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Implementing Regulations of the Patent Law of the People's Republic of China Updated: 2006-04-17 14:40 Article 44 "Preliminary examination" referred to in Articles 34 and 40
of the Patent Law means the check of an application for a patent to see whether
or not it contains the documents as provided for in Articles 26 or 27 of the
Patent Law and other necessary documents, and whether or not those documents are
in the prescribed form; such check shall also include the following: (1)
whether or not any application for a patent for invention obviously falls under
Articles 5 or 25 of the Patent Law, or is not in conformity with the provisions
of Article l8 or of Article l9, paragraph one of the Patent Law, or is obviously
not in conformity with the provisions of Article 3l, paragraph one, or Article
33 of the Patent Law, or of Rule 2, paragraph one, or Rule 18, or Rule 20 of
these Implementing Regulations; (2) whether or not any application for a
patent for utility model obviously falls under Article 5 or 25 of the Patent
Law, or is not in conformity with the provisions of Article l8 or of Article l9,
paragraph one of the Patent Law, or is obviously not in conformity with the
provisions of Article 26, paragraph three or four, or of Article 3l, paragraph
one, or of Article 33 of the Patent Law, or of Rule 2, paragraph two, or of Rule
l3, paragraph one, or of Rule l8 to 23, or of Rule 43, paragraph one of these
Implementing Regulations, or is not entitled to a patent right in accordance
with the provisions of Article 9 of the Patent Law; (3) whether or not any
application for a patent for design obviously falls under Article 5 of the
Patent Law, or is not in conformity with the provisions of Article l8 or of
Article l9, paragraph one of the Patent Law, or is obviously not in conformity
with the provisions of Article 3l, paragraph two, or of Article 33 of the Patent
Law, or of Rule 2, paragraph three, or of Rule l3, paragraph one, or of Rule 43,
paragraph one of these Implementing Regulations, or is not entitled to a patent
right in accordance with the provisions of Article 9 of the Patent Law. The
Patent Administration Department under the State Council shall notify the
applicant of its opinions after checking his or its application and invite him
or it to state his or its observations or to correct his or its application
within the specified time limit. If the applicant fails to make any response
within the specified time limit, the application shall be deemed to have been
withdrawn. Where, after the applicant has made his or its observations or the
corrections, the Patent Administration Department under the State Council still
finds that the application is not in conformity with the provisions of the
Articles and the Rules cited in the preceding subparagraphs, the application
shall be rejected.
Article 45 Apart from the application for patent, any document relating to
the patent application which is submitted to the Patent Administration
Department under the State Council, shall, in any of the following
circumstances, be deemed not to have been submitted: (1) where the document
is not presented in the prescribed form or the indications therein are not in
conformity with the prescriptions; (2) where no certifying document is
submitted as prescribed. The Patent Administration Department under the State
Council shall notify the applicant of its opinion after checking that the
document is deemed not to have been submitted.
Article 46 Where the applicant requests an earlier publication of its or his
application for a patent for invention, a statement shall be made to the Patent
Administration Department under the State Council. The Patent Administration
Department under the State Council shall, after preliminary examination of the
application, publish it immediately, unless it is to be rejected.
Article 47 The applicant shall, when indicating in accordance with Article 27
of the Patent Law the product incorporating the design and the class to which
that product belongs, refer to the classification of products for designs
published by the Patent Administration Department under the State Council. Where
no indication, or an incorrect indication, of the class to which the product
incorporating the design belongs is made, the Patent Administration Department
under the State Council shall supply the indication or correct it.
Article 48 Any person may, from the date of publication of an application for
a patent for invention till the date of announcing the grant of the patent
right, submit to the Patent Administration Department under the State Council
his observations, with reasons therefor, on the application which is not
in conformity with the provisions of the Patent Law.
Article 49 Where the applicant for a patent for invention cannot furnish, for
justified reasons, the documents concerning any search or results of any
examination specified in Article 36 of the Patent Law, it or he shall make a
statement to the Patent Administration Department under the State Council and
submit them when the said documents are available.
Article 50 The Patent Administration Department under the State Council
shall, when proceeding on its own initiative to examine an application for a
patent in accordance with the provisions of Article 35, paragraph two of the
Patent Law, notify the applicant accordingly.
Article 5l When a request for examination as to substance is made, and that,
within the time limit of three months after the receipt of the notification of
the Patent Administration Department under the State Council, the application
has entered into examination as to substance, the applicant for a patent for
invention may amend the application for a patent for invention on its or his own
initiative. Within two months from the date of filing, the applicant for a
patent for utility model or design may amend the application for a patent for
utility model or design on its or his own initiative. Where the applicant
amends the application after receiving the notification of opinions of the
examination as to substance of the Patent Administration Department under the
State Council, he or it shall make the amendment as required by the
notification. The Patent Administration Department under the State Council
may, on its own initiative, correct the obvious clerical mistakes and symbol
mistakes in the documents of application for a patent. Where the Patent
Administration Department under the State Council corrects mistakes on its own
initiative, it shall notify the applicant.
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