristics of novelty, inventiveness and usefulness.

  "Novelty" means that, before the filing date of the application, no identical invention or utility model has been publicly disclosed in domestic or foreign publications or has been publicly used or made known to the public by any other means in the country, nor has any other person previously filed with the patent administration department under the State Council an application describing an identical invention or utility model which was recorded in patent application documents published after the said date of filing.

  "Inventiveness" means that, compared with the technology existing before the filing date of the application, the invention has prominent and substantive distinguishing features and represents a marked improvement , or the utility model possesses substantive distinguishing features and represents an improvement.

  "Usefulness" means that the invention or utility model can be made or used and can produce positive results.

  Article 23 No design for which patent right is to be granted may 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, or be in conflict with any prior legal rights of any other person.

  Article 24 Any invention-creation for which a patent is applied shall not lose its novelty if, within six months before the filing date of the application, one of the following events has occurred:

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

  (2) it was made public for the first time at a prescribed academic or technical conference; or

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

  Article 25 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 item (4)of the preceding paragraph, patent right may be granted in accordance with the provisions of this Law.

  Chapter III

  Application for Patents

  Article 26 When a patent application is filed for an invention or a utility model, relevant documents shall be submitted, including a written request, a specification and an abstract thereof, and a patent claim.

  The written request shall state the title of the invention or utility model, the name of the inventor or designer, the name and address of the a pplicant and other related matters.

  The specification shall describe the invention or utility model in a manner sufficiently clear and complete so that a person skilled in the relevant field of technology can accurately produce it; where necessary, drawings shall be appended. The abstract shall describe briefly the technical essentials of the invention or utility model.

  The patent claim shall, in the basis of the specification, state the scope of the patent protection requested.

  Article 27 When a patent application is filed for a design, relevant documents shall be submitted, including a written request and drawings or photographs of the design; the product on which the design is to be used and the category of that product shall also be indicated.

  Article 28 The date on which the patent administration department under the State Council receives the patent application documents shall be the filing date of the application. If the application documents are sent by mail, the postmark date shall be the filing date of the application.

  Article 29 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 international 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 administration department under the State Council an application for a patent for the same subject matter, he or it may enjoy a right of priority.

  Article 30 Any applicant who claims the right of priority shall make a written declaration when the application is filed, and submit, within three months, a copy of the patent application documents that was first filed; if the applicant fails to make the written declaration or fails to submit a copy of the patent application documents within the time limit, the claim to the right of priority shall be deemed not to have been made.

  Article 31 Each patent application for invention or utility model shall be limited to a single invention or utility model. Two or more inventions or utility models belonging to a single inventive concept may be submitted together in one application.

  Each patent application for design shall be limited to a single design used on one type of product. Two or more designs used on products belonging to a single category and sold or used in sets may be submitted together in one application.

  Article 32 An applicant may withdraw his or its patent application at any time before the patent right is granted.

  Article 33 An applicant may amend his or its application for a patent, but the amendment to the application for a patent for invention or utility model may not go beyond the scope of the disclosure contained in the initial description and the claims, and the amendment to the application for a patent for design may not go beyond the scope of the disclosure as shown in the initial drawings or photographs.

  Chapter IV

  Examination and Approval of Patent Applications

  Article 34 Where, after receiving an application for a patent for invention, the patent administration department under the State Council, upon preliminary examination, finds the application to be in conformity with the requirements of this Law, it shall publish the application promptly after the expiration of eighteen months from the date of filing. Upon the request of the applicant, the patent administration department under the State Council may publish the application earlier.

  Article 35 Upon the applicant's request for an invention patent made at any time within three years from the filing date of an application, the patent administration department under the State Council may carry out substantive examination of that application. If, without any justified reason, the applicant fails to meet the time limit for requesting such substantive examination, the application shall be deemed to have been withdrawn.

  The Patent administration department under the State Council may of its own accord carry out substantive examination of an application for an invention patent when it deems it necessary.

  Article 36 When requesting substantive examination of an invention patent application, the applicant shall furnish reference materials concerning the invention that were available prior to the filing date of the application.

  For an application for a patent for invention that has been already filed in a foreign country, the patent administration department under the State Council may ask the applicant to furnish within a specified time limit documents concerning any search made for the purpose of examining that application, or concerning the results of any examination made, in that country. If, at the expiration of the specified time limit, without any justified reason, the said documents are not furnished, the application shall be deemed to have been withdrawn.

