Patent
Examination Procedure
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1、Receiving
of Application
2、Preliminary
Examination
3、Publication on Patent Application for
Invention
4、Substantial Examination on Patent Application
for Invention
5、Granting Patent
Receiving
of Application
- "Upon
the receipt of an application for a patent for invention
or utility model consisting of a request, a description
(a drawing being indispensable for utility model) and
one or more claims, or an application for a patent for
design consisting of a request and one or more drawings
or photographs showing the design, the Patent Administrative
Organ under the State Council shall accord the date
of filing and a filing number and notify the applicant
accordingly. "(Implementing Regulation of Chinese
Patent Law, Rule 39)
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Preliminary
Examination
-
""Preliminary
examination" mentioned in Articles 34 and 40 of
the Patent Law means examining an application for a
patent to see whether or not it contains the documents
as provided for in Articles 26 or 27 of the Patent Law
and other necessary documents, and whether or not those
documents are in the prescribed form; such examination
shall also include the following:
(1)
whether or not an application for a patent for invention
obviously falls under Articles 5 or 25 of the Patent
Law, or is obviously not in conformity with the provisions
of Article 18 or Article 19, paragraph one, of the Patent
Law or is obviously not in conformity with the provisions
of Article 31, paragraph one, or Article 33 of the Patent
Law, or Rule 2, paragraph one, Rule 18 and Rule 20 of
these Implementing Regulations;
(2)
whether or not an application for a patent for utility
model obviously falls under Articles 5 or 25 of the
Patent Law, or is obviously not in conformity with the
provisions of Article 18 or Article 19, paragraph one,
of the Patent Law or is obviously not in conformity
with the provisions of Article 26, paragraphs 3 and
4, Article 31, paragraph one, or Article 33 of the Patent
Law, or Rule 2, paragraph two, or Rule 13, paragraph
1, or Rules 18 to 23, or Rule 43, paragraph one of these
Implementing Regulations, or cannot obtain a patent
right according to the provisions of Article 9 of the
Patent Law;
(3)
whether or not an application for a patent for design
obviously falls under Article 5 of the Patent Law, or
is obviously not in conformity with the provisions of
Article 18 or Article 19, paragraph one, of the Patent
Law, or is obviously not in conformity with the provisions
of Article 31, paragraph two, or Article 33 of the Patent
Law, or Rule 2, paragraph three, or Rule 13, paragraph
one, or Rule 43, paragraph one, of these Implementing
Regulations, or cannot obtain a patent right according
to the provisions of Article 9 of the Patent Law.
The
Patent Administrative Organ under the State Council
shall communicate its observations after examination
of the application to the applicant and invite him or
it to submit his or its observations or to correct his
or its application within the specified time limit.
If the applicant makes no response within the time limit,
the application shall be deemed to have been withdrawn.
Where, after the applicant has made the observations
or the corrections, the Patent Administrative Organ
under the State Council still finds that the application
is not in conformity with the provisions of the Articles
and the Rules referred in the relevant preceding sub-paragraphs,
the application shall be rejected." (Implementing
Regulation Under Chinese Patent Law, Rule 44)
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Publication
on Patent Application for Invention
- "Where,
after receiving an application for a patent for invention,
the Patent Administration Department Under the State
Council, upon preliminary examination, finds the application
to be in conformity with the requirements of this Law,
it shall publish the application promptly after the
expiration of eighteen months from the date of filing.
Upon the request of the applicant, the Patent Administration
Department Under the State Council publishes the application
earlier." (Chinese Patent Law, Article 34)
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Substantial
Examination on Patent Application for Invention
- "Upon
the request of the applicant for a patent for invention,
made at any time within three years from the date of
filing, the Patent Administration Department Under the
State Council will proceed to examine the application
as to its substance. If, without any justified reason,
the applicant fails to meet the time limit for requesting
examination as to substance, the application shall be
deemed to have been withdrawn.
-
The
Patent Administration Department Under the State Council
may, on its own initiative, proceed to examine any application
for a patent for invention as to its substance when
it deems it necessary." (Chinese Patent Law, Article
35)
-
"Where
the Patent Administration Department Under the State
Council, after it has made the examination as to substance
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." (Chinese Patent
Law, Article 37)
-
"Where,
after the applicant has made the observations or amendments,
the Patent Administration Department Under the State
Council finds that the application for a patent for
invention is still not in conformity with the provisions
of this Law, the application shall be rejected."
(Chinese Patent Law, Article 38)
-
"Where it is found after examination as to substance
that there is no cause for rejection of the application
for a patent for invention, the Patent Administration
Department Under the State Council shall make a decision
to grant the patent right for invention, issue the certificate
of patent for invention, and register and announce it.
The patent right for invention shall take effect as
of the date of the announcement." (Chinese Patent
Law, Article 39)
-
"The
Patent Administration Department Under the State Council
shall set up a Patent Reexamination Board. Where an
applicant for patent is not satisfied with the decision
of the said department rejecting the application, the
applicant may, within three months from the date of
receipt of the notification, request the Patent Reexamination
Board to make a reexamination. The Patent Reexamination
Board shall, after reexamination, make a decision and
notify the applicant for patent.
Where
the applicant for patent is not satisfied with the decision
of the Patent Reexamination Board, it or he may, within
three months from the date of receipt of the notification,
institute legal proceedings in the people's court."
(Chinese Patent Law, Article 41)
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Granting
Patent
-
"Where
it is found after preliminary examination that there
is no cause for rejection of the application for a patent
for utility model or design, the Patent Administration
Department Under the State Council shall make a decision
to grant the patent right for utility model or the patent
right for design, issue the relevant patent certificate,
and register and announce it. The patent right for utility
model or design shall take effect as of the date of
the announcement." (Chinese Patent Law, Article
40)
-
"Where
it is found after examination as to substance that there
is no cause for rejection of the application for a patent
for invention, the Patent Administration Department
Under the State Council shall make a decision to grant
the patent right for invention, issue the certificate
of patent for invention, and register and announce it.
The patent right for invention shall take effect as
of the date of the announcement." (Chinese Patent
Law, Article 39)
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