审查指南(英文)

审查指南(英文) PART I PRELIMINARY EXAMINATION CONTENTS 1 Part I PRELIMINARY EXAMINATION Table of Contents Chapter 1 Preliminary Examination of Application for Patent for Invention ((((((1-1 1 Introduction ((((((((((((((((((((((((((((((((((((((((((((((((((((1-1 2 Examination of Application Documents ((((((((((((((((((((((((((((((1-3 2.1 Request((((((((((((((((((((((((((((((((((((((((((((((((((((((((1-3 2.1.1 Title of Invention ((((((((((((((((((((((((((((((((((((((((((((((((1-3 2.1.2 Inventor (((((((((((((((((((((((((((((((((((((((((((((((((((((((1-4 2.1.3 Applicant ((((((((((((((((((((((((((((((((((((((((((((((((((((((1-4 2.1.3.1 Domestic Applicant ((((((((((((((((((((((((((((((((((((((((((((((1-4 2.1.3.2 Foreign Applicant, including Foreign Individual, Foreign Enterprise or Other Foreign Organization (((((((((((((((((((((((((((((1-5 2.1.3.3 Application Filed Jointly by Domestic Applicant and Foreign Applicant ((((((((((((((((((((((((((((((((((((((((((((((((((((((1-7 2.1.4 Patent Agency, Patent Agent (((((((((((((((((((((((((((((((((((((((1-7 2.1.5 Address (((((((((((((((((((((((((((((((((((((((((((((((((((((((1-7 2.2 Description ((((((((((((((((((((((((((((((((((((((((((((((((((((1-8 2.3 Claims ((((((((((((((((((((((((((((((((((((((((((((((((((((((((1-9 2.4 Drawings of Description ((((((((((((((((((((((((((((((((((((((((((1-9 2.5 Abstract ((((((((((((((((((((((((((((((((((((((((((((((((((((((l-10 2.5.1 Text of Abstract ((((((((((((((((((((((((((((((((((((((((((((((((1-10 2.5.2 Drawing of Abstract ((((((((((((((((((((((((((((((((((((((((((((1-11 2.6 Preliminary Examination of Two Types of Special Patent Applications ((((((((((((((((((((((((((((((((((((((((((((((((((1-11 2.6.1 Divisional Application (((((((((((((((((((((((((((((((((((((((((((1-11 2.6.1.1 Submission of Divisional Application (((((((((((((((((((((((((((((((1-11 2.6.1.2 Preliminary Examination of Divisional Application ((((((((((((((((((((1-12 2.6.2 Application involving Biological Material (((((((((((((((((((((((((((1-13 2.6.2.1 Submission of Application involving Biological Material (((((((((((((((1-13 2.6.2.2 Preliminary Examination of Application involving Biological Material ((((1-14 2.7 Formality Examination of Publication of Application Documents (((((((((1-16 3 Examination of Other Documents and Relevant Formalities (((((((((((((1-16 3.1 Appointment of Patent Agency and Designation of Representative ((((((((1-16 3.1.1 Appointment of Patent Agency ((((((((((((((((((((((((((((((((((((1-16 3.1.1.1 Appointment ((((((((((((((((((((((((((((((((((((((((((((((((((1-16 3.1.1.2 Power of Attorney ((((((((((((((((((((((((((((((((((((((((((((((1-18 3.1.1.3 Dissolution and Resignation of the Appointment ((((((((((((((((((((((1-19 3.1.2 Designation of Representative ((((((((((((((((((((((((((((((((((((1-19 3.1.2.1 Designation (((((((((((((((((((((((((((((((((((((((((((((((((((1-19 2 CONTENTS 3.1.2.2 Authorization (((((((((((((((((((((((((((((((((((((((((((((((((1-20 3.2 Claim to Right of Priority ((((((((((((((((((((((((((((((((((((((((1-20 3.2.1 Claim to Foreign Right of Priority (((((((((((((((((((((((((((((((((1-20 3.2.1.1 Earlier Application and Later Priority-Claiming Application (((((((((((((1-20 3.2.1.2 Declaration to Claim to Right of Priority ((((((((((((((((((((((((((((1-21 3.2.1.3 Duplicate Documents of Earlier Application (((((((((((((((((((((((((1-22 3.2.1.4 Applicant of Later Application ((((((((((((((((((((((((((((((((((((1-22 3.2.1.5 Withdrawal of Claim to Right of Priority (((((((((((((((((((((((((((1-23 3.1.2.6 Fee of Claim to Right of Priority ((((((((((((((((((((((((((((((((((1-23 3.2.2 Claim to Domestic Right of Priority ((((((((((((((((((((((((((((((((1-24 3.2.2.1 Earlier Application and Later Priority-Claiming Application (((((((((((((1-24 3.2.2.2 Declaration to Claim to Right of Priority ((((((((((((((((((((((((((((1-25 3.2.2.3 Duplicate Documents of Earlier Application (((((((((((((((((((((((((1-25 3.2.2.4 Applicant of Later Application ((((((((((((((((((((((((((((((((((((1-25 3.2.2.5 Withdrawal of Claim to Right of Priority ((((((((((((((((((((((((((((1-26 3.2.2.6 Fee of' Claim to Right of Priority ((((((((((((((((((((((((((((((((((1-26 3.2.2.7 Procedures of Making Earlier Application to Be Deemed to Have Been Withdrawn (((((((((((((((((((((((((((((((((((((((((((((((1-26 3.3 Disclosures without Loss of Novelty (((((((((((((((((((((((((((((((1-26 3.3.1 Applicable Scope ((((((((((((((((((((((((((((((((((((((((((((((1-26 3.3.2 Supporting Material ((((((((((((((((((((((((((((((((((((((((((((1-27 3.4 Request for Examination as to Substance ((((((((((((((((((((((((((((1-27 3.4.1 Relevant Requirements of Request for Examination as to Substance ((((((1-28 3.4.2 Examination and Handling of the Examination as to Substance ((((((((((1-28 3.5 Declaration of Earlier Publication ((((((((((((((((((((((((((((((((((1-28 3.6 Declaration to Withdraw an Application for a Patent (((((((((((((((((((1-29 3.7 Change of Bibliographic Data (((((((((((((((((((((((((((((((((((((1-29 3.7.1 Change of Name and Change of Right ((((((((((((((((((((((((((((((1-30 3.7.1.1 Change of Name (((((((((((((((((((((((((((((((((((((((((((((((1-30 3.7.1.2 Change of Right (((((((((((((((((((((((((((((((((((((((((((((((1-30 3.7.2 Formalities of Change (((((((((((((((((((((((((((((((((((((((((((1-31 3.7.2.1 Declaration to Change of Bibliographic Data (((((((((((((((((((((((((1-31 3.7.2.2 Fees of Change of Bibliographic Data ((((((((((((((((((((((((((((((1-31 3.7.2.3 Time Limit of Paying the Fees for Change of Bibliographic Data (((((((((1-31 3.7.2.4 Supporting Documents for Change of Bibliographic Data (((((((((((((((1-31 3.7.2.5 Person Who is Going through Formalities of Change of Bibliographic Data (((((((((((((((((((((((((((((((((((((((((((((1-34 3.7.3 Formalities after Change of Bibliographic Data (((((((((((((((((((((((1-34 3.7.4 Effect Date of Change of Right to Apply for an Application (Patent Right) (((((((((((((((((((((((((((((((((((((((((((((((((1-35 4 Examination of Obvious Substantial Defect ((((((((((((((((((((((((((1-35 CONTENTS 3 4.1 Examination According to Provisions of Art.5 of Patent Law ((((((((((((1-35 4.2 Examination According to Provisions of Art.25 of Patent Law (((((((((((1-36 4.3 Examination According to Provisions of Art.31.1 of Patent Law ((((((((((1-36 4.4 Examination According to Provisions of Art.33 of Patent Law (((((((((((1-37 4.5 Examination According to Provisions of Rule 2.1 of the Regulations ((((((1-37 4.6 Examination According to Provisions of Rule 18 of the Regulations ((((((1-38 4.7 Examination According to Provisions of Rule 20 of the Regulations ((((((1-38 Chapter 2 Preliminary Examination of Application for Patent for Utility Model (((((((((((((((((((((((((((((((((((((((((((((((((((((((1-40 Introduction (((((((((((((((((((((((((((((((((((((((((((((((((((1-40 1 2 Formality Examination of Application Documents ((((((((((((((((((((1-40 Formality Examination of Other Documents (((((((((((((((((((((((((1-41 3 4 Examination of the Application for Which No Patent Right May be Granted ((((((((((((((((((((((((((((((((((((((((((((((((1-41 5 Examination of Object Protected by Utility Model ((((((((((((((((((((1-41 5.1 Patent for Utility Model Protects Product Only (((((((((((((((((((((((1-41 5.2 Shape of Product (((((((((((((((((((((((((((((((((((((((((((((((1-42 5.3 Structure of Product ((((((((((((((((((((((((((((((((((((((((((((1-43 5.4 Technical Solution ((((((((((((((((((((((((((((((((((((((((((((((1-43 5.5 Technical Solution Applicable for Practical Use ((((((((((((((((((((((1-44 5.6 New Technical Solution (((((((((((((((((((((((((((((((((((((((((1-44 5.7 Medical Device Which Takes Direct Effect on Human Body by Electricity, Magnetism, Light, Sound, Radiation or Their Combination (((((((((((((1-44 6 Examination of Description ((((((((((((((((((((((((((((((((((((((1-45 7 Examination of Drawings of Description ((((((((((((((((((((((((((((1-45 8 Examination of Claims ((((((((((((((((((((((((((((((((((((((((((1-46 9 Examination of Abstract (((((((((((((((((((((((((((((((((((((((((1-48 10 Examination of Rectification Documents ((((((((((((((((((((((((((((1-48 11 Examination of Unity (((((((((((((((((((((((((((((((((((((((((((1-49 12 Examination of Divisional Application (((((((((((((((((((((((((((((1-50 13 Examination of Claim to Right of Priority (((((((((((((((((((((((((((1-52 14 Examination of Principle of First-To-File ((((((((((((((((((((((((((((1-52 15 Procedures of Preliminary Examination (((((((((((((((((((((((((((((1-53 15.1 Preparation of Examination ((((((((((((((((((((((((((((((((((((((1-53 15.2 Examination Requirements (((((((((((((((((((((((((((((((((((((((1-54 15.2.1 Principles of Examination ((((((((((((((((((((((((((((((((((((((((1-54 15.2.2 General Requirements (((((((((((((((((((((((((((((((((((((((((((1-55 15.2.3 Requirements of the File (((((((((((((((((((((((((((((((((((((((((1-56 15.2.4 Draft of Notification and Decision of Rejection (((((((((((((((((((((((1-58 4 CONTENTS 15.2.5 Requirements of Preliminary Examination Procedures (((((((((((((((((1-60 16 Interlocutory Examination and Continuation Examination After Reexamination ((((((((((((((((((((((((((((((((((((((((((((1-64 Chapter 3 Preliminary Examination of Application for Patent for Design ((((((((1-65 1 Introduction (((((((((((((((((((((((((((((((((((((((((((((((((((1-65 2 Examination of Application Documents (((((((((((((((((((((((((((((1-65 2.1 Request ((((((((((((((((((((((((((((((((((((((((((((((((((((((1-65 2.1.1 Product Name Incorporating the Design ((((((((((((((((((((((((((((1-66 2.1.2 Class ((((((((((((((((((((((((((((((((((((((((((((((((((((((((1-66 2.1.3 Designer (((((((((((((((((((((((((((((((((((((((((((((((((((((1-66 2.1.4 Applicant (((((((((((((((((((((((((((((((((((((((((((((((((((((1-67 2.1.5 Patent Agency, Patent Agent ((((((((((((((((((((((((((((((((((((((1-67 2.2 Drawing or Photograph ((((((((((((((((((((((((((((((((((((((((((1-67 2.2.1 Size (((((((((((((((((((((((((((((((((((((((((((((((((((((((((1-67 2.2.2 Drawing ((((((((((((((((((((((((((((((((((((((((((((((((((((((1-67 2.2.3 Photograph (((((((((((((((((((((((((((((((((((((((((((((((((((1-68 2.2.4 Color ((((((((((((((((((((((((((((((((((((((((((((((((((((((((1-68 2.2.5 Notification of Rectification ((((((((((((((((((((((((((((((((((((((1-68 2.3 Explanatory Notes ((((((((((((((((((((((((((((((((((((((((((((((1-70 2.4 Classification of Patent for Design (((((((((((((((((((((((((((((((((1-70 2.4.1 Examination and Verification of Application Documents (((((((((((((((1-71 2.4.2 Determination of Classification Number (((((((((((((((((((((((((((((l-71 2.4.3 Examination of Classification of Special Product (((((((((((((((((((((1-71 3 Examination of Other Relevant Documents ((((((((((((((((((((((((((1-72 3.1 Appointment of Patent Agency and Designation of Representative (((((((1-72 3.2 Claim to Right of Priority ((((((((((((((((((((((((((((((((((((((((1-72 3.2.1 Earlier Application and Later Priority-Claiming Application (((((((((((((1-72 3.2.2 Declaration to Claim to Right of Priority ((((((((((((((((((((((((((((1-73 3.2.3 Duplicate Documents of Earlier Application (((((((((((((((((((((((((1-73 3.2.4 Applicant of Later Application ((((((((((((((((((((((((((((((((((((1-74 3.2.5 Fee of Claim to Right of Priority ((((((((((((((((((((((((((((((((((1-74 3.2.6 Withdrawal of Claim to Right of Priority ((((((((((((((((((((((((((((1-74 3.3 Disclosure without Losing Novelty ((((((((((((((((((((((((((((((((1-74 3.3.1 Applicable Scope ((((((((((((((((((((((((((((((((((((((((((((((1-74 3.3.2 Supporting Material ((((((((((((((((((((((((((((((((((((((((((((1-74 3.4 Declaration to Withdraw a Patent Application ((((((((((((((((((((((((1-74 3.5 Change of Bibliographic Data ((((((((((((((((((((((((((((((((((((1-74 4 Examination According to Provisions of Rule 44.1(3) of the Regulations ((1-74 4.1 Examination According to Provisions of Art.5 of Patent Law ((((((((((((1-74 4.2 Examination According to Provisions of Art.31.2 of Patent Law (((((((((1-75 CONTENTS 5 4.2.1 Design of Complete Set of Product (((((((((((((((((((((((((((((((((1-76 4.2.1.1 Same Category ((((((((((((((((((((((((((((((((((((((((((((((((1-76 4.2.1.2 Sold or Used in Set (((((((((((((((((((((((((((((((((((((((((((((1-76 4.2.1.3 Each Component Part of a Set of Product shall Satisfy Respectively the Requirements to Grant the Patent Right ((((((((((((((((((((((((((1-78 4.2.2 Examination of Divisional Application (((((((((((((((((((((((((((((1-78 4.2.2.1 Legislative Basis of Divisional Application ((((((((((((((((((((((((((1-78 4.2.2.2 Requirements of Divisional Application (((((((((((((((((((((((((((((1-79 4.3 Examination According to Provisions of Art.33 of Patent Law (((((((((((1-80 4.3.1 Amendment on Applicant's Own Initiative ((((((((((((((((((((((((((1-80 4.3.2 Amendment According to Notification ((((((((((((((((((((((((((((((1-81 4.3.3 Contents Amended by Examiner upon His/Her Power (((((((((((((((((1-81 4.4 Examination According to Provisions of Rule 2.3 of the Regulations ((((((1-81 4.4.1 Shape, Pattern or Their Combination and the Combination of Color and Shape or Pattern of a Product (((((((((((((((((((((((((((((1-82 4.4.2 New Design Applicable for Industrial Application (((((((((((((((((((((1-82 4.4.3 Objects for Which No Patent Protection shall be Provided ((((((((((((((1-83 4.5 Examination According to Provisions of Art.9 of the Patent Law and Rule 13.1 of the Regulations ((((((((((((((((((((((((((((((((((1-83 4.5.1 Principles of Judgment ((((((((((((((((((((((((((((((((((((((((((1-84 4.5.2 Method of Handling ((((((((((((((((((((((((((((((((((((((((((((1-85 4.5.2.1 Different Applicant ((((((((((((((((((((((((((((((((((((((((((((1--85 4.5.2.2 Same Applicant (((((((((((((((((((((((((((((((((((((((((((((((1--85 Chapter 4 Patent Classification (((((((((((((((((((((((((((((((((((((((((((1-87 1 Instruction ((((((((((((((((((((((((((((((((((((((((((((((((((((1-87 2 Contents of Classification ((((((((((((((((((((((((((((((((((((((((1-87 3 Technical Subject Matter (((((((((((((((((((((((((((((((((((((((((1-88 3.1 Determination of the Technical Subject Mattel' (((((((((((((((((((((((1-88 3.1.1 General Principles ((((((((((((((((((((((((((((((((((((((((((((((1-88 3.1.2 Entirety ((((((((((((((((((((((((((((((((((((((((((((((((((((((1-88 3.1.3 Importance (((((((((((((((((((((((((((((((((((((((((((((((((((1-88 3.1.4 Combining with Description ((((((((((((((((((((((((((((((((((((((1-88 3.1.5 Methods of Determining Technical Subject Matter ((((((((((((((((((((1-88 3.2 Categories of Technical Subject Matter (((((((((((((((((((((((((((((1-90 3.2.1 General Object ((((((((((((((((((((((((((((((((((((((((((((((((1-91 3.2.2 Objects Especially Applicable for a Specific Use or Purpose ((((((((((((1-91 3.2.3 Special Use or Application of an Object (((((((((((((((((((((((((((((1-91 3.2.4 Classifying an Object into a More General Class ((((((((((((((((((((((1-91 3.2.5 Either a General Object or Relating to the Use or Application of the Object ((((((((((((((((((((((((((((((((((((((((1-92 6 CONTENTS 4 Method of Classification (((((((((((((((((((((((((((((((((((((((((1-92 4.1 Classification as a Whole ((((((((((((((((((((((((((((((((((((((((1-92 4.2 Classification According to Function (((((((((((((((((((((((((((((((1-92 4.3 Classification According to Application (((((((((((((((((((((((((((((1-93 4.4 Classification According to Both Function and Application (((((((((((((1-93 4.5 Classification of Independent Claim and Dependent Claims (((((((((((((1-94 4.6 Classification Steps of the Technical Subject Matter (((((((((((((((((((1-94 4.6.1 Compound ((((((((((((((((((((((((((((((((((((((((((((((((((((1-94 4.6.2 Chemical Mixture or Composition (((((((((((((((((((((((((((((((((1-94 4.6.3 Preparation or Handling of the Compound (((((((((((((((((((((((((((1-95 4.6.4 Equipment or Process (((((((((((((((((((((((((((((((((((((((((((1-95 4.6.5 Manufactured Article (((((((((((((((((((((((((((((((((((((((((((1-95 4.6.6 Multi-Steps Process, Equipment (((((((((((((((((((((((((((((((((((1-95 4.6.7 Spare Parts, Structural Components ((((((((((((((((((((((((((((((((1-96 5 Selection of Indexing Code (((((((((((((((((((((((((((((((((((((((1-96 5.1 Indexing Code List (((((((((((((((((((((((((((((((((((((((((((((1-96 5.1.1 Special-Rurpose Indexing Code List (((((((((((((((((((((((((((((((1-96 5.1.2 Common-Use Indexing Code List (((((((((((((((((((((((((((((((((1-96 5.2 Use of Indexing Code (((((((((((((((((((((((((((((((((((((((((((1-96 5.2.1 Consecutively-Use Indexing Code (((((((((((((((((((((((((((((((((1-96 5.2.2 Non-Consecutively-Use Indexing Code (((((((((((((((((((((((((((((1-97 6 Classification Number and Mark of Indexing Code ((((((((((((((((((((1-97 6.1 Method of Marking (((((((((((((((((((((((((((((((((((((((((((((1-97 6.2 Sequence of Classification Number ((((((((((((((((((((((((((((((((1-97 6.3 Reading of Classification Number and Indexing Code (((((((((((((((((1-97 7 X Mark ((((((((((((((((((((((((((((((((((((((((((((((((((((((1-98 7.1 Meaning of X Mark (((((((((((((((((((((((((((((((((((((((((((((1-98 7.2 Use of X Mark (((((((((((((((((((((((((((((((((((((((((((((((((1-98 PRELIMINARY EXAMINATION OF PATENT APPLICATION FOR INVENTION 1,1 Chapter 1 Preliminary Examination Of Application For Patent for Invention 1. Introduction It is stipulated in Art.34 of the Patent Law that where, after receiving an application for a patent for invention, the Patent Office, upon preliminary examination, finds the application to be in conformity with the requirements of this Law, it shall publish the application promptly after the expiration of eighteen months from the date of filing. Upon the request of the applicant, the Patent Office publishes the application earlier. Hence the preliminary examination of an application for a patent for invention is a necessary procedure after accepting an application for a patent for invention and before publishing that application. The main tasks of preliminary examination for a patent for invention are as follows: (1) Examine whether or not the application documents submitted by the applicant conform to the requirements of the Patent Law and its Implementing Regulations (hereinafter "Regulations"). Where it is found that there is any defect which could be rectified, notify the applicant to eliminate that defect by submitting rectification so as to make the application documents meet the requirements of publication; or where it is found that there is any defect which cannot be eliminated, issue an Office Action to indicate the nature of the defect and terminate the procedures of examination and approval at the possible earliest time by issuing a rejection. (2) Examine whether or not the other documents relating to the patent application submitted by the applicant at the time of filing the patent application or thereafter conform to the requirements of the Patent Law and its Regulations. Where it is found that there is any defect in these other relevant documents, notify the applicant to eliminate the defect by submitting rectification or directly issue a decision that the other relevant documents are deemed to have not been submitted, depending on the nature of the defect. (3) Examine whether or not the other relevant documents relating to the patent application were submitted by the applicant within the time limit provided by the Patent Law and its Regulations or prescribed by the Patent Office. Where such documents were not submitted within the time limit or were submitted after the time limit, the examiner shall issue a decision that 1,2 PRELIMINARY EXAM INATION such documents are deemed to have been withdrawn or are deemed to have not been submitted, depending on the circumstances. (4) Examine whether or not the amount of the relevant fees paid by the applicant conforms to the relevant provisions of the Patent Law and its Regulations and whether or not the payments have been made within the time limit required by the provisions of the Patent Law and its Regulations. Where such payments have not be made or the relevant fees have not been paid in full or not paid within the time limit, a decision that the application is deemed to have been withdrawn or is deemed to have not been submitted shall be made, depending on the circumstances. The extent of the Preliminary Examination for a patent for invention is as follows: (1) Whether or not the application documents required by Art.26 of the Patent Law are included in the patent application, and whether or not the form of these documents obviously does not conform to the provisions of Rules 17, 18, 19, 20 or 24 of the Regulations, or does not conform to the provisions of Rules 118 or 120 of the Regulations, (2) Whether or not an application for a patent obviously falls in the scope provided in provisions of Articles 5 or 25 of Patent Law, or does not conform to the provisions of Articles 18 or 19.1 of the Patent Law, or obviously does not conform to the provisions of Articles 31.1 or 33 of the Patent Law or Rules 2.1,9, 18 or 20 of the Regulations. (3) Whether or not the other formalities and documents relating to the patent application conform to the provisions of Rules 7, 8, 14, 16, 25, 31, 32, 33, 34, 37, 41, 42, 43, 45, 46, 86 and 98 of the Regulations. (4) Whether or not the payments of relevant fees of the patent application have been made in accordance with the provisions of Rules 90, 92, 93 and 97 of the Regulations. The principles to which the preliminary examination shall conform are as follows: (1) Opportunity of providing rectification shall be given to the applicant if there is any defect in the application documents which may be eliminated by providing rectification; and opportunity of providing observations shall be given to the applicant if there is any defect in the application documents which cannot be overcome. The decision of rejection may be made only when the defect has not be eliminated after providing rectification or observations. Where necessary, two or more such opportunities to provide rectification or observations should be given to the applicant. Under such circumstances, the examiner shall make sure that the time limit for PRELIMINARY EXAMINATION OF PATENT APPLICATION FOR INVENTION 1,3 the publication of the patent application provided in Art.34 of the Patent Law is adhered to. (2) A comprehensive examination of the defect of form of the application documents and other related documents shall be performed so as to make the form of the published documents meet the requirements. The applicant shall be informed of and may take correct measures only when there is substantive defect obviously existing in the application documents which will affect the publication. (3) Examiner should do his/her best to indicate all the defects of form in the application documents by one notification to make rectification unless the documents have been rejected. (4) Where a decision that the application document is deemed to have not been submitted or is deemed to have been withdrawn or is rejected is going to be made for the documents submitted by the applicant or the started procedure does not conform to the provisions of the Patent Law and its Regulations, the applicant shall be notified of the possible follow-up procedures which may commenced. (5) Regardless of what kind of measure the examiner has taken, the corresponding process and record shall be made in the paper file. 2. Examination of Application Documents Where the application documents do not conform to provisions of the following sections, the examiner shall notify the applicant to make rectification within the prescribed time limit. If no response has been made within the time limit, a notification that the patent application is deemed to have been withdrawn or not to have been submitted shall be made. Where a defect has not be eliminated after two rectifications have been made, a decision of rejection may be made. 2.1 Request 2.1.1 Title of Invention Title of invention shall express briefly and accurately the title of the technical subject matter of the patent application for invention seeking protection. It shall not include non-technical terms, such as name of a person or an entity, trademark, code name or model, etc. Nor shall it include any ambiguous terms also, such as "and others", "and its like" etc. General terms shall not be used if they do not provide any information about the invention. For example it is prohibited to use the terms as "method", "equipment", "composition", "compound" only as the title of the invention. 1,4 PRELIMINARY EXAMINATION Usually, no more than 25 Chinese characters can be used as the title of the invention. Under certain special circumstances, upon the consent of the examiner, the Chinese characters used as the title of the invention could be 40, such as, the title of certain invention in the field of field of chemistry. 2.1.2 Inventor Inventor shall be the person who has made creative contributions to the substantive features of the invention-creation. However, it is not necessary for the examiner to examine whether or not the inventor whose name appears in the Request meets the requirements of Rule 12 of the Regulations in the procedures of examination of the Patent Office. Inventor shall be an individual rather than an entity or collective. For example, it cannot be described as "xx subject matter group" etc. Inventor must use his/her true name instead of a pen name or pseudonym. Where there are more than one inventor, the names shall be provided in the order of from left to right. Inventor may request the Patent Office not to disclose his/her name. Such request must be submitted by inventor himself/herself in writing. After the request of non-disclosure of the name of the inventor has been submitted, if it is considered to be in conformity with the requirements concerned after examination, the Patent Office shall not disclose the inventor's name in the Patent Gazette, description offprint, and the Patent Certificate. The inventor may not request his/her name to be published afterwards. Foreign inventor may use his/her initials in foreign language in the Chinese translation of its/his name. The first name and the family name shall be separated by a dot which is in the middle of the two words, such as, M?Jose. 2.1.3 Applicant 2.1.3.1 Domestic Applicant For a service invention, the right to apply for a patent belongs to the entity. While for a non-service invention, the right to apply for a patent belongs to the inventor. However, generally it is not necessary for the examiner to examine the status of the inventor indicated in the Request in the procedures of examination of the Patent Office. Where the applicant is an individual, it may be presumed that the invention is a non-service invention, and the applicant has right to apply for the patent. Under the circumstances that the subject matter of the invention is obviously not a non-service invention, the applicant shall be invited to submit a proof of non-service invention provided by the entity to which the applicant belongs. Where the PRELIMINARY EXAMINATION OF PATENT APPLICATION FOR INVENTION 1,5 applicant is an entity, it may be presumed that the invention is a service invention, and the applicant has a right to apply for the patent. Under the circumstances that the entity obviously does not possess the status of legal person or the status of legal person of that entity is questionable, such as Scientific Research Division of xx University or xx Subject Matter Group of xx Institution, the entity shall be invited to submit a certified document to support its status as a legal person. The individual applicant shall use his/her true name; the pen name or other informal name cannot be used. Where the applicant is an entity, its full official name shall be used and the abbreviation or shorter form of the name cannot be used. The name of the entity indicated in the application documents shall be the same as appearing in the official seal of that entity. 