Patent
Examination Criteria
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1、Types of Invention-Creations Protected
by Patent Law
2、Items That Are Not Patentable
3、Patentability
4、Grounds for Rejection
Types
of Invention-Creations Protected by Patent Law
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"In
this Law, "inventions-creations" mean inventions,
utility models and designs." (Chinese Patent Law,
Article 2)
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""Invention"
in the Patent Law means any new technical solution relating
to a product, a process or improvement thereof.
"Utility
model" in the Patent Law means any new technical
solution relating to the shape, the structure, or their
combination, of a product, which is fit for practical
use.
"Design"
in the Patent Law means any new design of the shape,
pattern, or their combination and the combination of
color and shape or design, of a product, which creates
an aesthetic feeling and is fit for industrial application."
(Implementing Regulation Under Chinese Patent Law, Rule
2)
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Items
That Are Not Patentable
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"No
patent right shall be granted for any invention-creation
that is contrary to the laws of the State or social
morality or that is detrimental to public interest."
(Chinese Patent Law, Article 5)
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"For
any of the following, no patent right 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)substances
obtained by means of nuclear transformation.
For
processes used in producing products referred to in
items (4) of the preceding paragraph, patent right may
be granted in accordance with the provisions of this
Law." (Chinese Patent Law, Article 25)
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Patentability
- "Any
invention or utility model for which patent right may
be granted must possess novelty, inventiveness and practical
applicability.
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Novelty
means that, before the date of filing, no identical
invention or utility model has been publicly disclosed
in publications in the country or abroad or has been
publicly used or made known to the public by any other
means in the country, nor has any other person filed
previously with the Patent Administration Department
Under the State Council an application which described
the identical invention or utility model and was published
after the said date of filing.
Inventiveness
means that, as compared with the technology existing
before the date of filing, the invention has prominent
substantive features and represents a notable progress
and that the utility model has substantive features
and represents progress.
Practical
applicability means that the invention or utility model
can be made or used and can produce effective results."
(Chinese Patent Law, Article 22)
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"Any
design for which patent right may be granted must not
be identical with and similar to any design which, before
the date of filing, has been publicly disclosed in publications
in the country or abroad or has been publicly used in
the country, and must not be in conflict with any prior
right of any other person." (Chinese Patent Law,
Article 23)
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"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 exhibited at an international exhibition
sponsored or recognized by the Chinese Government;
(2)where
it was first made public at a prescribed academic or
technological meeting;
(3)where
it was disclosed by any person without the consent of
the applicant." (Chinese Patent Law, Article 24)
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Grounds
for Rejection
- "According
to the provisions of Article 38 of the Patent Law, the
situations where after examination as to substance of
an application for patent for invention shall be rejected
by the Patent Administrative Organ under the State Council
shall comprise the following:
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(1)
where the application does not comply with the provisions
of Rule 2, paragraph one, of these Implementing Regulations;
(2)
where the application falls under the provisions of
Articles 5 or 25 of the Patent Law; or it does not comply
with the provisions of Article 22 of the Patent Law
and Rule 13, paragraph one, Rule 20, paragraph one,
or Rule 21, paragraph two, of these Implementing Regulations,
or the applicant cannot obtain a patent right according
to the provisions of Article 9 of the Patent Law;
(3)
where the application does not comply with the provisions
of Article 26, paragraphs three or four, or Article
31, paragraph one, of the Patent Law;
(4)
where the amendment to the application is not in conformity
with the provision of Article 33 of the Patent Law or
the divisional application is not in conformity with
the provision of Rule 43, paragraph one, of these Implementing
Regulations." (Implementing Regulation Under Chinese
Patent Law, Rule 53)
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