(Issued By The Patent Office Of The People's Republic Of China On 25 June 2001)
According to the presidential Degree (No. 36) of the People's Republic of China, the decision on the revision of the patent Law, adopted on 25 August, 2000 at the 17th Session of the Standing Committee of the 9th National People's Congress, shall enter into force on 1 July, 2001. Accordingly, the revised Implementing Regulations of the Patent Law shall also enter into force on the same date.
For any patent application filed on or after 1 July, 2001 and the patent right granted on the basis of the application, the provisions of the revised Patent Law and its Implementing Regulations will apply; for any patent application filed before 1 July, 2001 and the patent right granted on the basis of the application, the provisions of the revised Patent Law and its Implementing Regulations will also apply on or after 1 July 2001, except otherwise provided for.
The provisions for the transition between the pre-revised and the revised Patent Law and their Implementing Regulations are as follows:
Article 1. Where the request for revocation of the patent right was received by the SIPO before July 1,2001,but no decision has been made thereupon, the examination and the decision made thereupon shall be conducted in accordance with the previous Patent Law and its Implementing Regulations that have not been amended. In the situation the decision made by the Patent Reexamination Board after July 1, 2001 upon request for revocation of the patent right over utility model and design is still deemed as the final decision.
Where the SIPO received the request for revocation of the patent right before July 1,2001, but has not made any decision thereupon, anyone may file a request for invalidation of the patent right, since July 1,2001.
Article 2. The decision, which the Patent Reexamination Board made upon the request for reexamination of the patent right over utility model and design, or upon reexamination of request of invalidation of the patent right over utility model and design before July 1, 2001, but which the applicant or patentee received after July 1, 2001, is still deemed as the final decision.
Article 3. Where the Patent Reexamination Board accepted the request for reexamination of application for patent for invention before July 1, 2001, submitted by the applicant who was not satisfied will the decision of rejection made by the SIPO, if the decision of rejection was legally based on the relevant provisions in the original Patent Law and its Implementing Regulations excluding the provisions of Article 53, and the Patent Reexamination Board did not make a decision for reexamination before July 1, 2001, the Patent Reexamination Board may still reexamine the request for reexamination and make a decision thereupon in accordance with the relevant provisions in the original Patent Law and its Implementing Regulations.
Article 4. Where the Patent Reexamination Board accepted the request for reexamination of application for patent for utility model before July 1, 2001, submitted by the applicant who was not satisfied with the decision of rejection made by the SIPO and if the decision of rejection was legally based on the Rule 2 (2) of the original Implementing Regulations and the former Announcement No. 27, and where the Patent Reexamination Board did not make a decision for reexamination before July 1, 2001, the Patent Reexamination Board may still reexamine the request and make a decision thereupon in accordance with Rule 2(2) of the original Implementing Regulations and the former Announcement No. 27.
Where the Patent Reexamination Board accepted before July 1, 2001 the request for invalidation of the patent right for utility model on the legal basis of Rule 2 (2) of the original Implementing Regulation and the former Announcement No.27 , and where the Patent Reexamination Board did not examine and make a decision on the request for invalidation of the patent right before July 1, 2001, the Patent Reexamination Board may still examine the request and make a decision thereupon in accordance with Rule 2 (2) of the original Implementing Regulation and the former Announcement No. 27.
Article 5. Where the Patent Reexamination Board accepted the request for reexamination of the application for patent right for design before July 1, 2001, submitted by the applicant who was not satisfied with the decision of rejection made by the SIPO and if the decision of rejection was legally based on Article 5 of the Patent Law with the reason that the granted patent conflicted with the legal right that another one had already obtained, and where the Patent Reexamination Board did not make a decision for reexamination before July 1, 2001, the Patent Reexamination Board may still make an examination and a decision thereupon in accordance with the provisions of Article 23 of the amended Patent Law.
Where the Patent Reexamination Board accepted before July 1, 2001 the request for invalidation of the patent right for design on the legal basis of Article 5 of the Patent Law with the reason that the granted patent conflicted with the legal right that another one had already obtained, and where the Patent Reexamination Board did not make a decision before July 1, 2001, on the request for invalidation, the Patent Reexamination Board may make examination and a decision thereupon in accordance with the provisions of Article 23 of the amended Patent Law.
Article 6. Where the patent certificate was issued by the SIPO before July 1, 2001, but the announcement of granting of the patent right is issued after July 1, 2001, the patent right shall take effect on the date of the issue of the patent certificate.
Article 7. Where the application for patent for invention was submitted before July1, 2001, and where a notification for entering the substantive examination procedure was issued by the SIPO also before July 1, 2001, the applicant may still amend the specification on his own initiative when it or he responses to the first Office Action after July 1, 2001. Where the SIPO issues the notification for entering the substantive examination procedure after July 1, 2001, and the applicant amends his specification on his own initiative after July 1, 2001, the whole procedure shall be conducted in accordance with the provisions of Rule 51 of the amended Implementing Regulations.
Where the application for patent for utility model and design was submitted before July 1, 2001, and where the SIPO did not grant the patent right before July 1, 2001, the applicant may still amend his application on his own initiative within three months since the filing date.
Article 8. Where the application for patent was deemed withdrawn or the patent right was deemed lapsed before July 1, 2001 because it was not in accordance with the provisions of Rule 88 of the original Implementing Regulation, the applicant or the patentee who received the notification from the SIPO no more than two months earlier than July 1, 2001, may conduct proceedings after July 1, 2001 to restore the patent right in accordance with the provisions of the Rule 7 of the amended Implementing Regulations within two months from the date of receipt of the notification.
Article 9. The SIPO shall not return the maintenance fee of the application paid before July 1, 2001 by the applicant for patent for invention. But the applicant for patent for invention may request the SIPO to return the maintenance fee of the application that he continues to pay after July 1, 2001 because no patent right is granted for his application.
Where the applicant for patent for invention did not pay the maintenance fee of the application and the surcharge that he must pay before July 1, 2001, and where the SIPO did not issue a notification of being deemed withdrawn before July 1, 2001, the application shall not be deemed as is withdrawn after July 1, 2001 based on the provisions of Rule 88 of the original Implementing Regulations.
Article 10. Where the SIPO notified the patentee to pay surcharge in accordance with the provisions of Rule 88 of the original Implementing Regulations before July 1, 2001, the patentee shall pay the amount of the surcharge in accordance with the notification.
Where the patentee paid the surcharge in accordance with the provisions of Rule 88 of the original Implementing Regulations before July 1, 2001, and claims part of the surcharge to be returned in accordance with the provisions of Rule 96 of the amended Implementing Regulations after July 1, 2001, the SIPO shall not return what the patentee claims.
The measures take effect on July 1, 2001.
