Outline of CN Patent System -- Basics Invention Patents

2025-06-03

Legislation
       The Patent Law is enacted to protect the legitimate rights of the patentee, to encourage inventions-creations, to advance the exploitation of inventions-creations, to enhance innovation capability, and to promote the progress of science and technology and the development of economy and society.
       Inventions-creations in this article mainly mean inventions.

Patent Law
       March 12, 1984: Adopted by the Standing Committee of National People's Congress (“the NPC Standing Committee”);
       September 4, 1992: Amended first by the NPC Standing Committee;
       August 25, 2000: Amended secondly by the NPC Standing Committee;
       December 27, 2008: Amended thirdly by the NPC Standing Committee;
       October 17, 2020: Amended fourthly by the NPC Standing Committee;

Implementing Regulations of the Patent Law
       January 19, 1985: Promulgated by the State Council and entered into force on April 1;
       December 12, 1992: Amended by the State Council and entered into force on January 1, 1993, and repealed on July 1, 2001;
       June 15, 2001: Promulgated by the State Council and entered into force on July 1, 2001;
       December 28, 2002: Amended first by the State Council;
       January 9, 2010: Amended secondly by the State Council;
       December 11, 2023: Amended thirdly by the State Council.

Conventions
       China became a member of Convention Establishing the World Intellectual Property Organization on June 4, 1980, the Paris Convention for the Protection of Industrial Property on March 19, 1985, the Patent Cooperation Treaty (PCT) on January 1, 1994, the Regulations under the Patent Cooperation Treaty on January 1, 1994, the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure on July 1, 1995, the Locarno Agreement Establishing an International Classification for Industrial Designs on September 19, 1996, the Strasbourg Agreement Concerning the International Patent Classification on June 19, 1997, the Marrakesh Agreement Establishing the World Trade Organization on December 11, 2001, and the Hague Agreement Concerning the International Registration of Industrial Designs on May 5, 2022.

Types of Patents
       There are three types of patents in China: invention patents, utility model patents and design patents.

Invention
       Invention means any new technical solution relating to a product, a process or improvement thereof.

Patent Administration
       The China National Intellectual Property Administration (CNIPA) is responsible for the patent work throughout the country. It receives and examines patent applications, and grants patents in accordance with the law.
       The local intellectual property offices in provinces, autonomous regions and municipalities directly are responsible for the administrative work concerning patents in their respective administrative areas.

Obtaining a Patent
       For obtaining a patent, the right holder of invention-creations shall submit a patent application to the CNIPA. After examinations, the CNIPA will grant a patent if the conditions for granting a patent are met.

Service Invention-creation
       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.
       "A service invention-creation made by a person in execution of the tasks of the entity to which he belongs" means any invention-creation made (l) in the course of performing his/her own duty; (2) in execution of any task, other than his/her own duty, which was entrusted to him/her by the entity to which he belongs; (3) within one year from his/her retirement, resignation or from termination of his/her employment or personnel relationship with the entity to which he/she previously belonged, where the invention-creation relates to his/her own duty or the other task entrusted to him/her by the entity to which he previously belonged.
       "The entity to which he belongs" includes the entity in which the person concerned is a temporary staff member.
       "Material and technical means of the entity" mean the entity's money, equipment, spare parts, raw materials or technical information and materials which are not disclosed to the public, etc.

Inventors/Creators

Creative Contributions
       "Inventor" or "creator" means any person who makes creative contributions to the substantive features of an invention-creation.
       Any person who, during the course of accomplishing the invention-creation, is responsible only for organizational work, or who only offers facilities for making use of material and technical means, or who only takes part in other auxiliary functions, shall not be considered as inventor or creator.
       Inventor has the right to be named as such in the patent document.

Incentives
       The entity that is granted a patent shall award to the inventor or creator of a service invention-creation a reward and, upon exploitation of the patented invention-creation, shall pay the inventor or creator a reasonable remuneration based on the scope of promotion and application and the economic benefits achieved.
       The entity may, on the manner and amount of the reward and remuneration mentioned above, enter into a contract with the inventor or creator, or provide it in its rules and regulations formulated in accordance with the laws.
       Where the entity has not entered into a contract with the inventor or creator on the manner and amount of the reward, nor has the entity provided it in its rules and regulations formulated in accordance with the laws, it shall, within three months from the date of the announcement of the grant of the patent, award to the inventor or creator of a service invention-creation a sum of money as prize. The sum of money prize for an invention patent shall not be less than RMB 4,000 Yuan.
       Where an invention-creation is made on the basis of an inventor's or creator's proposal adopted by the entity to which he belongs, the entity shall award to him or her a money prize on favorable terms.
       Where the entity has not entered into a contract with the inventor or creator on the manner and amount of the remuneration as above mentioned, nor has the entity provided it in its rules and regulations in accordance with the laws, it shall award the inventor or creator a reasonable reward in accordance with the Law of the People's Republic of China on Promoting the Transformation of Scientific and Technological Achievements.
       The state encourages the entities to implement incentives and adopt methods such as equity, stock options, dividends, etc., to ensure that inventors or creators receive a fair share of the innovation benefits.

Right to apply for a patent
       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.
       The entity may dispose of its right to apply for a patent and its patent for its service invention-creation in accordance with the law, and promote the implementation and use of the related invention-creation.
       For a non-service invention-creation, the right to apply for a patent belongs to the inventor. After the application is approved, the inventor 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 have entered into an agreement on the right to apply for and own a patent, such agreement shall prevail.
       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 applied for it shall be the patentee.

Co-ownership
       Where the co-owners of a patent application or a patent have concluded an agreement on the exercising of the right, the agreement shall prevail.
       In the absence of such agreement, any co-owner may independently exploit the patent or license another party to exploit the patent through non-exclusive license; any fee for the exploitation obtained from licensing others to exploit the patent shall be distributed among the co-owners.
       Except for the circumstances as provided in the preceding paragraphs, a jointly-owned patent application or patent shall be exercised with the consent of all co-owners.

Basic Principles of Application
       Applying for patents shall follow the principle of good faith. Patent applications shall be filed on the basis of genuine invention-creation activities, and no fraud is allowed.
       For any identical invention-creation, only one patent shall be granted.
       Where two or more applicants file applications for patent for the identical invention-creation, the patent shall be granted to the applicant whose application was filed first. (first-to-file rule)
Two or more applicants who respectively file, on the same day (referring to the date of filing or the priority date where priority is claimed), patent applications for the identical invention-creation, shall, after receipt of a notification from the CNIPA, hold consultations among themselves to determine the applicant(s).
       Where any foreigner, foreign enterprise or other foreign organization having no habitual residence or business office in China files an application for a patent in China, the application shall be treated under this Law in accordance with any agreement concluded between the country to which the applicant belongs and China, or in accordance with any international treaty to which both countries are party, or on the basis of the principle of reciprocity.
       After a patent application is submitted, the type of patent application cannot be changed. For example, an invention patent application can only be an invention patent application in subsequent procedures, reexamination procedures or divisional application procedures, and cannot be changed to a utility model patent application.

Both Filing or Dual Filing Strategy
       Where an applicant files on the same day applications for both patent for utility model and patent for invention relating to the identical invention-creation, and the applicant declares to abandon the patent for utility model which has been granted and does not terminate, the patent for invention may be granted.
       Under such strategy, such statement should be included in one application that another patent application for the identical invention-creation has been filed by the same applicant, and similar statement will be included in the request for the another application.
       Where the CNIPA makes an announcement of the grant of a utility model patent, the statement of the applicant that he or she or it has simultaneously filed an invention patent application shall be announced.
       Where it is found after examination that there is no cause for rejection of the invention patent application, the CNIPA shall notify the applicant to declare, within the specified time limit, the abandonment of his or her or its utility model patent.
       If the applicant so declares, the CNIPA shall make the decision to grant an invention patent, and announce at the same time both the grant of the invention patent and the declaration of the applicant to abandon his or her or its utility model patent. If the applicant refuses to abandon his or her or its utility model patent, the CNIPA shall reject the invention patent application. If the applicant fails to respond within the time limit, the invention patent application shall be deemed to have been withdrawn.
       The utility model patent terminates from the date of the announcement of grant of the invention patent.

