China
BIZCHINA / Intellectual property
Implementing Regulations of the Patent Law of the People's Republic of
China
Updated: 2006-04-17 14:40
Article 44 "Preliminary examination" referred to in Articles 34 and 40
of the Patent Law means the check of an application for a patent to see
whether or not it contains the documents as provided for in Articles 26
or 27 of the Patent Law and other necessary documents, and whether or not
those documents are in the prescribed form; such check shall also include
the following:
(1) whether or not any application for a patent for invention obviously
falls under Articles 5 or 25 of the Patent Law, or is not in conformity
with the provisions of Article l8 or of Article l9, paragraph one of the
Patent Law, or is obviously not in conformity with the provisions of
Article 3l, paragraph one, or Article 33 of the Patent Law, or of Rule 2,
paragraph one, or Rule 18, or Rule 20 of these Implementing Regulations;
(2) whether or not any application for a patent for utility model
obviously falls under Article 5 or 25 of the Patent Law, or is not in
conformity with the provisions of Article l8 or of Article l9, paragraph
one of the Patent Law, or is obviously not in conformity with the
provisions of Article 26, paragraph three or four, or of Article 3l,
paragraph one, or of Article 33 of the Patent Law, or of Rule 2,
paragraph two, or of Rule l3, paragraph one, or of Rule l8 to 23, or of
Rule 43, paragraph one of these Implementing Regulations, or is not
entitled to a patent right in accordance with the provisions of Article 9
of the Patent Law;
(3) whether or not any application for a patent for design obviously
falls under Article 5 of the Patent Law, or is not in conformity with the
provisions of Article l8 or of Article l9, paragraph one of the Patent
Law, or is obviously not in conformity with the provisions of Article 3l,
paragraph two, or of Article 33 of the Patent Law, or of Rule 2,
paragraph three, or of Rule l3, paragraph one, or of Rule 43, paragraph
one of these Implementing Regulations, or is not entitled to a patent
right in accordance with the provisions of Article 9 of the Patent Law.
The Patent Administration Department under the State Council shall notify
the applicant of its opinions after checking his or its application and
invite him or it to state his or its observations or to correct his or
its application within the specified time limit. If the applicant fails
to make any response within the specified time limit, the application
shall be deemed to have been withdrawn. Where, after the applicant has
made his or its observations or the corrections, the Patent
Administration Department under the State Council still finds that the
application is not in conformity with the provisions of the Articles and
the Rules cited in the preceding subparagraphs, the application shall be
rejected.
Article 45 Apart from the application for patent, any document relating
to the patent application which is submitted to the Patent Administration
Department under the State Council, shall, in any of the following
circumstances, be deemed not to have been submitted:
(1) where the document is not presented in the prescribed form or the
indications therein are not in conformity with the prescriptions;
(2) where no certifying document is submitted as prescribed.
The Patent Administration Department under the State Council shall notify
the applicant of its opinion after checking that the document is deemed
not to have been submitted.
Article 46 Where the applicant requests an earlier publication of its or
his application for a patent for invention, a statement shall be made to
the Patent Administration Department under the State Council. The Patent
Administration Department under the State Council shall, after
preliminary examination of the application, publish it immediately,
unless it is to be rejected.
Article 47 The applicant shall, when indicating in accordance with
Article 27 of the Patent Law the product incorporating the design and the
class to which that product belongs, refer to the classification of
products for designs published by the Patent Administration Department
under the State Council. Where no indication, or an incorrect indication,
of the class to which the product incorporating the design belongs is
made, the Patent Administration Department under the State Council shall
supply the indication or correct it.
Article 48 Any person may, from the date of publication of an application
for a patent for invention till the date of announcing the grant of the
patent right, submit to the Patent Administration Department under the
State Council his observations, with reasons therefor, on the
application which is not in conformity with the provisions of the Patent
Law.
Article 49 Where the applicant for a patent for invention cannot furnish,
for justified reasons, the documents concerning any search or results of
any examination specified in Article 36 of the Patent Law, it or he shall
make a statement to the Patent Administration Department under the State
Council and submit them when the said documents are available.
Article 50 The Patent Administration Department under the State Council
shall, when proceeding on its own initiative to examine an application
for a patent in accordance with the provisions of Article 35, paragraph
two of the Patent Law, notify the applicant accordingly.
Article 5l When a request for examination as to substance is made, and
that, within the time limit of three months after the receipt of the
notification of the Patent Administration Department under the State
Council, the application has entered into examination as to substance,
the applicant for a patent for invention may amend the application for a
patent for invention on its or his own initiative.
Within two months from the date of filing, the applicant for a patent for
utility model or design may amend the application for a patent for
utility model or design on its or his own initiative.
Where the applicant amends the application after receiving the
notification of opinions of the examination as to substance of the Patent
Administration Department under the State Council, he or it shall make
the amendment as required by the notification.
The Patent Administration Department under the State Council may, on its
own initiative, correct the obvious clerical mistakes and symbol mistakes
in the documents of application for a patent. Where the Patent
Administration Department under the State Council corrects mistakes on
its own initiative, it shall notify the applicant.
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