2.1.3.2 Foreign Applicant, including Foreign Individual, Foreign Enterprise or Other Foreign Organization It is stipulated in Art. 18 of the Patent Law that: "Where any foreigner, foreign enterprise or other foreign organization having no habitual residence or business office in China files an application for a patent in China, the application shall be treated under this Law in accordance with any agreement concluded between the country to which the applicant belongs and China, or in accordance with any international treaty to which both countries are party, or on the basis of the principle of reciprocity." Where an examiner has any question about the nationality, business office or the location of the headquarters of the applicant indicated in the Request, he/she may invite the applicant to provide a certificate of nationality or certified document concerning the location of the headquarters of the busi- ness office in accordance with Rule 34(1) or Rule 34(2) of the Regulations. Where the applicant claims in the Request to have a business office in China, the examiner shall invite the applicant to provide a certificate pro- vided by the local administration of industry and commerce which proves the business office concerned is a true and valid one. Where the applicant claims to have habitual residence in China, the examiner shall invite the applicant to submit the certified document provided by the public security organizations to prove he/she is able to live in China for one year or longer. After it is affirmed that the applicant is a "foreigner, foreign enterprise or other foreign organization having no habitual residence or business office in China", examination shall be performed to determine whether or not the nationality or the country where the headquarters of the applicant is located, which was indicated in the Request, conforms to one of following three conditions: (1) the country to which the applicant belongs has concluded an agreement 1,6 PRELIMINARY EXAMINATION with China to provide patent protection to the national of the opposite party; (2) the country to which the applicant belongs is a member of Paris Convention for the Protection of Industrial property (Hereinafter Paris Convention); (3) the foreigner shall be provided patent protection on the basis of the principle of reciprocity in accordance with the law of the country to which the applicant belongs. The examination shall be started from whether or not the country to which the applicant belongs is a member of the Paris Convention (For individual applicant, it may be determined by his/her nationality and habitual residence. For an entity, it may be determined by the location of its head- quarters or true and valid business office). It is not necessary to examine whether or not there is any agreement concluded between this country and China to provide patent protection to the national of the opposite party, because all of these countries are the member States of Paris Convention. Only when the country to which the applicant belongs is not a member State of the Paris convention, is it necessary to examine whether or not there is a principle of reciprocity to provide patent protection to the foreigners in the law of this country. Where there is no express provision to give patent protection to the foreigner on the basis of the principle of reciprocity in the law of the country to which the applicant belongs, the applicant shall be invited to submit a certified document to show that the country recognizes that Chinese citizens and entities are, under the same conditions applied to its nationals, entitled to have patent right and other related rights in that country. Where the applicant cannot submit such a document, the patent application shall be rejected according to Rule 44 of the Regulations on the ground that it does not conform to the provisions of Art. 18 of the Patent Law. For an applicant coming from the territory or annexed territory of a member State of the Paris Convention, it shall be examined whether or not this State has declared that the Paris Convention is suitable for this territory. For an applicant coming from a non-member State of the Paris Convention which has not concluded a relevant agreement with China but has not excluded the right of a citizen of China to file a patent application in this area, the examiner shall handle the case on the basis of the principle of reciprocity. Where the inventor is an individual, he/she may use his/her initials in foreign language. The first name and family name shall be separated by a dot in the middle of the two words, such as, M ~ Jose. It is prohibited to use title, including academic degree, position, etc., in the inventor's name, PRELIMINARY EXAMINATION OF PATENT APPLICATION FOR INVENTION 1,7 such as Dr. xxx, professor xxx. Where the applicant is an entity, it shall use its full official name. It is acceptable to use certain title which indicates the status of independent legal person according to the law of the country to which the applicant belongs. 2.1.3.3 Application Filed Jointly by Domestic Applicant and Foreign Applicant Where an application is filed jointly by domestic applicant and foreign applicant, the examination shall be performed according to the provisions of 2.1.3.1. and 2.1.3.2 of this Chapter respectively. 2.1.4 Patent Agency, Patent Agent A patent agency may be established according to the provisions of "Regulations on Patent Agency" and has approved by the State Intellectual Property Office. Any foreign-related patent agency shall be so designated by the State Intellectual Property Office. Title of the patent agency shall be the full title as registered in the State Intellectual Property Office and as appearing in the official seal of that patent agency affixed in the application documents. It is prohibited to use abbreviation or initials. The I.D. code given by the State Intellectual Property Office to that patent agency shall be included in the Request. The term "patent agent" refers to a person who has a "Patent Agent Qualification Certificate", executes his/her duty in a lawful patent agency and holds a "Patent Agent License" provided by the State Intellectual Property Office. The patent agent shall use his/her true name and fill in the number of his/her "Patent Agent License" in the Request. No more than two patent agents are allowed to handle one patent application. 2.1.5 Address The address in the Request (including the addresses of applicant, patent agency and link person) shall meet the requirements of making the mail be delivered rapidly and accurately. The local postcode, street number, name of district, name of city (the autonomous prefecture), name of province (the autonomous region) and telephone number shall be included in the address in China. Or it shall be clearly indicated the street number and the name of the town (village), the name of the county (the autonomous county), the name of the province (the autonomous region); or the street number and the name of the district and the name of the municipality directly under the Central Government and the telephone number. Where a post office box is available, it may be used according to the stipulations. The name of the entity may be included in the address, but it cannot be used to substitute 1,8 PRELIMINARY EXAMINATION the address. For example, it is prohibited to use xx University of xx Province as an address. Where the applicant is an entity, a link person shall be designated and the mailing address of the link person shall be included. Where the applicant is an individual, a link person may be designated as the addressee of the mail delivered by the Patent Office. For the address in a foreign country, the name of the city (county, state) and the name of the country shall be clearly indicated and the detailed address in foreign language shall be attached. 2.2 Description The first line on page I of the description shall state the title of invention as appearing in the Request which shall be located in the middle of the line. It is prohibited to use the terms as "Title of Invention" or "Title" before the title of the invention. A blank line shall be left between the title of invention and the text of the description. The following parts shall be included in the description and the sub-title shall be indicated before each of them: Technical Field; Background Art; Contents of the Invention; Indication of Figures; Mode of Carrying out the Invention. Where there is no drawing in the description, the brief description of the drawings and the sub-title accordingly shall not be included in the text of the description. For the application relating to nucleoside or amino acid sequence, such sequence shall be a separate part of the description. The applicant shall submit a CD-ROM or disc, which shall conform to the requirements of the Patent Office, corresponding to the said sequence together with the application. Where the sequence recorded in the CD-ROM or disc is different from that in the description, what in the description shall prevail. Where no such CD-COM or disc has been submitted, the applicant shall be invited to submit it within the prescribed time limit. If no such a submission has been made within the time limit, the application shall be deemed to have been withdrawn. The text of the description may contain chemical formula, mathematical expressions, and tables, but no drawings are allowed. Drawings shall be included in the description if there are explanatory notes to the drawings in the description. If there are drawings in the description, the explanatory notes to the draw- PRELIMINARY EXAMINATION OF PATENT APPLICATION FOR INVENTION 1,9 ings shall be included in the description. Where it is mentioned in the description that it contains "explanatory notes to the drawings" but the drawings or part of them are missing, the applicant shall be invited either to delete the explanatory notes to the drawings or to furnish the drawings within the prescribed time limit. Where the applicant submits the drawings later, the date of their delivery at, or mailing to, the Patent Office shall be the date of filing of the application. Then the examiner shall issue a notification to change the date of filing and make corresponding amendments of the information in the database. Where the expression of "explanatory notes to the drawings" is to be deleted, the initial date of filing shall be kept. Where there are two or more pages in the description, the pages shall be numbered in Arabic numerals and arranged in numerical order. 2.3 Claims Where there are two or more claims, they shall be numbered in Arabic numerals and arranged in numerical order. It is prohibited to use the term as "claim" or "claims" before the numerals. The claims may contain chemical formula or mathematical express, as well as table where necessary, but no drawings are allowed. Where there are two or more pages in the claims, the pages shall be numbered in Arabic numerals and arranged in numerical order. 2.4 Drawings of Description The drawings of the description shall be in black ink with the aid of drafting instruments. The lines shall be uniformly thick and well-defined, dark enough, and free from color and alterations. The sectional line of the sectional drawing shall not interfere with identifying clearly the mark line and main line of the drawings. The same sheet of drawings may contain several figures. Also, one overall figure may be contained in several sheets of drawings. However, the figure on each sheet of drawings must be an independent one. When all the sheets of drawings together form a complete overall figure, the clarity shall not be compromised. No frame line is allowed around the figure. Where there are two or more figures, they shall be numbered in Arabic numerals and arranged in numerical order, and the word of "Figure" shall be added before the number, such as "Figure 1", "Figure 2" ...... Figures shall be vertically arranged in the sheet of drawings as far as possible, and separated distinctly from each other. Where it is necessary to arrange the figure horizontally because the cross dimension of the part is obviously larger than that of the vertical section, the top of the figure shall 1,10 PRELIMINARY EXAMINATION be located at the left of the sheet. Where there are two or more figures on one sheet and one of them is arranged horizontally, the rest of the figures shall have the same arrangement. Drawing reference signs shall be numbered in Arabic numerals. The same drawing reference sign shall be used for the same part when it appears in different figures. The same drawing reference sign shall be used to indicate one part in various documents (description and its drawings, claims, and abstract) of a patent application. However, it is not necessary for the drawing reference signs to be consecutively numbered in each figure. The size of the figure shall be appropriate. Each detail of the figure shall be clearly distinguishable and suited for mass reproduction by means of photomechanical process, duplicate process and microform process, etc. The identical scale shall be adopted in the same figure. An additional figure of partial enlargement may be added in order to make certain part of the figure be shown distinctively. Explanatory words are prohibited in the figure except necessary critical ones. The critical words shall be in Chinese, and its original language may follow in brackets where necessary. Flow charts and diagrams shall be deemed as drawings and necessary note and symbols shall be included in the frame. Under the special circumstance, for example, when a metallographic structure or histocyte is displayed, photos may be included on the sheet of drawings used as drawings. 2.5 Abstract Where an application for a patent for invention is filed, the abstract of the description shall be submitted. 2.5.1 Text of Abstract The abstract shall indicate the title of the invention and the technical field to which the invention pertains. It shall be drafted in a way which allows the clear understanding of the technical problem, the gist of the technical solution resolving the problem, and the principal use or uses of the invention. The applicant shall be invited to make rectification if no title of invention has been indicated or no gist of the technical solution has been provided. Where commercial advertising has been used, it shall be deleted and the applicant shall be notified accordingly. The text of the abstract shall contain no more than 300 characters (including punctuation). Where there are more than 300 characters in the text of the abstract, the applicant shall be invited to abridge it or it shall be abridged by the examiner. Under the latter circumstances, the examiner shall notify the applicant about the abridgement. PRELIMINARY EXAMINATION OF PATENT APPLICATION FOR INVENTION 1,11 2.5.2 Drawing of Abstract Where the description contains drawings, the applicant shall indicate and provide one drawing which best characterizes the invention as the drawing of the abstract. The drawing of abstract shall be one of the drawings of the description. Where the applicant does not indicate nor provide such a drawing of the abstract, the examiner shall invite the applicant to make rectification or the examiner shall designate one drawing himself. Under the latter circumstances, the examiner shall invite the applicant to provide two copies of the drawing designated by the examiner. Where the examiner acknowledges that there is no suitable drawing to be designated, the examiner need not invite applicant to make rectification. Where the drawing of the abstract indicated and provided by the applicant obviously cannot characterize the invention, the examiner shall designate another one and invite the applicant to provide two copies of the drawing designated by the examiner. The scale and the distinctness of the drawing of the abstract shall be such that a reproduction with a linear reduction in size to 4cm x 6cm would still leave all details clearly distinguishable. The abstract may contain chemical formula which best characterizes the invention and shall be deemed as the drawing of abstract. 2.6 Preliminary Examination of Two Types Of Special Patent Applications 2.6.1 Divisional Application 2.6.1.1 Submission of Divisional Application Where an application for a patent contains two or more inventions, the applicant may submit a divisional application at its/his own initiative. A divisional application shall be submitted before the expiration of two months for going through the formalities of registration from the date of receiving the notification issued by the Patent Office to grant the patent right for the initial patent application. No divisional application may be submitted after the expiration of the above-mentioned period of time when the patent application has been rejected and the rejection has taken in effect, or the patent application has been withdrawn or is deemed to have been withdrawn and the right has not been restored. Where a patent application does not conform to the provisions of Art.31 of the Patent Law, the applicant shall, according to the requirements of Notification of Making Divisional Application or the Office Action, make amendments to the application so as to comply with the provisions of unity 1,12 PRELIMINARY EXAMINATION prescribed in the Patent Law and its Regulations. The applicant may submit another or more than one divisional application for the contents deleted from the initial application. The divisional application cannot change the type of the initial application. For example, if the initial application is a patent application for invention, the divisional application concerned shall be a patent application for invention only. Also, the patent applicant of the divisional application shall not be changed. For example, the patent applicant of the divisional application shall be the same as that of the initial application. If not, the certified document of assignment shall be submitted. The inventor of the divisional application shall be the inventor, or part of the inventors of the initial application. Where the applicant submits a divisional application, the filing number and the date of filing of the initial application shall be indicated in the Request and the complete application documents of the initial application shall be submitted. If various certified documents have been provided with the initial application, the duplicate copy may be used. Where the initial application is an international application, the applicant shall indicate the international application number in the brackets that follows the initial filing number. Where there is an international publication of the initial application in a language other than Chinese, a duplicate of the text of it shall be submitted together with a Chinese duplicate. 2.6.1.2 Preliminary Examination of Divisional Application The examiner shall verify the following items on the initial application: (1) Whether or not the initial date of filing indicated on the Request of the divisional application is correct; (2) Whether or not the applicant of the divisional application is the same as that of the initial application. If not, whether or not the certified document about the lawful assignment of the right is attached. Whether or not the inventor is the inventor or part of the inventors of the initial application. (3) Whether or not the duplicate of the initial application documents is provided. Where the right of priority is claimed, whether or not the duplicate of the documents of priority right of the initial application is provided. Where the initial application is an international application, the divisional application shall not require the applicant to provide duplicate of the priority if it was not requested for the initial application. (4) Whether or not the initial application is rejected and whether or not the rejection has taken effect; whether or not the initial application has been withdrawn, or deemed to have been withdrawn and the right has not been restored. Whether or not the date of submission of the divisional application is within two months from the date of receiving the notification to grant the right of patent for the initial application issued by the Patent Office. - PRELIMINARY EXAMINATION OF PATENT APPLICATION FOR INVENTION 1,13 Where one of the requirements indicated in item (1), (2) and (3) is not met, the applicant shall be invited to make rectification within a prescribed time limit. Where no rectification is made within the time limit, the examiner shall issue a decision that the divisional application is deemed to have been withdrawn, and the examiner shall notify the applicant accordingly. Where the date of submission of the divisional application is not within two months of registration, from the date of receiving the notification to grant the right of patent for the initial application by the Patent Office, or the initial application on which the divisional application is based has been withdrawn or is deemed to have been withdrawn and the right has not been restored, or, the initial application has been rejected and the rejection has taken effect, the examiner shall issue a notification that the divisional application is deemed to have not been filed. The various legal time limits for the divisional application, such as the time limit for submitting the Request for examination as to substance, or the time limit for providing proof materials of the priority, etc, shall be counted starting from the initial date of filing. In the event that the applicant exceeds the time limits, the applicant may make up various formalities within two months from the date of submission of the divisional application. Where the applicant does not complete any formalities within the time limit, the examiner shall issue a decision that the divisional application is deemed to have been withdrawn and the examiner shall notify the applicant accordingly. Fees for the divisional application shall be paid the same as those for a new application. The applicant may make up late payments within two months from the date of the submission of the divisional application. Where the applicant makes no payment, or makes a partial payment when the payment is due, the examiner shall make a decision that the divisional application is deemed to have been withdrawn and notify the applicant accordingly. 2.6.2 Application involving Biological Material 2.6.2.1 Submission of Application involving Biological Material The applicant with an the application involving biological material shall, in addition to the other requirements provided in the Patent Law and its Regulations, complete the following procedures: (1) deposit a sample of the biological material with an international 1,14 PRELIMINARY EXAMINATION depositary institution designated by the State Intellectual Property Office before the date of filing, or, at the latest, on the date of filing (or the priority date where priority is claimed); (2) indicate, on the Request and the description, the name and address of the depositary institution in which the sample of biological material was deposited, the date on which the sample of the biological material was deposited, the accession number of the deposit, and the scientific name of the biological material (with its Latin name); (3) give, in the application documents, relevant information of the characteristics of the biological material sample; (4) submit, within four months from the date of filing, a receipt of deposit and the viability proof from the depositary institution. 2.6.2.2 Preliminary Examination of Application involving Biological Material Where the applicant submits a "receipt of deposit" within the prescribed time limit, the examiner shall examine and verify the following items according to the receipt: (1) whether or not the depositary institution is the international depositary institution for the biological material sample recognized by the State Intellectual Property Office; (2) whether or not the date of deposit is before/on the date of filing (or the priority date if the applicant claims priority); (3) whether or not the items in the receipt of deposit are the same as those that appear in the Request. Where the "receipt of deposit" does not meet the requirement in Item (1) or (2), the examiner shall issue a notification that the biological material sample is deemed not to have been deposited and notify the applicant accordingly. If the "receipt of deposit" does not meet the requirement in Item (3), the examiner shall invite the applicant to make rectification within the prescribed time limit. If the applicant does not make rectification within the time limit, the examiner shall issue a notification that the biological material sample is deemed not to have been deposited and notify the applicant accordingly. Where applicant does not submit the "receipt of deposit" within the prescribed time limit, the examiner shall issue a notification that the biological material sample is deemed not to have been deposited and notify the applicant accordingly. Where the applicant has neither submitted the viability proof of the bio- logical material sample nor given appropriate ground for the non-submis- sion within four months from the date of filing, the examiner shall issue a PRELIMINARY EXAMINATION OF PATENT APPLICATION FOR INVENTION 1,15 notification that the biological material sample is deemed not to have been deposited and notify the applicant accordingly. An appropriate reason for not submitting viability proof is the depositary institution does not provide viability proof and the certified document thereof within four months. Where the submitted biological material sample dies during the deposit, the examiner shall issue a notification that the biological material sample is deemed not to have been deposited and notify the applicant accordingly, unless the applicant provides evidence as proof that the applicant has no liability for the death of the biological material sample. Where the applicant provides such evidence, the applicant may make a new deposit of the biological material sample which is identical with the original one within four months. Under such circumstances, the examiner shall deem the initial date of deposit as the date of deposit. Where the application for a patent relates to the deposit of the biological material, the applicant shall, in the Request and the description, indicate the scientific name of the biological material, the name and address of the depositary institution in which the sample of biological material has been deposited, the date on which the sample of the biological material was deposited and the accession number of the deposit. All of the information shall be consistent (see 7.3, Chapter 10, Part II of the Guidelines). Where, at the time of filing, they are not indicated or are not consistent, they shall be supplied within four months from the date of filing. If they are not supplied in four months, the sample of the biological material shall be deemed as not to have been deposited. If the applicant has an appropriate reason and if the examiner issued a notification that the biological material sample is deemed as not to have been deposited, the applicant may start the procedures of restoration according to Rule 7.2 of he Regulations. The appropriate reasons for no deposit or the death of the biological material sample include but are not limited the following: a. The depositary institution provides documents as evidence to indicate that it has not provided the certified document of deposit or viability proof within four months. b. Where the biological material sample dies during the submission of the sample, the applicant provides the evidence to prove that the applicant has no liability for the death of the sample. Where the procedures cannot be restored even if the procedure of restoration has been started or the applicant does not start the procedures of restoration after the Patent Office decides that the biological material sample is deemed not to have been deposited, the examiner shall, on his/ 1,16 PRELIMINARY EXAMINATION her own initiative, delete the relevant items indicated in the Request and affix the seal. 2.7 Formality Examination of Publication Of Application Documents When the patent application for invention is published, the text of the description, claims and abstract shall be clear and distinct without changes and no words between the lines. The lines of the drawings of description and the drawing of abstract (including border line, dash dot line, hatch, center line, symbol line, etc.) shall be clear and distinguishable. Both characters and lines shall be in black and dark enough with clean background. The text and drawings shall have no frame around it. The pages of various documents shall be consecutively numbered respectively. Where the application documents do not conform to the above-mentioned requirements, the applicant shall be invited to made rectification within the prescribed time limit. Where no rectification has been made within the time limit, the examiner shall issue a notification that the patent application is deemed to have been withdrawn. If the patent right is granted for the patent application for invention, the application documents shall meet the requirements of publication, except the examiner may make some written amendments. 