  Article 37 If, after completing the substantive examination of an invention patent application, the patent administration department under the State Council finds that the application does not conform with the provisions of this Law, it shall notify the applicant and ask him or it to state his or its observations or amend the application within a specified time limit.If, without any justified reason, the applicant fails to respond within the time limit, the application shall be deemed to have been withdrawn.

  Article 38 If, after the applicant has stated his or its observations or made amendments, the patent administration department under the State Council still finds that the invention patent application does not conform with the provisions of this Law, it shall reject the application.

  Article 39 Where it is found after examination as to substance that there is no cause for rejection of the application for a patent for invention, the patent administration department under the State Council shall make a decision to grant the patent right for invention, issue the certificate of patent for invention, and register and announce it. The patent right for invention shall take effect as of upon the date of the announcement.

  Article 40 Where it is found after preliminary examination that there is no cause for rejection of the application for a patent for utility model or design, the patent administration department under the State Council shall made a decision to grant the patent right for utility model or the patent right for design, issue the relevant patent certificate, and register and announce it. The patent right for utility model or design shall take effect as of the date of the announcement.

  Article 41 The patent administration department under the State Council shall set up a Patent Reexamination Board. Where an applicant for patent is not satisfied with the decision of the patent administration department under the State Council reject his or its application for patent, such applicant may, within three months from the date of receipt of the notification, request the Patent Reexamination Board to make a reexamination. The Patent Reexamination Board shall, after reexamination, make a decision and notify the applicant for patent of the decision.

  Where the applicant for patent who is not satisfied with the decision of the Patent Reexamination Board, he or it may, within three months from the date of receipt of the notification, institute legal proceedings in the people's court.

  Chapter V

  Term, Termination and Invalidation of Patent Rights

  Article 42 The duration of patent right for inventions shall be twenty years, and the duration of the patent right for utility models and patent right for designs shall be ten years, counted from the date of filing.

  Article 43 The patentee shall pay an annual fee beginning with the year in which his or its patent right is granted.

  Article 44 In either of the following cases, the patent right shall be terminated prior to the expiration of its term:

  (1) if the annual fee is not paid as prescribed; or

  (2) if the patentee renounces his or its patent right by a written declaration.

  The termination of a patent right shall be registered and publicly announced by the patent administration department under the State Council.

  Article 45 Where, starting from the date of the announcement of the grant of a patent right by the patent administration department under the State Council, any entity or individual considers that the grant of the said patent right is not in conformity with the relevant provisions of this Law, it or he may request the Patent Reexamination Board to declare the patent right invalid.

  Article 46 For any request for invalidation of a patent right, the Patent Reexamination Board shall examine it promptly, make a decision on it and notify the person who makes the request and the patentee of the decision. The decision declaring the patent right invalid shall be registered and announced by the patent administration department under the State Council.

  Where the patentee or the person who makes the request for invalidation is not satisfied with the decision of the Patent Reexamination Board declaring the patent right invalid or upholding the patent right, such party may, within three months from receipt of the notification of the decision, institute legal proceedings in the people's court. The people's court shall notify the person that is the opponent party of that party in the invalidation procedure to appear as a third party in the legal proceedings.

  Article 47 Any patent right which has been declared invalid shall be deemed to be non-existent from the beginning.

  Prior to the declaration of the patent right invalid, the decision to declare the patent right invalid shall have no retroactive effect on any judgement or ruling of patent infringement which has been pronounced and enforced by the people's court, on any decision concerning the handling of a dispute over patent infringement which has been complied with or compulsorily executed, or on any contract of patent license or of assignment of patent right which has been performed. However, the damage caused to other persons in bad faith on the part of the patentee shall be compensated.

  If, pursuant to the provisions of the preceding paragraph, the patentee or the assignor of the patent right makes no repayment to the licensee or the assignee of the patent right of the fee for the exploitation of the patent or of the price for the assignment of the patentee or the assignor of the patent right shall repay the whole or part of the fee for the exploitation of the patent or of the price for the assignment of the patent right to the licensee or the assignee of the patent right.

  Chapter VI

  Compulsory Licence for Exploitation of a Patent

  Article 48 Where any entity which is qualified to exploit the invention or utility model has made a request for authorization from the patentee of an invention or a utility model to exploit its or his patent on reasonable terms and has been unable to obtain such authorization within a reasonable period of time, the patent administration department under the State Council may, upon the application of that entity, grant a compulsory license to exploit the patent for the invention or utility model.