Unity
       An application for a patent for invention shall be limited to one invention. Two or more inventions belonging to a single general inventive concept may be filed as one application.
       Two or more inventions belonging to a single general inventive concept shall be technically inter-related and contain one or more of the same or corresponding special technical features. The expression "special technical features" shall mean those technical features that define a contribution which each of those inventions, considered as a whole, makes over the prior art.

Divisional Applications
       Where a patent application contains two or more inventions, the applicant may file a divisional application:
       (1) before the expiration of two months from the date of receipt of the allowance notice;
       (2) before the expiration of three months from the date of receiving the final rejection decision against which the applicant decides not to request re-examination;
       (3) before the expiration of three months from the date of receiving the affirmed rejection re-examination decision made by the CNIPA against which the applicant decides not to institute an administrative lawsuit;
       (4) before the effective date of the Court’s final ruling that affirms the rejection decision of the CNIPA in the administrative lawsuit instituted by the applicant; or
       (5) before the effective date when the application was withdrawn, or was deemed as having been withdrawn and was not revived.
       However, where a patent application has been rejected, withdrawn or is deemed to have been withdrawn, no divisional application may be filed.
       The divisional application may not change the type of the initial application.
       A divisional application shall be entitled to the filing date 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.
       If an already-filed divisional application has received a lack of unity objection from the CNIPA, the applicant will obtain the chance to file an additional divisional application based on this already-filed divisional application within a specific timeline which is the same as above items (1)-(5).
After the expiration of those time limits, no divisional application can be filed based on the already-filed divisional application which has received a lack of unity objection.

Applications Required Confidentiality
       Where a patent application relates to the interests of national defense and is required to be kept secret, the patent application shall be filed with and examined by the national defense intellectual property office. Where a patent application received by the CNIPA relates to the interests of national defense and is required to be kept secret, the application shall be promptly forwarded to the national defense intellectual property office to carry out the examination. Where it is found after examination by the national defense intellectual property office there is no cause for rejection of the application, the CNIPA shall make a decision to grant the national defense patent.
       Where the CNIPA finds that an invention patent application filed with it relates to national security or other vital interests other than interests concerning national defense and is required to be kept secret, it shall promptly make a decision on handling it as an application for secret patent and notify the applicant accordingly. The special procedures for the examination and reexamination of application for secret patent as well as the invalidation of secret patent shall be provided for by the CNIPA.

Assignment of a Patent Application
       The right of patent application may be assigned.
       Where the right of patent application is assigned, the parties shall conclude a written contract and register it with the CNIPA. The CNIPA shall announce the registration.
       Any assignment, by a Chinese entity or individual, of the right of patent application to a foreigner, a foreign enterprise or any other foreign organization shall proceed by going through such formalities that the Chinese assignor shall first submit a technology export application or register the technology export contract with the foreign trade and economic cooperation department of the State Council in accordance with relevant regulations. After receiving the technology export license or technology export contract registration certificate issued by the foreign trade and economic cooperation department of the State Council, it shall go through the assignment registration procedures with the CNIPA.
       The assignment shall take effect as of the date of registration.

Temporary Protection for Patent Applications
       After the publication of an invention patent application, the applicant may require the entity or individual exploiting the invention to pay an appropriate fee.

Patent Agency for Patent Applications
       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, it or he shall appoint a legally incorporated patent agency to act as its or his agency.
       Where any Chinese entity or individual applies for a patent or has other patent matters to attend to in the country, it or he may appoint a legally incorporated patent agency to act as its or his agency.

Secrecy review before applying for a patent in a foreign country
       Where any entity or individual intends to file an application for patent abroad for any invention made in China, it or he shall request in advance the CNIPA for secrecy review.
       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 invention made in China refers to an invention of which the substantive contents of the technical solution were made within the territory of China.
       For an invention, if a patent application has been filed in a foreign country in violation of the aforesaid provisions, it shall not be granted a patent while filing application for patent in China.
       Where any person, in violation of the above provisions, files in a foreign country a patent application that divulges an important secret of the State, he shall be subject to disciplinary sanction by the competent authority. Where a crime is established, the person concerned shall be prosecuted for his criminal liability according to the law.
       Request for secrecy review may be (1) filed with the detailed description of the related technical schemes; (2) filed on the basis of a Chinese patent application that has been already filed with the CNIPA; or (3) deemed as filed when the applicant files an international PCT application before the CNIPA as a receiving office.

What is Unpatentable

No patent shall be granted
       No patent shall be granted for any invention-creation that is contrary to the laws or social morality or that is detrimental to public interest. Any invention-creation that is contrary to the laws shall not include the invention-creation merely because the exploitation of which is prohibited by the laws.
       No patent shall be granted for any invention-creation where acquisition or use of the genetic resources, on which the development of the invention-creation relies, is not consistent with the provisions of the laws or administrative regulations.
       For an invention made in China, if a patent application has been filed in a foreign country in violation of the provisions that a secrecy review shall be request to the CNIPA before the patent application was filed in the foreign country, it shall not be granted a patent while filing application for patent in China.

Unpatentable subject matters
       For any of the following, no patent 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) nuclear transformation methods and substances obtained by means of nuclear transformation.
       However, processes used in producing animal and plant varieties are patentable subject matters.

Requirements for granting a patent for invention
       Any invention for which a patent may be granted must possess novelty, inventiveness and practical applicability
       Novelty means that, the invention does not form part of the prior art; nor has any entity or individual filed previously before the date of filing with the CNIPA an application relating to the identical invention disclosed in patent application documents published or patent documents announced after the date of filing.
       Inventiveness means that, as compared with the prior art, the invention has prominent substantive features and represents a notable progress.
       Practical applicability means that, the invention can be made or used and can produce effective results.
       The prior art referred to herein means any technology known to the public before the date of filing in China or abroad.

Priority
       Where, within twelve months from the date on which any applicant first filed in a foreign country an application for a patent for invention, 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 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, he or it files with the CNIPA an application for a patent for the same subject matter, he or it may enjoy a right of priority.
       Any applicant who claims the right of priority for an invention patent shall make a written declaration when the application is filed, and submit, within sixteen months from the date of filing the first application, a copy of the patent application document which was first filed.
If the applicant fails to make the written declaration or to meet the time limit for submitting the copy of the patent application document, the claim to the right of priority shall be deemed not to have been made.
       Where the name or title of the applicant who claims the right of priority is not the same as the one recorded in the copy of the earlier application, the applicant shall submit document certifying the assignment of right of priority. If no such document is submitted, the right of priority shall be deemed not to have been claimed.
       An applicant may claim one or more priorities for a patent application; where multiple priorities are claimed, the priority period for the application shall be calculated from the earliest priority date.

Domestic Priority - Further Circumstances
       When filing a utility model application, the applicant may claim the domestic priority right of an earlier invention application for the same subject matter, and vice versa.
When filing a design application, the applicant may claim the domestic priority right of an earlier invention or a utility model application for the same subject matter as the design shown in the drawings.
       A later application may not claim domestic priority of an earlier application if the subject matter of the earlier application falls under any of the following:
       (1) where it has claimed foreign or domestic priority;
       (2) where it has been granted a patent;
       (3) where it is a divisional application filed as prescribed.
       Where the domestic priority is claimed, the earlier application shall be deemed to be withdrawn from the date on which the later application is filed, except where the application for a design patent claims an invention or a utility model patent application as the basis for domestic priority.

