发明专利申请文件的法律规定讲解



发明专利申请文件的法律规定：

发明专利申请请求书：这是发明专利申请的必要文件，它描述了发明的主要内容和技术领域，同时列出了申请人的基本信息。

说明书摘要：这是一份简短的摘要，概括了发明的关键技术特点和优势。它必须简洁明了，一般不超过300字。

摘要附图：是说明书摘要中提到的图表或示意图，须清晰地展示发明的关键技术特点和优势。

权利要求书：这是发明专利申请的核心文件之一，它详细描述了发明的技术特征和保护范围。

说明书：这是对发明的详细描述，包括对技术的解释、背景技术的介绍、发明内容的描述以及实施方式等。

附图：说明书中的图表或示意图，它们用于解释和说明发明的技术特征和实施方式。附图必须清晰、准确。

附件：这些是与发明相关的辅助文件，例如实验报告、数据分析等。

China National Intellectual Property Administration Law Patent Law of the People‘s Republic of China (2022 Amendment)


Document Number：Order No。 55 of the President of the People’s Republic of China Area of Law： General Provisions on Patent Level of Authority： Laws Date Issued：10-17-2022 Effective Date：06-01-2022 Issuing Authority： Standing Committee of the National People‘s Congress Status： Effective 2008-2022 Annotation Version 2000-2008 Annotation Version 1992-2000 Annotation Version 1984-1992 Annotation Version Patent Law of the People’s Republic of China(Adopted at the 4th Session of the Standing Committee of the Sixth National People‘s Congress on March 12， 1984； amended for the first time by the Decision on Amending the Patent Law of the People’s Republic of China adopted at the 27th Session of the Standing Committee of the Seventh National People‘s Congress on September 4， 1992； amended for the second time by the Decision on Amending the Patent Law of the People’s Republic of China， adopted at the 17th Session of the Standing Committee of the Ninth National People‘s Congress on August 25， 2000； amended for the third time by the Decision of the Standing Committee of the National People’s Congress on Amending the Patent Law of the People‘s Republic of China adopted at the 6th Session of Standing Committee of the 11th National People’s Congress of the People‘s Republic of China on December 27， 2008； and amended for the fourth time in accordance with the Decision of the Standing Committee of the National People’s Congress to Amend the Patent Law of the People‘s Republic of China adopted at the 22nd Session of the Standing Committee of the Thirteenth National People’s Congress of the People‘s Republic of China on October 17， 2022)ContentsChapter I General ProvisionsChapter II Conditions for Granting PatentsChapter III Application for PatentsChapter IV Examination and Approval of Patent ApplicationsChapter V Duration， Termination and Invalidation of PatentsChapter VI Compulsory License for the Exploitation of PatentsChapter VII Protection of PatentsChapter VIII Supplementary ProvisionsChapter I General ProvisionsArticle 1 This law is enacted for the purpose of protecting the legitimate rights and interests of patentees， encouraging inventions， giving an impetus to the application of inventions， improving the innovative capabilities， and promoting scientific and technological progress as well as the economic and social development。Article 2 The “inventions” as used in this Law means inventions， utility models and designs。The term “invention” refers to any new technical solution relating to a product， a process or an improvement thereof。The term “utility model” refers to any new technical solution relating to a product’s shape， structure， or a combination thereof， which is fit for practical use。“Design” means a new design of the shape， pattern， or a combination thereof， as well as a combination of the color， shape and pattern， of the entirety or a portion of a product， which creates an aesthetic feeling and is fit for industrial application。Article 3 The patent administrative department of the State Council shall be responsible for the administration of the patent work throughout China， uniformly accept and examine applications for patents， and grant patents in accordance with the law。The patent administrative department of the people‘s government of each province， autonomous region， or municipality directly under the Central Government shall take charge of the administration of patents within its own jurisdiction。Article 4 Where the invention for which a patent is applied for relates to the security or other vital interests of the State and is required to be kept confidential， the application shall be handled in accordance with the relevant provisions of the State。Article 5 No patent shall be granted for an invention that contravenes any law or social moral or that is detrimental to public interests。No patent will be granted for an invention based on genetic resources if the access or utilization of the said genetic resources is in violation of any law or administrative regulation。Article 6 An invention-creation made by a person in the execution of tasks of the entity employing the person or mainly by taking advantage of the entity’s material and technical conditions is a service invention-creation。 The right to apply for a patent for a service invention-creation belongs to the entity； and after the application is granted， the entity is the patentee。 The entity may， in accordance with the law， dispose of its right to apply for the patent for the service invention-creation and the patent right， and promote the exploitation and application of the invention-creation。For any non-service invention， the right to apply for a patent shall remain with the inventor or designer。 After the application is approved， the inventor or designer shall be the patentee。For an invention made by a person by taking advantage of the material and technical means of the entity where he works， if there is a contract between the entity and the inventor or designer regarding the right to apply for patent and the ownership of the patent， the contractual stipulations shall prevail。Article 7 No entity or individual shall prevent the inventor or designer from filing an application for patenting a non-service invention。Article 8 For an invention made through the joint work of two or more entities or individuals， or made by an entity or individual upon the authorization of another entity or individual， the right to apply for a patent shall， unless it is otherwise agreed upon， remain with the entity or individual which made the invention or with the entities or individuals which jointly made the invention。 After the application is approved， the entity (or entities) or individual(s) that filed the application shall be the patentee。