3. Examination of Other Documents and Relevant Formalities 3.1 Appointment of Patent Agency and Designation of Representative 3.1.1 Appointment of Patent Agency 3.1.1.1 Appointment In accordance with the provisions of Art. 19.1 of the Patent Law, "where any foreigner, foreign enterprise or other foreign organization having no habitual residence or business office in China applies for a patent, or has other patent matters to attend to, in China, it or he shall appoint a patent agency designated by the State Intellectual Property Office to act as his or its agent." During the examination, if the examiner finds that such applicant has not appointed a designated patent agency to handle his/its patent application or other patent matters, an Office Action shall be made to notify the applicant through its/his patent agency. If the applicant has not provided response within the prescribed time limit, the application shall be deemed to have been withdrawn. Where the requirements remain PRELIMINARY EXAMINATION OF PATENT APPLICATION FOR INVENTION 1,17 unsatisfied after the applicant made the observations or rectification, the patent application shall be rejected on the basis of the provision of Art. 19.1 of the Patent Law. Either a domestic entity or a domestic individual may appoint a patent agency to file a patent application and handle other patent matters in China. The parties of the appointment are the applicant and patent agency. Where there are two or more applicants, the parties shall be the entire group of applicants and the common patent agency. After accepting the appointment, the patent agency shall designate the specific patent agent(s) of that agency to handle the relevant matters. The said designated agent(s) shall be no more than two persons. Where the appointment by the domestic entity or individual does not conform to the requirements, the patent agency shall be invited to make rectification within the prescribed time limit. Where no response is made within the time limit or the requirements remain unsatisfied after the rectification has been made, it shall be deemed no patent agency has been appointed and notify the fact to the parties accordingly. Where a patent application was filed by a foreigner or jointly filed by the Chinese citizen and foreigner and the first applicant is a foreigner, the examiner shall determine whether or not the appointed patent agency meets the requirements of Art. 19.1 of the Patent Law. The legal person of Hong Kong, Macao or Taiwan shall appoint the patent agency designated by the State Intellectual Property Office to file the patent application or handle the other patent matters. The individual of Hong Kong, Macao or Taiwan may either appoint the patent agency designated by the State Intellectual Property Office or other patent agency to file the patent application or handle other patent matters. Where the individual of Hong Kong, Macao or Taiwan files an application for a patent or handle other patent matters jointly with a legal person of that region, the formalities shall be gone through by the patent agency designated by the State Intellectual Property Office. Where the individual or the legal person of Hong Kong, Macao or Taiwan files an application for a patent or has other patent matters to attend to jointly with the individual or entity of Mainland China, if the applicant whose name appeared before the others is an individual or legal person of Hong Kong, Macao or Taiwan, the formalities of filing the patent application by the individual or legal person of Hong Kong, Macao or Taiwan shall be gone through. Where the legal person or individual of Hong Kong, Macao or Taiwan goes through the formalities of filing a patent application in the Patent Office through other entity or individual in Mainland China rather than by appointing a patent agency according to the law, the applicant shall, within 1,18 PRELIMINARY EXAMINATION two months from the date of filing or within one month from the date of receiving the notification of the Patent Office, appoint a patent agency according to the law. The patent application shall be deemed to have been withdrawn if no appointment has been made after the time limit is due. Where the requirements remain unmet after the observations or rectification has been made, the patent application shall be rejected. 3.1.1.2 Power of Attorney Any applicant who appoints a patent agency for filing an application for a patent with, or for dealing with other patent matters before, the Patent Office, shall submit a power of attorney indicating the scope of the power entrusted. In order to appoint a patent agency, the applicant shall sign a power of attorney and indicate the scope of the power entrusted. The power of attorney shall be in the unified form prescribed by the Patent Office, indicating the title of the invention-creation, title of the patent agency, name of the patent agent as appearing in the Request. Where the appointment is made after the filing number is determined, the filing number of the patent application shall be indicated. The power of attorney shall be signed or sealed by the applicant and the patent agency. Where there are two or more applicants, the power of attorney shall be signed or sealed by the entire group of applicants and the official seal shall be affixed by the patent agency. Where the foreign applicant appoints a patent agency designated by the State Intellectual Property Office, a general power of attorney may be deposited in the Patent Office. The Patent Office shall provide a number for that general power of attorney when it receives a lawful general power of attorney and notify that patent agency concerned accordingly. Where a general power of attorney has been deposited, a duplicate of the general power of attorney may be submitted instead of an original power of attorney when the patent application is filed. Under such circumstances, the title of the patent agency, name of patent agent, title of the invention-creation and the number of that general power of attorney provided by the Patent Office shall be indicated and the official seal of that patent agency shall be affixed. The patent agency shall be invited to make rectification within the prescribed time limit if the power of attorney does not meet the requirements. Where no response has been made within the time limit or the rectification does not meet the requirements, for the domestic application it shall be deemed no patent agency has been appointed and notify both parties. Where the first signatory is a foreigner, it shall be PRELIMINARY EXAMINATION OF PATENT APPLICATION FOR INVENTION 1,19 handled according to the provisions of 3.1.1.1. The legal person from Hong Kong, Macao or Taiwan shall appoint the patent agency designated by the State Intellectual Property Office and sign a power of attorney with full powers. Where the individual from Hong Kong, Macao or Taiwan appoints a patent agency, the individual may either directly follow the formalities of appointment personally or trust the relative or friend in Mainland China to handle the formalities on its/his behalf. Under the latter circumstances, the applicant shall sign a power of attorney with full powers indicating the matters entrusted, names (titles) and addresses of the consignor and consignee. The power of attorney shall be signed by the consignor and indicate the date of the appointment. Where such a power of attorney has been signed, and the formalities of the appointment of patent agency is being followed, the power of attorney for patent may be signed or sealed by the entrusted relative or friend of the applicant. 3.1.1.3 Dissolution and Resignation of the Appointment After the applicant appoints a patent agency, the applicant may terminate the appointment, and the patent agency may resign from appointment as well. To terminate the appointment, the opposite side shall be notified beforehand and the formalities concerning the change of bibliographic data shall be followed in the Patent Office. To resign from appointment, the formalities concerning the change of bibliographic data shall be followed also, and the declaration of the resignation shall be attached. Before the change of the bibliographic data becomes effective, the matters handled by that patent agency on behalf of the applicant is continuously effective. Where the change is considered lawful, a notification recognizing the formalities as competent shall be made and both parties shall be notified accordingly. 3.1.2 Designation of Representative 3.1.2.1 Designation Where there are two or more applicants and no patent agency has been entrusted, one of the applicants shall be designated as the representative. Except as stated otherwise in the Request, the applicant named first (the first signatory) in the Request shall been regarded as the representative by the Patent Office. 1,20 PRELIMINARY EXAMINATION 3.1.2.2 Authorization Except for the formalities relating to the common rights, the common representative shall have right to handle various matters before the Patent Office. The said matters relating to immediate common rights refer to submitting a patent application, appointing a patent agency, request for an earlier publication, assigning right of applying for patent application, right of priority or patent right, withdrawing the patent application, withdrawing the right of priority, abandoning the patent right or request for reexamination, etc. Such kinds of matters shall be signed or sealed by the entire group of owners of right. 3.2 Claim to Right of Priority Claim to right of priority refers to the situation where the applicant requests the Patent Office to provide it/him with the right of priority on the basis of a prior filed patent application according to Art.29 of the Patent Law. In order to claim to the right of priority, the applicant shall meet the requirements of Articles 29 and 30 of the Patent Law, Rules 32 and 33 of the Regulations, and the relevant provisions of the Paris Convention. 3.2.1 Claim to Foreign Right of Priority 3.2.1.1 Earlier Application and Latter Priority-Claiming Application Where an applicant files a patent application and claims to foreign right of priority to the Patent Office, the examiner shall determine whether or not the earlier application, as the basis of the right of priority, was filed in a country which is a member State of the Paris Convention, or whether or not it is a regional application or an international application which is effective in such a country. For the application claiming to the right of priority from a country which is not a member of the Paris Convention, examiner shall determine whether or not this country recognizes the right of priority of our country. It shall also be examined whether or not the applicant enjoys the right given by the Paris Convention, i.e. whether or not the applicant is a national or resident of a member State of the Paris Convention, or a national or resident of a country which recognizes the right of priority of China. Furthermore, the examiner shall determine whether or not the later application is filed within twelve months from the date of filing of the earlier application. Where the requirement has not been met, the priority shall be deemed not to have been claimed. If there are two or more earlier applications, the time limit shall be counted from the date of filing of the earliest application. If the later application is filed after twelve months PRELIMINARY EXAMINATION OF PATENT APPLICATION FOR INVENTION 1,21 from the date of filing of the earliest application, the examiner shall issue a notification that the claim to the priority, which is based on an earlier application filed over twelve months, shall be deemed not to have been made. During the preliminary examination, the examiner shall not examine that whether or not the earlier application is the first application defined by the Paris Convention and whether or not the substantial contents of the subject matters of the earlier application and later application are identical, unless the earlier application is obviously not in conformity with the relevant requirements of the Paris Convention or the subject matters of the earlier application and the later application are obviously different. The earlier application may be an application for inventor's certificate defined in Art.4-A of the Paris Convention. 3.2.1.2 Declaration to Claim to Right of Priority To claim to the right of priority, the applicant shall make a written declaration to claim to priority in the Request when the patent application is filed. If the applicant fails to do so, the claim to the priority shall be deemed not to have been made. The date of filing and the filing number of the earlier application, which is the basis of claiming to the priority, as well as the name of the country or the inter-governmental organization, which accepted that earlier application, shall be indicated in the declaration of claiming to the right of priority. If the applicant fails to indicate or incorrectly indicates the said date of filing and the name of the country or inter-governmental organization which accepted the earlier application in the written declaration, the declaration shall be deemed not to have been made, and the claim to the priority shall be deemed not to have been made on the basis that no written declaration has been made. Where multi-rights of priority are claimed but the dates of filing of some earlier applications and the names of the countries or inter-governmental organizations that accepted some earlier applications have not been indicated in the written declaration, the claim to the corresponding right of priority shall be deemed not to have been made. Where no filing number or incorrect filing number of the earlier application is indicated in the said declaration but the applicant has provided a duplicate of the documents of the earlier application within the prescribed time limit, the examiner shall issue a notification of rectification. Where no response has been made within the time limit or the rectification does not meet the relevant requirements, the claim to the right of priority shall be deemed not to have been made. 1,22 PRELIMINARY EXAMINATION 3.2.1.3 Duplicate Documents of Earlier Application The duplicate documents of the earlier application shall be issued by the country or the inter-governmental organization that accepted the earlier application which is the basis of the right of priority. The form of the said duplicate documents shall conform to the international practice. At least the name of the country or intergovernmental organization that accepted the earlier application, applicant, date of filing and filing number shall be provided. Where the said duplicate documents fail to do so, a notification for rectification shall be made. Where no response has been made within the time limit or the rectification does not meet the relevant requirements, it shall be deemed no duplicate documents of earlier application have been submitted and the examiner shall issue a notification that the claim to the right of priority is deemed not to have been made based on this. Where the claim to multi-rights of priority is made, the duplicate documents of all the earlier applications shall be provided. Where the requirements remain unmet, it shall be deemed no duplicate documents of earlier application have been provided and the examiner shall issue a notification that the claim to the priority based on the earlier application is deemed not to have been made based on this. Duplicate documents of the earlier application shall be submitted within three months from the date of filing of the later application. The claim to the right of priority shall be deemed not to have been made if such documents have not been submitted within the time limit. Where the above-mentioned duplicate documents have been submitted to the Patent Office previously, there is still a requirement to submit them. The duplicate copy may be accepted provided that the filing number of the application, which is included in the duplicate documents of the earlier application, is indicated. 3.2.1.4 Applicant of Later Application The applicant of the later priority-claiming application shall be the same as the applicant recorded in the duplicate documents of the earlier application or one of the applicants of the earlier application. Where the applicants are completely different, i.e., the right of priority of the earlier application has been assigned to the applicant of the later application, a document certifying the assignment of the right of priority, which shall be signed or sealed by the entire group of applicants of the earlier application before the date of filing of the later application, shall be submitted at the time, or the latest within three months, of submitting the later application. Where the earlier application has more than one applicant PRELIMINARY EXAMINATION OF PATENT APPLICATION FOR INVENTION 1,23 and the later application has at least one different applicant, a document certifying the common assignment of the right of priority, which has been signed or sealed by the entire group of applicants of the earlier application, to the entire group of applicants of the later application before the date of filing of the later application; or a document certifying the assignment of the right of priority, which has been signed or sealed by several applicants of the earlier application, to several applicants of the later application respectively before the date of filing of the later application, shall be provided. Generally, the above-mentioned document shall be signed before the submission of the later application unless there is other provision in the certified document. Where the applicant fails to submit such a certified document or the document submitted fails to meet the requirements, the examiner shall issue a notification of the claim to the priority to be deemed not to have been made. 3.2.1.5 Withdrawal of Claim to Right of Priority The applicant may withdraw his/its claim after the claim to the right of priority has been made. Where the claim to multi-rights of priority has been made, the applicant may withdraw one, some or all of them. Where the applicant requests to withdraw the claim to the right of priority, the request shall be made in written form. Where the earliest date of priority of a patent application has been changed because of the above-mentioned withdrawal, if the various time limits counting from this date of priority have not passed, these time limits shall be counted from the earliest date of priority or the date of filing after the change. Where the request for withdrawal of the claim to the priority reached the Patent Office after fifteen months from the initial earliest date of priority, the time of publication of the later patent application shall be counted from the initial earliest date of priority. After the claim to the right of priority has been made, the relevant requirements and measures shall be untenable. 3.2.1.6 Fee of Claim to Right of Priority Where the right of priority is claimed, the corresponding fees shall be paid at the same time that the filing fee is paid. If the fees have not been paid or not been paid in full within the time limit, the claim to the priority shall be deemed not to have been made. Withdrawing the claim to the priority, the corresponding payments for fees of claim to the right of priority which have been paid shall not be returned. 1,24 PRELIMINARY EXAMINATION 3.2.2 Claim to Domestic Right of Priority The claim to domestic right of priority refers to the situation where the applicant submits a later application to the Patent Office on the same subject matter within twelve months from the date of filing of the first patent application for invention or for utility model in China, and claims to the right of priority. The claimant to the domestic right of priority can be eighth a Chinese or a foreigner. 3.2.2.1 Earlier Application and Later Priority-claiming Application The earlier application and later priority-claiming application shall comply with the following provisions: (1) The earlier application shall be a patent application for invention or utility model rather than a patent application for design or a divisional application. (2) No foreign or domestic right of priority has been claimed for the subject matter of the earlier application. (3) No patent right has been granted for the subject matter of the earlier application, i.e., no notification to grant a patent right for the subject matter of the earlier application has been made. (4) The later priority-claiming application has been submitted within twelve months from the filing date of the earlier application. When examining the above Item (3), the reference time shall be the date of filing of the later priority-claiming application, i.e., the Patent Office has not issued the notification to grant the patent right for the subject matter of the earlier application on that date. When examining the above Item (4), where multi-rights of priority are claimed, the reference time shall be the date of filing of the earliest application, i.e., the later priority-claiming application has been submitted within twelve months from the date of filing of the earliest application. Where one of the above requirements remains unmet, the examiner shall issue a notification that the claim to the priority is deemed not to have been made. When examining the right of priority, where it is found the notification to grant the patent right has been made by the Patent Office but the date of issuance of the notification is after the date of filing of the later application, under such circumstances, if the claim of priority conforms to the requirements, the applicant shall be invited to return the said notification as soon as possible. When the Patent Office receives the returned notification, the relevant fees which have been paid by the applicant shall be returned. During the preliminary examination, the examiner shall only examine whether or not the subject matter of the later application is obviously PRELIMINARY EXAMINATION OF PATENT APPLICATION FOR INVENTION 1,25 different from that of the earlier application. The examiner shall not examine whether or not the substantial contents of subject matters of the earlier application and the later application are consistent. Where the subject matters of the two applications are obviously different, the examiner shall issue a notification that the claim to priority is deemed not to have been made. .2 Declaration to Claim to Right of Priority 3.2.2 Any applicant who claims the to right of priority shall make a declaration in the Request when the application is filed. If the applicant fails to do so, the claim to the right of priority shall be deemed not to have been made. The applicant shall include in the declaration to claim to the right of priority the date of filing, the filing number of the earlier application which is the basis of the claim to the priority, as well as the name of the country which received the application (China). If the applicant fails to indicate or incorrectly indicates one of the above items, the declaration shall be deemed not to have been made, and the claim to the priority shall be deemed not to have been made based on the facts that no written declaration has been made. Where multi-rights of priority have been claimed but the matters of some of the earlier applications have not been indicated or have been incorrectly indicated in the written declaration, the corresponding claim to the priority shall be deemed not to have been made. 3.2.2.3 Duplicate Documents of Earlier Application The duplicate documents of the earlier application shall be prepared by the Patent Office according to the relevant provisions, and included in the file of the later application, provided that the prescribed fee to claim to the priority has been paid. 3.2.2.4 Applicant of Later Application The applicant of the later priority-claiming application shall be the one appearing in the duplicate documents of the earlier application. Where the applicants are not the same, the applicant of the later application shall submit a document certifying to the assignment of the right of priority when the later application is filed. Where there is difficulty doing so, the said document shall be submitted within three months from the date of filing of the later application together with the reason of the delayed submission. This document shall be signed by all of applicants of the earlier application and the document shall be signed before the submission of the later application unless otherwise provided other provision in the certified document. Where the applicant fails to submit such a document or 1,26 PRELIMINARY EXAMINATION the applicant submits a certified document that fails to meet the requirements, the examiner shall issue a notification that the claim to the priority is deemed not to have been made and notify the applicant accordingly. 3.2.2.5 Withdrawal of Claim to Right of Priority The examination shall be performed according to the provisions in Section 3.2.1.5 of this Chapter. However, the earlier application which has been deemed to have been withdrawn shall not be requested to be restored due to the withdrawal of the claim to the priority. 3.2.2.6 Fee of Claim to Right of Priority Examination shall be performed according to the provisions in Section 3. 2.1.6 of this Chapter. 3.2.2.7 Procedures of Making Earlier Application to Be Deemed to Have Been Withdrawn Where the domestic right of priority is claimed, the earlier application shall be deemed to be withdrawn from the date on which the later application is filed. Where the applicant claims to the domestic right of priority, and the requirements have been satisfied after the preliminary examination, the examiner shall issue a notification that the earlier application is deemed to have been withdrawn and notify the applicant accordingly. Where rights of priority of two or more applications are claimed, if the requirements have been satisfied after the preliminary examination, the examiner shall issue a notification that the corresponding earlier applications are deemed to have been withdrawn and notify the applicant accordingly. The application which is deemed to have been withdrawn cannot be requested to be restored. 3.3 Disclosures without Loss of Novelty 3.3.1 Applicable Scope In accordance with the provisions of Art.24 of the Patent Law, the invention-creation seeking patent protection does not lose its novelty where, within six months before the date of filing (or the date of priority where priority was claimed), one of the following events occurred: (1) Where it was first exhibited at an international exhibition sponsored or recognized by the Chinese Government; PRELIMINARY EXAMINATION OF PATENT APPLICATION FOR INVENTION 1,27 (2) Where it was first made public at a prescribed academic or technological meeting; (3) Where it was disclosed by any person without the consent of the applicant. The explanation for the above shall refer to 5.1, 5.2 and 5.3, Chapter 3 of Part II of the Guidelines. Under the circumstances of Items (1) or (2), the applicant shall make a declaration in the Request when the patent application is filed. In the event described in Item (3), if the applicant discovered the event before the date of filing, it also shall be declared in the Request when the application is filed. Where the above requirements remain unmet, the examiner shall issue a notification that the claim to the grace period of not losing novelty is deemed not to have been made and notify the applicant accordingly. 3.3.2 Supporting Materials Where the claim to not loss novelty is made when the patent application is filed, the supporting materials shall be submitted by the applicant within two months from the date of filing. Under the circumstances mentioned in Item (3) of 3.3.1, if the applicant discovered the circumstances after the date of filing, the applicant shall submit the supporting documents within the time limit prescribed by the Patent Office (two months). Where such documents have been submitted after the time limit, the examiner shall issue a notification that the claim to the grace period of not losing novelty is deemed not to have been made and notify the applicant accordingly. The supporting materials of the international exhibition shall be provided and signed with chop by the sponsor of the exhibition. The certified document of the academic or technological meeting shall be provided and signed with chop by the department or bureau in charge of the business concerned under the competent authority of the State Council. It shall be included in the supporting materials that the date, venue, name of the exhibition or meeting, on which date and in what form the contents of the invention-creation was exhibited or published, and the duplicate of such contents. It shall be indicated in the supporting materials provided by the applicant about disclosure by any other person, the date, form and contents of the disclosure. The documents shall be signed with chop by the witness. 3.4 Request for Examination as to Substance The examination procedures as to substance of an application for a patent for invention shall be started mainly upon the request of the applicant. 