  Article 49 Where a national emergency or an extraordinary state of affairs occurs, or where the public interest so requires, the patent administration department under the State Council may grant a compulsory license to exploit the patent for invention or utility model.

  Article 50 Where the invention or utility model for which the patent right has been granted constitutes important technical advance of considerable economic significance compared with another invention or utility model for which a patent right has been granted earlier and the exploitation of the later invention or utility model depends on the exploitation of the earlier invention or utility model, the patent administration department under the State Council may, upon the request of the later patentee, grant a compulsory license to exploit the earlier invention or utility model.

  Article 51 Any entity or individual applying for a compulsory licence in accordance with the provisions of this Law shall furnish proof that it or he has not been able to conclude a licensing contract on reasonable terms with the patentee.

  Article 52 The decision made by the patent administration department under the State Council granting a compulsory license for exploitation shall be notified promptly to the patentee concerned, and shall be registered and announced.

  In the decision granting the compulsory license for exploitation, the scope and duration of the exploitation shall be specified on the basis of the reasons justifying the grant. If and when the circumstances which lead to such compulsory license cease to exist and are unlikely to recur, the patent administration department under the State Council may, upon the request of the patentee, terminate the compulsory license after examination.

  Article 53 Any entity or individual that is granted a compulsory licence shall not have an exclusive right to exploit the patent in question, nor shall it or he have the right to authorize exploitation of the patent by others.

  Article 54 Any entity or individual that is granted a compulsory licence shall pay the patentee a reasonable exploitation fee. The amount of the fee shall be decided by both parties through consultation. Where the parties fail to reach an agreement, the patent administration department under the State Council shall make a ruling.

  Article 55 Where the patentee is not satisfied with the decision of the patent administration department under the State Council granting a compulsory license for exploitation, or where the patentee or the entity or individual that is granted the compulsory license for exploitation is not satisfied with the ruling made by the patent administration department under the State Council regarding the fee payable for exploitation, he or it may, within three months from the date of receipt of the notification, institute legal proceedings in the people's court.

  Chapter VII

  Protection of Patent Rights

  Article 56 The scope of protection in the patent right for an invention or a utility model shall be determined by the contents of the patent claim. The specification and appended drawings may be used to interpret the patent claim.

  The scope of protection in the patent right for a design shall be determined by the product incorporating the patented design as shown in the drawings or photographs.

  Article 57 Where a dispute arises as a result of the exploitation of a patent without the authorization of the patentee, that is, the infringement of the patent right of the patentee, it shall be settled through consultation by the parties. Where the parties are not willing to consult with each other or where the consultation fails, the patentee or any interested party may institute legal proceedings in the people's court, or request the administrative authority for patent affairs to handle the matter. When the administrative authority for patent affairs handling the matter considers that the infringement is established, it may order the infringer to stop the infringing act immediately. If the infringer is not satisfied with the order, he may, within 15 days from the date of receipt of the notification of the order, institutes legal proceedings in the people's court in accordance with the Administrative Procedure Law of the People's Republic of China. If, within the said time limit, such proceedings are not instituted and the order is not complied with, the administrative authority for patent affairs may approach the people's court for compulsory execution. The said authority handling the matter may, upon the request of the parties , mediate in the amount of compensation for the infringement of the patent right. If the mediation fails, the parties may institute legal proceedings in the people's court in accordance with the Civil Procedure Law of the People's Republic of China.

  Where any infringement dispute relates to a patent for invention for a process for the manufacture of a new product, any entity or individual manufacturing the identical product shall furnish proof to show that the process used in the manufacture of its or his product is different from the patented process. Where the infringement relates to patent for utility model, the people's court or the administrative authority for patent affairs may ask the patentee to furnish a search report made by the patent administration department under the State Council.

  Article 58 Where any person passes the patent of another person off as his own, he shall, in addition to bearing his civil liability according to law, be ordered by the administrative authority for patent affairs to make rectification, and the order shall be announced. His illegal earnings shall be confiscated and, in addition, he may be imposed a fine of not more than three times his illegal earnings and, if there is no illegal earnings,a fine of not more than RMB 50,000 yuan. Where the infringement constitutes a crime, he shall be investigated for his criminal liability.