Priority Restoration and Correction (New rule since 2024)
       Where an applicant, exceeding the twelve months priority term for invention, files with the CNIPA an invention patent application on the same subject matter, and has justified reasons, he or she or it may, within two months from the date of expiration of the priority term, request restoration of the priority right.
       Where an applicant for an invention patent claims a priority right, he or she or it may, within 16 months from the priority date or within four months from the date of filing an application, request adding or correcting the claim for the priority right in the filing request.

Novelty grace period
       An invention-creation for which a patent is applied for does not lose its novelty where, within six months before the date of filing, one of the following events occurred:
       (1) where it was first made public for the purpose of public interest when a state of emergency or an extraordinary situation occurs in the country;
       (2) where it was first exhibited at an international exhibition sponsored or recognized by the Chinese Government;
       (3) where it was first made public at a prescribed academic or technological meeting;
       (4) where it was disclosed by any person without the consent of the applicant.
       The international exhibition recognized by the Chinese Government means the international exhibition that is registered with or recognized by the International Exhibitions Bureau as stipulated by the International Exhibitions Convention.
       The academic or technological meeting means any academic or technological meeting organized by a competent department concerned of the State Council or by a national academic or technological association, as well as any academic or technological meeting organized by an international organization recognized by a competent department concerned of the State Council.
       For the situation in the above item (2) or (3), the applicant shall, when filing the application, make a declaration and, within two months from the date of filing, submit certifying documents stating the fact that the invention-creation was exhibited or published and with the date of its exhibition or publication.
       For the situation in the above item (1) or (4), the CNIPA may, when it deems necessary, require the applicant to submit the relevant certifying documents within the specified time limit.

Patent application documents
       For filing an application for a patent for invention, a request, a description and its abstract, and claims shall be submitted.

Request
       The request shall state the title of the invention, the name of the inventor, the name and the address of the applicant and other related matters.

Description
       The description shall set forth the invention in a manner sufficiently clear and complete so as to enable a person skilled in the relevant field of technology to carry it out; where necessary, drawings are required. The abstract shall state briefly the main technical points of the invention.
       The description of an invention patent application shall state the title of the invention, which shall be the same as it appears in the request. The description shall include (1) technical field, specifying the technical field to which the technical solution for which protection is sought pertains; (2) background art, indicating the background art which can be regarded as useful for the understanding, searching and examination of the invention, and when possible, citing the documents reflecting such art; (3) contents of the invention, disclosing the technical problem the invention aims to resolve and the technical solution adopted to resolve the problem; and stating, with reference to the prior art, the advantageous effects of the invention; (4) description of figures, briefly describing each figure in the drawings, if any; (5) embodiments of the invention, describing in detail the optimally selected embodiments contemplated by the applicant for carrying out the invention; where appropriate, this shall be done in terms of examples, and with reference to the drawings, if any.
       Where an invention patent application contains disclosure of one or more nucleotide and/or amino acid sequences, the description shall contain a sequence listing in compliance with the standard prescribed by the CNIPA.

Claims
       The claims shall be supported by the description and shall define the scope of the patent protection sought for in a clear and concise manner.
       The technical features mentioned in the claims may, in order to facilitate quicker understanding of the claim, make reference to the corresponding reference signs in the drawings. Such reference signs shall follow the corresponding technical features and be placed in parentheses. The reference signs shall not be construed as limiting the claims.
       The claims shall have an independent claim, and may also contain dependent claims.
       The independent claim shall outline the technical solution of an invention and state the indispensable technical features necessary for resolving its technical problem.
       The dependent claim shall, by additional technical features, further define the claim which it refers to.

Documents
       Any document submitted shall be in Chinese. The standard scientific and technical terms shall be used if there is a prescribed one set forth by the State. Where no generally accepted translation in Chinese can be found for a foreign name or scientific or technical term, the one in the original language shall be also indicated.

Genetic Resources
       Where an invention-creation is developed relying on the genetic resources, the applicant shall indicate, in the application documents, the direct and original source of such genetic resources; where the applicant fails to indicate the original source, he or it shall state the reasons thereof.
       The genetic resources mean the material obtained from such as human body, animal, plant, or microorganism which contains functional units of heredity and is of actual or potential value and the hereditary information developed relying on the use of such material.
       The invention-creation is developed relying on the genetic resources means that the invention-creation is developed relying on the use of the heredity function of the genetic resources.
Where a patent application is filed for an invention-creation the development of which relies on the use of genetic resources, the applicant shall state that fact in the request, and fill in the forms provided by the CNIPA.

Biomaterial Deposit
       Where an invention patent application concerns a new biological material which is not available to the public and which cannot be described in the application in such a manner as to enable the invention to be carried out by a person skilled in the art, the applicant shall, in addition to the other requirements by the Patent Law and its Implementing Regulations, go through the following formalities:
       (1) depositing a sample of the biological material with a depositary institution designated by the CNIPA before, or at the latest, on the date of filing (or the priority date where priority is claimed), and submit at the time of filing or at the latest, within four months from the date of filing, a receipt of deposit and the viability proof from the depository institution; where they are not submitted within the specified time limit, the sample of the biological material shall be deemed not to have been deposited;
       (2) including in the application document relevant information of the characteristics of the biological material;
       (3) indicating, where the application relates to the deposit of a sample of the biological material, in the request and the description the scientific name (with its Latin name) and the title and address of the depositary institution, the date on which the sample of the biological material was deposited and the accession number of the deposit; where, at the time of filing, they are not indicated, they shall be supplied within four months from the date of filing; where after the expiration of the time limit they are not supplied, the sample of the biological material shall be deemed not to have been deposited.
       Where the applicant for an invention patent has deposited a sample of the biological material, and after the invention patent application is published, any entity or individual that intends to make use of the biological material to which the application relates, for the purpose of experiment, shall make a request to the CNIPA, containing the title or name and address of the requesting person, an undertaking not to make the biological material available to any other person, and an undertaking to use the biological material for experimental purpose only before the grant of the patent.

Date of filing, Application Date
       The date on which the CNIPA receives the application shall be the date of filing. If the application is sent by mail, the date of mailing indicated by the postmark shall be the date of filing.

Withdrawal of applications
       An applicant may withdraw his or its application for a patent at any time before the patent is granted.
       When withdrawing a patent application, the applicant shall submit to the CNIPA a declaration stating the title of the invention-creation, the application number and the date of filing.
       Where a declaration to withdraw a patent application is submitted after the preparations for the publication of the application document has been completed by the CNIPA, the application document shall be published as scheduled. However, the declaration withdrawing the patent application shall be published in the subsequent issue of the Patent Gazette.

Amending application documents
       An applicant may amend his or its application for a patent, but the amendment to the application for a patent for invention may not go beyond the scope of disclosure recorded in the initial description and claims.

Incorporation by Reference (New rule since 2024)
       Where the claims, specification, or a part of the claims or specification of an invention patent application is omitted or incorrectly submitted, but the applicant has claimed a priority right of an earlier application on the date of filing the application, he or she or it may, within two months from the date of filing the application or within the time limit designated by the CNIPA, make a supplementary submission by referencing the earlier application documents. If the supplementary documents comply with the relevant provisions, the date of submission of the documents submitted for the first time shall be the date of filing.

Examination procedures

Filing receipt, preliminary examination and publication
       Where an application for a patent for invention submitted to the CNIPA meets the requirements for filing, the CNIPA will accord the date of filing, assign an application number and issue a filing receipt.
       While further preliminary examination, if the CNIPA finds the application to be in conformity with the related requirements, it shall publish the application promptly after the expiration of eighteen months from the date of filing.
       If upon preliminary examination the CNIPA finds the application not to be in conformity with the related requirements, it will notify the applicant of its opinions and request him or her or it to state his or her or its observations or to rectify the application within the 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 her or its observations or the rectification, the CNIPA still finds that the application is not in conformity with the related provisions, the application shall be rejected.