1,28 PRELIMINARY EXAMINATION 3.4.1 Relevant Requirements of Request for Examination as to Substance The request for examination as to substance shall be made within three years from the date of filing (or date of priority where priority is claimed) and the prescribed fee shall be paid accordingly. When the applicant for a patent for invention requests for examination as to substance, the applicant shall furnish pre-filing date (or pre-priority date where priority was claimed) reference materials concerning the invention. 3.4.2 Examination and Handling of the Examination as to Substance The examination of the Request for examination as to substance shall be performed according to the following requirements: (1) The examiner shall issue a notification that the time limit expired if applicant has not submitted the Request for examination as to substance within the time limit. (2) The examiner shall issue a "Notification to go through the Formalities" to invite the applicant to make rectification within the prescribed time limit if the Request for examination as to substance has been made and the corresponding fee has been paid within the time limit but other requirements have not been met. Where no rectification has been made within the time limit or the request still remain unsatisfied after rectification has been made, the examiner shall issue a notification that the request for examination as to substance is deemed not to have been made and notify the applicant accordingly. (3) Where the Request for examination as to substance is submitted after the time limit, or the requirements are not met after the rectification has been made, or the fee has not been paid or bas not been paid in full within the time limit, the application shall be deemed to have been withdrawn. (4) Where the Request for examination as to substance conforms to the requirements, the examiner shall issue a notification to enter the procedures of examination as to substance and notify the applicant accordingly before the examination as to substance is performed. 3.5 Declaration of Earlier Publication The declaration of earlier publication is applicable to patent applications for invention only. Where the applicant makes a declaration of earlier publication, no other conditions may be attached. Where the requirements have been met by the above-mentioned declaration after examination, the procedures of preparation for publication shall be PRELIMINARY EXAMINATION OF PATENT APPLICATION FOR INVENTION 1,29 started promptly after the patent application has passed the preliminary examination. The Request for withdrawing the declaration of earlier publication made by the applicant at this time shall be deemed not to have been made and the application documents shall be published as scheduled. 3.6 Declaration to Withdraw an Application for a Patent Before the grant of the patent right, the applicant may, on the applicant's own initiative, request to withdraw his/its patent application at any time. The form of "Declaration to withdraw an application for a Patent" prescribed by the Patent Office shall be used to make such a request. No any other conditions may be attached when making a declaration to withdraw an application for a patent. Where it is required to withdraw an application for a patent, the certified document agreeing to withdraw a patent application signed or sealed by the applicant shall be submitted, whether or not a patent agency has been appointed. Where there are two or more applicants of a patent application, such a certified document signed or sealed by all the applicants shall be submitted when the Request for withdrawing their patent application is made. Where the Request has met the requirements after examination, a notification acknowledging satisfaction of the formalities shall be made and the applicant shall be notified accordingly. The applicant cannot withdraw the said declaration without appropriate reason, unless the applicant, who is not the real holder of the right to apply for the patent, requests for withdrawal of the patent application maliciously. Under such circumstances, the real right holder (upon proof by valid legal documentation) may request to withdraw such a declaration. Where a declaration to withdraw an application for a patent is submitted after the patent application has entered into the printing preparation of the patent gazette, the application documents shall be published or announced as scheduled, and the examination procedures shall cease. Where the application has been published, the filing number of that application shall be announced in the patent gazette. 3.7 Change of Bibliographic Data The bibliographic data of a patent application includes: the filing number, date of filing, title of invention-creation, classification number, information relating to priority (including the filing number and date of filing of the earlier application, as well as the country which received the earlier application), the information relating to the applicant or the patentee (including name or title, nationality, address and postal code of the 1,30 PRELIMINARY EXAMINATION applicant or patentee), name of inventor, information relating to the patent agency (including name, address and postal code of the patent agency and name of the patent agent) and representative, etc. Where the bibliographic data concerning information of personnel (referring to information relating to applicant or patentee, name of inventor, information relating to patent agency, link person and representative) have changed, the procedures to declare the change shall be made by the interested party according to the relevant provisions. Where other bibliographic data have been changed, the Patent Office shall make the change according to its functions and powers depending on the circumstances. The Guidelines only make provisions for the formalities required to declare the change of the bibliographic data. 3.7.1 Change of Name and Change of Right 3.7.1.1 Change of Name Change of name refers to the situation where there is no change of the interested party (including applicant or patentee, inventor, patent agency, patent agent or link person) per se, but there is a change of name, title, nationality or address because of the change of the name or moving to a new address. 3.7.1.2 Change of Right Change of right refers to one of the following circumstances: (1) The transfer of the right of an applicant to apply for an application for a patent or the patent right of a patentee has occurred for the reasons of such as assignment, inheritance, gift and dispute, etc. The increase, decrease or change in the number of the applicant or patentee caused by such transfer leads to the change of the name or title, nationality or address of the applicant or patentee; (2) Change of the inventor has occurred after a dispute of qualifications, i. e., the real inventor has replaced the person claimed to be the inventor before, or the number of the inventor being increased, decreased or change. The increase, decrease or change of the number of the inventor caused by such dispute leads to the change of the name of the inventor. (3) Change of the name or address of a patent agency or change of the name of the patent agent has occurred by revoking or re-appointing a patent agency because of the change of the applicant or the patentee, or by the resignation of the appointment by the patent agency or change of the patent agent during the procedures of examination and approval. PRELIMINARY EXAMINATION OF PATENT APPLICATION FOR INVENTION 1,31 (4) Change of the name of the link person or representative because of the revoking or reappointing link person or representative caused by the change of applicant or patentee. 3.7.2 Formalities of Change 3.7.2.1 Declaration to Change Bibliographic Data It is required to use the form of declaration to change bibliographic data prescribed by the Patent Office to request for the change of bibliographic data. Where the applicant is requesting to change several items of bibliographic data of a patent application at the same time, only one declaration is required to be submitted. Where the applicant requests to change the same item of bibliographic data of several patent applications, the corresponding number of declarations has to be submitted even if the contents of the change are the same. 3.7.2.2 Fees for Changing Bibliographic Data Fees for facilitating the declaration to change the bibliographic data shall be paid according to the relevant provisions. The fees for facilitating the change of bibliographic data in the fee schedule of the patent prescribed by the Patent Office refer to the fees of each declaration to change the bibliographic data for each patent application. 3.7.2.3 Time Limit of Paying the Fees for Change of Bibliographic Data The fees for changing the bibliographic data shall be paid within one month from the date that the Request concerned was submitted. Where the fees have not been paid or not been paid in full within the time limit, the Request for the change of bibliographic data shall be deemed not to have been made unless otherwise provided in another provision. 3.7.2.4 Supporting Documents for Change to Bibliographic Data (1) Where the applicant or patentee, inventor, patent agency or patent agent changes its/his name or moves to a new address, the certified documents issued by the local public security department, administration for industry & commerce or the competent authorities at higher level shall be submitted. The certified documents issued by the competent authorities of the State shall be submitted for the change of nationality. (2) Where a transfer of right has occurred due to a dispute of ownership of right or qualifications, the applicant, patentee or inventor shall submit an agreement of transfer of the right signed or sealed by all the interested 1,32 PRELIMINARY EXAMINATION parties if the dispute has been settled by negotiations; or the legally effective written judgment made by the People's Court if the dispute has been pronounced by the People's Court. After receiving the judgment, the Patent Office shall notify the other interested parties and make inquires whether or not an appeal is instituted. Where there is no response or where clearly no appeal will be instituted within the prescribed time limit (two months), the written judgment shall be deemed to possess legal effect. Where an appeal has been instituted, the interested party shall provide the notice of acceptance of the appeal and the original written judgment of the People's Court shall no longer have legal effect. Where the dispute has been settled by the local administrative authority for intellectual property affairs (hereinafter AAIPA), after receiving the decision of the mediation, the Patent Office shall notify other interested parties and make inquiries whether or not an appeal was instituted. Where there is no response or clearly no appeal will be instituted within the prescribed time limit (two months), the decision of mediation shall be deemed to possess legal effect. Where an appeal has been instituted, the interested party shall provide the notice of acceptance of the appeal and the original decision of mediation of the AAIPA shall no longer have legal effect. (3) Where a transfer of right has occurred due to the assignment or donation of the right and a request to change the applicant or patentee, the person who has the right to apply for an application for a patent or the patentee shall submit the original copy or the notarized copy of the contract of assignment or donation. Where such a contract are concluded by legal persons, it shall be signed or sealed by the legal representatives or authorized persons and the official seals or the special seals for contracts shall be affixed. Where it is necessary, a notarial document shall be submitted. For the contract concluded by the citizens, it shall be signed or sealed by the principals. Where it is necessary, a notarial document shall be submitted. Where there are more than one patent applicant or patentee, the certified documents which indicate that the assignment or donation has been consented by all the obligees shall be submitted. The assignment of the right to apply for a patent or the right of a patent involving the overseas resident or legal person shall conform to the following provisions: (a) Where both assignor and assignee are overseas residents or legal persons, the original copy or the notarized copy of the contract of assignment signed by both parties shall be submitted to the Patent Office. (b) Where the assignor is a legal person or individual of Mainland China and the assignee is the overseas resident or legal person, both the document PRELIMINARY EXAMINATION OF PATENT APPLICATION FOR INVENTION 1,33 of approval, which indicates that the assignment has been approved by the competent department for foreign economic and trade under the State Council together with the administrative authorities for science and technology under the State Council, and the notarized original copy of the contract of assignment concluded and signed with chop by both parties shall be provided. (c) Where the assignor is the overseas resident or legal person and the assignee is the legal person or individual of Mainland China, the notarized original copy of the contract of assignment signed with chop by both parties shall be provided to the Patent Office. (d) The formalities for a change to the bibliographic data caused by the above-mentioned assignment of right to apply for a patent or the patent right shall be followed by the applicant or patentee as the assignor or the patent agency entrusted by the assignor. The overseas resident or legal person mentioned in (a) to (c) refers to a foreigner, foreign enterprise, and resident or legal person of Hong Kong, Macao or Taiwan who has no habitual residence or business office in Mainland China. Those who have habitual residences or business offices in Mainland China may be treated according to the provisions provided for the assignment of the right to apply for a patent or a patent right conducted by a Chinese resident or legal person. (4) Where the applicant or patentee is a legal person, the document which has legal effect shall be provided if the change to the bibliographic data is caused by the merge, reorganization, split, close, bankruptcy, or reform of the company of the applicant. (5) Where an inheritance occurs due to the death of the applicant or patentee, the certified document issued by the notary organization, certifying that the interested party is the only lawful successor of the dead person or all the successors have been included as the persons who request for the inheritance, shall be submitted. The common successors shall inherit the right to apply for a patent or the patent right together unless there is other explicit stipulation. (6) Where a patent agency changes its title or address, it shall, at first, make the change of registration of record at the competent department in charge of the patent agencies in the State Intellectual Property Office. After the registration has taken effect, that patent agency shall make the change to the bibliographic data for each effective patent application and patent acted by it. The removal or substitution of a patent agent shall be requested by a patent agency. (7) A patent agency, which changed because it resigned, revoked the appointment or accepted the appointment during the procedures of 1,34 PRELIMINARY EXAMINATION examination and approval, shall submit the resignation, dissolution or power of attorney. 3.7.2.5 Person Who Is following Formalities for Change to Bibliographic Data Where an application for patent was filed without appointing a patent agency, the formalities of changing bibliographic data shall be followed by the applicant or patentee or its/his representative. If the change was caused by assignment, inheritance or dispute, the formalities may be followed by the new obligee (unless there is other explicit stipulation). Filing an application for patent through an appointed patent agency, the said formalities shall be followed by the patent agency except the formalities relating to dissolving the appointment of the patent agency according to the Rules on Patent Agency. 3.7.3 Formalities after Change to Bibliographic Data Where the formalities to declare the change to bibliographic data do not conform to the stipulated provisions after examination, rectification shall be made. Where the requirements remain unmet even after rectification has been made, such a declarations shall be deemed not to have been made and the applicant shall be notified accordingly. Where the formalities to declare the change of bibliographic data conform to the provisions stipulated, the examiner shall issue a notification to announce that the formalities have been satisfied, and notify the applicant the information before and after the change to the bibliographic data, and let the applicant know the volume number and the issue number of the scheduled announcement if the information is going to be announced. Where the change to the bibliographic data involves the transfer of the right, both parties shall be notified and the examiner shall complete the following: (1) Change and check the relevant bibliographic data in computer database. (2) Where the amounts of various fees have been changed because of the change of the owner of the right, the interested party shall be invited to rectify a defect according to the new standard within a prescribed time limit. The payment shall be deemed insufficient if no payment was made or the payment was not paid in full within the time limit. Where there is a change relating to the rate to reduce or delay of the payment, the relevant mark in the database shall be changed and notify the applicant accordingly. (3) Where the change will be announced in the patent gazette according to the provisions, such as the change of patentee, the examiner shall make the announcement of the information before and after the change. (4) Where the name or address of a patent agency changed or a patent PRELIMINARY EXAMINATION OF PATENT APPLICATION FOR INVENTION 1,35 agency revoked according to the Rules of Patent Agency, the examiner shall perform the following acts: (a) For the group change to bibliographic data and uniform handling of dissolution of patent agencies, the bibliographic data in the computer shall be amended uniformly. (b) The declaration of a group change to bibliographic data and the uniformly handled notification of dissolution of the patent agency shall be included in the relevant application files. (c) Where the applicant of the patent application handled by the dissolved patent agency is a domestic legal person or individual, the first signatory of the applicant(s) shall become the representative of the patent application automatically from the date of the announcement of the said dissolution (unless there is another declaration). The applicant may appoint another patent agency. 3.7.4 Effective Date of Change of Right to Apply for an Applicatio (Patent Right) The change of the fight to apply for a patent application (patent right) shall take effect as of the date of registration which is the date of issuance of the notification of the satisfaction of the formalities for change issued by the Patent Office. 4 Examination of Obvious Substantial Defect 4.1 Examination According to Art. 5 of Patent Law In accordance with the provisions of Art.5 of the Patent Law that no patent right shall be granted for any invention-creation that is contrary to the laws of the State or social morality or that is detrimental to public interest. Examination of an invention applying for an application for a patent shall be performed in three aspects: whether or not the invention is obviously contrary to the laws of the State, whether or not the invention is obviously contrary to social morality, and whether or not the invention is obviously detrimental to public interest, referring to Section 2, chapter 1, Part I of the Guidelines. If the examiner considers that the entire contents or some contents of the application fall into one of the above aspects, for example, if the applicant submitted an application with following or similar contents: "A kind of drug taking tool", "A kind of tool for gambling and the method of its use" and "A kind of safe which can arrest the thief automatically", the examiner shall issue an Office Action together with the reason and invite the applicant to provide observations within a prescribed time limit (if the entire contents are involved), or delete the relevant part (if only part of the 1,36 PRELIMINARY EXAMINATION contents is involved). Where the observations provided by the applicant are not sufficient to indicate that the relevant invention does not fall into the scope of Art.5 of the Patent Law or the applicant refuses to delete the relevant part of the invention without appropriate reason, the examiner shall make a decision of rejection. Where the applicant has deleted the relevant part of the invention according to the observations of the examiner, the applicant shall be allowed to add necessary words or sentences to make the context of the writing coherent. The above-mentioned invention-creation that is contrary to Art.5 of the Patent Law does not include those whose exploitation is prohibited only by the laws of the State. 4.2 Examination According to Provisions of Art.25 of Patent Law In accordance with the provisions of Art.25 of the Patent Law that no patent right shall be granted for any of the following: (1) scientific discoveries; (2) rules and methods for mental activities; (3) methods for the diagnosis or for the treatment of diseases; (4) animal and plant varieties; (5) substances obtained by means of nuclear transformation. For processes used in producing products referred to in items (4) of the preceding paragraph, patent right may be granted in accordance with the provisions of this Law. Examination shall be performed referring to Section 2, Chapter 1, Part II of the Guidelines to determine whether or not the invention seeking patent protection obviously falls into the scope of circumstances for which no patent right is granted according to Art.25 of the Patent Law. If the examiner considers the entire contents of the invention belongs to one of the circumstances described in Art.25 of the Patent Law, for example, if the applicant submitted an application with following or similar contents: "A newly discovered minor planet", "A genetically engineered cow containing human gene", "A method for diagnosing diseases in human being", the examiner shall issue an Office Action to describe the reason, and invite the applicant to provide observations within a prescribed time limit. A decision of rejection shall be made if the applicant's observations are not sufficient to prove the invention does not belong to one of the said circumstances. Where the examiner considers part of the contents of the invention belongs to one of the above circumstances but it is difficult to separate that part from the invention, no acts may be adopted in the preliminary examination. It may be handled by the examiner for examination as to substance in the procedures of examination as to substance. PRELIMINARY EXAMINATION OF PATENT APPLICATION FOR INVENTION 1,37 4.3 Examination According to Provisions of Art.31.1 of Patent Law In accordance with the provisions of Art.31.1 of the Patent Law, an application for a patent for invention shall be limited to one invention. Two or more inventions belonging to a single general inventive concept may be filed as one application. It is not necessary to perform the examination of whether or not the invention conforms to the requirements of Art.31.1 of the Patent Law in the preliminary examination. An Office Action shall be issued when two or more inventions, which completely have no relations, are included in one patent application so that it is impossible to provide a classification number according to one subject matter, and the applicant shall be invited to make amendments to the patent application in order to meet the requirement of unity. Where the applicant refuses to do so without an appropriate reason, the examiner may make a decision of rejection. 4.4 Examination According to Provisions of Art.33 of Patent Law In accordance with the provisions of Art.33 of the Patent Law that an applicant may amend his or its application for a patent, but the amendment to the application for a patent for invention may not go beyond the scope of the disclosure contained in the initial description and claims. The amendment made by the applicant in making the Request for the examination as to substance in accordance with Rule 51 of the Regulations shall not be examined in the preliminary examination. Only when the examiner issues an Office Action in the procedures of examination and invites the applicant to make amendments to the application documents, shall the examiner judge whether or not the amendments obviously go beyond the scope of the disclosure of the description and claims. Where the amendments obviously go beyond the scope of the initial disclosure, for example, the applicant has changed the data or has expanded the scope of the numerical value, or has introduced a claim of a technical solution about which there are no corresponding words in the initial description, or has added one or more pages to the substantial contents of the invention which were not included in the initial description or claims, the examiner shall issue an office action to notify the applicant accordingly. Where the applicant has no sufficient reason to show the amendment does not go beyond the initial disclosure, and insists upon not making any change to the revised text which is not in conformity with the provisions of Art.33 of the Patent Law, or the said requirements still remain unmet even after the change has been made, the examiner may make a decision of rejection. PRELIMINARY EXAMINATION OF PATENT APPLICATION FOR INVENTION 1,38 4.5 Examination According to Provisions of Rule 2.1 of the Regulations In accordance with the provisions of rule 2.1 of the Regulations, invention in the Patent Law means any new technical solution relating to a product, a process or improvement thereof. In the preliminary examination, it is only necessary to determine whether or not the "invention" in the application for a patent is a technical solution. If there are only descriptions of the technical index, advantages and results but no description relating to the technical solution for resolving the problem or no description of technology, the examiner shall issue an Office Action and notify the applicant accordingly. Where the applicant does not respond within the time limit, the application shall be deemed to have been withdrawn. Where the examiner still considers the application as falling into the scope indicated in the Office Action after the applicant's response has been made, the application shall be rejected on the basis that the application does not conform to the provisions of Rule 2.1 of the Regulations and the grounds of the rejection shall be provided. Where part of the technical features of the "invention" have been described in the application documents, it is not necessary for the examiner to determine whether or not the technical solution is complete or whether or not the solution can be exploited. 4.6 Examination According to Provisions of Rule 18 of the Regulations No words that have no relation to the technology may be used in the description. Neither commercial advertising nor language belittling, slandering, libeling others or products of others shall be used in the description. However, merely pointing out objectively the problem in the background of the invention shall not be deemed as a belittling act. The technical contents of the invention shall be recorded in the description. Where the description obviously does not conform to the above-mentioned requirements, the examiner shall issue an Office Action together with reasons inviting the applicant to provide observations within a prescribed time limit. Where the reasons provided in the applicant's observations cannot remove the defect or the rectification does not sufficiently remove the defect, the application may be rejected according to the provisions of this Section. In the preliminary examination, if part of the technical features of the invention are described in the description, and its form conforms to the provisions of 2.2 of this Chapter, it is not necessary to perform examination of other substantial issues which shall be handled according to the procedures of examination as to substance. PRELIMINARY EXAMINATION OF PATENT APPLICATION FOR INVENTION 1,39 4.7 Examination According to Provisions of Rule 20 of the Regulations The claims shall define clearly and concisely the technical features of the invention and the scope seeking protection. No words without relations to the technology may be used in the claims, such as "claim to the protection of the right of production and sale of this patent" etc. Neither commercial advertising, nor belittling, slandering, libeling language to the others or their products shall be used in the claims. Where the claims obviously do not conform to the above-mentioned requirements, the examiner shall issue an Office Action together with the reasons inviting the applicant to provide observations within a prescribed time limit. Where the reason provided in the applicant' s observations does not remove the defect, the application may be rejected according to the provisions of this Section. 