About China's Implementation of the Patent Cooperation Treaty

Provisions on China's Implementation of the Patent Cooperation Treaty

On October 1st, 1993, the Chinese government submitted the Patent Cooperation Treaty Accession to the World Intellectual Property Organization. The instrument of accession will enter into force on January 1, 1994. At that time, China will become a party to the Patent Cooperation Treaty. To this end, the "Regulations on China's Implementation of the Patent Cooperation Treaty" was formulated and is hereby promulgated and will come into effect on January 1, 1994.
Gao Lulin
November 23, 1993

Chapter 1 General Provisions

Article 1 This Regulation is specifically formulated to implement the "Patent Cooperation Treaty."

Article 2 In this provision:
(1) "Treaty" means "patent cooperation treaty";
(b) "Rules for the Implementation of the Treaty" means the detailed rules for the implementation of the aforementioned treaty;
(3) "Treaty of Administrative Procedure" means the administrative regulations of the aforementioned treaty;
(d) "International Bureau" means the International Bureau of the World Intellectual Property Organization;
(5) "International application" means an application for an invention or utility model patent filed in accordance with the provisions of the aforementioned treaty;
(6) "Patent Office" means the Patent Office of the People's Republic of China;
(7) "Patent Law" means the Patent Law of the People's Republic of China;
(8) "Implementation Rules" refers to the implementation rules of the Patent Law of the People's Republic of China;
(9) For the purpose of calculating the time limit, the "priority day" means: an international application claims priority, refers to the date of application for an earlier application; an international application requires multiple priorities, and refers to the earliest prior application If the international application does not claim priority, it refers to the international filing date of the international application.

Article 3 The application, designation or selection of a Chinese international application to a patent office shall be governed by the provisions of the treaty, the treaty implementing regulations, the administrative regulations of the treaty and the provisions of this provision. Unless otherwise stipulated in the treaty, treaty implementing regulations, treaty administrative regulations or these regulations, the international application shall be governed by the provisions of the Patent Law and the Regulations after the Patent Office has started its procedures as a designated or selected office.

Chapter II International Application Procedures

Article 4 As a receiving office for international applications, the Patent Office shall be responsible for accepting applications from Chinese nationals or international applications filed by foreigners, foreign companies or other foreign organizations that have regular residences or establishments in China, and shall comply with the treaty and treaty implementing regulations and treaties. Administrative regulations stipulate that the international application be examined and dealt with.
According to the bilateral agreement signed between China and other treaty parties, the patent office may also accept international applications filed by the nationals or residents of the State party.

Article 5 The applicant shall submit an international application to the Patent Office in Chinese or English. The application shall include the request, the specification, one or several claims, one or more drawings (if necessary) and a summary. .

Article 6 The date on which the Patent Office receives an international application that complies with the provisions of Article 11 of the Treaty is the international filing date. The second sentence of Article 28 of the Patent Law shall not apply to the determination of the international filing date.
If the international application does not comply with the provisions of the first paragraph of Article 11 of the Treaty, the Patent Office shall notify the applicant to make corrections within the time limit specified in Article 20, Article 6 of the Implementing Rules of the Treaty by the Patent Office. Where the applicant makes corrections as required, the date of receipt of the correction by the Patent Office shall be the international filing date; if the applicant has not replied after the expiration of the time limit, or after the correction, the Patent Office considers that it still does not comply with the provisions of Article 11 of the Treaty. The Patent Office shall promptly notify the applicant and its application will not be treated as an international application.
Where an international application contains a description of the drawings but the application does not include the drawing, the Patent Office shall notify the applicant to submit the drawings in thirty days from the date of submission of the incomplete documents. Where the applicant submits the drawings within the prescribed time limit, the date on which the Patent Office receives the drawing is the international filing date; otherwise, the description of the drawings is deemed not to exist.