  Article 59 Where any person passes any non-patented product off as patented product or passes any non-patented process off as patented process, he shall be ordered by the administrative authority for patent affairs to make rectification, and the order shall be announced, in addition, he may be imposed a fine of not more than RMB 50,000 yuan.

  Article 60 The amount of compensation for the damage caused by the infringement of the patent right shall be assessed on the basis of the losses suffered by the patentee whose right was infringed or the profits, which the infringer has earned through the infringement. If it is difficult to determine the losses which the patentee has suffered or the profits which the infringer has earned, the amount may be assessed by reference to the appropriate multiple of the amount of the exploitation fee of that patent under contractual license.

  Article 61 Where any patentee or interested party has evidence to prove that another person is infringing or will soon infringe its or his patent right and that if such infringing act is not checked or prevented from occurring in time, it is likely to cause irreparable harm to it or him, it or he may, before any legal proceedings are instituted, request the people's court to adopt measures for ordering the suspension of relevant acts and the preservation of property.

  The people's court, when dealing with the request mentioned in the preceding paragraph, shall apply the provisions of Article 93 through Article 96 and of Article 99 of the Civil Procedure Law of the People's Republic of China.

  Article 62 The period of limitation for filing a suit concerning the infringement of a patent right shall be two year, counted from the day on which patentee or the interested parties became aware or should have become aware of the act of infringement .

  Where no appropriate fee for exploitation of the invention, subject of an application for patent for invention, during the period from the publication of the application for the patent to the grant of patent right to the said invention is paid, prescription for instituting legal proceedings by the patentee to demand the said fee is two years counted from the date on which the patentee obtains or should have obtained knowledge of the exploitation of his invention by another person, However, where the patentee has already obtained or should have obtained knowledge before the date of the grant of the patent right, the prescription shall be counted from the date of the grant.

  Article 63 None of the following shall be deemed an infringement of the patent right:

  (1)Where, after the sale of a patented product that was made or imported by t he patentee or with the authorization of the patentee, or that was directly obtained by using the patented process, any other person uses, offers to sell or sells that product;

  (2)Where, before the date of filing of the application for patent, any person who has already made the identical product, used the identical process, or made the necessary preparations for its making or using, continues to make or use it within the original scope only;

  (3)Where any foreign means of transport which temporarily passes through the territory, territorial waters or territorial airspace of Chins uses the patent concerned, in accordance with any agreement concluded between the country to which the foreign means of transport 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, for its own needs, in its devices and installations;

  (4)Where any person uses the patent concerned solely for the purposes of scientific research and experimentation.

  Any person who, for production and business purposes, uses or sells a patented product without knowing that it was made and sold without the authorization of the patentee or that it was directly obtained by a patented process, shall not be liable to compensate for the damage of the patentee if he can prove that he obtains the product from a legitimate source.

  Article 64 Anyone who, in violation of the provisions of Article 20 of this Law, files in a foreign country an application for a patent which divulges State secrets shall be given administrative sanction by the unit to which he belongs or by the competent department at a higher level. If the case constitutes a crime, he shall be investigated for criminal liability in accordance with law.

  Article 65 Anyone who usurps the right of an inventor or designer to apply for a patent for a non-job-related invention-creation or usurps the other rights or interests of an inventor or designer prescribed in this Law shall be given administrative sanction by the unit to which be belongs or by the competent department at a higher level.

  Article 66 The administrative authority for patent affairs may not take part in recommending any patented product for sale to the public or any such commercial activities.

  Where the administrative authority for patent affairs violates the provisions of the preceding paragraph, it shall be ordered by the authority at the next higher level or the supervisory authority to correct its mistakes and eliminate the bad effects. The illegal earnings, if any, shall be confiscated.Where the circumstances are serious, the persons who are directly in charge and the other persons who are directly responsible shall be given disciplinary sanction in accordance with law.

  Article 67 Where any State functionary working for patent administration or any other State functionary working for patent administration or any other State functionary concerned neglects his duty, abuses his power, or engages in malpractice for personal gain, which constitutes a crime, shall be investigated for his criminal liability in accordance with law. If the case is not serious enough to constitute a crime, he shall be given disciplinary sanction in accordance with law.

  Chapter Ⅷ

  Supplementary Provisions

  Article 68 Rules for the implementation of this Law shall be formulated by the patent administration department under the State Council and submitted to the State Council for approval before they are put into effect.

  Article 69 This Law shall go into effect on April 1, 1985.

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