China
BIZCHINA / Intellectual property
Implementing Regulations of the Patent Law of the People's Republic of
China
Updated: 2006-04-17 14:40
Chapter III Examination and Approval of Application for Patent
Article 38 Where any of the following events occurs, a person who makes
examination or hears a case in the procedures of preliminary examination,
examination as to substance, reexamination or invalidation shall, on his
own initiative or upon the request of the parties concerned or any other
interested person, be excluded from excising his function:
(1) where he is a near relative of the party concerned or the agent of
the party concerned;
(2) where he has an interest in the application for patent or the patent
right;
(3) where he has any other kinds of relations with the party concerned or
with the agent of the party concerned that may influence impartial
examination and hearing.
(4) where a member of the Patent Reexamination Board who has taken part
in the examination of the same application.
Article 39 Upon the receipt of an application for a patent for invention
or utility model consisting of a request, a description (drawings must be
included in an application for utility model) and one or more claims, or
an application for a patent for design consisting of a request and one or
more drawings or photographs showing the design, the Patent
Administration Department under the State Council shall accord the date
of filing, issue a filing number, and notify the applicant.
Article 40 In any of the following circumstances, the Patent
Administration Department under the State Council shall refuse to accept
the application and notify the applicant accordingly:
(1) where the application for a patent for invention or utility model
does not contain a request, a description (the description of utility
model does not contain drawings) or claims, or the application for a
patent for design does not contain a request, drawings or photographs;
(2) where the application is not written in Chinese;
(3) where the application is not in conformity with the provisions of
Rule120, paragraph one of these Implementing Regulations;
(4) where the request does not contain the name and address of the
applicant;
(5) where the application is obviously not in conformity with the
provisions of Article 18, or of Article l9, paragraph one of the Patent
Law;
(6) where the kind of protection (patent for invention, utility model or
design) of the application for a patent is not clear and definite or
cannot be ascertained.
Article 41 Where the description states that it contains explanatory
notes to the drawings but the drawings or part of them are missing, the
applicant shall, within the time limit specified by the Patent
Administration Department under the State Council, either furnish the
drawings or make a declaration for the deletion of the explanatory notes
to the drawings. If the drawings are submitted later, the date of their
delivery at, or mailing to, the Patent Administration Department under
the State Council shall be the date of filing of the application; if the
explanatory notes to the drawings are to be deleted, the initial date of
filing shall be retained.
Article 42 Where an application for a patent contains two or more
inventions, utility models or designs, the applicant may, before the
expiration of the time limit provided for in Rule 54, paragraph one of
these Implementing Regulations, submit to the Patent Administration
Department under the State Council a divisional application. However,
where an application for patent has been rejected, withdrawn or is deemed
to have been withdrawn, no divisional application may be filed.
If the Patent Administration Department under the State Council finds
that an application for a patent is not in conformity with the provisions
of Article 3l of the Patent Law or of Rule 35 or 36 of these Implementing
Regulations, it shall invite the applicant to amend the application
within a specified time limit; if the applicant fails to make any
response after the expiration of the specified time limit, the
application shall be deemed to have been withdrawn.
The divisional application may not change the kind of protection of the
initial application.
Article 43 A divisional application filed in accordance with the
provisions of Rule 42 of these Implementing Regulations shall be entitled
to the filing date and, if priority is claimed, the priority date of the
initial application, provided that the divisional application does not go
beyond the scope of disclosure contained in the initial application.
The divisional application shall go through all the formalities in
accordance with the provisions of the Patent Law and these Implementing
Regulations.
The filing number and the date of filing of the initial application shall
be indicated in the request of the divisional application. When the
divisional application is filed, it shall be accompanied by a copy of the
initial application; if priority is claimed for the initial application,
a copy of the priority document of the initial application shall also be
submitted.
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