Article 7 If an applicant files an international application with the Patent Office, it may request the priority of one or several earlier applications filed by the State Party to the "Paris Convention for the Protection of Industrial Property" or that is valid for the State Party in accordance with the provisions of Article 8 of the Treaty. . Where such priority is required, the formalities for the application of the provisions of Article 4 (10) and Article 17 (1) of the Treaty Implementing Regulations shall apply.

Article 8 If the Patent Office finds that the international application has the defects mentioned in Article 14, paragraph 1 (i) of the Treaty, it shall notify the applicant to make corrections in accordance with Article 26 of the Implementing Regulations of the Treaty; if not, the International The application is considered withdrawn and announced by the Patent Office.

Chapter III International Search Procedures

Article 9 The Patent Office, as the competent international search authority for international applications, shall apply to the application internationally in accordance with the provisions of the treaty, the implementing regulations of the treaty, the administrative regulations of the treaty, and the agreements signed between the Patent Office and the International Bureau pursuant to Article 16 paragraph 3 of the Treaty. Search.
If the Patent Office considers:
(i) The situation or subject covered by the international application is not required by the Patent Office pursuant to Article 13ter, Paragraph 1 (C) or Article 39, and the Patent Office decides not to search the application, or

(ii) the description, claims or drawings do not meet the requirements of the Regulations for the Implementation of the Treaty and cannot be meaningfully searched.
The Patent Office shall make a corresponding announcement and notify the applicant and the International Bureau that it will not make an international search report. If the situation described in (i) or (ii) only exists in certain claims, these claims should be described in the international search report, and search reports should be made for other claims.
If the Patent Office considers that the international application does not meet the requirements for unity of invention as stipulated in Article 13 of the Treaty's Implementing Rules, it shall require the applicant to pay a surcharge in accordance with Article 40 of the Implementing Regulations of the Treaty. The Patent Office shall make an international search report on the part of the invention (“major invention”) first mentioned in the claims of the international application, and the required surcharge shall be paid within the time limit specified in Article 40(3) of the Regulations of the Treaty. After the Qing Dynasty, an international search report was made on the part of the invention that had already paid for this fee in the international application.

Article 10 The Patent Office shall, within three months from the date of receipt of the search copy or within nine months from the priority date, prevail in the future, make an international search report or announce that no international search will be conducted.

Article 11 According to Article 46 of the Implementing Regulations of the Treaty, the applicant shall have the opportunity to make an amendment to the International Bureau's claim for an international application in accordance with Article 19 of the Treaty. The amendment shall be filed within two months from the date of filing the international search report from the Patent Office to the International Bureau and the applicant or within sixteen months from the priority date, which shall prevail. However, if the International Bureau receives an amendment made in accordance with Article 19 of the Treaty after the expiration of the applicable time limit, if the amendment arrives at the International Bureau before the completion of the technical preparations for international publication, it shall consider that the International Bureau has been at the last On the day of receipt of the amendment. Such modifications must not exceed the scope of disclosure of the invention when the international application is filed.

Chapter IV International Preliminary Examination Procedures

Article 12 An applicant who has filed an international application with the Patent Office and who falls within the scope of the agreement between the Patent Office and the International Bureau for the purpose of the international preliminary examination may request the Patent Office to conduct an international preliminary examination of the application. .
Requests for international preliminary examination shall be submitted in written form using the language used in the filing of the international application and shall comply with Article 53 of the Regulations.
The request for international preliminary examination shall specify at least one State Party that is scheduled to use the result of the international preliminary examination and is bound by Chapter II of the Treaty as the selected country. The election shall only select the countries already designated in the international application.

