Article 37 Where any of the following events occurs, a person who conducts 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 exercising his function:
(1) where he is a near relative of a party concerned or of such party's agent;
(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 a party concerned or with such party's agent that may influence impartial examination and hearing;
(4) where he is a member of the Patent Reexamination Board who has taken part in the examination of the same application.
Article 38 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 a utility model) and one or more claims, or an application for a patent for design consisting of a request, one or more drawings or photographs showing the design and a brief explanation, the patent administration department of the State Council shall accord the date of filing, issue a filing number, and notify the applicant.
Article 39 In any of the following circumstances, the patent administration department of 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 a utility model does not contain drawings) or claims, or the application for a patent for design does not contain a request, drawings or photographs, or a brief explanation;
(2) where the application is not written in Chinese;
(3) where the application is not in conformity with the provisions of the first paragraph of Article 121 of these Rules;
(4) where the request does not contain the name or title, or address of the applicant;
(5) where the application is obviously not in conformity with the provisions of Article 18 or of the first paragraph of Article 19 of the Patent Law;
(6) where the type of the application for a patent (patent for invention, utility model or design) is not clear and definite or cannot be ascertained.
Article 40 Where there are explanatory notes to the drawings in a description, but the drawings or part of the drawings are omitted, the applicant shall, within the time limit specified by the patent administration department of 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 by the applicant at a later date, the date of their submission or mailing to the patent administration department of the State Council shall be the date of filing of the application; if the explanatory notes to the drawings are deleted, the initial date of filing shall be retained.
Article 41 Where two or more applicants respectively file, on the same day (which means the date of filing or, where priority is claimed, the priority date), applications for patent for the identical invention-creation, they shall, after receipt of a notification from the patent administration department of the State Council, hold consultations among themselves to decide the person or persons who shall be entitled to file the application.
Where an applicant files on the same day (which means the date of filing) applications for both a patent for utility model and a patent for invention for the identical invention-creation, he or it shall, when filing the applications, state respectively that another patent application for the identical invention-creation has been filed by him or it; if the applicant fails to do so, the issue shall be handled in accordance with the provisions of the first paragraph of Article 9 of the Patent Law whereby only one patent right shall be granted for any identical invention-creation.
Where the patent administration department of the State Council announces the grant of a patent for utility model, it shall announce the statement made by the applicant in accordance with the provision of the second paragraph of this Article that he or it has simultaneously filed an application for a patent for invention.
Where it is found after examination that there is no ground for rejecting the application for patent for invention, the patent administration department of the State Council shall notify the applicant that he or it is required to declare, within a specified time limit, the abandonment of his or its patent for utility model. If the applicant so declares, the patent administration department of the State Council shall make a decision to grant a patent for invention, and announce at the same time both the grant of the patent for invention and the declaration of the applicant to abandon his or its patent for utility model. If the applicant refuses to abandon his or its patent for utility model, the patent administration department of the State Council shall reject the application for patent for invention; if the applicant fails to respond within the specified time limit, the application for patent for invention shall be deemed to have been withdrawn.
The patent right for utility model ceases from the date of the announcement of grant of the patent for invention.
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 the first paragraph of Article 54 of these Rules, submit to the patent administration department of 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 of the State Council finds that an application for a patent is not in conformity with the provisions of Article 31 of the Patent Law or of Article 34 or 35 of these Rules, it shall notify the applicant that he or it is required 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 type of the divisional application shall be the same as that of the initial application.
Article 43 A divisional application filed in accordance with the provisions of Article 42 of these Rules shall be entitled to the date of filing 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.
For any divisional application the relevant formalities shall be performed as required in the Patent Law and these Rules.
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 by the applicant.
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 Article 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 Article 5 or 25 of the Patent Law, or is not in conformity with the provisions of Article 18, the first paragraph of Article 19 or the first paragraph of Article 20 of the Patent Law, or Article 16 or the second paragraph of Article 26 of these Rules, or is obviously not in conformity with the provisions of the second paragraph of Article 2, the fifth paragraph of Article 26, the first paragraph of Article 31 or Article 33 of the Patent Law, or Articles 17 to 21 of these Rules;
(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 18, the first paragraph of Article 19 or the first paragraph of Article 20 of the Patent Law, or Articles 16 to 19 or Articles 21 to 23 of these Rules, or is obviously not in conformity with the provisions of the third paragraph of Article 2, the second or fourth paragraph of Article 22, the third or fourth paragraph of Article 26, the first paragraph of Article 31 or Article 33 of the Patent Law, or Article 20 or the first paragraph of Article 43 of these Rules, 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 or subparagraph (6) of the first paragraph of Article 25 of the Patent Law, or is not in conformity with the provisions of Article 18 or the first paragraph of Article 19 of the Patent Law, or Article 16, 27 or 28 of these Rules, or is obviously not in conformity with the provisions of the fourth paragraph of Article 2, the first paragraph of Article 23, the second paragraph of Article 27, the second paragraph of Article 31 or Article 33 of the Patent Law, or the first paragraph of Article 43 of these Rules, or is not entitled to a patent right in accordance with the provisions of Article 9 of the Patent Law; and
(4) whether or not any application document is in conformity with the provisions of Article 2 or the first paragraph of Article 3 of these Rules.
