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BIZCHINA / Intellectual property

Patent Law of the People's Republic of China (2000)

Updated: 2006-04-17 14:45

Article 38.   Where, after the applicant has made the observations or
amendments, the Patent Administration Department Under the State Council
finds that the application for a patent for invention is still not in
conformity with the provisions of this Law, the application shall be
rejected.

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 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 said department  rejecting the
application,  the 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.
Where the applicant for patent  is not satisfied with the decision of the
Patent Reexamination Board, it or he may, within three months from the
date of receipt of the notification, institute legal proceedings in the
people's court.

Chapter V   Duration, Cessation and Invalidation of Patent Right

Article 42.  The duration of patent right for inventions shall be twenty
years, the duration of 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 the patent right was granted.

Article 44.   In any of the following cases, the patent right shall cease
before the expiration of its duration:
(1) where an annual fee is not paid as prescribed;
(2) where the patentee abandons his or its patent right by a written
declaration.
Any cessation of the patent right shall be registered and announced by
the Patent Administration Department Under the State Council .

Article 45.  Where, starting from the date of the announcement of the
grant of the 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. The Patent Reexamination Board shall examine the request for
invalidation of the patent right  promptly, make a decision on it and
notify the person who made the request and the patentee. 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 made 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.
The decision declaring 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  prior
to the declaration of the patent right invalid; 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.

Chapter VI  Compulsory License for Exploitation of Patent

Article 48.  Where any entity which is qualified to exploit the invention
or utility model has made requests for authorization from the patentee of
an invention or utility model to exploit its or his patent on reasonable
terms and conditions and such efforts have not been successful within a
reasonable period of time, the Patent Administration Department Under the
State Council   may, upon the request of that entity, grant a compulsory
license to exploit the patent for invention or utility model.

Article 49.   Where a national emergency or any extraordinary state of
affairs occurs, or where the public interest so requires, the Patent
Administration Department Under the State Council  may grant a compulsory
license to exploit the patent for invention or utility model.

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