THE INVENTION AND UTILITY MODEL

PATENT SYSTEM IN THE PEOPLE’S REPUBLIC

OF CHINA

Li Zheng
The Patent Reexamination Board
of the State Intellectual Property Office
of the P. R. China

The Inventions and Utility Models

Protected by the Patent Law of the
P. R. China

Article 2 of the Patent Law :

“Inventions-creations” in the Patent Law mean
inventions, utility models and designs.

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 Rule 2 of the Implementing Regulations :

“Invention” in the Patent Law means any new

technical solution relating to a product, a process
or improvement thereof.

“Utility model” in the Patent Law means any

new technical solution relating to the shape, the
structure, or their combination, of a product,
which is fit for practical use.

The Granting Procedure of Invention

Patents

Article 39 of the Patent Law :

Where it is found after examination as to
substance that there is no cause for rejection of
the application for a patent for invention, the
State Intellectual Property Office shall make a
decision to grant the patent right for invention.

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The Granting Procedure of Utility model
Patents

Article 40 of the Patent Law :

Where it is found after preliminary examination
that there is no cause for rejection of the
application for a patent for utility model, the
State Intellectual Property Office shall make a
decision to grant the patent right for utility
model.

The Reexamination Procedure after

Rejecting the Application
for a Patent for Invention or
Utility Model

Article 41 of the Patent Law :

The State Intellectual Property Office shall set up
a Patent Reexamination Board.
Where an applicant for patent for invention or
utility model is not satisfied with the decision of
rejecting the application, the applicant may,
within three months from the date of receipt of
the notification, request the Patent
Reexamination Board to make a reexamination.

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 The Litigation Procedure after the
Invention and Utility Model
Reexamination Procedure

Where the applicant for a patent for invention or

utility model is not satisfied with the decision of
the Patent Reexamination Board, the applicant
may, within three months from the date of
receipt of the notification, institute legal
proceedings in the people’s court.

The Invalidation Procedure after the

Invention and Utility Model Patent Right
Granted

Article 45 of the Patent Law :

Where, starting from the date of the
announcement of the grant of the patent right
for invention or utility model by the State
Intellectual Property Office, any entity or
individual considers that the grant of the said
patent right is not in conformity with the
relevant provisions of the Patent Law, it or he
may request the Patent Reexamination Board to
declare the patent right invalid.

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The Main Ground on Which the Request
for Invalidating a Patent Right for
Invention or Utility Model

The patent right is granted does not comply with

the provisions of Article 22, paragraph two or
three, or of Article 26, paragraph three or four.

Paragraph Two of Article 22

of the Patent Law

Novelty means that, before the date of filing, no

identical invention or utility model has been
publicly disclosed in publications in the country
or abroad or has been publicly used or made
known to the public by any other means in the
country, nor has any other person filed
previously with the State Intellectual Property
Office an application which described the
identical invention or utility model and was
published after the said date of filing.

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 Paragraph Three of Article 22
of the Patent Law

Inventiveness means that, as compared with the

technology existing before the date of filing, the
invention has prominent substantive features and
represents a notable progress and that the utility
model has substantive features and represents
progress.

Paragraph Three of Article 26

of the Patent Law

The description shall set forth the invention or

utility model in a manner sufficiently clear and
complete so as to enable a person skilled in the
relevant field of technology to carry it out.

Paragraph Four of Article 26

of the Patent Law

The claims shall be supported by the description

and shall state the extent of the patent protection
asked for.

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The Litigation Procedure after the
Invalidation Procedure for an Invention
or Utility Model Patent Right

Where the patentee or the person who made the

request for invalidation is not satisfied with the
decision of the Patent Reexamination Board
declaring the invention or utility model patent
right invalid or upholding the invention or utility
model patent right, such party may, within three
months from receipt of the notification of the
decision, institute legal proceedings in the
people’s court.

The Personnel of the Patent

Reexamination Board

Rule 58 of the Implementing Regulations : The

Patent Reexamination Board shall consist of
technical and legal experts appointed by the State
Intellectual Property Office.
The Commissioner of the State Intellectual
Property Office shall be the Director General of
the Patent Reexamination Board.

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 The Examination by the Collegiate Panel
of the Board

Cases that are collegially examined by the Patent

Reexamination Board shall be examined by a
collegiate panel consisting of three or five
members, including one panel leader, one chief
examiner and one or three participating
examiners.

Statistics of the Patent Reexamination Board

Invention Utility Model Design Total

Requests for Reexamination 9260 514 41 9815

Concluded Cases
for Reexamination 6085 489 38 6612
Requests for Invalidation 1066 6673 5176 12915
Concluded Cases for
Invalidation 801 5729 4464 10994
Statistics: from April 1, 1985 to April 30, 2005

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