1,40 PRELIMINARY EXAMINATION Chapter 2 Preliminary Examination Of Application for Patent for Utility Model 1. Introduction In accordance with the provisions of Articles 3 and 40 of the Patent Law, the Patent Office receives and examines the patent applications for utility model. Where it is found after the preliminary examination that there is no cause for rejection, the Patent Office shall make a decision to grant the patent right for utility model, issue the relevant patent certificate, register and announce it. Hence, the preliminary examination of application for a patent for utility model is a necessary procedure after accepting an application for a patent for utility model and before publishing that application. The scope of the preliminary examination for an application for a patent for utility model is as follows: (1) Whether or not the application contains the patent application documents as provided for in Art.26 of the Patent Law, and whether or not the application documents conform to the requirements; (2) Whether or not the application for a patent for utility model obviously falls under Articles 5 or 25 of the Patent Law, or obviously does not conform to the provisions of Articles 18 or 19.1 of the Patent Law, or obviously does not conformity to the provisions of Articles 26.3-4, 31.1 or 33 of the Patent Law or Rules 2.2, 13.1, 18-23 or 43.1 of the Regulations, or cannot obtain a patent right according to the provisions of Art.9 of the Patent Law. (3) Whether or not the documents relating to the patent application documents conform to the relevant provisions of the Patent Law and its Regulations. The Patent Office shall send an Office Action to the applicant inviting him/it to provide observations or make rectifications within a prescribed time limit. The application shall be deemed to have been withdrawn if the applicant does not provide a response within the time limit. If the applicant provides observations or rectifications and the Patent Office still finds that the application does not meet the requirements of the above-mentioned provisions, the Patent Office shall reject the application. 2. Formality Examination of Application Documents The relevant provisions in Section 2, Chapter 1, Part I of the Guidelines PRELIMINARY EXAMINATION OF PATENT APPLICATION FOR UTILITY MODEL 1,41 apply. 3. Formality Examination of Other Documents The relevant provisions in Section 3, Chapter 1, Part I of the Guidelines apply. 4. Examination of the Application for Which No Patent Rights May be Granted The relevant provisions in Chapter 1, Part II of the Guidelines apply to the examination performed according to the requirements of Articles 5 and 25 of the Patent Law. 5. Examination of Object Protected by Utility Model The examination shall be performed according to Rules 2.2 of the Regulations. 5.1 Patent for Utility Model Protects Product Only In accordance with Rule 2.2 of the Regulations, the patent for utility model protects the product which shall be a substance manufactured by industrial method and occupies certain space. All of the relevant processes (including the use of the product), or the naturally existing non-artificial articles are not the objects protected by the patent for utility model. The above-mentioned processes include the process of manufacturing, method of use, method of communication, method of process, a computer program or the method to apply the product to a specific application, etc. For example, the following cannot be protected by the patent for utility model: a process of manufacturing a kind of gear, a method of dust-eliminating in the workshop, a data processing method and naturally existing Yuhua Stone, etc. It should be noted that: (1) Although the title of the subject matter of the application is a product, if the entire technical feature in the independent claim is a process or is a process in substance, it does not belong to the object protected by the patent for utility model. For example, a kind of wood toothpick which is characterized in that by processing the said wood toothpick into a predetermined shape, immersing said wood toothpick in medical bactericide for 5-20 minutes, then taking it out and airing it. (2) If the shape and structure features of the product were described in the preamble portion of the independent claim but only process feature was 1,42 PRELIMINARY EXAMINATION described in characterizing portion, the examiner shall determine whether or not the part of the utility model which made contributions to the prior art contains the features of shape or structure. Where there are features of shape or structure in that pall, the applicant shall be invited to make amendments of the claims to include these features in characterizing portion of the claim. Where there is no such feature included in that part, that utility model is a product with identical shape and structure manufactured by different process, it does not belong to the object protected by the patent for utility model. 5.2 Shape of Product The shape of the product refers to the fixed space shape possessed by the product, which can be observed from the outside. The solution relating to the shape of the product may be the solution relating to either the three-dimensional shape of the product, such as the improvement of the shape of a cam or a cutter, or the two-dimensional shape of the product, such as the improvement of the cross-sectional shape of the section bar. The shape of a non-fixed-form product, such as the substance or material in gaseous state, liquid state, powder state or particle state, cannot be regarded as the shape feature of the product of utility model. It should be noted that: (1) The biological shape or naturally-formed shape cannot be deemed as shape feature of a product. For example, neither the shape of a plant growing in a potted landscape nor naturally-formed rockery can be claimed for protection. (2) A non-fixed shape formed by uprising or piling up cannot be deemed as the shape feature of the product. (3) A product merely have a specific technical feature without a fixed shape, such as the substance in gaseous state, liquid state, powder state or particle state, provided that it is defined by the structure feature of the product. For example, no fixed shape ethyl alcohol can be included in the technical solution relating to the shape structure of a thermometer. (4) The shape of the product may be a space-shape under specific circumstances, such as an ice-made cup, or a parachute with a certain new shape, etc. For example, a kind of steel band packing case, which consists of internal steel ring, external steel ring, binding band, external protection plate, waterproof composite paper and other things. It has an incidental use, such as to transport and store the steel band. However, when it is used to pack the steel band correlatively according to the technical solution, a fixed PRELIMINARY EXAMINATION OF PATENT APPLICATION FOR UTILITY MODEL 1,43 space-shape shall be formed, which is not arbitrary. It is in the scope of the protection of patent for utility model. (5) The raw materials having changed in composition, such as sheet materials, bar materials and others, and the change of the shape for the requirements of a secondary process only does not possess the shape feature. However, where a special function or result may be achieved from a specified shape which is distinguished from the previous ones. Such shape can be protected by the patent for utility model. 5.3 Structure of Product The structure of a product refers to the arrangement, organization and correlation of the various integrants of a product. The structure of the product may be either the mechanical structure or the circuit structure. The mechanical structure refers to the relative position relation, coupling relation, necessary mechanical matching relation and so on of the components and parts of which the product consists. The latter refers to the fixed connection relation between the components and devices of which the product consists. The composite layer may be deemed as the structure of the products. Carburized layer, oxide layer and so on of the product belong to the structure of the composite layer. The molecular structure and component do not belong to the product structure protected by the patent for utility model. Therefore, if the improvement of the food, beverage, flavoring and pharmaceutical involves the change of chemical composition, component or content without involving the structure of the product, it is not the object of the protection of the patent for utility model. Where the difference between the products seeking protection of the utility model and the existing technology merely lies in the molecular structure or component of the material, it is not the object of the protection of the patent for utility model. For example, no patent right may be granted for a plastic cup substituted for a glass cup which has the same shape; or a welding rod which only has a change in the composition of soldering paste. 5.4 Technical Solution Technical solution refers to the collection of the technical features according to the laws of nature utilized by the applicant to resolve the technical problem. If no technical problem has been resolved, the new design of the shape of the product and the pattern, color, character, symbol, chart or the combination thereof on the appearance of a product, stands outside the 1,44 PRELIMINARY EXAMINATION object protected by the patent for utility model; such as the can opener with the shapes of twelve animals representing the twelve Earthly Branches are used to symbolize the year in which a person is born. Other examples are an architectural plane scheme, chess or cards and the like, of which the distinctive features are just in their design appearance, like ancient poetry cards, chemical cards and so on. 5.5 Technical Solution Applicable for Practical Use The relevant provisions of Chapter 5 of Part II of the Guidelines shall apply. 5.6 New Technical Solution A technical solution that is obviously not a new one refers to an utility model seeking protection which has been disclosed before the date of filing (or the date of priority where priority is claimed), or which is an equivalent alternative or a simple combination of the prior art. The following conclusions may be made without searching: (1) An identical product has been publicly sold or publicly used. (2) An earlier application with the same contents was published in the Chinese Patent gazette. (3) The same contents have been published. (4) After examination, an application, for which the supporting documents for not losing novelty have been submitted, is found not in conformity with the requirements of not losing novelty. (5) A simple combination of the prior art has not created any new technical effect, such as a waterproof poster board consisting of a plastic bag and the poster board therein, and so on. (6) The technical effect produced by the change of elements is the same or similar to the prior art, such a mini-billiard table which has the same shape and structure as the regular one but has the half the size. 5.7 Medical Device Which Takes Direct Effect on Human Body by Electricity, Magnetism, Light, Sound, Radiation Or Their Combination The medical device taking direct effect on human body by electricity, magnetism, light, sound, radiation or their combination has close relations with the health and safety of the human. When a patent right for utility model has been granted for such kind of product, the examiner shall clearly notify the applicant that the grant of the patent right has been made only according to the requirements of preliminary examination provided in the Patent Law. It does not mean that the product has possessed the condition PRELIMINARY EXAMINATION OF PATENT APPLICATION FOR UTILITY MODEL 1,45 for accessing the market. The patentee shall go through the corresponding formalities of examination and approval according to the relevant laws before the patent is exploited. 6. Examination of Description Examination of the draft of the description shall be performed in accordance with Art.26.3 of the Patent Law and Rule 18 of the Regulations, including the following aspects: (1) The description shall set forth the 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 which means that such person may reproduce the technical solution of the utility model, resolve the technical problem and achieve expected technical effect according to the contents of the description without creative work. (2) The title of the utility model as appearing in the Request shall be indicated in the description. The five parts of the technical field, background art, contents of the utility model, indication of the figures and mode of carrying out the utility model shall be included in the description and the corresponding title shall be indicated before each part. (3) It shall be stated in the contents of the utility model the technical problem aimed to settle by this utility model, the technical solution adopted to resolve the problem, and the advantageous effects of the utility model in comparison with the prior art. These three parts shall be logical. That is, the description of the technical solution shall resolve the technical problem and the advantageous effects shall be naturally obtained from such a technical solution. (4) At least one preferred embodiment to carry out the utility model shall be provided in the mode of carrying out the utility model of the description, and that shall be described in detail with reference to the drawings. (5) The description shall use model terms, the sentences shall be clear, the technical terms adopted shall accurately express the technical solution of the utility model, and shall not contain such references as "as described in part ...... of the claim", nor shall it contain commercial advertising. (6) With the exception of chemical formula, mathematical expression, and chart, no illustration is allowed in the description, including flowchart, block diagram, diagram of curves and phase diagram, etc. which may be used as the drawings of the description only. 7. Examination of Drawing of Description Examination of the drawing of description shall be performed in accordance with Rule 19 of the Regulations, including the following 1,46 PRELIMINARY EXAMINATION aspects: (1) No engineering blueprint or photos shall be used as the drawings. (2) The drawing must be made by a drawing instrument according to drawing standard. No frame line is allowed around the drawing. Graphic line and outgoing line shall be in black, uniformly thick and well-defined. The drawing cannot be made by pencil, ball-pen, color pen, and it is prohibited to use color in the drawing. (3) The drawings shall be numbered and arranged consecutively in Arabic numerical order such as "Fig. l, Fig. 2, ...". (4) The distinctness and scale of the drawing shall be such that a reproduction with a linear reduction in size to two-thirds would still enable all details to be clearly distinguished. (5) The identical drawing reference sign shall be used for the same part and it shall be the same as appearing in the description. The drawing reference sign mentioned in the description shall not be absent from the drawing. (6) Where there is more than one sheet of the drawings, they shall be consecutively numbered in Arabic numerals. (7) The drawings shall not contain any explanatory notes, except indispensable words which shall be in Chinese. Where it is necessary to have the indispensable words in foreign language, the foreign words must be translated into Chinese and followed by the original language in the brackets. (8) Necessary characters and symbols shall be provided in the structure diagram, logic diagram and flowchart which shall be typed, or neatly and distinctively lettered in imitation Song-Dynasty-style typeface or formal script. (9) The identical scale shall be adopted in the same figure. An additional figure of partial enlargement may be added in order to make certain part of the figure show distinctively. 8. Examination of Claims An examination of the draft of the claims shall be performed in accordance with Art.26.4 of the Patent Law and Rules 20-23 of the Regulations, including the following aspects: (1) The claims shall indicate the technical feature of the utility mode seeking protection and define clearly and concisely the scope of protection. (2) An independent claim shall outline the technical solution of a utility model in the entirety. Exception when it is required to be recited in another form, the independent claim shall contain a preamble portion and a characterizing portion. A preamble portion shall indicate the title of the subject matter of the technical solution of the utility model claimed for PRELIMINARY EXAMINATION OF PATENT APPLICATION FOR UTILITY MODEL 1,47 protection, and those necessary technical features which the title of the subject matter of the utility model share with that part of the most related prior art. The characterizing portion shall use phrases like "characterized in that ......" or in similar expressions, the technical features of the utility model, which distinguish it from that of the most related prior art. (3) The dependent claim shall further define the claim which it refers to by additional features. It shall contain a reference portion and a characterizing portion. The reference portion shall indicate the serial number(s) of the claim(s) it refers to, and the title of the subject matter consistent with that as appearing in the independent claim. The characterizing portion shall state the additional technical features of the utility model. (4) Each utility model shall have only one independent claim which shall precede all of the dependent claims relating to the same utility model. (5) Any technical features which are not the object of the patent protection for utility model shall not be included in claims, such as a technical feature relating to the process of manufacturing or the method of use of the product. (6) The feature which does not produce a technical effect shall not be included in the claims. (7) The contents included in the claims but not in the description shall be added to the description. (8) The shape and structure feature of the product shall be indicated in the claims. A process may define the shape and structure of the product in the claim only when it makes the description more clear. (9) It shall avoid using, as much as possible, the features of function and effect to define the utility model. It is not allowed only to describe the function of the utility model in characterizing portion. It is allowed to use feature of function or effect to define the utility model only when certain technical features cannot be defined by the feature of structure, or, when defining by the feature of structure is not as clear as to define the utility model by the features of function or effect, and such features of function or effect have been sufficiently described in the description. (10) The sentence which the technical concept is confused or the meaning is ambiguous cannot be used in the claims. Moreover, the claims shall conform to the following formality requirements: (1) Each claim shall consist of one sentence and the full stop may be used only at the end of each sentence. Each sentence shall be described either in one natural paragraph or in several lines or sub-paragraphs in one natural paragraph. Only a comma or a semicolon may be used at the end of the line 1,48 PRELIMINARY EXAMINATION or sub-paragraph and where necessary, the order number for sequencing may be given before the line or sub-paragraph. (2) No title shall be used in the claims. (3) Where there are several claims, they shall be numbered consecutively in Arabic numerals. (4) The claims may contain chemical Formula or mathematical expression, but drawings are not allowed. They shall not, except where absolutely necessary, contain such references to the description or drawings like "as described in part ...... of the description", or "as illustrated in figure ...... of the drawings". The form may be contained only when it is absolutely necessary. (5) In order to help understand the technical solution described in the claims, the technical features mentioned in the claims may make reference to the corresponding reference signs in the drawings of the description. The signs shall be in the brackets and followed by the technical feature that the sign refers to. Under such circumstances, the signs shall be the same as those appearing in the drawing of the description. (6) A dependent claim shall refer only to the preceding claim or claims. A multiple dependent claim referring to two or more claims shall refer only, in an alternative way, to the preceding claim or claims, and shall not serve as a basis for any other multiple dependent claim. 9. Examination of Abstract Examination of abstract shall be performed in accordance with Rule 24 of the Regulations, including the following aspects: (1) The abstract shall indicate the title, essential technical solution and the major application of the utility model, especially the technical features which represent the improvement of the shape or structure of the utility model compared with the prior art rather than the commercial advertising or pure functional introduction of the product. (2) The abstract shall be written consecutively without a title. (3) The abstract may contain chemical formulae or mathematical expressions. (4) The entire text of abstract shall not contain more than 300 Chinese characters. (5) The applicant shall provide a drawing of the abstract which is selected from the drawings of the description. 10. Examination of Rectification Documents Examination of the application documents for a patent for utility model shall be performed in accordance with Art. 33 of the Patent Law. PRELIMINARY EXAMINATION OF PATENT APPLICATION FOR UTILITY MODEL 1,49 An applicant may, on its/his own initiative, make amendments to the application documents of a patent for utility model within two months from the date of filing or to the correspondence with the Office Action or notification of rectification as required by the Notification. The amendments to the application documents of a patent for utility model may not go beyond the scope of the disclosure contained in the initial description and claims. Where the applicant introduces the contents or the immediate equivalent upon making an amendment, which cannot be concluded by a person skilled in the field of relevant technology from the initial description and claims, such amendment shall be regarded as having gone beyond the scope of initial description and claims. Where the applicant deletes one or more feature(s) from an application, it may also lead to going beyond the scope of the initial description and claims. Where a technical feature contained in the initial claims but not described in the initial description is introduced in the description causing the description of the technical feature to extend, such amendment shall be regarded as going beyond the scope of the initial description and claims. Where a technical feature displayed in the initial drawings of description but not described in initial description and claims has been introduced and the description of the technical contents cannot be directly obtained from the initial drawings of description have been added, the amendment shall be regarded as going beyond the scope of the initial description and claims. It should be noted that: (1) The correction of a distinct defect shall not be regarded as going beyond the initial description and claims. The distinct defect refers to the incorrect contents which can be clearly determined from the context of the initial description and claims without the possibility of other explanations or amendments. (2) The structure of the drawing, which is very clear and has only one explanation, may be introduced in the description and included in the claims. 11. Examination of Unity Examination of unity of the patent for utility model shall be performed in accordance with the provisions of Art.31.1 of the Patent Law and Rule 35 of the Regulations. Two or more utility models belonging to a single general inventive concept may be filed as one application for patent for utility model refers to the independent claims relating to two or more products, which belong to a 1,50 PRELIMINARY EXAMINATION general concept and cannot be included in one claim. When the independent claims of two or more products which cannot be included in one claim conform to one of the following requirements, they may be regarded as belonging to one general concept: (1) They possess the identical specific technical features that may resolve the same technical problem in two or more independent claims. (2) They may be two or more interrelated or matched products that possess corresponding specific technical features. See 2.2.2.1, chapter 6, Part II of the Guidelines for the examples of the principles of examination and the methods of determination of unity. See the relevant provisions in 2.2.1(5) and 2.2.2.3, Chapter 6 of Part II of the Guidelines for the examination of unity required by dependent claims. Where two or more subject matters of the utility model seeking protection are included in one application for a patent are obviously not in conformity with the requirements of unity, the examiner shall issue an Office Action, in which the claim is divided into two or more groups of claims according to the requirements of unity, and invite the applicant to make a selection from them: keeping one group and deleting others within a prescribed time limit. Where no response has been made by the applicant within the time limit, the examiner shall issue a notification that the patent application is deemed to have been withdrawn. The examiner shall reject the application for a patent if the applicant refuses to make amendments without an appropriate reason in the response. Where the applicant has made an amendment to delete the claim which does not conform to the requirements of unity, the examination of the patent application shall be performed according to the procedures of "examination of rectification" which refers to the provisions in Section 10 of this Chapter. The applicant shall be informed that after deleting the claim which does not conform to the requirements of unity, the applicant may need to change the title of the utility model. Where the application involves the change of the title of the utility model, the examiner shall follow the necessary formalities required by the procedures of a change to bibliographic data. The applicant may make the decision whether or not to file the divisional application for the deleted claims, and the examiner shall not make any requirements. 