China
BIZCHINA / Intellectual property
Implementing Regulations of the Patent Law of the People's Republic of
China
Updated: 2006-04-17 14:40
Article 52 When an amendment to the description or the claims in an
application for a patent for invention or utility model is made, a
replacement sheet in prescribed form shall be submitted, unless the
amendment concerns only the alteration, insertion or deletion of a few
words. Where an amendment to the drawings or photographs of an
application for a patent for design is made, a replacement sheet shall be
submitted as prescribed.
Article 53 In accordance with the provisions of Article 38 of the Patent
Law, the circumstances where an application for a patent for invention
shall be rejected by the Patent Administration Department under the State
Council after examination as to substance are as follows:
(1) where the application does not comply with the provisions of Rule 2,
paragraph one of these Implementing Regulations;
(2) where the application falls under the provisions of Article 5 or 25
of the Patent Law, or it does not comply with the provisions of Article
22 of the Patent Law or of Rule l3, paragraph one, or of Rule 20,
paragraph one, or of Rule 21, paragraph two of these Implementing
Regulations, or the applicant is not entitled to a patent right in
accordance with the provisions of Article 9 of the Patent Law;
(3) where the application does not comply with the provisions of Article
26, paragraph three or four, or of Article 3l, paragraph one of the
Patent Law;
(4) where the amendment to the application does not comply with the
provisions of Article 33 of the Patent Law, or the divisional application
does not comply with the provisions of Rule 43, paragraph one of these
Implementing Regulations.
Article 54 After the Patent Administration Department under the State
Council issues the notification to grant the patent right, the applicant
shall go through the formalities of registration within two months from
the date of receipt of the notification. If the applicant completes the
formalities of registration within the said time limit, the Patent
Administration Department under the State Council shall grant the patent
right, issue the patent certificate and announce it.
If the applicant does not go through the formalities of registration
within the time limit, he or it shall be deemed to have abandoned its or
his right to obtain the patent right.
Article 55 After the announcement of the decision to grant a patent for
utility model, the patentee of the said patent for utility model may
request the Patent Administration Department under the State Council to
make a search report on the utility model patent.
Where such person requests for a search report on a utility model patent,
he shall submit a request, indicating the patent number of the said
patent for utility model. Each request shall be limited for one patent
for utility model.
After receiving a request for a search report on a utility model patent,
the Patent Administration Department under the State Council shall
proceed to make an examination of the request. Where the request does not
comply with the requirements as prescribed, the said department shall
notify the requesting person to amend the request within a specified time
limit.
Article 56 Where, after examination, the request for a search report on a
utility model patent complies with the provisions, the Patent
Administration Department under the State Council shall promptly make a
search report on the utility model patent.
Where the Patent Administration Department under the State Council finds,
after search, that the patent for utility model concerned does not comply
with the provisions of Article 22 of the Patent Law concerning novelty or
inventiveness, it shall cite the documents considered to be relevant,
state the reasons therefor and send the copies of the cited relevant
documents together with the report.
Article 57 The Patent Administration Department under the State Council
shall correct promptly the mistakes in the patent announcements and
documents issued by it once they are discovered, and the corrections
shall be announced.
Chapter IV Reexamination of Patent Application and Invalidation of Patent
Right
Article 58 The Patent Reexamination Board shall consist of technical and
legal experts appointed by the Patent Administration Department under the
State Council. The person responsible for the Patent Administration
Department under the State Council shall be the Director of the Board.
Article 59 Where the applicant requests the Patent Reexamination Board to
make a reexamination in accordance with the provisions of Article 41 of
the Patent Law, it or he shall file a request for reexamination, state
the reasons and, when necessary, attach the relevant supporting
documents.
Where the request for reexamination does not comply with the prescribed
form, the person making the request shall rectify it within the time
limit fixed by the Patent Reexamination Board. If the requesting person
fails to meet the time limit for making rectification, the request for
reexamination shall be deemed not to have been filed.
Article 60 The person making the request may amend its or his application
at the time when it or he requests reexamination or makes responses to
the notification of reexamination of the Patent Reexamination Board.
However, the amendments shall be limited only to remove the defects
pointed out in the decision of rejection of the application, or in the
notification of reexamination.
The amendments to the application for patent shall be in two copies.
Article 61 The Patent Reexamination Board shall remit the request for
reexamination which the Board has received to the examination department
of the Patent Administration Department under the State Council which has
made the examination of the application concerned to make an examination.
Where that examination department agrees to revoke its former decision
upon the request of the person requesting reexamination, the Patent
Reexamination Board shall make a decision accordingly and notify the
requesting person.
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