Earlier publication
       Where the applicant requests an earlier publication of his or her or its invention patent application, the CNIPA will, after preliminary examination of the application, publish it immediately, unless it is to be rejected.

Deferred examination
       The applicant may request a deferred examination for its patent application.

Voluntary amendments
       At the time when a request for substantive examination is filed, and within three months after the receipt of the notification on the entry into substantive examination stage issued by the CNIPA, the applicant may amend the invention patent application on his or her or its own initiative.

Substantive examination
       Upon the request of the applicant, made at any time within three years from the date of filing, the CNIPA will proceed to substantively examine the application. If, without any justified reason, the applicant fails to meet the time limit for requesting substantive examination, the application shall be deemed to have been withdrawn.
       The CNIPA may, on its own initiative, proceed to substantively examine any application for a patent for invention when it deems it necessary.
       When the applicant requests substantive examination, he or it shall furnish pre-filing date reference materials concerning the invention.
       For an application for a patent for invention that has been already filed in a foreign country, the CNIPA may ask the applicant 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 documents are not furnished, the application shall be deemed to have been withdrawn.
       Where the applicant for an invention patent cannot furnish, for justified reasons, the documents concerning any search or results of any examination specified above, he or she or it shall make a statement to the CNIPA and submit them when the documents are available.
       Where the CNIPA, after it has made the substantive examination of the application for a patent for invention, finds that the application is not in conformity with the provisions of this Law, it shall notify the applicant and request him or it to submit, within a specified time limit, his or its observations or to amend the application. If, without any justified reason, the time limit for making response is not met, the application shall be deemed to have been withdrawn.
       Where the applicant amends the application documents after receiving a notification of office action issued by the CNIPA, he or she or it shall make the amendment directed to the defects pointed out by the notification.
       Where, after the applicant has made the observations or amendments, the CNIPA finds that the application for a patent for invention is still not in conformity with the related provisions, the application shall be rejected.
       The circumstances where an invention patent application shall be rejected by the CNIPA after substantive examination are as follows:
       (1) the invention is contrary to laws, social morality or is detrimental to public interests;
       the acquisition or use of genetic resources on which the invention relies violates the provisions of laws and regulations;
       the invention is unpatentable subject matters (e.g. scientific discoveries, rules and methods for mental activities…); or
       involved double patenting issue;
       (2) the technical schemes do not belong to the definition of invention in the Patent Law;
       for an invention made in the territory of China, no request for secrecy review is filed before filing a patent application in a foreign country or region;
       the invention does not possess novelty, inventiveness or practical applicability;
       the description does not set forth the invention in a manner sufficiently clear and complete so as to enable a person skilled in the relevant field of technology to carry it out;
       the claims are not be supported by the description and fail to define the scope of the patent protection sought for in a clear and concise manner;
       where an invention is developed relying on the genetic resources, the applicant failed to indicate, in the application documents, the direct and original source of such genetic resources; where the applicant fails to indicate the original source, he or it failed to state the reasons thereof; or
       two or more inventions do not belong to a single general inventive concept;
       the application does not follow the principle of good faith (e.g. not based on genuine invention activities, fraud is found in practice); or
       the independent claim does not outline the technical solution of an invention and state the indispensable technical features for resolving the technical problem;
       (3) the amendment to the application goes beyond the scope of disclosure recorded in the initial description and claims; or
       the divisional application goes beyond the scope of disclosure recorded in the initial application.

Third-party’s opinions
       Any person or entity may, from the date of publication of an invention patent application till the date of announcing the grant of the patent, submit observations to the CNIPA , with reasons therefor, on the application which is not in conformity with the provisions of the Patent Law.

Allowance notice
       Where it is found after substantive examination that there is no cause for rejection of the application for a patent for invention, the CNIPA shall issues the allowance notice/notification to grant a patent for invention.
       If no grounds for rejection are found in a secret patent application after examination, the CNIPA shall make a decision to grant the secret patent.

Registration and Announcement
       After the CNIPA issues the allowance notice/notification to grant a patent, the applicant shall go through the formalities for registering a patent grant within two months from the date of receipt of the notification.
       If the applicant completes the formalities of registration within the time limit, the CNIPA shall make a decision to grant a patent, issue the patent certificate, and announce it.
       If the applicant does not go through the formalities of registration within the time limit, he or she or it shall be deemed to have abandoned his or her or its right to obtain the patent.
       The patent for invention shall take effect as of the date of the announcement.
       The CNIPA shall correct promptly the mistakes in the patent announcements and patent pamphlets once they are discovered, and the corrections shall be announced.

Reexamination
       Where an applicant for patent is not satisfied with the decision of the CNIPA rejecting the application, the applicant may, within three months from the date of receipt of the decision, request the CNIPA to make a reexamination, via filing a request for reexamination, stating the reasons and, when necessary, attaching the relevant supporting documents.
       The petitioner/applicant may amend the patent application when requesting reexamination or making responses to the notification of reexamination of the CNIPA. But the amendments shall be limited only to remove the defects pointed out in the rejection decision or in the notification of reexamination.
       Where, after reexamination, the CNIPA finds that the request does not comply with relevant provisions or that the patent application otherwise obviously violates the relevant provisions, it shall request the petitioner/applicant to submit the observations within a specified time limit. If no response is made within the time limit, the reexamination request shall be deemed to have been withdrawn. Where, after the petitioner/applicant has made the observations or amendments, the CNIPA still finds that the request does not comply with the relevant provisions, it shall make a reexamination decision to affirm the rejection.
       Where, after reexamination, the CNIPA finds that the rejection decision does not comply with the relevant provisions, or that the amended application has removed the defects as pointed out by the rejection decision, it shall make a reexamination decision to revoke the rejection decision, and continue the examination procedure.
       Where the applicant is not satisfied with the reexamination decision of the CNIPA, it or he may, within three months from the date of receipt of the notification, institute legal proceedings in the people's court.

Withdrawal of Reexamination Request
       At any time before the CNIPA makes its reexamination decision, the petitioner/applicant may withdraw its or his or her reexamination request.
       Where the petitioner withdraws its or his or her reexamination request before the CNIPA makes its decision, the procedure of reexamination is terminated.

Stay or Suspension
       Any party involving in a dispute over the ownership of the right of patent application or patent, who has already applied for mediation with the administrative authority for patent affairs or instituted legal proceedings before the people's court, may request the CNIPA to stay/suspend the relevant procedures.
       Where the CNIPA finds that the reasons for suspension submitted by the requesting party are obviously untenable, it may not suspend the relevant procedures.
       After entering into force of the mediation made by the administrative authority for patent affairs or the judgment rendered by the people's court, the parties concerned shall request the CNIPA to resume the suspended procedure. If, within one year from the date when the request for suspension is filed, no decision is made on the dispute relating to the ownership of the right to apply for a patent or the patent, and it is necessary to continue the suspension, the party who made the request shall, within the time limit, request to extend the suspension. If, at the expiration of the time limit, no such request for extension is filed, the CNIPA shall resume the procedure on its own initiative.
       Where, in the trial of civil cases, the people's court has ordered the adoption of preservation measures on the right of patent application or patent, the CNIPA shall suspend the relevant procedure concerning the patent application or patent under preservation on the date of receiving the judgment order and the notification on assisting the execution of the order indicated with the application number or the patent number. At the expiration of the time limit for preservation, if there is no order of the people's court to continue the preservation, the CNIPA shall resume the relevant procedure on its own initiative.
       The suspension of relevant procedures by the CNIPA refers to the suspension of such procedures as preliminary examination, substantive examination, reexamination of a patent application, granting of patent and the announcement of invalidation of patent; the suspension of the procedures on handling the abandonment of patent, changing or transferring patent or right of patent application, pledge of patent and the cessation of patent before the expiration of its duration.

