law enforcement

Patent Law 5

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.

 

Article 24 Any invention-creation for which a patent is applied shall not lose its novelty if, within six months before the filing date of the application, one of the following events has occurred:

 

(1) it was exhibited for the first time at an international exhibition sponsored or recognized by the Chinese Government;

 

(2) it was made public for the first time at a prescribed academic or technical conference; or

 

(3) it was disclosed by any person without the consent of the applicant.

 

Article 25 For any of the following, no patent right shall be granted:

 

(1) scientific discoveries;

 

(2) rules and methods for mental activities;

 

(3) methods for the diagnosis or for the treatment of diseases;

 

(4) animal and plant varieties;

 

(5) substances obtained by means of nuclear transformation.

 

For processes used in producing products referred to in item (4) of the preceding paragraph, patent right may be granted in accordance with the provisions of this Law.

 

Chapter III

 

Application for Patents

 

Article 26 When a patent application is filed for an invention or a utility model, relevant documents shall be submitted, including a written request, a specification and an abstract thereof, and a patent claim. 

 

The written request shall state the title of the invention or utility model, the name of the inventor or designer, the name and address of the applicant and other related matters.

 

The specification shall describe the invention or utility model in a manner sufficiently clear and complete so that a person skilled in the relevant field of technology can accurately produce it; where necessary, drawings shall be appended. The abstract shall describe briefly the technical essentials of the invention or utility model.

 

The patent claim shall, on the basis of the specification, state the scope of the patent protection requested.

 

Article 27 When a patent application is filed for a design, relevant documents shall be submitted, including a written request and drawings or photographs of the design; the product on which the design is to be used and the category of that product shall also be indicated.

 

Article 28 The date on which the patent administration department under the State Council receives the patent application documents shall be the filing date of the application. If the application documents are sent by mail, the postmark date shall be the filing date of the application.

 

Article 29 Where, within twelve months from the date on which any applicant first filed in a foreign country an application for a patent for invention or utility model, or within six months from the date on which any applicant first filed in a foreign country an application for a patent for design, he or it files in China an application for a patent for the same subject matter, he or it may, in accordance with any agreement concluded between the said foreign country and China, or in accordance with any international treaty to which both countries are party, or on the basis of the principle of mutual recognition of the right of priority, enjoy a right of priority.

 

Where, within twelve months from the date on which any applicant first filed in China an application for a patent for invention or utility model, he or it files with the patent administration department under the State Council an application for a patent for the same subject matter, he or it may enjoy a right of priority.

 

Article 30 Any applicant who claims the right of priority shall make a written declaration when the application is filed, and submit, within three months, a copy of the patent application documents that was first filed; if the applicant fails to make the written declaration or fails to submit a copy of the patent application documents within the time limit, the claim to the right of priority shall be deemed not to have been made.  

 

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 single 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.