Article 9 One patent shall be granted to one invention。 However， if a same applicant applied for both a patent for utility model and a patent for invention on a same day， if the patent for the utility model it has previously applied for has not terminated yet and if the applicant declares to waive the patent for utility model， the patent for invention can be granted。Where two or more applicants file applications for a patent for an identical invention， the patent shall be granted to the applicant who is the first to file an application。Article 10 The right to apply for a patent and the patent rights may be assigned。Where a Chinese entity or individual is to assign the right to apply for a patent or a patent right to a foreigner or foreign enterprise or any foreign organization， it or he shall go through the formalities under relevant laws and administrative regulations。Where the right to apply for a patent or a patent right is assigned， the parties concerned shall conclude a written contract， and have the contract registered in the patent administrative department of the State Council。 The said contract shall be announced by the patent administrative department of the State Council。 The assignment of the right to apply for the patent or the patent right shall come into force as of the date of registration。Article 11 After the granting of patent for an invention or utility model， unless it is otherwise prescribed by this Law， no entity or individual is entitled to， without permission of the patentee， exploit the patent， that is， to make， use， promise the sale of， sell or import the patented product， or use the patented process and use， promise the sale of， sell or import the product directly obtained from the patented process， for production or business purposes。After the granting of a patent for a design， no entity or individual shall， without permission of the patentee， exploit the patent， that is to say， they shall not make， promise to sell， sell， or import the product incorporating its or his patented design， for production and business purposes。Article 12 Where an entity or individual exploits the patent of anyone else， it or he shall conclude a licensing contract with the patentee and pay a patent royalty to the patentee。 The licensee has no right to license any entity or individual other than the entity or individual as stipulated in the licensing contract to exploit the said patent。Article 13 After the publication of an application for a patent for invention， the applicant may require the entity or individual exploiting the invention to pay an appropriate fee。Article 14 If there is any agreement between the joint owners of the right to apply for a patent or a patent right regarding the exercise of the relevant right， the agreement shall be followed。 If there is no such agreement， any of the joint owners may exploit the patent independently or license others to exploit the patent by means of ordinary license。 In the case of licensing others to exploit the patent， royalties charged shall be distributed among the joint owners。Except for the circumstance as described in the preceding paragraph， the exercise of the right to apply for a patent or a patent right shall be based on the consensus of all joint owners。Article 15 The entity to whom a patent is granted shall give to the inventor or designer of the service invention a reward and shall， after exploitation of the patented invention， pay the inventor or designer a reasonable remuneration on the basis of the scope of popularization and application as well as the economic benefits yielded。The state encourages entities to which patent rights are granted to implement property right incentives， and enable inventors or designers to rationally share the benefits of innovation in forms such as equities， options， and dividends。Article 16 An inventor or designer has the right to expressly indicate in the patent documents that he is the inventor or designer。A patentee has the right to label the patent on its patented product or on the package of the said product。Article 17 Where any foreigner， foreign enterprise or other foreign organization that has 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 the agreement， if any， concluded between the country to which the applicant belongs and China， or in accordance with any international treaty to which both countries are a party， or on the basis of the principle of reciprocity。Article 18 Where a foreigner， foreign enterprise or any other foreign organization that has no habitual abode or business office in China intends to apply for a patent or handle other patent-related matters in China， he or it shall authorize a legitimately formed patent agency to act on his or its behalf。To apply for a patent or handle other patent-related matters in China， a Chinese entity or individual may authorize a legitimately formed patent agency to act on its or his behalf。A patent agency shall abide by the laws and administrative regulations when filing applications for patents or handling other patent affairs as entrusted by the principal。 It shall also be obligated to keep confidential the contents of the principal‘s invention， unless the application for patent has been published or announced。 The specific measures for the administration of patent agencies shall be formulated by the State Council。Article 19 Where an entity or individual intends to file an application in a foreign country for patenting an invention or utility model accomplished in China， it or he shall report in advance to the patent administrative department of the State Council for confidentiality review。 The provisions of the State Council shall be followed in regard to the procedures and time limit for the confidentiality review。A Chinese entity or individual may， in accordance with the relevant international treaties acceded to by the People’s Republic of China， file an international application for patent。 An applicant who files an international application for patent shall abide by the provisions of the preceding paragraph。The patent administrative department of the State Council shall handle international applications for patent in accordance with the relevant international treaties acceded to by the People‘s Republic of China， this Law， and the relevant provisions of the State Council。