Patent Invalidation
       Where, starting from the date of the announcement of the grant of the patent by the CNIPA, any entity or individual considers that the grant of the patent is not in conformity with the relevant provisions of the Patent Law, it or he may request the CNIPA to declare the patent invalid. The request for invalidation shall state in detail the grounds for invalidation, making reference to all the evidence as submitted, and indicate the piece of evidence on which each ground is based.
       After a request for invalidation is accepted by the CNIPA, the petitioner may add reasons or supplement evidence within one month from the date of filing the invalidation request. Additional reasons or evidence submitted after the specified time limit may be disregarded by the CNIPA.
       The CNIPA shall send a copy of the invalidation request for the patent and copies of the relevant documents to the patentee and invite it or him or her to present its or his or her observations within a specified time limit. The patentee and the petitioner shall, within the specified time limit, make responses to the notification concerning transmitted documents or the notification concerning the examination of the invalidation request sent by the CNIPA. Where no response is made within the specified time limit, the examination of the CNIPA will not be affected.
In the course of the examination of a invalidation request, the time limit specified by the CNIPA shall not be extended.

Invalidation Grounds
       For the invalidation request, one of the following grounds may be used:
       - the technical schemes do not belong to the definition of invention pursuant to the Patent Law;
       - the inventions-creation is contrary to laws, social morality or is detrimental to public interests;
       - unpatentable subject matters (e.g. scientific discoveries, rules and methods for mental activities…);
       - the acquisition or use of genetic resources on which the invention-creation relies violates the provisions of laws and regulations;
       - double patenting;
       - for an invention made in the territory of China, no request for secrecy review is filed before filing a patent application in a foreign country or region;
       - the principle of good faith was not followed in the patent application; for instance, the patent application is not based on genuine invention-creation activities, and the applicant practices fraud;
       - the invention does not possess novelty, inventiveness or practical applicability;
       - the description does not set forth the invention in a manner sufficiently clear and complete so as to enable a person skilled in the relevant field of technology to carry it out;
       - the claims are not be supported by the description and fail to define the extent of the patent protection sought for in a clear and concise manner;
       - the independent claims do not outline the technical scheme of the invention and lack the indispensable technical features necessary for the scheme to solve the technical problem;
       - the amendment to an invention patent application goes beyond the scope of disclosure recorded in the initial description and claims;
       - the divisional application goes beyond the scope recorded in the initial application.

Res judicata
       Where, after a decision on any request for invalidation of the patent is made, invalidation based on the same reasons and evidence is requested once again, the CNIPA shall refuse to accept it.

Voluntary Amendments
       In the course of the examination of the request for invalidation, the patentee for the invention patent concerned may amend its or his or her claims, but may not broaden the scope of patent protection. Where the CNIPA makes a decision to maintain the validity of the patent or to declare the patent partially invalid on the basis of the amended claims, it shall publish the amended claims.
       The patentee for the invention patent concerned may not amend the description or drawings of the patent.

Oral Hearing
       The CNIPA may, at the request of the parties concerned or in accordance with the needs of the case, decide to hold an oral hearing in respect of a request for invalidation.
       Where the CNIPA decides to hold an oral hearing in respect of a request for invalidation, it will send notifications to the parties concerned, indicating the date and place of the oral hearing to be held. The parties concerned will make response to the notification within the time limit specified in the notification.
       Where the petitioner fails to make response to the notification of the oral hearing sent by the CNIPA within the specified time limit, and fails to take part in the oral hearing, the request for invalidation shall be deemed to have been withdrawn. Where the patentee fails to take part in the oral procedure, the CNIPA may proceed to examine by default.

Withdrawal of Invalidation Request
       The invalidation petitioner may withdraw the request before the CNIPA makes a decision on it.
       Where the petitioner withdraws the request or where the request for invalidation is deemed to have been withdrawn before the CNIPA makes a decision, the examination for the invalidation request is terminated.
       Where, based on the examination work it has done, the CNIPA finds that it is able to make a decision of invalidation or invalidation in part of the patent, the examination procedure shall not be terminated.

Settlement
       In the invalidation proceedings, one party has the right to settle with the other party on their own. Settlement is a voluntary procedure, but not a mandatory procedure.

Recusal
       The parties or other interested parties may request an examiner to recuse if they find that the examiner has certain relationship with the case or the parties that affects the fairness of the examination and trial.

Involving Ownership Dispute
       Where a patent at issue in the invalidation proceedings involves a dispute over ownership, a party of the dispute case may request to participate in invalidation proceedings. If requesting to participate in the invalidation proceedings, the party of the dispute case shall file a request for participating with documents certifying that the ownership dispute case has been accepted by the court or the local intellectual property administrative department. In the invalidation proceedings, the party of the dispute case can file his/her/its opinion for the Panel’s reference.

Involving Early Resolution of Drug Patent Disputes
       The petitioner shall clearly indicate that the case involves the mechanism for early resolution of drug patent disputes in the Request for Invalidation or shall file relevant evidence showing that the invalidation involves the mechanism for early resolution of drug patent disputes in time.

Decision for Invalidation Proceedings
       The CNIPA shall examine the request for invalidation of the patent promptly, make a decision on it and notify the petitioner and the patentee.
       The decision for invalidation request, either declaring the patent invalid or upholding the patent, shall be registered and announced by the CNIPA.
       Where the patentee or the petitioner is not satisfied with the decision of the CNIPA declaring the patent invalid or upholding the patent, such party may, within three months from receipt of the notification of the decision, institute legal proceedings in the people's court.

Validity of a Patent Invalidation Decision
       Any patent which has been declared invalid shall be deemed to be non-existent from the beginning.
       The decision declaring the patent invalid shall have no retroactive effect on any judgment or mediation decision 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 which has been performed prior to the declaration of the patent invalid.
       However, the damage caused to other persons in bad faith on the part of the patentee shall be compensated.
       If not returning of the monetary damage for patent infringement, the fees for exploitation of the patent or fees for the assignment of the patent, pursuant to the above provisions, is obviously contrary to the principle of equity, all or part of the preceding damage or fees shall be returned.

Patent Rights
       After the grant of a patent for invention, except where otherwise provided for in the Patent 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 and use, offer to sell, sell or import the product directly obtained by the patented process, for production or business purposes.

Other Rights and Obligations
       The patentee shall pay an annual fee beginning with the year in which the patent was granted.
       The patentee has the right to affix a patent indication on the patented product or on the package of that product. Making the affixation should be in the manner as prescribed by the CNIPA
       Exercising patent rights shall follow the principle of good faith.
       The patent rights shall not be abused to harm public interests or the legitimate rights and interests of others.
       Where any abuse of patent rights, exclusion or restriction of competition constitutes monopolistic behavior, the Anti-Monopoly Law shall apply.

Term of a Patent
       The term of patent for inventions shall be twenty years, counted from the date of filing.

Patent Term Compensation
       Upon examination on the request for patent term compensation filed, the CNIPA shall make a decision to grant patent term compensation and register and announce the matter if it finds that the patent meets the conditions for compensation, and shall make a decision not to grant patent term compensation and notify the patentee if the patent does not meet the conditions for compensation.

