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 excising his function:
(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.
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 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.
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 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.
Article 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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