As to an invention or utility model for which a patent application is filed in a foreign country by violating the provision of paragraph 1 of this Article， no patent will be granted to it if a patent application has been filed in China。Article 20 Patent applications and the exercise of patent rights shall adhere to the principle of good faith。 Patent rights shall not be abused to damage the public interest or the lawful rights and interests of any other person。Any abuse of patent rights to preclude or restrict competition， which constitutes a monopolistic act， shall be handled in accordance with the Anti-monopoly Law of the People’s Republic of China。Article 21 The patent administrative department of the State Council shall， pursuant to the requirements of objectivity， impartiality， accuracy and timeliness， handle the relevant patent applications and appeals。The patent administrative department of the State Council shall strengthen the construction of the patent information public service system， release patent information in a complete， accurate， and timely manner， provide basic patent data， publish patent gazettes on a periodical basis， and promote the dissemination and utilization of patent information。Before an application for patent is published or announced， the functionaries and other relevant persons of the patent administrative department of the State Council shall keep confidential the contents therein。Chapter II Conditions for Granting PatentsArticle 22 An invention or utility model for which a patent is to be granted shall be novel， inventive and practically applicable。Novelty means that the invention or utility model is not an existing technology， and prior to the date of application， no entity or individual has filed an application heretofore with the patent administrative department of the State Council for the identical invention or utility model and recorded it in the patent application documents or patent documents released after the said date of application。Inventiveness means that， as compared with the technology existing before the date of application 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。The term “existing technology” as mentioned in this Law refers to the technologies known to the general public both at home and abroad prior to the date of application。Article 23 Any design for which a patent is granted shall not be attributed to the existing design， and no entity or individual has， before the date of application， filed an application with the patent administrative department of the State Council on the identical design and recorded it in the patent documents published after the date of application。As compared with the existing design or combination of the existing design features， the design for which a patent is granted shall have distinctive features。The patented design may not conflict with the lawful rights that have been obtained by any other person prior to the date of application。The term “existing design” as used in this Law refers to a design known to the general public both at home and abroad prior to the date of application。Article 24 An invention for which a patent is applied for does not lose its novelty where， within six months before the date of application， one of the following events occurred：(1) it is disclosed to the public for the first time in the public interest， when a state of emergency or any extraordinary circumstance 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。Article 25 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) nuclear transformation methods and substances obtained in the method of nuclear transformation； and(6) the design， which is used primarily for the identification of pattern， color or the combination of the two on printed flat works。For processes used in producing products referred to in items (4) of the preceding paragraph， a patent may be granted in accordance with the provisions of this Law。Chapter III Application for PatentsArticle 26 Where an application for a patent for invention or utility model is filed， a request， a description and its abstract， and claims shall be submitted。An application shall expressly specify the name of the invention or utility model， name of the inventor， name and address of the applicant， and other matters。The description shall clearly and completely describe the invention or utility model 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 or utility model。The claims shall clearly and concisely state the requested patent protection scope in accordance with the specifications。For an invention based on genetic resources， the applicant shall state the direct source and the original source of the genetic resources in the application documents。 If the applicant is not able to state the original source， it or he shall state the reasons。Article 27 To apply for patenting a design， the applicant shall submit an application， pictures or photos of the design， a brief introduction to the design， and other documents。The relevant pictures or photos submitted by the applicant shall clearly show the product‘s design for which the patent protection is requested。Article 28 The date on which the patent administrative department of the State Council receives the application shall be the date of application。 If the application is sent by mail， the date of mailing indicated by the postmark shall be the date of application。Article 29 Where， within twelve months from the date on which any applicant first filed in a foreign country an application for patenting an invention or utility model， or within six months from the date on which any applicant first filed in a foreign country an application for patenting a design， he or it files in China an application for patenting the same， he or it may， in accordance with any agreement concluded between the said foreign country and China， or in accordance with any international treaty to which both countries are a party， or on the basis of the principle of mutual recognition of the right to priority， enjoy the right to priority。