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中华人民共和国专利法(修正)(二)

2006-05-17 13:56   我要纠错 | 打印 | 收藏 | | |

  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 sinle 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 Office, 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 Office 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 Office 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fails to meet the time limit for requesting such substantive examination, the application shall be deemed to have been withdrawn.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 Office 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.

  When an applicant requests substantive examination of his or its application for an invention patent after he or it has applied in a foreign country for a patent on the same invention, he or it shall furnish documents from any investigations made in the foreign country for the purpose of examining that application, or documents stating the results of that examination. If, 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 Office 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 Office 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 Office shall make a decision granting the patent right for invention, issue the certificate of patent for invention, and register and announce it.

  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 Office shall make a decision granting the patent right for utility model or the patent right for design, issue the relevant patent certificate, and register and announce it.

  Article 41 Where, within six months from the date of the announcement of the grant of the patent right by the Patent Office, 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 Office to revoke the patent right.

  Article 42 The Patent Office shall examine the request for revocation of a patent right, make a decision revoking or up holding the patent right, and notify the person who made the request and the patentee. The decision revoking the patent right shall be registered and announced by the Patent Office.

  Article 43 The Patent Office shall set up a Patent Reexamination Board. Where any party is not satisfied with the decision of the Patent Office rejecting the application, or the decision of the Patent Office revoking or upholding the patent right, such party may, within three months from the date of receipt of the notification, request the Patent Reexamination Board to make a reexamination. The Patent Reexamination Boar shall, after reexamination, make a decision and notify the applicant, the patentee or the person who made the request for revocation of the patent right.

  Where the applicant for a patent for invention, the patentee of an invention or the person who made the request for revocation of the patent right for invention 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.

  The decision of the Patent Reexamination Board in respect of any request, made by the applicant, the patentee or the person who made the request for revocation of the patent right, for reexamination concerning a utility model or design shall be final.

  Article 44 Any patent right which has been revoked shall be deemed to be non-existent from the beginning.

  Chapter V Term, Termination and Invalidation of Patent Rights

  Article 45 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 46 The patentee shall pay an annual fee beginning with the year in which his or its patent right is granted.

  Article 47 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 Office.

  Article 48 Where, after the expiration of six months from the date of the announcement of the grant of the patent right by the Patent Office, 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 49 The Patent Reexamination Board shall examine the request for invalidation of a patent right, make a decision and notify the party who made the request and the patentee. Any decision declaring a patent right invalid shall be registered and publicly announced by the Patent Office.

  Where any party is not satisfied with the decision of the Patent Reexamination Board either invalidating or upholding the patent right for an invention, it may, within three months after receiving notification of the decision, file a suit in the people's court.

  The decision of the Patent Reexamination Board on a request to invalidate the patent right for a utility model or design shall be final.

  Article 50 Any patent right which has been declared invalid shall be deemed to be non-existent from the beginning.

  The decision invalidating a patent right shall have no retroactive effect on any judgement or order on patent infringement which has been pronounced and enforced by the people's court, on any decision concerning the handling of patent infringement which has been made and enforced by the administrative authorities for patent affairs, and on any contract of license for exploitation of the patent and any contract of assignment of the patent right which have been performed, prior to the decision invalidating the patent right; however, the damages caused to any other person in bad faith on the part of the patentee shall be compensated.

  If, pursuant to the provisions of the preceding paragraph, no repayment of the fee for the exploitation of the patent or the price for the assignment of the patent right is made by the patentee or the assignor of the patent right to the licensee or the assignee 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 the price for the assignment of the patent right to the licensee or the assignee of the patent right.

  The provisions of the second and third paragraphs of this Article shall be applicable to any patent right which has been revoked.

  Chapter VI Compulsory License for Exploitation of a Patent

  Article 51 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 Office may, upon the application of that entity, grant a compulsory license to exploit the patent for the invention or utility model.

  Article 52 Where a national emergency or an extraordinary state of affairs occurs, or where the public interest so requires, the Patent Office may grant a compulsory license to exploit the patent for invention or utility model.

  Article 53 Where a patented invention or utility model is technically more advanced than another invention or utility model that was patented earlier and the exploitation of the later invention or utility model is dependent on the exploitation of the earlier invention or utility model, the Patent Office may, upon the application of the later patentee, grant a compulsory license to exploit the earlier invention or utility model.