Compensation for unreasonable delay
       Where the invention patent is granted after the expiration of four years from the date of filing and after the expiration of three years from the date of requesting substantive examination, the CNIPA may, at the request of the patentee, grant a patent term compensation for the unreasonable delay in the granting process of the invention patent, except for the unreasonable delay caused by the applicant.
       Where requesting patent term compensation in accordance with the above provisions, the patentee shall file the request with the CNIPA within three months from the date of grant announcement of the patent.
       The compensation period shall be calculated based on the actual number of days of unreasonable delay in the granting process of the invention patent.
       The actual number of days of unreasonable delay in the granting process of the invention patent refers to the number of days calculated by deducting the number of days of reasonable delay and the number of days of unreasonable delay caused by the applicant from the number of days between the date on which four years have elapsed since the filing date of the invention patent application and on which three years have elapsed since the date of requesting substantive examination and the date of grant announcement of the patent.
       The following circumstances are reasonable delay:
       (1) delay caused by reexamination proceedings where patent application documents are granted after being amended in the reexamination proceedings;
       (2) delay caused by disputes over patent application rights or patent ownership, or preservation measures in civil cases; and
       (3) delay caused by other reasonable circumstances.
       Where an applicant applies for both a utility model patent and an invention patent on the same day for the same invention-creation (both-filing or dual-filing strategy) and obtains the invention patent, the patent term of the invention patent shall not be subject to the patent term compensation provisions.
       The unreasonable delays caused by the applicant include the following circumstances:
       (1) failure to respond to the notification issued by CNIPA within the specified time limit;
       (2) requesting a deferred examination;
       (3) delay caused by the circumstances of incorporation by reference to the priority;
       (4) other unreasonable delays caused by the applicant.

Compensation for New Drug Approval
       In order to compensate for the time taken for the review and marketing approval of a new drug in China, for invention patents relating to the new drug approved, the CNIPA may, at the request of the patentee, grant patent term compensation.
       The compensation period shall not exceed five years, and the total effective patent term after the new drug is approved for marketing shall not exceed 14 years.
       The new drug-related invention patent refers to product patents, manufacture method patents, and medical use patents of the new drug.
       The request for patent term compensation for a new drug-related invention patent shall meet the following requirements and be filed with the CNIPA within three months from the date of obtaining marketing approval in China for the new drug:
       (1) where multiple patents exist for the same drug, the patentee can only request patent term compensation for one of those patents;
       (2) where a single patent pertains to multiple drugs, a request for patent term compensation can only be made for one drug in relation to that patent;
       (3) the patent is within the patent term and has not obtained any patent term compensation for new drug-related invention patents.
       The compensation period shall be determined by deducting five years from the number of days between the filing date of the patent application and the date on which the new drug obtains marketing approval in China, on the basis of complying with the compensation period not exceeding five years and the total effective patent term after the new drug is approved for marketing not exceeding 14 years.
       For a new drug-related invention patent, during the compensation period of patent term, the protection scope of the patent is limited to the technical scheme relating to the new drug and the approved indications thereof; within the protection scope, the patentee enjoys the same rights and undertakes the same obligations as before the patent term compensation.

Termination of Patents
       In any of the following cases, the patent shall terminate 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 by a written declaration.
       Any termination of the patent shall be registered and announced by the CNIPA.

Patent Assignment
       A patent may be assigned.
       Where a patent is assigned, the parties shall conclude a written contract and register it with the CNIPA. The CNIPA shall announce the registration.
       Except for the assignment of the patent, where the patent is transferred because of any other reason (e.g. inheritance), the party concerned shall, accompanied by relevant certified documents or legal papers, request the CNIPA to register the change in the owner of the patent.
       Any assignment, by a Chinese entity or individual, of a patent to a foreigner, a foreign enterprise or any other foreign organization shall proceed by going through such formalities that the Chinese assignor shall first submit a technology export application or register the technology export contract with the foreign trade and economic cooperation department of the State Council. After receiving the technology export license or technology export contract registration certificate issued by the foreign trade and economic cooperation department of the State Council, it shall go through the assignment registration procedures with the CNIPA.
       The patent assignment or transfer shall take effect as of the date of registration.

Patent Licensing
       Any entity or individual exploiting the patent of another shall conclude with the patentee a license contract for exploitation and pay the patentee a fee for the exploitation of the patent, patent exploitation fees or royalties.
       The licensee has no right to authorize any entity or individual, other than that referred to in the contract, to exploit the patent.
       Any license contract for exploitation of a patent which has been concluded by the patentee with an entity or individual shall, within three months from the date of entry into force of the contract, be submitted to the CNIPA for recording.
       Where any patent for invention, belonging to any state-owned enterprise or institution, is of great significance to the interest of the State or to the public interest, 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 spread and 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.

Open License

Basic Principle
       Where the patentee voluntarily declares in writing to the CNIPA that he/it is willing to license any entity or individual to exploit his/its patent and specifies the payment method and standard of the royalty, the CNIPA shall make an announcement and implement open licensing.
       The content of an open license declaration shall be accurate, clear and shall not contain commercial advertising.
       During the implementation period of the open license, the patent annual fee paid by the patentee shall be reduced or exempted accordingly.
       Any patentee shall not, by means of providing false materials or concealing facts, make open license declarations or obtain annuity reductions during the open license implementation period.

Non-applicable
       Where any patent falls under any of the following circumstances, the patentee shall not implement open license for the patent:
       1) the patent is within the validity term of an exclusive or sole license;
       2) the patent is involved in suspension due to disputes over patent application rights or patent ownership, or preservation measures in civil cases;
       3) the annuity is not paid as required;
       4) the patent is pledged, and the consent of the pledgee is not obtained; or
       5) other circumstances that hinder the effective exploitation of the patent.

Withdrawal
       Where the patentee withdraws the open license declaration, it shall be submitted in writing and be announced by the CNIPA. Where the open license declaration is withdrawn by announcement, the validity of the open license granted earlier shall not be affected.

Procedures
       Any entity or individual who wishes to exploit an open-licensed patent may notify the patentee in writing and pay the exploitation fee or royalty in accordance with the announced method and standard for royalty payment to obtain a patent license.
       Where a patent license is granted via open license, the patentee or the licensee shall record the license with the CNIPA based on written documents that can sufficiently prove the grant of the license.

Types
       The patentee who implements open licensing may grant a general license after negotiating with the licensee on exploitation fee or royalty, but may not grant an exclusive or a sole license for the patent.

Disputes
       Where the parties have disputes over the implementation of an open license, the parties may resolve through negotiation; where the parties are unwilling to negotiate or the negotiation fails, they may request the CNIPA for mediation or institute legal proceedings in the people's court.

Compulsory License

Basic Applicable Circumstances
       Under any of the following circumstances, the CNIPA may, upon the request of an entity or individual which is qualified to exploit the invention, grant a compulsory license to exploit the patent for invention:
       (1) where the patentee, after the expiration of three years from the date of the grant of the patent and the expiration of four years from the date of filing, does not exploit or does not sufficiently exploit the patent without any justified reason;
       (2) where the exercising of the patent by the patentee is legally determined as an act of monopoly, for the purposes of eliminating or reducing the adverse effects of the act on competition.
The insufficient exploitation of the patent mentioned above means the manner or scale of the exploitation of patent by the patentee and/or the licensee authorized cannot satisfy the demands of the domestic market for the patented product or patented process.