Where， within 12 months from the date of filing of the first application for a patent for an invention or utility model in China， or within six months from the date of filing of the first application for a patent for a design in China， the applicant files again an application for a patent for the same subject matter with the patent administrative department of the State Council， the applicant may enjoy a right of priority。Article 30 An applicant which claims a right of priority for an invention or utility model patent shall file a written declaration at the time of application， and within 16 months from the date of filing of the first application， submit a duplicate of the first patent application documents。An applicant which claims a right of priority for a design patent shall file a written declaration at the time of application， and submit a duplicate of the first patent application documents within three months。An applicant which fails to file the written declaration or submit the duplicate of the patent application documents within the prescribed time limit shall be deemed to have not claimed a right of priority。Article 31 An application for a patent for invention or utility model shall be limited to one invention or utility model。 Two or more inventions or utility models attributed to a single general inventive concept may be filed as one application。An application for a design patent shall be limited to one design。 As to two or more similar designs for the same product or for products which fall into the same class and are sold or used in sets， an application for one design may be filed。Article 32 An applicant may withdraw his or its application for a patent at any time before the patent right is granted。Article 33 An applicant may make modifications to his or its application for a patent， but the modifications to the application for a patent for invention or utility model may not go beyond the scope of the disclosure contained in the initial description and claims， and the modifications to the application for a patent for design may not go beyond the scope of the disclosure as shown in the initial drawings or photographs。Chapter IV Examination and Approval of Patent ApplicationsArticle 34 Where， after having received an application for patenting an invention， the patent administrative department of the State Council finds， upon preliminary examination， that the application is in conformity with the requirements of this Law， it shall publish the application promptly after the lapse of eighteen full months from the date of application。 Upon the request of the applicant， the patent administrative department of the State Council may publish the application earlier。Article 35 Upon the request of the invention patent applicant made at any time within three years from the date of application， the patent administrative department of the State Council will make a substantive examination on the application。 If， without any justifiable reason， the applicant fails to request a substantive examination within the limit， the application shall be deemed to have been withdrawn。The patent administrative department of the State Council may， on its own initiative， make a substantive examination on the application for a patent for invention when it deems it necessary。Article 36 When the invention patent applicant requests a substantive examination， he or it shall furnish the reference materials of the invention that existed prior to the date of application。Where an invention patent applicant has filed in a foreign country an application for a patent for the same invention， the patent administrative department of the State Council may require the applicant to submit within the specified time limit references retrieved for the purpose of examining that application， or the references of the examination result， in that country。 If， without any justifiable reason， the said materials are not submitted within the specified time limit， the application shall be deemed to have been withdrawn。Article 37 Where the patent administrative department of the State Council， after it has made the substantive examination on an invention patent application， finds that the application conforms to the provisions of this Law， it shall notify the applicant， requiring him or it to make a statement or revise the application within a specified time limit。 If he or it fails to make a response without any justifiable reason， the application shall be deemed to have been withdrawn。Article 38 Where， after the applicant has made a statement or revisions， the patent administrative department of the State Council finds that the invention patent application still does not conform to the provisions of this Law， the application shall be rejected。Article 39 Where it is found after a substantive examination that there is no reason to reject the patent invention application， the patent administrative department of the State Council shall make a decision to grant a patent for the invention， issue an invention patent certificate， and register and announce it。 The patent right for invention shall become effective as of the date of announcement。Article 40 Where it is found after the preliminary examination that there is no reason to reject the application for patenting a utility model or design， the patent administrative department of the State Council shall make a decision to grant a patent for the utility model or design， issue the relevant patent certificate， and register and announce it。 The patent right for utility model or design shall become effective as of the date of announcement。Article 41 A patent applicant may file a request with the patent administrative department of the State Council for a review of the decision of the patent administrative department of the State Council to reject its application， within three months of receipt of a notice of the decision。 After review， the patent administrative department of the State Council shall make a decision， and notify the patent applicant。The patent applicant may file a lawsuit against the review decision made by the patent administrative department of the State Council within three months of receipt of a notice of the decision。Chapter V Duration， Termination and Invalidation of PatentsArticle 42 The term of a patent for an invention shall be 20 years， the term of a patent for a utility model shall be ten years， and the term of a patent for a design shall be 15 years， all commencing from the date of filing of application。