Article 13 The Patent Office, as the competent international preliminary examination entity for international applications, shall conduct international applications for international applications in accordance with the provisions of the treaty, the implementing regulations of the treaty, the administrative regulations of the treaty, and the agreements signed between the Patent Office and the International Bureau pursuant to Article 32 of the Treaty. Preliminary review.
If the Patent Office considers:
Situation or topic (i) international application relates in accordance with the provisions of Rule Article 36, paragraph 2 (a) (Vii) or (a) (vii) or Article 67 of carry out an international preliminary Review, and the Patent Office decides not to review the application, or (ii) that the description, claims or drawings are unclear, or that the claim does not have a proper basis in the description, and therefore cannot claim the novelty of the claimed invention, Creative (non-obviousness) or industrial applicability, forming meaningful opinions, the Patent Office should not review all issues stipulated in the first paragraph of Article 33 of the Treaty, and should notify such opinions and reasons applicant. If one considers that any of the situations described in (i) or () exists only in certain claims, or only in relation to certain claims, the preceding sentence applies only to those claims.
Where the Patent Office finds that an international application has the conditions listed in Article 66 (2) (a) of the Treaty Implementation Regulations, the Patent Office shall notify the applicant in writing and request the applicant to provide a written reply. When the applicant responds, he may propose amendments, or if the applicant disagrees with the opinions of the Patent Office, he may submit a reply or both. Such modifications must not exceed the scope of disclosure of the invention when the international application is filed.
If the Patent Office considers that the international application does not comply with the provisions of Article 13 of the Treaty on the Uniformity of Invention, the Patent Office shall handle the matter in accordance with the provisions of Article 34(3) of the Treaty and Article 68 of the Treaty Implementing Rules. The applicant may choose to limit the claims or pay a surcharge; the applicant does not make the selection within the specified time limit, or the applicant has limited the claims, but it is still insufficient to meet the requirements of the unity of the invention. Or, if the applicant fails to pay the surcharge, the Patent Office will only make an international preliminary examination report on the portion of the international application that appears to be part of the main invention or that has already paid the surcharge.

Article 14 The applicant may submit a request for Article 34 of the Treaty to the Patent Office before submitting a request for an international preliminary examination or before the international preliminary examination report is made, in accordance with Article 66 of the Implementing Rules of the Treaty. Modifications of the claims, the description and the drawings. Such modifications must not exceed the scope of disclosure of the invention when the international application is filed.

Article 15 The deadline for the Patent Office to make an international preliminary examination report shall be:
(i) If the international preliminary examination request is received before the expiration of nineteen months from the priority date, it shall be twenty-eight months from the priority date;
(ii) If the international preliminary examination request is received after the expiry of nineteen months from the priority date, nine months from the beginning of the international preliminary examination.

Chapter 5 Designation and Selection Procedures

Article 16 An international application designating China shall have the same effect as a Chinese national application filed with the Patent Office on the same day as the international application date determined in accordance with Article 11 of the Treaty.

Article 17 An applicant for an international application designating China shall request the Patent Office to grant a patent for a utility model and shall make an explanation in its international application.

Article 18 Where an international application designating China and requiring the protection of patents for inventions is published by the International Bureau in Chinese in accordance with the provisions of Article 21 of the Treaty, the applicant shall enjoy the provisions of Article 13 of the Patent Law starting from the date of the international publication. Rights; if the International Bureau publishes it internationally in a language other than Chinese, the Patent Applicant shall enjoy the Patent Law from the date of receipt of the Chinese translation of the international application submitted by the applicant and published in the Chinese Patent Gazette. Three prescribed rights.

Article 19 In addition to the provisions of Article 20 of the present Regulations, if the designated international application for China is submitted in a language other than Chinese, the applicant shall submit the international application to the Patent Office before the expiration of 20 months from the priority date. If the Chinese translation is not submitted at the expiration of the time limit, the effect of the application in China shall cease.

Article 20 If an international application has been selected before the expiry of the 19th month from the priority date in China, if it is submitted in a language other than Chinese, the applicant shall have expired 30 months from the priority date. The Chinese translation of the international application is submitted to the Patent Office; if the Chinese translation is not submitted at the expiration of the time limit, the application's effectiveness in China is terminated.

Article 21 The translation of an international application submitted by an applicant in accordance with Article 19 or Article 20 of these Provisions shall include