Chapter III Examination and Approval of Application for Patent

Article 38 Where any of the following events occurs, a person who makes examination or hears a case in the procedures of preliminary examination, examination as to substance, reexamination or invalidation shall, on his own initiative or upon the request of the parties concerned or any other interested person, be excluded from exercising his functions:

(1) where he is a near relative of the party concerned or of the latter's agent;

(2) where he has an interest in the application for patent or the patent right;

(3) where he has any other kind of relations with the party concerned or with the latter's agent that may influence impartial examination and hearing.

(4) where he is a member of the Patent Reexamination Board who has ever taken part in the examination of the same initial application.

Article 39 Upon the receipt of an application for a patent for invention or utility model consisting of a request, a description (drawings must be included in an application 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 administration department under the State Council shall accord the date of filing, issue a filing number, and notify the applicant.

Article 40 In any of the following circumstances, the patent administration department under the State Council shall refuse to accept the application document and notify the applicant accordingly:

(1) where the application for a patent for invention or utility model does not contain a request, a description (the description of utility model does not contain drawings) or claims, or the application for a patent for design does not contain a request, drawings or photographs;

(2) where the application document is not written in Chinese;

(3) where the application document is not in conformity with the provisions of Article 120, paragraph one of these Rules;

(4) where the request does not contain the name or title and address of the applicant;

(5) where the application document is obviously not in conformity with the provisions of Article 18, or of Article l9, paragraph one of the Patent Law;

(6) where the category of the application for a patent (patent for invention, utility model or design)is not clear and definite or cannot be ascertained.

Article 41 Where the description states that it contains explanatory notes to the drawings but the drawings or part of them are missing, the applicant shall, within the time limit specified by the patent administration department under the State Council, either furnish the drawings or make a declaration for the deletion of the explanatory notes to the drawings. If the drawings are submitted later, the date of their delivery at, or mailing to, the patent administration department under the State Council shall be the date of filing of the application; if the explanatory notes to the drawings are to be deleted, the initial date of filing shall be retained.

Article 42 Where an application for a patent contains two or more inventions, utility models or designs, the applicant may, before the expiration of the time limit provided for in Article 54, paragraph one of these Rules, submit to the patent administration department under the State Council a divisional application. However, where an application for patent has been rejected or withdrawn or is deemed to have been withdrawn, no divisional application may be filed.

If the patent administration department under the State Council finds that an application for a patent is not in conformity with the provisions of Article 3l of the Patent Law or of Article 35 or 36 of these Rules, it shall invite the applicant to amend the application within a specified time limit; if the applicant fails to make any response after the expiration of the specified time limit, the application shall be deemed to have been withdrawn.

The divisional application may not change the category of the initial application.

Article 43 For a divisional application which is filed in accordance with the provisions of Article 42 of these Rules, the initial date of filing may be retained; if the priority is claimed, the priority date of the initial application may be retained, provided that the divisional application does not go beyond the scope of disclosure contained in the initial application.

The divisional application shall go through all the formalities in accordance with the provisions of the Patent Law and these Rules.

The filing number and the date of filing of the initial application shall be indicated in the request of the divisional application. When a divisional application is filed, it shall be accompanied by a copy of the initial application document; if priority is claimed for the initial application, a copy of the priority document of the initial application shall also be submitted.

Article 44 "Preliminary examination" referred to in Articles 34 and 40 of the Patent Law means the examination of an application for a patent to see whether or not it contains the documents provided for in Article 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 any application for a patent for invention obviously falls under Article 5 or 25 of the Patent Law, or is not in conformity with the provisions of Article l8 or of Article l9, paragraph one, or is obviously not in conformity with the provisions of Article 3l, paragraph one, or Article 33 of the Patent Law or of Article 2, paragraph one, or Article 18, or Article 20 of these Rules;

(2) whether or not any application for a patent for utility model obviously falls under Article 5 or 25 of the Patent Law, or is not in conformity with the provisions of Article l8 or of Article l9, paragraph one of the Patent Law, or is obviously not in conformity with the provisions of Article 26, paragraph three or four, or of Article 3l, paragraph one, or Article 33 of the Patent Law or of Article 2, paragraph two, or of Article l3, paragraph one, or of Articles l8 to 23, or of Article 43, paragraph one of these Rules, or is not entitled to a patent right in accordance with the provisions of Article 9 of the Patent Law;

(3) whether or not any application for a patent for design obviously falls under Article 5 of the Patent Law, or is not in conformity with the provisions of Article l8 or of Article l9, paragraph one of the Patent Law, or is obviously not in conformity with the provisions of Article 3l, paragraph two, or of Article 33 of the Patent Law, or of Article 2, paragraph three, or of Article l3, paragraph one, or of Article 43, paragraph one of these Rules, or is not entitled to a patent right in accordance with the provisions of Article 9 of the Patent Law.

The patent administration department under the State Council shall notify the applicant of its opinions after examining his or its application and invite him or it to state his or its observations or to correct his or its 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 its observations or the corrections, the patent administration department under the State Council still finds that the application is not in conformity with the provisions in the preceding paragraph, the application shall be rejected.