12. Examination of Divisional Application Where an application for a patent for utility model contains two or more utility models, the applicant may submit the divisional application either before the receipt of the notification to grant the patent right for a utility model or within two months from the date of receipt of the said PRELIMINARY EXAMINATION OF PATENT APPLICATION FOR UTILITY MODEL 1,51 notification. However, where the initial application has been rejected and the rejection has taken effect, or it has been withdrawn or is deemed to have been withdrawn and the right has not been restored, no divisional application may be submitted. If the Patent Office finds that an application for a patent for utility model does not conform to the provisions of Art.31.1 of the Patent Law and Rule 35 of the Regulations, it shall invite the applicant to amend the application within a specified time limit. The applicant may, upon overcoming the defect of lacking unity of the initial application, submit the divisional application to the Patent Office before the expiration of two months from the date of receipt of the notification for following the formalities of registration. Following items shall be verified according to the file of the initial application for the above-mentioned two kinds of divisional applications: (1) Whether or not the initial date of filing stated in the Request of divisional application is correct. (2) Whether or not the applicant of the divisional application is consistent with the applicant of the initial application. If they are not the same, whether or not the certified document indicating the lawful transfer of the right is attached. Whether or not the inventor is the same as in the initial application or part of them. (3) Whether or not the duplicate of the initial application documents were submitted; where the right of priority was claimed, whether or not the duplicate of the priority documents of the initial application were submitted. Where the initial application is an international application, and the duplicate of the priority documents for the initial application was not required, it shall not be required by the divisional application. (4) Whether or not the initial application has been rejected and the rejection has taken effect or the initial application has been withdrawn or deemed to have been withdrawn and the right has not restored before the submission of the divisional application. Whether or not the date of submission is within two months from the date of receipt of the notification to grant the patent right to the initial application issued by the Patent Office. Where one of the requirements provided in Items (1), (2) or (3) is not complied with, the applicant shall be invited to make rectification within a prescribed time limit. Where no rectification has been made within the time limit, the examiner shall issue a notification that the divisional application is deemed to have been withdrawn, and notify the applicant 1,52 PRELIMINARY EXAMINATION accordingly. Where the applicant submits the divisional application after the two months for following the formalities of registration from the date of receipt of the notification to grant the patent right to the initial application issued by the Patent Office, or the initial application, on which the divisional application is based, has been withdrawn or is deemed as being withdrawn and the right has not been restored, or it has been rejected and the rejection has taken in effect, a notification that the divisional application is deemed not to have been submitted shall be made. The various legal time limits for the divisional application, such as the time limit for submitting the certified materials of priority and so on, shall be counted from the initial date of filing. For the various expired time limits, the applicant may make up various formalities within two months from the date of submission of the divisional application. Where no formalities have been gone through when the time is due, a notification that the divisional application is deemed as having been withdrawn shall be Made and the applicant shall be notified accordingly. The various fees for the divisional application shall be paid as the same as for a new application. The applicant may make up the payment of the fees within two months from the date of submission of the divisional application for those the time limits of which have been due. No payment has been made or made in full when the time is due, the examiner shall issue a notification that the divisional application is deemed to have been withdrawn and notify the applicant accordingly. The divisional application of a utility model shall not go beyond the scope of the initial description and claims. Therefore, the examiner shall perform the examination with reference to the initial description and claims. Where the contents of the divisional application for a patent for utility model go beyond the scope of the initial description and claims, the examiner shall invite the applicant to make rectification to delete the part which goes beyond the initial scope of the description and claims. The divisional application shall be rejected according to the provisions of Rule 43.1 of the regulations if the applicant refuses to make rectification without any appropriate reason. The initial date of filing may be kept if the divisional application for utility model does not go beyond the scope of the initial description and claims. The standard of examination and executive procedures of the divisional application for a patent for utility model are completely equal to those of a new application. 13. Examination of Claim to Right of Priority The provisions of Section 3.2, Chapter 1 of this Part shall apply. PRELIMINARY EXAMINATION OF PATENT APPLICATION FOR UTILITY MODEL 1,53 14. Examination of Principle of First-to-File During the preliminary examination, the examiner shall not perform the examination of whether or not an application for a patent for utility model conforms to the provisions of Art.9 of the Patent Law, unless the examiner knows that two or more applicants filed patent applications for the same invention-creation before the application enters the procedures of the preliminary examination. During the preliminary examination, the examiner shall not perform the examination of whether or not an application for a patent for utility model conforms to the provisions of Rule 13.1 of the Regulations, unless the examiner knows that the patent right has been granted for an identical invention-creation. 15. Procedures of Preliminary Examination 15.1 Preparation of Examination First, the examiner shall review the file of the application for a patent when an application for a patent for utility model is sent to the examiner. Where the above-mentioned file does not conform to the requirements of starting the examination, the examiner shall not proceed to the examination. The file shall be returned to the management department of the file of the application for patent for utility model for rectification. The necessary conditions of starting the procedures of an examination include requirements related to documents and fees. (1) Documents: An application for a patent for utility model which enters the procedures of examination for the first time shall meet the acceptable requirements of Art.26.1 of the Patent Law and Rule 39 of the Regulations, i.e., the Reqhest, description (including the drawings of the description) and claims of the patent for utility model shall be contained in the file. The procedures of examination shall not be started if one of the documents is missing from the file or one document does not relate to the utility model, i.e., the title of the utility model contained in that document is not consistent with the others. Where there are not enough copies of the documents in the file, it may be corrected during the procedures of examination. The examiner shall also check whether or not a page is missing from the documents of the first binding clip in the file folder or gazette pouch. Where a page is missing from one of them, the corrections may be made in the procedures of the examination. If the identical pages are missing in both of them, the procedures cannot been started. Where the documents are not in the correct order, the examiner may correct it by himself/herself. 1,54 PRELIMINARY EXAMINATION In other procedures of the examination, the examiner shall check whether or not the documents submitted by the applicant belong to that application for a patent. (2) Fees: The examiner shall check the receipts or the record of the payment in the file as required by Rule 90 of the Regulations and the corresponding amount of the fees. The examiner shall not start the procedures of examination when a payment was made or made in full. 15.2 Examination Requirements In according with Rule 44.1 of the Regulations, during the procedures of the preliminary examination of an application for a patent for utility model, the examiner shall, besides checking whether or not the documents required by Art.26 of the Patent Law and other necessary documents were prepared in the correct form, and examine the items listed in Rule 44.1(2) of the Regulations. 15.2.1 Principles of Examination The examiner shall comply with the following principles in the procedures of the preliminary examination: (1) Proceeding to examination in proper order: In order to avoid leaving a defective or problematic file in the hands of the examiner, and in order to easily process the file, except for some special circumstances, the examiner shall perform the examination on the basis of the order of the date of filing of the patent application for utility model or the order of the submission of the file of the patent application. The special circumstances refer to the application for a patent for utility model for which the applicant requests by writing to the Patent Office to perform the examination before or after the due date and the Request concerned has been approved by the Commissioner of the Patent Office. Under such circumstances, the examiner shall include the written Request in the file for future reference. (2) Principle of carrying out the examination in writing: During the procedures of examination, the examination shall be performed on the basis of written documents which shall be included in the file. Except for obvious clerical mistakes and symbol mistakes not relating to the rights and interests may be corrected by the examiner ex officio provided in Rule 51.4 of the Regulations, examiner shall invite the applicant to make other corrections in the form of submitting a replacement sheet. The initial page shall be included in the file rather than returned to the applicant. PRELIMINARY EXAMINATION OF PATENT APPLICATION FOR UTILITY MODEL 1,55 Where there is an application for which it is necessary to invite the applicant to come for an interview or for a demonstration, it shall report to the director of the division. Only upon the approval of the director, shall the applicant be invited. Such approval is also required when it is necessary to invite an applicant to provide a sample of the invention-creation. (3) Principle of burden of proof: During the examination of the application for a patent for utility model, the examiner shall possess a sufficient legal basis and have supporting facts rather than reach an absolute conclusion before making the decision to reject an application for a patent. Especially when the ground of the rejection relates to the situation provided in Section 5.6 of this Chapter. The examiner shall clearly indicate the time and place of the public sale or public use of the identical product before the filing date, or the name of the publication, publishing date, where necessary, and the copy with the relevant contents may be attached. (4) Principle of hearings: During the procedures of the examination for an application for a patent for utility model, the applicant has right to provide his/its understanding, claim and propositions in observations. The examiner shall notify the applicant the ground for rejection and the supporting evidence before the examiner makes a decision to reject an application for a patent and invite the applicant to make corresponding observations. The new reason and/or new evidence of rejection, which has not been notified to the applicant, shall not be included. (5) Procedure-saving Principle: The examiner shall comply with the procedures of examination for an application for a patent for utility model and shall complete the examination as quickly as possible. Where an application will be rejected, it is not necessary for the examiner to proceed to formality examination on that application and invite the applicant to correct the defects of that application to save time and labor for both the examiner and the applicant. 15.2.2 General Requirements All the procedures of the preliminary examination of an application for a patent for utility model shall be completed by one examiner who shall be responsible for the examination of that application. The seal of the examiner shall be affixed on the cover of the file and on the various notifications of that application. Where it must change the examiner during the preliminary examination, from the date of his/her taking over the work, the successor examiner shall affix his/her seal on the cover of file and various notifications. Such change of examiner shall be approved by the 1,56 PRELIMINARY EXAMINATION leader at higher level. Examiner cannot proceed to examination using a name other than his/her own name. A review is required for a rejection of an application for a patent for utility model. In the procedures of reexamination, the Office Action of the interlocutory examination shall be reviewed and sealed by the Director General of the examination department. The examination of the examiner shall be processed in the Patent Office. Where the problem of a patent application may be resolved only after the on-spot investigation, the examination may be performed upon the request of the applicant and the approval of the director general of the examination department concerned. The Patent Office shall bear the expenses and costs of the investigation. The file of an application for a patent shall reflect the whole process of the examination in its entirety. Nobody may change the procedures of the examination and alter the record of the procedures of the examination on the cover of the file or dismiss or substitute the documents in the file. Once the documents have been put into file in the process of examination, they shall not be returned to the applicant. Where necessary, only the duplicate may be sent to the applicant while the original shall remain in the file. Where the original document must be returned to the applicant, such as a business license, its duplicate shall be put into the file. Where it is difficult for an examiner to make a determination of an especially difficult application, the application shall be submitted to the division or department of examination for discussion. Where necessary, the director of the division or the director general of the department may organize a special meeting to discuss the application. The especially difficult applications refer to the applications in which the technology contained is special and complicated, or for which no provisions are provided in the Guidelines so that it is difficult to decide whether or not to grant the patent right for that application. 15.2.3 Requirements of File (1) Copies of the notifications The various notifications issued by the examiner shall be two copies of each: one shall be sent out after it is signed and sealed by the examiner, and the other one shall be put into the file. (2) Binding of the documents in the file: One copy of the documents submitted by the applicant on the date of filing shall be placed into the first binding stripe in the following order: Request of the patent for utility model, abstract of description, drawing of the abstract, claims, description, drawings of description, certified document for priority, reference materials for examination, power of attorney, PRELIMINARY EXAMINATION OF PATENT APPLICATION FOR UTILITY MODEL 1,57 Request for reducing or postponing the payment of fees, certified documents for a non-service invention and others, and the notification of acceptance. The duplicates of the Patent Office' s notifications and the accepted application documents shall be put into the second binding stripe in such order: the documents submitted by the applicant on its/his own initiative, notifications from the Patent Office, and the response from the applicant. Where the Patent Office sent more than one notifications and the applicant made more than one responses, the documents shall be bound in order of priority. The order of each communication is: the notification from the Patent Office, documents taken out from the gazette pouch by the examiner, response from the applicant, the replacement sheet submitted by the applicant. A complete set of documents of the gazette shall be included in the gazette pouch in such order: abstract of description, drawing of abstract, claims, description and drawings of description. After going through the formalities of changing bibliographic data during the procedures of examination, the examiner shall include one copy of the notification of a change to bibliographic data before the Request of a patent for utility model in the first binding stripe. (3) Handling of documentation In the procedures of examination of the application for a patent for utility model, the examiner shall verify the items and copies of the documents in the record folders according to the list of documents in the Request, check the relevant payments according to the receipts or record, perform the formality examination based on the documents in the first binding stripe and the examination of obvious substantial defects based on the documents in gazette pouch. The examiner cannot add, delete or alter the initial application documents in the first binding stripe. All of the defects shall be corrected by the applicant. In the case of the documents in the gazette pouch, the examiner may make amendments on abstract of description and to certain signs in the drawing of abstract, provided that when the examiner issues a notification to grant the patent right, the claims, description and its drawings should be clear, complete and comply with the requirements of the patent gazette without any marks made by the examiner. The examiner shall affix his/her personal seal on the cover of the record folder and the seal of corresponding step of examination when each step is completed. When the notification to grant the patent right is issued, the examiner shall check the documents in gazette pouch, complete the list of 1,58 PRELIMINARY EXAMINATION contents of the gazette pouch and affix his/her seal. On the envelope, the examiner shall write the zip code, address of addressee, name of addressee, filing number, name of the department and the code of the notification. It shall be stated clearly in the notification that the filing number, title of utility model, names or titles of entire applicants (no short form abbreviation is acceptable). Only one notification shall be sent out in each step of examination. Where a patent agency is appointed, the addressee shall be the designated patent agent in that patent agency. Where no patent agency is appointed but a link person is designated, the addressee shall be the link person. Where no such a link person is designated, the addressee shall be the applicant. Where there are more than one applicants and a representative is designated, the addressee shall be the representative and if no representative is designated, the first applicant shall be the addressee. 15.2.4 Draft of Notification and Decision Of Rejection During the examination of a patent, the examiner shall invite the patent applicant in writing to go through various formalities. The various notifications of examination shall be drafted from the point of view of a third party rather than from the view of the examiner, i.e., "the applicant thinks that this application ...; or "the examiner thinks that this application..." rather than "I think...". Only statements relating to the application for a patent may be included in the notification. No other statements, especially the statements which may damage the reputation or personality of the applicant, may be included in the notification. As a legal document, the wording of the notification shall be careful and its meaning shall be clear. It shall be supported by the evidence without any unnecessary details. The notification of a final decision of an application for a patent, (generally including the notification to grant the patent right for utility model, decision of rejection, being deemed as having withdrawn, having been withdrawn on one's own initial) shall be sent to all the applicants of that application. Notifications concerning the examination for a patent for utility model include the notification of the decision to grant the right of a patent for utility model and processing formalities of registration, decision of rejection, notification that the application is deemed to have been withdrawn, office action, notification of rectification, notification of examination, notification of interview, record of interview, notification of examination of right of priority, appendix of the notification and so on. Among them, examiner shall provide a writing notification with the reason PRELIMINARY EXAMINATION OF PATENT APPLICATION FOR UTILITY MODEL 1,59 for the decision of rejection and Office Action which shall issued and mailed. The following are the requirements for some of the notifications: (1) Notification for rectification: Besides bibliographic data, the grounds for the notification of rectification shall include the following: — To indicate the notification is for which document provided or mailed by the applicant at what time. — The specific defect of the document and the article of the Patent Law or the rule of the Regulations or other provisions with which the application does not comply. — Clearly state the tendentious opinions and possible suggestions of the examiner in detail, so that the applicant may understand the intention of the examiner and eliminate the defects as quickly as possible. — Type and number of the copy of the document required for rectification. — Prescribe the time limit for rectification. — In a notification for rectification, the Patent Office may notify the applicant of items regarding the rectification by the attached page, and also providing a sample for the applicant to refer to. (2) Office Action: Except for bibliographic data, an Office Action shall include the following: — The title and the date of submission of the document to which the notification is against. — Specific defect of the document, analyze the defect convincingly and indicate the article of the Patent Law, the rule of the Regulations, or other provisions with which it does not comply. — The examiner's tendentious opinions for the rejection in accordance with the Patent Law or the Regulations or other provisions concerned. — Prescribe the time limit for the applicant to provide observations. (3) Decision of rejection The decision of rejection consists of the prescribed form and text of the decision: — The prescribed form: bibliographic data, article of the Patent Law, rule of the Regulations or other relevant provisions which are the basis of the rejection, and the instructions for the follow-up legal procedures. — Text of rejection: the cause of action, ground for rejection and the decision. The course of the examination of the application shall be briefly stated and the facts in the application for the patent which shall be rejected shall be 1,60 PRELIMINARY EXAMINATION affirmed in the Section of Cause of Action so as to prove that the examiner performed the legal procedures of examination correctly. The facts, reason and legal basis on which the rejection is based shall be stated in details in the Section of Reason for Rejection. Where there is more than one reason for rejection, the examiner may simultaneously provide one, part or all of them. However, such reason/reasons must have been notified to the applicant, otherwise the reason/reasons shall be notified to the applicant in the form of Office Action before the execution of the procedure of rejection. Where the rejection is made on the basis of a non-substantial reason, for example, an application for a patent cannot meet the formality requirements after several rectification have been made, only the existing defect of the last rectified document may be provided, but it is not necessary to provide further analysis of the reasons for rejection. However, the applicant shall be entitled to at least two opportunities for rectification. Where the rejection is made on the basis of Articles 26.3 or 26.4, 31.1 or 33 of the Patent Law, or Rules 2.2 or 18 to 23 of the Regulations, the defect in the documents shall be analyzed indicating the substance of the defect. The Section of Decision shall clearly indicate the provisions in the Patent Law or the Regulations that application does not comply with and it shall also indicate that the decision of rejection is made according to Rule 44 of the Regulations. (4) Record of interview: Besides bibliographic data, the record of interview shall include the issues discussed by the examiner and the applicant, and the comments respectively. The opinions of the examiner for further processing according to the Patent Law, the Regulations and other relevant stipulations shall be indicated in the conclusion of the record. The record shall take effect after both parties have been signed with chops and the business seal of the examination has been affixed. Because the effective record of interview is equivalent to the notification for rectification or Office Action, the examiner shall prescribe a time limit for rectification in the record of interview. 