Special Applicable Circumstances
       Where a national emergency or any extraordinary state of affairs occurs, or where the public interest so requires, the CNIPA may grant a compulsory license to exploit the patent for invention.
For the purposes of public health, the CNIPA may grant a compulsory license to manufacture a pharmaceutical product which has been granted a patent and export it to countries or regions specified in the relevant international treaties to which China is party. The pharmaceutical product to which patent has been granted means any patented product, or product directly obtained by a patented process, of pharmaceutical sector needed to address public health problems, including the patented active ingredients necessary for the manufacture of the product and the diagnostic kits needed for its use.
       Where the invention for which the patent has been granted involves important technical advance of considerable economic significance in relation to another invention for which a patent has been granted earlier and the exploitation of the later invention or utility model depends on the exploitation of the earlier invention, the CNIPA may, upon the request of the later patentee, grant a compulsory license to exploit the earlier invention. The CNIPA may, upon the request of the earlier patentee, also grant a compulsory license to exploit the later invention.
       Where the invention-creation involved in the compulsory license relates to the semi-conductor technology, the exploitation thereof shall be limited only (1) for the purpose of public interest or (2) for the purposes of eliminating or reducing the adverse effects of the act on competition, where the exercising of the patent by the patentee is legally determined as an act of monopoly.
       Except for compulsory licenses granted for (1) the purposes of eliminating or reducing the adverse effects of the act on competition, where the exercising of the patent by the patentee is legally determined as an act of monopoly; or (2) the purposes of public health, where the CNIPA grants a compulsory license to manufacture a pharmaceutical product which has been granted a patent and export it to countries or regions specified in the relevant international treaties to which China is party, the exploitation of any compulsory license shall be executed predominately for the supply of the domestic market.
       For (1) where the patentee, after the expiration of three years from the date of the grant of the patent and the expiration of four years from the date of filing, does not exploit or does not sufficiently exploit the patent without any justified reason, or (2) where the invention or utility model for which the patent has been granted involves important technical advance of considerable economic significance in relation to another invention or utility model for which a patent has been granted earlier and the exploitation of the later invention or utility model depends on the exploitation of the earlier invention or utility model, an entity or individual requesting a compulsory license for exploitation shall furnish proof to show that it or he has made requests for authorization from the patentee to exploit its or his patent on reasonable terms and conditions, and such efforts have not been successful within a reasonable period of time.

Request and Examination
       Any entity or individual requesting a compulsory license shall submit to the CNIPA a request for compulsory license, state the reasons thereof, and attach relevant certifying documents.
The CNIPA shall send a copy of the request for compulsory license to the patentee, who shall make his or its or her observations within the specified time limit. Where no response is made within the time limit, the CNIPA will not be affected in making its decision.
       Before making a decision to reject a request for compulsory license or to grant a compulsory license, the CNIPA shall, notify the requesting person and the patentee the decision that is to be made and the reasons thereof.
       The decision of the CNIPA on granting a compulsory license, for manufacture a pharmaceutical product which has been granted a patent and export it to countries or regions specified in the relevant international treaties to which China is party for the purposes of public health, shall be also in conformity with the provisions of the relevant international treaties on granting compulsory license for the purposes of addressing public health issue, to which China is party, except for provisions on which China has made reservation.

Decision and Announcement
       The decision made by the CNIPA granting a compulsory license for exploitation shall be notified promptly to the patentee concerned, and shall be registered and announced.
       In the decision granting the compulsory license for exploitation, the scope and duration of the exploitation shall be specified on the basis of the reasons justifying the grant. If and when the circumstances which led to such compulsory license cease to exist and are unlikely to recur, the CNIPA may, after review upon the request of the patentee, terminate the compulsory license.

Restriction and Fee
       Any entity or individual that is granted a compulsory license for exploitation shall not have an exclusive right to exploit and shall not have the right to authorize any others to exploit.
       The entity or individual that is granted a compulsory license for exploitation shall pay to the patentee a reasonable exploitation fee or royalty, or deal with the issue of exploitation fee or royalty according to relevant provisions of the international treaties to which China is party.
       Where the exploitation fee or royalty is paid, the amount shall be negotiated by both parties. Where the parties fail to reach an agreement, the CNIPA shall adjudicate.
The CNIPA shall make an adjudication within three months from the date of receipt of the request and notify the parties concerned accordingly.

Not Satisfied with the Decision
       Where the patentee is not satisfied with the decision of the CNIPA granting a compulsory license for exploitation, or where the patentee or the entity or individual that is granted the compulsory license for exploitation is not satisfied with the decision made by the CNIPA regarding the exploitation fee or royalty, it or he may, within three months from the date of receipt of the notification, institute legal proceedings in the people's court.

Pledge
       Where any patent is pledged, both the pledger and the pledgee shall jointly register the contract of pledge with the CNIPA.

Patent Protection
       After the grant of the patent for invention, except where otherwise provided for in the Patent 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, and use, offer to sell, sell or import the product directly obtained by the patented process, for production or business purposes.
       The scope of protection of the patent for invention shall be determined by its claims. The description and the drawings may be used to interpret the content of the claims.
       Where a dispute arises as a result of the exploitation of a patent without the authorization of the patentee, that is, the infringement of the patent of the patentee, it shall be settled through consultation by the parties. Where the parties are not willing to consult with each other or where the consultation fails, the patentee or any interested party may institute legal proceedings in the people's court, or request the administrative authority for patent affairs to handle the matter.
       Prescriptive period for instituting legal proceedings concerning the infringement of patent is three years counted from the date on which the patentee or any interested party obtains or should have obtained knowledge of the infringing act.
       Where no appropriate fee for exploitation of the invention, subject of an application for patent for invention, is paid during the period from the publication of the application to the grant of a patent, prescriptive period for instituting legal proceedings by the patentee to demand the fee is three years counted from the date on which the patentee obtains or should have obtained knowledge of the exploitation of his invention by another person. However, where the patentee has already obtained or should have obtained knowledge before the date of the grant of the patent, the prescriptive period shall be counted from the date of the grant.
       For details on judicial and administrative remedies, please refer to "Outline of CN Patent System II: Patent Protection".

Principles for Administration
       The CNIPA shall handle any patent application and patent-related request according to law and in conformity with the requirements of being objective, fair, accurate and timely.
       The CNIPA shall strengthen the construction of a patent information public service system, release patent information in a complete, accurate, and timely manner, provide basic patent data, publish patent gazette on a regular basis, and promote the dissemination and utilization of patent information.

Integrity
       The administrative authority for patent affairs may not take part in recommending any patented product for sale to the public or any such commercial activities. Where the administrative authority for patent affairs violates the provisions of the preceding paragraph, it shall be ordered by the authority at the next higher level or the supervisory authority to correct its mistakes and eliminate the bad effects. The illegal earnings, if any, shall be confiscated. Where the circumstances are serious, the persons who are directly in charge and other persons who are directly responsible shall be given sanction in accordance with law.
       Where any State functionary working for patent administration or any other State functionary concerned neglects his duty, abuses his power, or engages in malpractice for personal gain, which constitutes a crime, shall be prosecuted for his criminal liability in accordance with law. If the case is not serious enough to constitute a crime, he shall be given sanction in accordance with law.

Recusal
       Where any of the following events occurs, any examiner who conducts examination in the procedures of preliminary examination, substantive examination, reexamination or invalidation shall, on his or her own initiative or upon the request of the parties concerned or any other interested person, be recused from exercising his or her function:
       (1) where he or she is a near relative of the party concerned or the agent of the party concerned;
       (2) where he or she has an interest in the patent application or the patent at issue;
       (3) where he or she has any other kinds of relations with the party concerned or with the agent of the party concerned that may influence impartial examination;
       (4) in reexamination or invalidation proceedings, where he or she has taken part in the examination of the same application.

Confidentiality
       Until the publication or announcement of a patent application, staff members and other persons involved of the CNIPA have the duty to keep its contents confidential.

Dates, Time Limits and Revival/Restoration

Date of Filing
       Where any document is sent by mail to the CNIPA, the date of mailing indicated by the postmark on the envelope shall be deemed to be the date of filing; where the date of mailing indicated by the postmark on the envelope is illegible, the date on which the CNIPA receives the document shall be the date of filing, except where the date of mailing is proved by the party concerned.
       Where various documents are submitted in electronic form to the CNIPA, the date on which the documents enter the specific electronic system designated by the CNIPA shall be the date of filing.

