China
BIZCHINA / Intellectual property
Implementing Regulations of the Patent Law of the People's Republic of
China
Updated: 2006-04-17 14:40
Article 62 Where, after reexamination, the Patent Reexamination Board
finds that the request does not comply with the provisions of the Patent
Law and these Implementing Regulations, it shall invite the person
requesting reexamination to submit his observations within a specified
time limit. If the time limit for making response is not met, the request
for reexamination shall be deemed to have been withdrawn. Where, after
the requesting person has made its observations and amendments, the
Patent Reexamination Board still finds that the request does not comply
with the provisions of the Patent Law and these Implementing Regulations,
it shall make a decision of reexamination to maintain the earlier
decision rejecting the application.
Where, after reexamination, the Patent Reexamination Board finds that the
decision rejecting the application does not comply with the provisions of
the Patent Law and these Implementing Regulations, or that the amended
application has removed the defects as pointed out by the decision
rejecting the application, it shall make a decision to revoke the
decision rejecting the application, and ask the examination department
which has made the examination to continue the examination procedure.
Article 63 At any time before the Patent Reexamination Board makes its
decision on the request for reexamination, the requesting person may
withdraw his request for reexamination.
Where the requesting person withdraws his request for reexamination
before the Patent Reexamination Board makes its decision, the procedure
of reexamination is terminated.
Article 64 Anyone requesting invalidation or part invalidation of a
patent right in accordance with the provisions of Article 45 of the
Patent Law shall submit a request and the necessary evidence in two
copies. The request for invalidation shall state in detail the grounds
for filing the request, making reference to all the evidence as
submitted, and indicate the piece of evidence on which each ground is
based.
The grounds on which the request for invalidation is based, referred to
in the preceding paragraph, mean that the invention-creation for which
the patent right is granted does not comply with the provisions of
Article 22, Article 23, or of Article 26, paragraph three or four, or of
Article 33 of the Patent Law, or of Rule 2, or of Rule l3, paragraph one,
or of Rule 20, paragraph one, or of Rule 21, paragraph two of these
Implementing Regulations; or the invention-creation falls under the
provisions of Articles 5 or 25 of the Patent Law; or the applicant is not
entitled to be granted the patent right in accordance with the provisions
of Article 9 of the Patent Law.
Article 65 Where the request for invalidation does not comply with the
provisions of Rule 64 of these Implementing Regulations, the Patent
Reexamination Board shall not accept it.
Where, after a decision on any request for invalidation of the patent
right is made, invalidation based on the same facts and evidence is
requested once again, the Patent Reexamination Board shall not accept it.
Where a request for invalidation of a patent for design is based on the
ground that the patent for design is in conflict with a prior right of
another person, but no effective ruling or judgement is submitted to
prove such conflict of rights , the Patent Reexamination Board shall not
accept it.
Where the request for invalidation of the patent right does not comply
with the prescribed form, the person making the request shall rectify it
within the time limit specified by the Patent Reexamination Board. If the
rectification fails to be made within the time limit, the request for
invalidation shall be deemed not to have been made.
Article 66 After a request for invalidation is accepted by the Patent
Reexamination Board, the person making the request may add reasons or
supplement evidence within one month from the date when the request for
invalidation is filed. Additional reasons or evidence which are
submitted after the specified time limit may be disregarded by the Patent
Reexamination Board.
Article 67 The Patent Reexamination Board shall send a copy of the
request for invalidation of the patent right and copies of the relevant
documents to the patentee and invite it or him to present its or his
observations within a specified time limit.
The patentee and the person making request for invalidation shall, within
the specified time limit, make responses to the notification concerning
transmitted documents or the notification concerning the examination of
the request for invalidation sent by the Patent Reexamination Board.
Where no response is made within the specified time limit, the
examination of the Patent Reexamination Board will not be affected.
Article 68 In the course of the examination of the request for
invalidation, the patentee for the patent for invention or utility model
concerned may amend its or his claims, but may not broaden the scope of
patent protection.
The patentee for the patent for invention or utility model concerned may
not amend its or his description or drawings. The patentee for the patent
for design concerned may not amend its or his drawings, photographs or
the brief explanation of the design.
Article 69 The Patent Reexamination Board may, at the request of the
parties concerned or in accordance with the needs of the case, decide to
hold an oral procedure in respect of a request for invalidation.
Where the Patent Reexamination Board decides to hold an oral procedure in
respect of a request for invalidation, it shall send notifications to the
parties concerned, indicating the date and place of the oral procedure to
be held. The parties concerned shall make response to the notification
within the specified time limit.
Where the person requesting invalidation fails to make response to the
notification of the oral procedure sent by the Patent Reexamination Board
within the specified time limit, and fails to take part in the oral
procedure, the request for invalidation shall be deemed to have been
withdrawn. Where the patentee fails to take part in the oral procedure,
the Patent Reexamination Board may proceed to examine by default.
Article 70 In the course of the examination of a request for
invalidation, the time limit specified by the Patent Reexamination Board
shall not be extended.
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