Article 45 Apart from the application for patent, any document relating to the patent application, which the applicant has submitted to the patent administration department under the State Council, shall be deemed not to have been submitted in any of the following circumstances:

(1) where the document is not presented in the prescribed form or the indications therein are not in conformity with the provisions;

(2) where no certifying document is submitted as prescribed.

The patent administration department under the State Council shall notify the applicant of its examination opinion that the document is deemed not to have been submitted.

Article 46 Where the applicant requests an earlier publication of its or his application for a patent for invention, a statement shall be made to the patent administration department under the State Council. The patent administration department under the State Council shall, after preliminary examination of the application, publicize it immediately, unless it is to be rejected.

Article 47 The applicant shall, when indicating in accordance with the provisions of Article 27 of the Patent Law the product incorporating the design and the class to which that product belongs, refer to the classification of products for designs publicized by the patent administration department under the State Council. Where no indication, or an incorrect indication, of the class to which the product incorporating the design belongs is made, the patent administration department under the State Council shall supply the indication or correct it.

Article 48 Any person may, from the date of publication of an application for a patent for invention till the date of announcing the grant of the patent right, submit to the patent administration department under the State Council his observations, with the reasons therefor, on the application which is not in conformity with the provisions of the Patent Law.

Article 49 Where the applicant for a patent for invention cannot furnish, for justified reasons, the documents concerning any search or result of any examination specified in Article 36 of the Patent Law, it or he shall make a statement to the patent administration department under the State Council and submit them when the said documents are available.

Article 50 The patent administration department under the State Council shall, when proceeding on its own initiative to examine an application for a patent in accordance with the provisions of Article 35, paragraph two of the Patent Law, notify the applicant accordingly.

Article 5l When requesting for examination as to substance or within three months after the receipt of the notification of the patent administration department under the State Council that the application has entered into examination as to substance, the applicant for a patent for invention may amend the application for a patent for invention on its or his own initiative.

Within two months from the date of filing, the applicant for a patent for utility model or design may amend the application for a patent for utility model or design on its or his own initiative.

Where the applicant amends the application after receiving the notification of opinions of the examination as to substance of the patent administration department under the State Council, he or it shall make the amendment as required by the notification.

The patent administration department under the State Council may, on its own initiative, correct the obvious clerical mistakes and symbol mistakes in the documents of application for a patent. Where the patent administration department under the State Council corrects mistakes on its own initiative, it shall notify the applicant.

Article 52 When an amendment to the description or the claims in an application for a patent for invention or utility model is made, a replacement sheet in prescribed form shall be submitted, unless the amendment concerns only the alteration, insertion or deletion of a few words. Where an amendment to the drawings or photographs of an application for a patent for design is made, a replacement sheet shall be submitted as prescribed.

Article 53 In accordance with the provisions of Article 38 of the Patent Law, the circumstances in which an application for patent for invention shall be rejected by the patent administration department under the State Council after examination as to substance are as follows:

(1) where the application does not comply with the provisions of Article 2, paragraph one of these Rules;

(2) where the application falls under the provisions of Article 5 or 25 of the Patent Law, or it does not comply with the provisions of Article 22 of the Patent Law or of Article l3, paragraph one, or of Article 20, paragraph one, or of Article 21, paragraph two of these Rules, or the applicant is not entitled to a patent right in accordance with the provisions of Article 9 of the Patent Law;

(3) where the application does not comply with the provisions of Article 26, paragraph three or four, or of Article 3l, paragraph one of the Patent Law;

(4) where the amendment to the application does not comply with the provisions of Article 33 of the Patent Law, or the divisional application does not comply with the provisions of Article 43, paragraph one of these Rules.

Article 54 After the patent administration department under the State Council issues the notification to grant the patent right, the applicant shall go through the formalities of registration within two months from the date of receipt of the notification. If the applicant completes the formalities of registration within the said time limit, the patent administration department under the State Council shall grant the patent right, issue the patent certificate and make an announcement.

If the applicant does not go through the formalities of registration within the time limit, he or it shall be deemed to have abandoned its or his right to obtain the patent right.

Article 55 After the announcement of the decision to grant a patent for utility model, the patentee of the said patent for utility model may request the patent administration department under the State Council to make a search report on the utility model patent.

Where such person requests for a search report on a utility model patent, he shall submit a request, indicating the patent number of the said patent for utility model. Each request shall be limited for one patent for utility model.

After receiving a request for a search report on a utility model patent, the patent administration department under the State Council shall proceed to make an examination of the request. Where the request does not comply with the requirements as prescribed, the said department shall notify the person making the request to amend the request within a specified time limit.

Article 56 Where, after examination, the request for a search report on a utility model patent complies with the provisions, the patent administration department under the State Council shall promptly make a search report on the utility model patent.

Where, after search, the patent administration department under the State Council finds that the patent for utility model concerned does not comply with the provisions of Article 22 of the Patent Law concerning novelty or inventiveness, it shall cite the documents considered to be relevant, state the reasons therefor and have the copies of the cited relevant documents attached.

Article 57 The patent administration department under the State Council shall promptly correct the mistakes in patent announcements and documents once they are discovered, and the corrections shall be announced.