Implementing Regulations of the Patent Law of the People's Republic of China
Author:sipoIssuing Date:2008-01-24 13:35:40Source:sipo
(1) where he is a near relative of the party concerned or the agent of the party concerned;
(2) where he has an interest in the application for patent or the patent right;
(3) where he has any other kinds of relations with the party concerned or with the agent of the party concerned that may influence impartial examination and hearing.
(4) where a member of the Patent Reexamination Board who has taken part in the examination of the same application.
Rule 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.
Rule 40 In any of the following circumstances, the Patent Administration Department under the State Council shall refuse to accept the application 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 is not written in Chinese;
(3) where the application is not in conformity with the provisions of Rule120, paragraph one of these Implementing Regulations;
(4) where the request does not contain the name and address of the applicant;
(5) where the application is obviously not in conformity with the provisions of Article 18, or of Article l9, paragraph one of the Patent Law;
(6) where the kind of protection (patent for invention, utility model or design) of the application for a patent is not clear and definite or cannot be ascertained.
Rule 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.
Rule 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 Rule 54, paragraph one of these Implementing Regulations, submit to the Patent Administration Department under the State Council a divisional application. However, where an application for patent has been rejected, 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 Rule 35 or 36 of these Implementing Regulations, 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 kind of protection of the initial application.
Rule 43 A divisional application filed in accordance with the provisions of Rule 42 of these Implementing Regulations shall be entitled to the filing date and, if priority is claimed, the priority date of the initial application, 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 Implementing Regulations.
The filing number and the date of filing of the initial application shall be indicated in the request of the divisional application. When the divisional application is filed, it shall be accompanied by a copy of the initial application; if priority is claimed for the initial application, a copy of the priority document of the initial application shall also be submitted.
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