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General provision of China patent law

Time:2014-03-13 Hit:1027

General provision of China patent law
  China patent law is enacted to protect the legitimate rights and interests of the patentee, encourage invention-creation, to promote the application of the invention, improve the innovation ability, and promote the progress of science and technology, economic and social development.
The administrative department for patent under the state council is responsible for managing the work of national patent; it receives and examines patent applications and grants patent rights for inventions-creations in accordance with the law. People's governments of provinces, autonomous regions and municipalities are under the administration of patent work of the department, it is responsible for the patent management work within their respective administrative areas.
There are three category of “invention”: inventions, utility models and designs. Invention refers to the improvement of the proposed new technical solutions. Utility model refers to any new technical solution relating to the product's shape, structure, or combination for practical use. Design refers to the new design of product's shape, pattern or their combination and the combination of color and shape, pattern made by which creates an aesthetic feeling and is suitable for industrial application of the new design. Once the invention or utility model patent right is granted, no unit or individual shall exploit the patent without the permission of the patentee, except as otherwise provided by this law. No production and business operation to manufacture, use, promise to sales, sales, import the patented product, or use the patent, promised to sales, sales, and products directly obtained according to this patent shall be allowed. any entity or individual requires the implement the patent, shall conclude a licensing contract with the patentee and pay royalties to the patentee. The licensee has no right to allow any unit or individual, other than that the authorized scope in according with the contract.
An invention made by a person carrying out the tasks of this entity and use of the material technical condition of this entity is consider as duty invention, and the entity shall be the patentee when the application is approved. For an invention made through the joint work of two or more entities or individuals on the basis of cooperation, or completed by an entity or individual upon the authorization of another entity or individual, the right of applying for a patent belongs to entities or individuals jointly unless otherwise stipulated in the agreement between them; After the application is approved, the applying entities or individuals shall be the patentee.
The right to apply for a patent and the patent right may be assigned. If a Chinese entity or individual transfers the patent to the foreigner, foreign enterprise or other foreign organization of the right to apply for a patent or the patent right, it should be executed in accordance with the provisions of relevant laws and administrative regulations.
Transfer of the right of applying for a patent or the patent right, the parties shall conclude a contract in writing, and the register it to the administrative department under the state council, it shall be publicly announced by the administrative department for patent under the state council. The assignment of the right of applying for a patent or the patent right shall take effect as of the date of registration.

  Where a foreigner, foreign enterprise or any other foreign organization has no residence or place of business in China, such foreign enterprise or other foreign organization may entrust a patent agency to apply for a patent in accordance with the law. Chinese entity or individual in domestic patent and handle other patent affairs, may appoint a patent agency also. The patent agency shall abide by the laws and administrative rules and regulations, and shall handle the patent application in accordance with laws and administrative rules and regulations; except for the patent has been published or announced, the patent agency shall have the responsibility to keep confidential of the contents of the principal’s invention. 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 shall be reported to the administrative department for patent under the state council for confidentiality review in advance in accordance with the provisions of the state council.
For an international application for patent, the applicant filing an international application for patent in accordance with relevant international treaties to which China is party of the People's Republic of China, the administrative department for patent shall deal with the international application for patent in accordance with the relevant international treaties that People's Republic of China to participated and the relevant provisions of the state council.


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