Date of Receipt
       Where any document is sent by mail by the CNIPA, the 15th day from the date of mailing shall be presumed to be the date on which the party concerned receives the document. Where the party concerned provides evidence proving the date of actual receipt of the documents, the date of actual receipt shall prevail.
       Where any document is delivered personally in accordance with the provisions of the CNIPA, the date of delivery is the date on which the party concerned receives the document.
       Where the address of any document is not clear and it cannot be sent by mail, the document may be served by making an announcement. At the expiration of one month from the date of the announcement, the document shall be deemed to have been served.
       For various documents served in electronic form by the CNIPA, the date on which they enter the electronic system recognized by the party concerned shall be the date of service.

Time Limits
       The date on which the time limit prescribed in the Patent Law and its Implementing Regulations begins shall not be counted in the time limit, and the calculation shall start from the next day.
       Where the time limit is counted by year or by month, it shall expire on the corresponding day of the last month; if there is no corresponding day in that month, the time limit shall expire on the last day of that month; if a time limit expires on an official holiday, it shall expire on the first working day following that official holiday.

Revival or Restoration
       Force Majeure: Where a time limit prescribed in the Patent Law or these Implementing Regulations or specified by the CNIPA is not observed by a party concerned because of force majeure, resulting in loss of his or her or its rights, he or she or it may, within two months from the date on which the impediment is removed and within two years immediately following the expiration of that time limit request the CNIPA to restore his or her or its rights.
       Other Justified Reasons: Where a time limit prescribed in the Patent Law or its Implementing Regulations or specified by the CNIPA is not observed by a party concerned because of any other justified reason except for force majeure, resulting in loss of his or her or its rights, he or she or it may, within two months from the date of receipt of a notification from the CNIPA, request the CNIPA to restore his or her or its rights. However, where the time limit for requesting reexamination is not observed, he/she/it may, within two months from the expiration of the time limit for requesting reexamination, request the CNIPA to restore his/her/its rights.
       Where requesting to restore his or her or its right due to the situations of the above two paragraphs, he or she or it shall submit a request for restoration of his or her or its right, stating the reasons, attaching, if necessary, the relevant certifying documents, pay official fees, and go through the relevant formalities which should have been complied with before the loss of his or her or its right.
       Where the party concerned makes a request for an extension of a time limit specified by the CNIPA, he or she or it shall, before the time limit expires, file a request for extension of time limit, state the reasons to the CNIPA and go through the relevant formalities.

Not-allowed Revival or Restoration
       The following time limit is not allowed to revive or restore:
       (1) six months for novelty grace period;
       (2) twelve months for claiming a priority of a patent for invention application;
       (3) twenty years of invention patent term; and
       (4) three years of prescriptive period for instituting legal proceedings concerning the infringement of patent; and three years of prescriptive period for instituting legal proceedings by the patentee to demand appropriate fee for exploitation of the invention during the period from the publication of the application to the grant of a patent.

Files and Patent Register
       The CNIPA shall keep a Patent Register in which the registration of the following matters relating to patent application or patent shall be made:
       (1) any grant of the patent;
       (2) any transfer of the right of patent application or the patent;
       (3) any pledge of the patent, preservation and release thereof;
       (4) any patent license contract recorded;
       (5) any declassification of national defense patents or secret patents;
       (6) any declaration of patent invalidation;
       (7) any termination of patent;
       (8) any restoration of patent;
       (9) any compensation for patent term;
       (10) any open license for patent exploitation;
       (11) any compulsory license for patent exploitation;
       (12) any change in the name or title, nationality and address of the patentee.

Review/copy Files and Register
       Any person may, after approval by the CNIPA, consult or copy the files of the published or announced patent applications and the Patent Register.
       Any person may request the CNIPA to issue a copy of extracts from the Patent Register.

File Preservation
       The files of the patent applications which have been withdrawn or deemed to be withdrawn or which have been rejected, shall not be preserved after expiration of two years from the date on which the applications cease to be valid.
       Where the patent has been abandoned, wholly invalidated or terminated, the files shall not be preserved after expiration of three years from the date on which the patent ceases to be valid.

Patent Gazette
       The CNIPA shall publish the Patent Gazette at regular intervals, publishing or announcing the following:
       (1) the bibliographic data and the abstract of the description of an invention patent application;
       (2) any request for substantive examination of an invention patent application and any decision made by the CNIPA to conduct on its own initiative the substantive examination of an invention patent application;
       (3) any rejection, withdrawal, deemed withdrawal, deemed abandonment, restoration and transfer of an invention patent application after its publication;
       (4) any grant of patent and the bibliographic data of the patent;
       (5) the abstract of the description of a utility model patent, one drawing or photograph of a design patent;
       (6) any declassification of national defense patent or secret patent;
       (7) any declaration of patent invalidation;
       (8) any termination or restoration of patent;
       (9) any compensation for patent term
       (10) any transfer of patent;
       (11) any recordal of patent license contract;
       (12) any pledge of patent, preservation and the release thereof;
       (13) any matter related to patent open license;
       (14) any grant of patent compulsory license;
       (15) any change in the name or title, nationality and address of the patentee;
       (16) any service of documents by way of making an announcement;
       (17) any correction made by the CNIPA; and
       (18) any other related matters.

Official Fees
       When any person files a patent application with, or has other formalities to go through at, the CNIPA, he or she or it shall pay the following fees:
       (1) filing fee, additional fee for filing an application, printing fee for publishing the application, and fee for claiming priority;
       (2) fee for substantive examination for an invention patent application, and reexamination fee;
       (3) annual fee;
       (4) fee for requesting restoration of right, and fee for requesting extension of time limit;
       (5) fee for making a change in the bibliographic data, fee for requesting for evaluation report of patent, and fee for requesting for patent invalidation, fee for certifying a copy of patent documents.
       The applicant shall pay the filing fee, the printing fee for the publication of the application and the necessary additional fee for filing an application within two months from the filing date or fifteen days from the receiving date of filing receipt of the application. If the fees are not paid or not paid in full within the time limit, the application shall be deemed to be withdrawn.
       Where claiming priority, the applicant shall pay the fee for claiming priority at the same time with the payment of the filing fee. If the fee is not paid or not paid in full within the time limit, the claim for priority shall be deemed not to have been made.
       For a request for substantive examination or a reexamination, the relevant fee shall be paid within the time limit as prescribed respectively by related regulations. If the fee is not paid or not paid in full within the time limit, the request is deemed not to have been made.
       When going through the formalities of registration of the grant of patent, the applicant shall pay the annual fee of the year in which the patent is granted. If such fees are not paid or not paid in full within the time limit, the registration of the grant of patent shall be deemed not to have been made.
       The annual fee of the patent after the year in which the patent is granted shall be paid before the expiration of the preceding year. If the patentee fails to pay or pay in full the fee, the CNIPA shall notify the patentee to pay the fee or to make up the insufficiency within six months from the expiration of the time limit within which the annual fee is due to be paid, and at the same time pay a surcharge. The amount of the surcharge shall be, for each month of late payment, 5% of the whole amount of the annual fee of the year within which the annual fee is due to be paid. Where the fee and the surcharge are not paid within the time limit, the patent shall terminate from the expiration of the time limit within which the annual fee should be paid.
       Where having difficulties in paying the various official fees prescribed, any applicant or patentee may, in accordance with the prescriptions, submit a request for fee reduction to the CNIPA.

       If you have any question about the protection of intellectual property rights, please feel free to send us emails. For patent-related matters, please send to info@afdip.com. For trademark/litigation/legal matters, please send to info@bhtdlaw.com.