15.2.5 Requirements of Preliminary Examination Procedures (1) General statement In accordance with Rule 44.1 of the Regulations, the preliminary examination of an application for a patent for utility model consists of two parts: — Formality examination; — Examination of obvious substantial defect (that is the examination at PRELIMINARY EXAMINATION OF PATENT APPLICATION FOR UTILITY MODEL 1,61 items listed in Rule 44.1 (2) of the Regulations). The relevant provisions of Sections 2 and 3, Chapter 1, Part I of the Guidelines apply to the formality examination of the application for a patent for utility model and with reference to the relevant Sections of Part V of the Guidelines. The examination of the obvious substantial defect of the application for a patent for utility model is with reference to Section 4-14 of this Chapter. Only the requirements for principle procedures of the preliminary examination of the application for a patent for utility model are described in this section. (2) Grant of right Where an application for a patent for utility model complies with the requirements of formality examination and examination of obvious substantial defect after preliminary examination, the examiner shall make a notification to grant the right of patent for utility model. The application for a patent for utility model for which the patent right can be granted includes the application which complies with the requirements of preliminary examination without rectification and the application which complies with the requirements after rectification. The grant of the right shall be made to all the applicants. (3) Rectification and re-rectification Where an application for a patent for utility model has no substantial defect which may lead to the rejection, but there is other defect which does not comply with the requirements of the Patent Law and the Regulations but may be corrected during the process of examination, the examiner shall invite the applicant to make corresponding rectification. There are two kinds of rectification: rectification made by the applicant on his/its own initiative and the rectification required by the examiner. In accordance with Rule 51.2 of the Regulations, the applicant of an application for a patent for utility model may make rectification on his/its own initiative within two months from the date of filing. Usually, after two months from the date of filing, the application for a patent for utility model enters into the examination procedures. The applicant shall make rectification according to the notification of rectification until the patent right is granted. The examiner may determine, depending on circumstances, whether or not to adopt the amendment submitted by the applicant on his/ its own initiative after two months of filing. For example, the rectified documents may be accepted if they are advantageous to accelerating the complete of the examination of that patent application. For the rectified documents which were not accepted, the applicant shall be notified that the rectification made on its/his own initiative is not acceptable because the time limit has failed according to the provisions of Rule 51.2 of the 1,62 PRELIMINARY EXAMINATION Regulations. Regardless such amendment has been adopted or not, the document rectified by the applicant on its/his own initiative shall be put into the file folder rather than returned to the applicant. The examiner shall require the applicant to rectify documents with both problems of formality and obvious substantial defects. Problems of formality include the type, number of copies, applications, filling in, relevant certified documents of the application form and other problems. Problems of obvious substantial defects include problems with the writing of the description and claims, unity, the amendment going beyond the scope of the initial description and claims and so on. Where an applicant has not corrected all of the defects in the application documents when he/it makes the rectification required by the examiner, the examiner may request him/its to make re-rectification. However, in order to avoid delay, generally no more than three opportunities of rectification may be provided to an applicant. Where the examiner requires an applicant to make a rectification for the second time, the examiner should inform the applicant that if the further rectification still does not comply with the requirements, the application will be rejected according to Rule 44.2 of the Regulations. Where an applicant makes rectification required by the examiner, the applicant shall fulfill the rectification within the prescribed time limit. Where no rectification is completed within that time limit, the examiner shall issue a notification that the application is deemed to have been withdrawn. The applicant shall make rectification in the form of amendments and other relevant rectified documents. Among the relevant rectified documents, two copies of each are required for the documents relating to description and its drawings, claims and abstract, and one copy of each is sufficient for the other relevant documents. The letter submitted by the applicant with the rectified documents may be deemed as the amendments. In accordance with Art. 33 of the Patent Law, the contents of the applicant's amendment may not go beyond the scope of the initial description and claims submitted on the date of filing. Therefore, the examiner shall perform the examination of the amendments relating to description and its drawings and claims with reference of the documents submitted on the date of filing. (4) Office Action and rejection Where the examiner deems an application for a patent does not contain the documents required by Art.26 of the Patent Law and other necessary documents, or it falls into the scope of Rule 44.1 (2) of the Regulations during the procedures of preliminary examination of an application for a PRELIMINARY EXAMINATION OF PATENT APPLICATION FOR UTILITY MODEL 1,63 patent for utility model, an Office Action shall be sent to the applicant. If the defect pointed out in the Office Action has not been rectified after the applicant made observations or rectification, the application shall be rejected. The reason(s) for rejection may be one or two of the followings: — The formality defect in the application documents or other necessary documents still does not meet the requirements after several rectifications, or the applicant refuses to make rectifications without proper reason; — Obvious substantial defect exists in the application documents. The issuance an Office Action is the indispensable procedure before making a decision of rejection. The Patent Office shall issue an Office Action to an applicant whose application may be rejected, to notify the applicant of the reason(s) for rejection and invite the applicant to provide observations accordingly. Where the reason(s) for rejection are the former of the above-mentioned, the applicant may attach a copy of the replacement sheet of the new amendment with the observations. Where the amendment meets the requirements, the examiner may grant the right of patent. If it still does not conform to the requirements after several rectifications have been made, the examiner shall reject that application. Where the reason(s) for rejection belongs to the latter of the above-mentioned, if the opinion in the observations is tenable, the examiner shall grant the right of patent on the premise that the formality of that application for patent is qualified. If the observations are not tenable, or they do not apply to the reason for rejection, or it merely indicates insufficient reason to disagree with the rejection, the examiner shall make a decision of rejection. Where no observations or rectifications have been made by the applicant within the prescribed time limit, the examiner shall issue a notification that the application is deemed to have been withdrawn. (5) Withdrawing one's own application The applicant may request to withdraw his/its application for a patent for utility model at any time in the procedures of examination. Where an application is filed by more than one applicant, the Request to withdraw the application shall be raised by all the applicants. All of the applicants shall sign with chops in the Request to withdraw the application for a patent. It is the right of the applicant to withdraw his/its application for a patent on its/his own initiative, and it is not necessary to provide reason to withdraw when the Request to withdraw is made. According to the principle of good faith in legal procedures, once the Request to withdraw the application for a patent takes effect, the applicant cannot ask to withdraw the Request. The examiner only makes formality examination for the Request to 1,64 PRELIMINARY EXAMINATION withdraw an application for a patent. Where the Request does not meet the requirements, the applicant shall be invited to make rectification. Where the Request has met the requirements it shall take immediate effect. Once the Request to withdraw take effect, the examination of that application shall be continued, and all documents submitted by the applicant relating to that application is not acceptable thereafter. (6) Request for an extension, to be deemed to have been withdrawn and restored If the applicant has difficulty making a response within the prescribed time limit provided by the examiner during the examination procedures for an application for a patent for utility model for the proper reason, the applicant may request for extension to make response. The application shall be deemed to have been withdrawn if neither response nor Request for extension has been made by the applicant within the time limit. Where an application for a patent was deemed to have been withdrawn because the applicant missed a deadline due to a proper reason or force majeure, the applicant shall restore its/his rights within two months from the date of the receipt of the notification issued by the Patent Office or from the date on which the impediment was removed, at the latest within two years immediately following the expiration of the time limit. See the provisions in Sections 4, 5, and 6, Chapter 7, Part V of the Guidelines for the request for extension, to be deemed to have been withdrawn, and the request for restoration. Where the procedures of an application for a patent for utility model, which was deemed to have been withdrawn, have been restored, the examination shall continue from the point in the procedure where the application was deemed to have been withdrawn. 16. Interlocutory Examination and Continuation Examination after Reexamination In accordance with the provisions of Rule 61 of the Regulations, the examiner shall perform interlocutory examination for the Request for reexamination transferred by the Patent Reexamination Board, and make an Office Action within one month from the date of receipt of the transferred file. See the provisions of Section 5, Chapter 2, Part IV of the Guidelines for the requirements for interlocutory examination. After the Patent Reexamination Board makes a decision of reexamination to withdraw the decision of rejection made by the Patent Office, the examiner shall continue the examination of that application for a patent. During the continuation examination, the examiner shall not use the same facts and reasons to make a decision of rejection that are contrary to the decision of reexamination. PRELIMINARY EXAMINATION OF PATENT APPLICATION FOR DESIGN 1,65 Chapter 3 Preliminary Examination Of Application for Patent for Design 1. Introduction Under the provisions of Articles 3 and 40 of the Patent Law, the Patent Office receives and examines patent application for design. Where the Patent Office finds after preliminary examination that there is no cause for rejection, the Patent Office shall make a decision to grant the patent right for design, issue the relevant patent certificate, register and announce it. Therefore, the preliminary examination of application for a patent for design is a necessary procedure after accepting an application for a patent for design and before publishing that application. The scope of the preliminary examination for an application for a patent for design is as follows: (1) Whether or not it contains the patent application documents as required by Art.27 of the Patent Law, and whether or not those documents conform to the requirements of the Patent Law and its Regulations, especially, whether or not the drawing or photograph of the design conforms to the requirements; (2) Whether or not the application for a patent obviously falls into the scope of Art. 5 of the Patent Law, or does not conform to the provisions of Articles 18 or 19.1 of the Patent Law, or obviously does not conform to the provisions of Articles 31.2 or 33 of the Patent Law or Rules 2.3, 13.1, or 43.1 of the Regulations, or cannot obtain a patent right according to the provisions of Art.9 of the Patent Law. (3) Whether or not the other documents relating to the patent application meet the relevant requirements stipulated in the Patent Law and its Regulations. 2. Examination of Application Documents In accordance with Art.27 of the Patent Law that where an application for a patent for design is filed, a Request, drawings or photographs and other documents of the design shall be submitted, and the product incorporating the design and the class to which that product belongs shall be indicated. 2.1 Request The applicant shall use the Request which the Patent Office currently 1,66 PRELIMINARY EXAMINATION prescribes. 2.1.1 Name of the Product Incorporating The Design The name of the product incorporating the design shall be provided in the Request, which shall briefly and clearly indicate the product requested for protection. It shall be appropriately named with 1-7 characters, and under no circumstances, more than 15 characters are allowed to be used. The name of the product shall meet the following requirements: (1) The name of the product shall generally conform to the international classification for design. (2) The name of the product shall conform to the contents of that design. (3) It shall avoid using following names: — a product name containing the name of a person, a place, a company, a trademark, a code, a model or a historical time; — a generic or abstract name, such as "stationery", "cooking utensils", "musical instruments", "building articles" etc.; — the name incorporating structure, function or result, such as "oil-saying engine", "human body height-increasing shoe-pad", etc.; — a name with specification or unit of the product, such as "21 inch Color TV set", "one pair of gloves", "a pair of chopsticks", etc.; — a name incorporating the shape or color of the product, such as "red coat", "pyramid ruler", etc.; — the abbreviation of a name, for example, "chessboard" cannot be named as "chess", "toy vehicle" cannot be named as "vehicle", etc.; — a name in foreign language; — a name incorporating the contents of the design, for example, a "bag" named as a "bag with the pattern of panda" or with the pattern of other animal or plant. 2.1.2 Class The applicant shall indicate the class to which that product belongs, i.e., the class of the product in the International Classification for Design, in the corresponding item of the Request of a patent for design. Where it is not clear to the applicant the class to which the product belongs, the technical field in which the product belongs or the place in which the product is used may be indicated. 2.1.3 Designer The provisions in 2.1.2, Chapter 1 of this Part shall apply. PRELIMINARY EXAMINATION OF PATENT APPLICATION FOR DESIGN 1,67 2.1.4 Applicant The provisions in 2.1.3, Chapter 1 of this Part shall apply. 2.1.5 Patent Agency, Patent Agent The provisions in 2.1.4, Chapter 1 of this Part shall apply. 2.2 Drawing or Photograph In accordance with the provisions of Rule 27.3 of the Regulations, the applicant shall submit, with respect to the subject matter of the product incorporating the design seeking protection, the relevant views (drawings or photographs) in order to clearly show the subject matter seeking protection. Wherein, "the relevant views (drawings or photographs)", in the ease of a product with a three-dimensional design, the orthographic projection six-side views shall be submitted if the main points of the design of the product involves six sides; the applicant shall submit the orthographic projection view and space diagram of the side concerned if the main points of the design of the product involves the view of one side or several sides only. For a product with plain design, the applicant shall submit the orthographic projection view of the side concerned if the main points of the design of the product involves the view of one side only; and the applicant shall submit the orthographic projection views of the two relevant sides if the main points of the design of the product involves the view of the two sides. The titles of the six-side views shall be: front view, back view, left view, right view, top view, upward view. The title of each view shall be marked under the corresponding view. 2.2.1 Size In accordance with the provisions of Rule 27.1 of the Regulations, the size of the figure of the drawing or photograph submitted shall not be smaller than 3cm x 8cm (except that of a long and thin article), nor larger than 15cm x 22cm. Moreover, a reproduction with a linear reduction in size to two-thirds shall maintain each detail of the appearing outline of the product shall be clearly distinguishable. 2.2.2 Drawing Drawing shall be made with drawing instrument and in black ink according to the State standard of technical drawing and mechanical drawing. No pencil, crayon or ball-pen is allowed to be used. No blueprint, sketching, mimeograph may be used as the drawing. 1,68 PRELIMINARY EXAMINATION 2.2.3 Photograph The photograph shall be taken according to the rule of orthographic projection, the outline of the photograph shall be clear. The highlight, shadow, or background object shall be avoided. 2.2.4 Color Where the color of a design seeks protection, a drawing or photograph in color shall be submitted in duplicate. The color drawing shall be made by solid and non-fading material dyes. 2.2.5 Notification for Rectification For the application for a patent for design the contents of which cannot be correctly understood from the contents of Request, drawings or photographs, the applicant shall be invited to make rectification. The defects which may be corrected mainly refer to the following: (1) A design, of which the method of use, state, purpose or the like of an incorporating product is not clear, such as a diagrammatic sketch, a city planning sketch and the like; (2) Wrong relation of the projection of the views, such as, the upside down direction of the view or the method of use of the drawing sheet of the design; (3) Because the drawing or photograph is not clear enough or the figure is too small, the contents of the design do not show clearly; or although the figure is clear, the contents of the design do not show correctly because of the existence of a reflection of light, shadow or background object; (4) The contents of the pattern, material or size of a product incorporating the design, which a person skilled in the field of the relevant technology cannot understand (for example, in the case of a type of anti-counterfeit mark, if it is an invisible pattern, the drawing of the design of the revealing pattern shall be submitted); (5) Where there are several different states of a design, only one state is displayed in the views (For example, the opening state of a folded chess case is a chess table with a chessboard, but its folded state is a chess case. The corresponding views in different states of it shall be submitted respectively); (6) Where there is a figure or word in the drawing or photograph of the design, which should be covered and cannot be regarded as the specific object of the design seeking protection, such as the portrait of a person, trademark, symbol, well-known book, or a famous building, etc.; or there is a line which shall be deleted, such as a shadow line, indicative line, dotted line, central line or dimension line, etc; PRELIMINARY EXAMINATION OF PATENT APPLICATION FOR DESIGN 1,69 (7) When dealing with the views of a three-dimensional product: — The ratio of various views is not consistent; — The drawing is not made by the method of making orthographic projection or the photography is not made according to the relations of orthographic projections; — Where the main points of the design of the product involve six sides, there are no six-sided views exception: back view may be omitted if it is identical or symmetrical with the front view; left view (or right view) may be omitted if the left view and right view is identical or symmetrical with each other; top view (or upward view) may be omitted if the upward view is identical or symmetrical with the top view; upward view may be omitted for the larger mechanic apparatus, the apparatus with the fixed position or the item with a bottom that may not be seen often. (8) The following circumstances for the plain view: — The ratio of various views is not consistent; — The main points of the design of the product involve two sides, but there are no two-side views (where the back view is identical or symmetrical with the front view or there is no design in back view, the back view may be omitted). (9) For a long and thin product, such as the measuring rule, section bar and the like, the middle part of the product may be omitted when making the drawing but not use the double parallel dot dash lines or natural geosutures. (10) The design cannot be fully expressed by the six-side views or twoside views, but there is no necessary exploded view, sectional view, enlarged view or stereoscopic view, etc. which is necessary to fully express the design. (11) The following circumstances at the section or cut-off part of the sectional view: — No section line or the line is incomplete in sectional view; — There is no dot dash line, symbol or direction or the dot dash line, symbol or direction is incomplete to indicate the cut-off position (but it is not necessary to provide the mark to express the cut-off from the central part). (12) There is a local enlarged view but no indication of the position of the enlargement in the initial drawing. (13) For a combination product consisting of two or more pieces of articles (the combination of the separable products, such as detachable cabinet), besides submitting the corresponding views of the combination state, where necessary, corresponding views of each part of the combination 1,70 PRELIMINARY EXAMINATION should be submitted as well. However, the drawings submitted are not sufficient or do not meet this requirement. (14) The following circumstances are for the design of transparent article: — Where there is no color and no pattern at external layer while there is a pattern at internal layer, drawings are not made consistent with the view of the visible transparent part, such as snuff bottle, etc.; — Where there are two or more kinds of shape, pattern and color at the external and internal layers, and they are not expressed respectively. 2.3 Brief Explanation The brief explanation is the short explanation of the creative features, omission of the view, the colors seeking protection and other parts of the product incorporating the design. Therefore, only the following contents may be contained in this part: (1) The information about the symmetry of front, back, left, right, top, bottom of the design of the product, indicating the omission of the view; (2) The state of the product is changeable, such as a folded umbrella, movable toy, etc.; (3) A transparent part of the product; (4) No determined boundary of the unit pattern of a plane product which is connected in two sides or four sides, such as figured cloth, wallpaper and the like; (5) Length of the omitted part of a long and thin product; (6) A product made of special material; (7) The design seeking protection containing color; (8) Method of use, application or function of a newly developed product; (9) The creative features. No commercial advertising may be contained in brief explanation, nor description of features and structure of the product. 2.4 Classification of Patent for Design The Patent Office makes classifications for an application for a patent for design according to the published International Classification for Designs and provides corresponding classification numbers. The classification shall be made on the basis of the product recorded in the drawings or photographs, with the reference of the "title of the product incorporating the design" and the "the class to which it belongs, the technical field in which it is or the place for it to be used" in the Request. 2.4.1 Examination and Verification of Application Documents The examiner shall check the following contents before the classification is made: PRELIMINARY EXAMINATION OF PATENT APPLICATION FOR DESIGN 1,71 (1) Whether or not the notification of acceptance has been included in the file. (2) Whether or not the filing number and the date of filing are provided in the Request. (3) Whether or not the class of the product is provided in the Request. (4) Whether or not the product displayed in the drawing or photograph of the design is consistent with the title of the product recorded in the Request. During the examination, the examiner finds that the notification of acceptance has not been included in the file, or no filing number or date of filing is provided in the Request, the file shall be returned to the Receiving Office for handling. Where the class to which the product belongs has not be provided in the Request or the product displayed in the drawing or photograph of the design is not consistent with the title of the product recorded in the Request, the classification examiner shall issue a corresponding notification of rectification or Office Action. 2.4.2 Determination of Classification Number Where the above-mentioned requirements have been met, the classification examiner shall conduct the classification according to the International Classification for Design in order to provide accurate class, subclass and sequence numbers to the product seeking patent for design, which shall be recorded in the corresponding item of the cover of the file and the data shall be collected by computer. Afterwards, the file shall be sent to the Procedure Management Division. 2.4.3 Examination of Classification of Special Product (1) In the case of some newly developed products of which the method of use, application or function are not clear, or impossible to make classification, examiner shall issue a notification for rectification or an Office Action to invite the applicant to provide description of the method of use, application or function of the product, where necessary, to provide the reference figure to show the application state. After the rectification and observations have been provided, the classification examiner shall conduct re-classification according to the provisions of 2.4.2 of this Chapter. (2) Where two or more designs are included in one application, a classification number may be given according to the title recorded in the Request. The notification for rectification to make a divisional application shall be issued in next procedure. 1,72 PRELIMINARY EXAMINATION (3) Two classification numbers may be given to a product that possesses two or more functions and the first classification number shall be the main number. 3. Examination of Other Relevant Documents 3.1 Appointment of Patent Agency and Designation of Representative The provisions of 3.1, Chapter 1 of this Part shall apply. 3.2 Claim to Right of Priority Where the applicant claims to the right of priority, the provisions of Articles 29 and 30 of the Patent Law, Rules 32 and 33.1 of the Regulations and the relevant provisions of the Paris Convention shall apply. Art. 29 of the Patent Law states that only foreign priority may be claimed for an application for a patent for design, i.e., where, within six months from the date on which any applicant first filed in a foreign country an application for a patent for design, he or it files in China an application for a patent for the same subject matter, he or it may, in accordance with any agreement concluded between the said foreign country and China, or in accordance with any international treaty to which both countries are parties, or on the basis of the principle of mutual recognition of the right of priority, enjoy a right of priority. 3.2.1 Earlier Application and Later Priority-Claiming Application Where an applicant files an application for a patent for design in the Patent Office and claims to the right of priority for that application, the examination shall be performed to determine whether or not the earlier application, as the basis of the priority, has been filed in a member State of the Paris Convention, or whether or not it is a regional application or international application which is effective in that member State. Where an application claiming to the right of priority comes from a non-member State of the Paris Convention, the examiner shall determine whether or not that country recognizes the priority of our country. The examiner shall also determine whether or not that applicant may enjoy the right provided by the Paris Convention, i.e., whether or not that applicant is a national or resident of a member State of the Paris Convention or of a country which recognizes the priority of our country. Where the examiner concludes the above-mentioned two examinations are negative, the examiner shall issue a notification that the priority is deemed not to have been claimed. PRELIMINARY EXAMINATION OF PATENT APPLICATION FOR DESIGN 1,73 The examination further includes whether or not the later application claimed for priority was filed within six months from the date of filing of the earlier application. Where the requirement has not been met, the priority shall be deemed not to have been claimed. Where there are two or more earlier applications, the time limit shall be counted from the date of filing of the earliest application. Where over six months had passed from the date of filing of the earliest application, the examiner shall issue a notification that the priority of the earlier application overdue and that shall be deemed to have not been claimed. In the preliminary examination, it is not necessary to examine whether or not the earlier application was the first application as defined by the Paris Convention. 3.2.2 Declaration to Claim to Right of Priority The provisions of 3.2.1.2, Chapter 1 of this Part shall apply. 3.2.3 Duplicate Documents of Earlier Application Besides the examination described in 3.2.1.3, Chapter 1 of this Part, the examiner shall also determine whether or not the later priority-claiming application has the same subject matter of design as that of the earlier application. Where the drawings or photographs of the later application document are not completely identical with those of the earlier application, but it may be concluded from the drawings or photographs that they seek protection for the identical design of the identical product, it may be determined that the subject matters of the design of both later application and earlier application are same, and the date of priority may be enjoyed. For example, the front view, back view, left view and space diagram of a product were provided in the earlier application. While the front view, back view, left view, right view and top view of the same product were provided in the later application, and it is indicated in the brief explanation that because the bottom of the product is not often seen and the upward view is omitted. If the front view, back view and left view of the later application documents are identical with those of the earlier application documents, and the right view and top view have been clearly displayed in the space diagram of the earlier application documents, it may be affirmed that the subject matters of the two application documents are identical, and the later application may enjoy the right of priority of the earlier application. Where the later application is a combination application containing two or more designs, the subject matter of one of the designs is identical with that of an earlier application, that design of the later application may enjoy the 1,74 PRELIMINARY EXAMINATION priority of the earlier application. Where a design containing the later application documents is the combination of the designs of several earlier applications, it may affirmed that the subject matter of the design of the later application is different from those of the earlier applications, the later application cannot enjoy the multirights of priority. 3.2.4 Applicant of Later Application The provisions of 3.2.1.4, Chapter 1 of this Part shall apply. 3.2.5 Fee of Claim to Right of Priority The provisions of 3.2.1.6, Chapter 1 of this Part shall apply. 3.2.6 Withdrawal of Claim to Right of Priority The provisions of 3.2.1.5, Chapter 1 of this Part shall apply. 