The patent administration department of the State Council shall notify the applicant of its opinions after checking his or its application and require him or it to state his or its observations or to rectify his or its application within a 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 of the State Council still finds that the application is not in conformity with the provisions of the articles cited in the preceding paragraph, the application shall be rejected.
Article 45 Apart from an application for patent, any other document relating to the patent application which is submitted by the applicant to the patent administration department of 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 provisions; or
(2) where a certifying document is not submitted as prescribed.
The patent administration department of the State Council shall notify the applicant of its opinion that the document is deemed not to have been submitted after being checked.
Article 46 Where the applicant requests an earlier publication of his or its application for a patent for invention, a statement shall be made to the patent administration department of the State Council. The patent administration department of 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 a 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 of 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 of the State Council may 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 of the State Council his or its observation, 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, he or it shall make a statement to the patent administration department of the State Council and submit them when the said documents are available.
Article 50 The patent administration department of the State Council shall, when proceeding on its own initiative to examine an application for a patent in accordance with the provisions of the second paragraph of Article 35 of the Patent Law, notify the applicant accordingly.
Article 51 When requesting for examination as to substance, or within three months from the date of receipt of the notification from the patent administration department of the State Council that 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 his or its 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 his or its own initiative.
Where the applicant amends the application after receiving the notification of opinions of examination from the patent administration department of the State Council, he or it shall make the amendment to the defects pointed out by the notification.
The patent administration department of 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 of the State Council corrects mistakes on its own initiative, it shall notify the applicant accordingly.
Article 52 When any amendment is made to the description or the claims in an application for a patent for invention or utility model, a replacement sheet in prescribed form shall be submitted, unless the amendment concerns only the alteration, insertion or deletion of a few words. Where an amendment to the drawings or photographs of an application for a patent for design is made, a replacement sheet shall be submitted as prescribed.
Article 53 In accordance with the provisions of Article 38 of the Patent Law, the circumstances where an application for a patent for invention shall be rejected after examination as to substance are as follows:
(1) where the application falls under Article 5 or 25 of the Patent Law, or the applicant is not entitled to a patent right in accordance with the provisions of Article 9 of the Patent Law;
(2) where the application does not comply with the provisions of the second paragraph of Article 2, the first paragraph of Article 20, Article 22, the third, fourth or fifth paragraph of Article 26 or the first paragraph of Article 31 of the Patent Law, or the second paragraph of Article 20 of these Rules; or
(3) where the amendment to the application does not comply with the provisions of Article 33 of the Patent Law, or the divisional application does not comply with the provisions of the first paragraph of Article 43 of these Rules.
Article 54 After the patent administration department of the State Council issues a notification to grant the patent right, the applicant shall go through the formalities of registration within two months from the date of receipt of the notification. If the applicant completes the formalities of registration within the said time limit, the patent administration department of the State Council shall grant the patent right, issue the patent certificate and make an announcement thereon.
If the applicant does not go through the formalities of registration within the time limit, he or it shall be deemed to have abandoned his or its right to obtain the patent right.
Article 55 Where it is found after examination that there is no ground for rejecting an application for a secret patent, the patent administration department of the State Council shall make a decision to grant a secret patent, issue the certificate of the secret patent, and register the matters relating to the secret patent.
Article 56 After the announcement of the decision to grant a patent for utility model or a patent for design, the patentee or the interested party referred to in Article 60 of the Patent Law may request the patent administration department of the State Council to make a patent right assessment report.
Any person that requests a patent right assessment report shall submit a request therefor, indicating the patent number. Each request shall be limited for one patent.
Where the request for a patent right assessment report does not comply with the provisions, the patent administration department of the State Council shall notify the requesting party that he or it is required to rectify the request within a specified time limit; if the requesting party fails to do so within the time limit, the request shall be deemed not to have been submitted.
Article 57 The patent administration department of the State Council shall issue a patent right assessment report within two months after receipt of the request for the patent right assessment report. Where two or more persons request a patent right assessment report in respect of the same patent for utility model or design, the patent administration department of the State Council shall make one patent right assessment report only. Any entity or individual may consult or copy the patent right assessment report.
Article 58 The patent administration department of the State Council shall correct promptly the mistakes in the patent announcements and patent pamphlets once they are discovered, and the corrections shall be announced accordingly.