  Where a compulsory license has been granted in accordance with the provisions of the preceding paragraph, the Patent Office may, upon the application of the earlier patentee, also grant a compulsory license to exploit the later invention or utility model.

  Article 54 Any entity or individual applying for a compulsory license 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 55 Any decision made by the Patent Office granting a compulsory license shall be registered and publicly announced.

  Article 56 Any entity or individual that is granted a compulsory license 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 57 Any entity or individual that is granted a compulsory license shall pay the patentee a reason able 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 Office shall make a ruling.

  Article 58 Where the patentee is not satisfied with the decision of the Patent Office granting a compulsory license or with its ruling regarding the exploitation fee, he or it may, within three months from receiving notification of the decision, file a suit in the people's court.

  Chapter VII Protection of Patent Rights

  Article 59 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 60 If any acts of infringement arise from the exploitation of a patent without the authorization of the patentee, the patentee or interested parties may request the administrative authorities for patent affairs to handle the matter or may directly file a suit in the people's court. In handling the matter, the administrative authorities for patent affairs shall have the power to order the in fringer to stop the acts of infringement and compensate for the losses. Any party dissatisfied with the order may, within three months from receiving notification of it, file a suit in the people's court. If, at the expiration of such period, the party has neither filed a suit nor complied with the order, the administrative authorities for patent affairs may approach the people's court for compulsory enforcement of the order.

  When any infringement dispute arises, if the patent for invention is a process for the manufacture of a new product, any entity or individual manufacturing the identical product shall furnish proof of the process used in the manufacture of its or his product.

  Article 61 The period of limitation for filing a suit concerning the infringement of a patent right shall be two years, counted from the day on which the patentee or the interested parties became aware or should have become aware of the act of infringement.

  Article 62 None of the followings shall be deemed an infringement of a patent right:

  (1) use or sale of a patented product after it has been made by the patentee or with the authorization of the patentee and subsequently sold;

  (2) use or sale of a patented product without knowledge of its having been made and sold without the authorization of the patentee;

  (3) continued making or use of a similar product, only within its original scope, by a party that, prior to the date of application for the patent in question, had already made that similar product, used the same process or made the necessary preparations for such making or use;

  (4) use of the patent in question by a foreign means of transport which temporarily passes through the territorial land, water or airspace of China for its own needs, in its devices and installations, in accordance with any agreement concluded between China and the country to which the foreign means of transport belongs, or any international treaty to which both countries are party, or on the basis of the principle of reciprocity; or

  (5) use of the patent in question solely for the purposes of scientific research and experimentation.

  Article 63 Where any person passes off the patent of another person, such passing off shall be dealt with in accordance with Article 60 of this Law. If the circumstances are serious, the person directly responsible shall be investigated for criminal liability by applying mutatis mutandis Article 127 of the Criminal Law.

  Where any person passes any unpatented product off as patented product or passes any unpatented process off as patented process, such person shall be ordered by the administrative authorities for patent affairs to stop the passing off, correct it publicly, and shall also be subjected to a fine.

  Article 64 Where any person, in violation of the provisions of Article 20 of this Law, files in a foreign country without authorization an application for a patent divulging an important State secret, he shall be given administrative sanctions by the entity to which he belongs or by the competent authorities at the next higher level. If the circumstances of the case are serious, he shall be investigated for criminal liability in accordance with the law.

  Article 65 Where any person usurps the right of an inventor or designer to apply for a patent on an invention-creation that is not job-related, or usurps any other right or interest of an inventor or designer prescribed by this Law, he shall be given administrative sanctions by the entity to which he belongs or by the competent authorities at the next higher level.

  Article 66 Where any staff member of the Patent Office or any of the relevant State functionaries engages in malpractices for private gains, he shall be given administrative sanctions by the Patent Office or the competent authorities concerned. If the circumstances are serious, he shall be investigated for criminal liability by applying mutatis mutandis Article 188 of the Criminal Law.

  Chapter VIII Supplementary Provisions

  Article 67 For patent applications filed with the Patent Office and other procedures carried out there, fees shall be paid as prescribed.

  Article 68 Rules for the implementation of this Law shall be formulated by the Patent Office 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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