Posted on November 6th, 2007 by admin in
china law 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. Read the rest of this entry »
Posted on November 6th, 2007 by admin in
china law 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. Read the rest of this entry »
Posted on November 6th, 2007 by admin in
china law 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fails to meet the time limit for requesting such substantive examination, the application shall be deemed to have been withdrawn.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 app1icant 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 sha1l 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 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.
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 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.
Posted on November 6th, 2007 by admin in
china law 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 simi1ar 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.
Read the rest of this entry »
Posted on November 6th, 2007 by admin in
china law 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 of 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
Posted on November 6th, 2007 by admin in
china law 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 an 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.
Posted on November 6th, 2007 by admin in
china law 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 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.
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
Posted on November 6th, 2007 by admin in
china law 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 promulgated by Order No.11 of the President of the People’s Republic of China on March 12,1984; amended for the first time in accordance with the Decision of the Standing Committee of Read the rest of this entry »
Criminal or Civil Law
have homework, and we have to match terms that have to do with civil/criminal laws. I have a couple of the terms, but most of them I’m so confused on! Can anyone giv me ideas as to where they go? Remember the terms have to go undereither civil or criminal law. These are the terms: Read the rest of this entry »
criminal defense law
Are lawyers supposed to receive admissions of guilt from their client? If a client confesses to his/her representation, wouldn’t that make it unethical to submit a plea of not guilty? For some reason, I have it in my head that clients, if guilty, are supposed to tell everything BUT the dirty deed for best representation. Any thoughts? Thanks in advance!
I’m not biased for/against defense lawyers. It’s not my area of interest, but it is interesting area of ethics nonetheless!
Additional Details
11 months ago
So the concept of a “plea of not guilty” is that simply a lack of a “plea of guily” which would otherwise be a waiver of jury trial? Read the rest of this entry »
.text:''):(d.getSelection?d.getSelection():'');void(keyit=window.open('http://my.poco.cn/fav/storeIt.php?t='+escape(d.title)+'&u='+escape(d.location.href)+'&c='+escape(t)+'&img=http://www.h-strong.com/blog/logo.gif','keyit','scrollbars=no,width=475,height=575,status=no,resizable=yes'));keyit.focus(); "添加到POCO网摘"){kind=logo}