Where a patent for an invention is granted four years from the date of filing of application and three years from the date of filing of request for substantial examination， the patent administrative department of the State Council shall， at the request of the patentee， provide patent term extension for unreasonable delay in the patenting process for the invention， except for unreasonable delay caused by the applicant。For the purpose of making up the time required for the assessment and approval of the marketing of a new drug， the patent administrative department of the State Council may， at the request of the patentee， provide patent term extension for an invention patent relating to the new drug approved for marketing in China。 The extension may not exceed five years， and the total effective term of the patent after the new drug is approved for marketing shall not exceed 14 years。Article 43 A patentee shall pay an annual fee beginning with the year in which the patent is granted。Article 44 In any of the following cases， the patent shall be terminated before the expiration of its duration：(1) an annual fee is not paid under relevant provisions；(2) the patentee waives his or its patent by a written declaration。Any patent which is terminated prior to the expiration of its duration shall be registered and announced by the patent administrative department of the State Council。Article 45 Where， as of the announcement of the granting of the patent by the patent administrative department of the State Council， any entity or individual considers that the granting of the said patent does not conform to the relevant provisions of this Law， it or he may request the patent administrative department of the State Council to invalidate the patent right。Article 46 The patent administrative department of the State Council shall timely examine the request for invalidating a patent， make a decision and notify the petitioner and the patentee。 The decision on invalidating the patent shall be registered and announced by the patent administrative department of the State Council。Where any party is dissatisfied with the decision of the patent administrative department of the State Council on declaring a patent invalid or maintaining a patent， such party may， within three months as of receipt of the notification， bring a lawsuit to the people’s court。 The people‘s court shall notify the opposite party in the procedures for requesting invalidation that it or he should participate in the litigation as a third party。Article 47 Any patent right that has been invalidated shall be deemed to be non-existent from the very beginning。The decision on invalidating a patent shall， prior to the invalidation of the patent， have no retroactive effect on any judgment or mediation document on patent infringement which has been made and enforced by the people’s court， on any implemented or compulsorily enforced decision concerning the settlement of a dispute over patent infringement， or on any performed contract for licensing a patent exploitation or for assignment of patent right。 However， the patentee shall compensate for the damages it or he has maliciously caused to others。Where， in accordance with the provisions of the preceding paragraph， the fact that no patent infringement compensation， no royalty for the exploitation of the patent or no patent assignment fee is refunded is obviously contrary to the principle of fairness， it shall be totally or partially refunded。Chapter VI Special Licensing for the Exploitation of PatentsArticle 48 The patent administrative department of the State Council and the departments charged with the administration of patents of the local people‘s governments shall， in conjunction with the relevant departments at the same level， take measures to enhance public services for patents and promote the exploitation and application of patents。Article 49 Where any patent for invention owned by a state-owned enterprise or public institution is of great significance to the interests of the state or to the public interests， the relevant competent department of the State Council and the people’s government of the province， autonomous region， or municipality directly under the Central Government may， upon approval of the State Council， decide to popularize and apply the patent within the approved scope， and allow designated entities to exploit the patent； and the exploiting entity shall， in accordance with the legal provisions of the state， pay royalties to the patentee。Article 50 Where a patentee voluntarily files a written declaration with the patent administrative department of the State Council， indicating its willingness to permit any entity or individual to exploit its patent and specifying the royalty payment methods and rates， the patent administrative department of the State Council shall make an announcement and implement an open license。 If an open license declaration is filed for a utility model or design patent， a patent evaluation report shall be provided。A patentee withdrawing an open license declaration shall make the withdrawal in writing， and the patent administrative department of the State Council shall make an announcement。 The announced withdrawal of an open license declaration shall not affect the validity of the open license granted earlier。Article 51 Any entity or individual intending to exploit a patent under an open license shall obtain the patent exploitation license immediately after notifying the patentee in writing and paying the royalty according to the announced royalty payment methods and rates。During the period of implementation of the open license， the patent annuity paid by the patentee shall be reduced or waived accordingly。The patentee implementing an open license may grant an ordinary license after negotiating with the licensee over royalties， but shall not grant a sole license or exclusive license for the patent。Article 52 Where any dispute arises over the implementation of an open license， the parties shall resolve the dispute through consultations； and if the parties are unwilling to consult or consultation fails， they may request the patent administrative departm