3.3 Disclosure without Losing Novelty 3.3.1 Applicable Scope The provisions of 3.3.1, Chapter 1 of this Part shall apply. 3.3.2 Supporting Material The provisions of 3.3.2, Chapter 1 of this Part shall apply. 3.4 Declaration to Withdraw a Patent Application The provisions of 3.6, Chapter 1 of this Part shall apply. 3.5 Change of Bibliographic Data The provisions of 3.7, Chapter 1 of this Part shall apply. 4. Examination According to Rule 44.1(3) of the Regulations 4.1 Examination According to Provisions of Art.5 of the Patent Law In accordance with the provisions of Art.5 of the Patent Law that no patent right shall be granted for any invention-creation that is contrary to the laws of the State or social morality or that is detrimental to public interest. According to Section 2, Chapter 1, Part II of the Guidelines, the examination shall include three aspects, i.e., whether or not the design seeking patent protection is obviously contrary to the laws of the State, whether or not it is obviously contrary to the social morality, or whether or PRELIMINARY EXAMINATION OF PATENT APPLICATION FOR DESIGN 1,75 not it is detrimental to the public interest. If the examiner thinks the entire contents or part of the contents of an application for a patent belong to one of the above aspects, the examiner shall issue an Office Action to indicate the reason and invite the applicant to provide observations (where it involves the entire contents of the application for a patent) or to delete the relevant part (where it involves part of the contents of an application for a patent) within a prescribed time limit. A decision of rejection shall be made if the observations are not sufficient to indicate that the application is not within the scope of Art.5 of the Patent Law or if the applicant refuses to delete the relevant part without proper reason. To be contrary to the laws of the State refers to a design that has violated the laws stipulated and promulgated by the National People' s Congress or the Standing Committee of the National People's Congress according to the legislative procedure. For example, because the application for a patent for design, which takes the national flag or national emblem as the pattern, has violated the Law of National Flag and Law of National Emblem, no patent right may be granted for it. Detrimental to the public interest means that the exploitation or application of the design may harm the public or society, or may affect the normal order of the State and the society. For example, no patent right may be granted to an application for a patent for text or a pattern that relates to a significant national political event, or religious belief doing so would be detrimental to public interest; or which hurts the people's feeling or nations feeling, attempts to propagate feudalism and superstition. For example, no patent right may be granted for the commemorative coin in commemoration of the regression of Hong Kong and Macao. 4.2 Examination According to Provisions of Art.31.2 of Patent Law In accordance with the provisions of Art.31.2 of the Patent Law that an application for a patent for design shall be limited to one design incorporated in one product. Two or more designs which are incorporated in products belonging to the same class and are sold or used in sets may be filed as one application. For an application for a patent for design which obviously does not conform to the above-mentioned provisions, the examiner shall, according to Rule 42.2 of the Regulations, invite the applicant to make amendment to the application within a prescribed time limit. The examiner shall issue a notification that the application is deemed to have been withdrawn and notify the applicant accordingly if the applicant does not make any 1,76 PRELIMINARY EXAMINATION response within the time limit. A decision of rejection shall be made and the applicant shall be notified accordingly if the applicant refuses to make amendments without a proper reason. 4.2.1 Design of Complete Set of Product 4.2.1.1 Same Category In accordance with the provisions of Art. 31.2 of the Patent Law and Rule 36.1 of the Regulations, one of the conditions for two or more designs contained in one application is that the products incorporating the said two or more designs belong to the same category, i.e., the products incorporating the two or more designs belonging to the same subclass in the International Classification for Designs. For example, both articles used for dining, such as a plate, saucer, cup and bowl; and articles used for cooking, such as pot, basin, dining knife and dining fork; are classified in Class 07 (household wares which are not included in the other classes). However, plate, saucer, cup and bowl used for dining are classified in Subclass 07-01; pot and basin are classified in Subclass 07-02; and dining knife and dining fork are classified in Subclass 07-03. As a result, pot, basin and dining knife do not belong to the same Subclass; they cannot be contained in one application. On the other hand, because bowl and saucer belong to the same Subclass, they may be included in one application. It should be noted that the articles in the same subclass is not the only condition for filing two items as one application. The requirements concerning sold or used in sets provided in Art.31.2 of the Patent Law shall apply. 4.2.1.2 Sold or Used in Set In accordance with the provisions of Art.31.2 of the Patent Law and Rule 36.1 of the Regulations, to file two or more designs as one application not only requires the products incorporating the designs belonging to the same class, but it also requires for the two to be sold or used in sets, i.e., the products incorporating the designs have the same designing concept and are customarily sold or used at the same time. Two or more products which belong to one category may be filed as one application if they meet certain requirements. Such products are usually called articles in sets. Articles in sets shall be two or more articles which are customarily sold and used in sets. Of course, the design concept and design manner shall be consistent. PRELIMINARY EXAMINATION OF PATENT APPLICATION FOR DESIGN 1,77 (1) Concept of products in set Products in sets consist of two or more independent articles, each of which has its own features and value of use while the value of using them together may be reflected when combining them together, such as a set of coffee utensils consisting of coffee cup, coffee pot, milk pot and sugar pot. Products in sets do not refer to the combination consisting of several articles as a whole, each component part of which alone has no value of use and only combined together can they be used. For example, the cards, building block, plug-in toy unit and the like shall be regarded as one product. Such kind of product can be filed as one application only and do not stand in the scope of products in sets. (2) Sold at the same time The meaning of sold at the same time shall be limited to the articles which are customarily sold at the same time, i.e., the products which are usually sold in sets on the market, such as the five-piece bedclothes consisting of bedspread, sheet, pillow case and the like. The products, which are sold together as will for the purpose of promotion, cannot be filed as the products in sets, such as the bag and pencil box. Although a pencil box will be given as a gift when a bag is sold, they cannot be regarded as having been sold together at the same time and they cannot be filed as the products in sets. (3) Used at the same time Used at the same time refers to the circumstances when using one of the products the people will associate it with the existence of the other product(s) rather than using these products simultaneously. That is, the products, such as coffee cup, sugar pot and milk pot of the coffee utensils, are related to each other in the course of use, that will conform to the principle of used at the same time. (4) Various products having same designing concept The identical design conception reflects the consistency of the manner of design of each product in the set. That means the design of the shape, pattern or their combination, or the combination of the color and shape, pattern of the article in set are consistent. Consistency of the shape refers to that each component article is characterized by a specific model, or the combination relation has been constituted between each component articles which possesses a specific shape. Under such circumstances, the requirement of consistency of the shape shall be regarded as being in conformity with. The consistency of the pattern refers to that the subject matters, 1,78 PRELIMINARY EXAMINATION composition, expression form, color and so on of the pattern of the design of each component of the articles in set shall be consistent. If one of them is different, the pattern of the articles shall be regarded as not consistent. For example, where the subject matter of the design of the coffee pot is orchid, while that of the coffee cup is panda. Because the selected subject matters of design are different and the manners of design are different also, the principle of uniform and coordination does not conform to. Therefore, they cannot be filed as the design in set. The uniformity of the color cannot be discussed alone. It shall be considered comprehensively with the shape and pattern of each component part. Where the shape and pattern of each article conform to the principle of uniformity and coordination, there is no problem for the articles with the identical color filing as the articles in set. If the color of each component article is quite different and the harmony of the entirety has been destroyed, they cannot be filed as the design in set. Two or more designs which conform to the above-mentioned provisions can be filed as one application, and the sequence number of each design shall be marked before the title of the view of each product incorporating the design. 4.2.1.3 Each Component Part of a Set of Product shall Satisfy Respectively The Requirements to Grant the Patent Right It should be noted that an application for a patent for design in set, besides satisfying the above-mentioned general requirements, each component part shall qualify for the patent right. Where one of the said component parts does not possess patentability, the complete set of the articles shall not qualify for the patent right. 4.2.2 Examination of Divisional Application 4.2.2.1 Legislative Basis of Divisional Application In accordance with the provisions of Rule 42.1 of the Regulations that where an application for a patent for design contains two or more designs, the applicant may, before the expiration of the time limit for processing registration which is two months from the date of receipt of the notification to grant the patent right for the design, submit to the Patent Office the divisional application. However, for an application for a patent, which has been rejected and the rejection is effective, or it is withdrawn or deemed to have been withdrawn and has not been restored, it shall not serve as the basis for the divisional application. PRELIMINARY EXAMINATION OF PATENT APPLICATION FOR DESIGN 1,79 In accordance with the provisions of Rule 42.2 of the Regulations, where the Patent Office believes an application for a patent for design does not conform to the provisions of Art.31.2 of the Patent Law and Rule 36 of the Regulations, it shall invite the applicant to make amendments to the application within a prescribed time limit. The applicant may, when rectifying the defect of unity, submit a divisional application to the Patent Office with the deletions from the initial application. 4.2.2.2 Requirements of Divisional Application Divisional application refers to the situation where the initial application documents for a patent for design contains two or more designs, the applicant separated one of the design from the initial application and submitted it as a new application for a patent for design. The new application separated from the initial application is the divisional application and shall enjoy the date of filing of the initial application. It shall be determined whether or not the new separated application conforms to the following requirements: (1) The date of submission of the divisional application shall be within two months from the date of receipt of the notification to grant the patent right for the initial patent application which is the time limit for processing the registration, provided that the initial patent application has not been rejected (or although it has been rejected the rejection has not take effect), or has not been withdrawn or has not been deemed to have been withdrawn. (2)The applicant of the divisional application must be the same as that of the initial application. Where they are not consistent with each other, the certified documents of the assignment of the right shall be attached. The designer of the divisional application shall be the designer or part of the designers of the initial application. (3) The duplicate of the initial application shall be submitted when the divisional application is filed. Where the priority is claimed, the duplicate of the priority documents of the initial application shall be submitted. (4) Where the initial application for a patent for design contains two or more designs, the divisional application shall be one or more design(s) of the initial application for a patent which shall not remain in the initial application. (5) The applicant shall, at least, leave one design in the initial application and submit the rest as the divisional application(s). (6) Where the products incorporating the design contains in the initial application for a patent are products in set, the applicant is not allowed to 1,80 PRELIMINARY EXAMINATION submit the divisional application(s) for only part of them. For example, where a motorcycle seeks design protection, no divisional application(s) may be made for its spare parts and components. Where a divisional application does not conform to the requirement of Item (1), the examiner shall issue a notification that the divisional application is deemed not to have been made. Where the application does not conform to the requirements of Items (2) and (3), the applicant shall be invited to make rectification within the prescribed time limit. If no rectification has been made within the time limit, the examiner shall issue a notification that the divisional application is deemed to have been withdrawn. Where a divisional application does not conform to the requirements of Items (4) and (5), the Office Action shall be issued to invite the applicant to make amendments. Where no response or amendments have been made within the time limit, the examiner shall issue a notification that the divisional application is deemed to have been withdrawn. Where the applicant insists on not making amendments without sufficient reason, the examiner shall make a decision to reject the divisional application. Where the requirement of Item (6) has not been met, the examiner shall issue an Office Action. Where no response is made within the time limit, the examiner shall issue a notification that the divisional application is deemed to have been withdrawn. Where the applicant insists on filing the application as a divisional application, the examiner shall make a decision to reject the divisional application. 4.3 Examination According to Provisions of Art.33 of Patent Law In accordance with the provisions of Art.33 of the Patent Law, the amendment made by the applicant for his/its application documents for a patent for design may not go beyond the scope of the disclosure as shown in the initial drawings or photographs. The applicant for a patent for design may amend the application documents for a patent for design on his/its own initiative within two months from the date of filing. Furthermore, upon the receipt of the Office Action or the notification for rectification sent by the Patent Office, the applicant shall amend the application documents for a patent according to the requirements of the notification. 4.3.1 Amendment on Applicant's Own Initiative For the amendments on applicant's own initiative, it shall check first whether or not the amendments were made within two months from the date of filing. Where the amendments were made beyond that time limit, the examiner shall issue a notification that the amendments are deemed to PRELIMINARY EXAMINATION OF PATENT APPLICATION FOR DESIGN 1,81 have not been made according to Rule 51.2 of the Regulations unless the amendments have rectified the defect existing in the initial application documents. Where the amendments are made within the time limit, it shall further check whether or not they go beyond the scope of the disclosure as shown in the initial drawings or photographs. Where the amendments have gone beyond the said scope, the applicant shall be notified that the amendments do not conform to the provisions of Art.33 of the Patent Law. It shall be rejected according to Art.33 of the Patent Law and Rule 44 of the Regulations if the amendments still go beyond the scope of the initial drawings or photographs after the response has been made by the applicant. 4.3.2 Amendment according to Notification Where the amendments of the application documents made by the applicant according to the requirements of the notification go beyond the scope of the initial drawings or photographs, the applicant shall be notified that the amendments do not conform to the provisions of Art.33 of the Patent Law. It shall be rejected according to Art.33 of the Patent Law and Rule 44 of the Regulations if the amendments still go beyond the scope of the initial drawings or photographs after the response has been made by the applicant. 4.3.3 Contents Amended by Examiner upon His/Her Power During the preliminary examination, the examiner may make correction upon his/her power for the obvious defect in the application documents mentioned in Sections 2.1, 2.2 and 2.3 of this Chapter, and notify the applicant accordingly. The contents which may be corrected by the examiner upon his/her power mainly refer to the followings: (1) Obvious mistakes in name of the product; (2) Obvious mistakes in the name of the view; (3) Obvious mistakes in the direction of the view of the product; (4) Mistake in the direction of the use of the Form of "Drawing or Photograph of the Design"; (5) There is figure or word in the drawing or photograph of the design, which should be covered and cannot be regarded as the specific object of the design seeking protection, such as the portrait of a person, trademark, symbol, well-known book, or a famous building, etc.; or there is a line which should be deleted, such as a shadow line, indicating line, dotted line, central line or dimension line. (6) There is a description in the brief explanation which obviously does not relate to the contents of the drawings or photographs of the design, such as 1,82 PRELIMINARY EXAMINATION the description of the structure of the product. 4.4 Examination According to Provisions of Rule 2.3 of the Regulations In accordance with the provisions of Rule 2.3 of the Regulations that "design" in the Patent Law means any new design of the shape, pattern or their combination, and the combination of the color and shape or pattern, of a product, which creates an aesthetic feeling and fits for industrial application. 4.4.1 Shape, Pattern or Their Combinations And the Combinations of Color and Shape or Pattern of a Product The carder of a design must be a product. A product refers to any object produced by industrial means. Handicrafts, agricultural products, animal by-products or natural products, which cannot be produced repeatedly, cannot be the carrier of the design. What constitutes a design is the shape, pattern or their combination and the combination of color and the shape or pattern. Generally, the color of a product alone may not constitute a design unless the change of the color of a product constitutes a pattern. The combinations that may constitute a design include: shape of a product; pattern of a product; shape and pattern of a product; shape and color of a product; pattern and color of a product; shape, pattern and color of a product. Shape refers to the design of the appearance of the product, i.e., the exterior outline presented by the move, change or combination of the dot, line or side of the external part of the product. That is the result of the synchronal design, manufacture of the structure, appearance and the like of a product. Pattern refers to the figure constituted by the appearance of the product by means of the arrangement or combination of the lines, character, symbol or color piece. Pattern may be created by drawing or other means which is able to realize the design conception of the designer. The pattern of a product shall be permanent and visible, rather than flickering or it may be visible only under specific conditions. Color refers to the color or combination of colors incorporating the product. The natural color of the raw material incorporating a product is not the color of the design. The three elements of shape, pattern and color are inter-dependent, and sometimes it is difficult to define them. For example, tile arrangement of many color pieces may constitute the pattern. PRELIMINARY EXAMINATION OF PATENT APPLICATION FOR DESIGN 1,83 4.4.2 New Design Applicable for Industrial Application Applicable for industrial application refers to a design may be used in industry and may be batch manufactured. A new design refers to a design that is a new plan of design. Obviously not a new design refers to a design which is known during the examination that an earlier application that has identical or similar contents has been filed in the Patent Office and published in the Patent Gazette in China before the date of filing or date of priority of an application for a patent for design. It also refers to that which is known during the examination that the identical or similar material object has been publicly used or sold in China before the date of filing or the date of priority or the contents of an application for a patent for design have been publicly disclosed in a publication in China or abroad before the date of filing or the date of priority. 4.4.3 Objects for Which No Patent Protection shall be Provided The following are the examples of objects which no protection for patent for design may be provided according to Rule 2.3 of the Regulations: (1) The fixed building, bridge and the like which depends on the specific geographic conditions and cannot be repeatedly reproduced; (2) The product which has no fixed shape, pattern or color because it contains the substance which has no fixed shape, such as gas, liquid or powder; (3) The component part of the product which cannot be sold or used separately, such as heel of socks, brim of a hat, cup handle and so on; (4) For the product consisting of several component parts which have different shape or pattern, if the component part per se cannot be a product which has value of independent use, it does not belong to the object of the patent right. For example, where an element cannot be made by identical plug-in pieces to form specific shape of pattern, such plug-in piece cannot be used independently nor does it constitute an independent product. No protection of a patent for design may be provided. Only when an application for a patent for design incorporating a toy consisting of such plug-in pieces together with other plug-in pieces which can be connected with it is filed, may the protection of a patent for design be provided. (5) The article which cannot act on the visual sense or is difficult to determine with the naked eye its shape, pattern or color; (6) The design seeking protection is not in the regular state of the article per se, such as the design of an animal made with a handkerchief; (7) The design which takes the original shape, pattern or color of the natural material as the subject matter; (8) The work which stands in the scope of pure aesthetics; (9) The design constituted by the geometry or pattern which are quite 1,84 PRELIMINARY EXAMINATION Common in the field that product belongs to; (10) The font, sound or meaning of the regular writing and number cannot be the contents of the design seeking protection. 4.5 Examination According to Provisions of Art.9 of the Patent Law and Rule 13.3 of the Regulations It is stipulated in Art.9 of the Patent Law that: "where two or more applicants file applications for patent for the identical invention-creation, the patent fight shall be granted to the applicant whose application was filed first." It is further stipulated in Rule 13.1 of the Regulations that: "for any identical invention-creation, only one patent fight shall be granted." The principle of the patent right may not be granted repeatedly is defined by this stipulation. In the preliminary examination of an application for a patent for design, the examiner may not perform the examination of whether or not an application for a patent for design conforms to the provisions of Art.9 of the Patent Law and the Rule 13.1 of the Regulations, unless the examiner knew during the preliminary examination, there are two or more applicants filing applications for patent for the identical design respectively or the applicant has filed another application for a patent for design which has identical contents. This Section solely involves the principle of determination of the "identical invention-creation" described in Art.9 of the Patent Law and Rule 13. 1 of the Regulations and the methods of handling under various circumstances, but not including the application for a patent for design which can be examined according to Rule 2.3 of the Regulations. In other words, where the earlier application has constituted the existing technology after disclosure, the examination of the later application shall be performed according to Rule 2.3 of the Regulations rather than Art.9 of the Patent Law and Rule 13.1 of the Regulations. 4.5.1 Principles of Judgment The principle of judgment of whether or not it constitutes the "identical invention-creation" described in Art.9 of the Patent Law and Rule 13.1 of the Regulations, the products incorporating the design presented in the drawings or photographs of the two applications for patent for design or the patents for design shall be used as standard. Identical design refers to two designs that are identical with or similar to each other. As related to the design, the meaning of identical or similar includes two aspects: identical (or similar) product or identical (or similar) PRELIMINARY EXAMINATION OF PATENT APPLICATION FOR DESIGN 1,85 design. Identical products mean the application and function of the products are completely identical. The similar products refer to the articles which have same application but different functions. The judgment of whether or not the designs are identical (or similar) refers to the comprehensive judgment on the design of the shape, pattern and color of the identical (or similar) products. 4.5.2 Method of Handling 4.5.2.1 Different Applicants Where the different applicants filed the applications for the identical design successively, the later application shall be handled in the following way: Where the patent right was not granted for the earlier application and both applications conform to other requirements for granting the patent right, the patent right shall be granted to the applicant whose application was filed first according to Art.9 of the Patent Law. After the patent right has been granted to the earlier application, the examiner shall issue an Office Action to the applicant of the later application indicating that the later application does not conform to the provisions of Rule 13.1 of the Regulations. Where the patent right has been granted to the earlier application, the examiner shall issue an Office Action to the applicant of the later application. Where the applicant has not respond within the time limit, the later application shall be deemed to have been withdrawn. Where the requirements of Rule 13.1 still remain unmet after the applicant made the observations, the later application shall be rejected. Where the identical applications were filed by different applicants on the same day and both applications conform to other requirements for granting the patent right, the examiner shall notify the applicants to hold consultation among themselves to determine who shall be entitled to file the application according to the provisions of Rule 13.2 of the Regulations. Where no response was made within the time limit, both applications shall be deemed to have been withdrawn. Where no decision is made through consultation, or the requirements of Rule 13.1 are still considered unmet after the observations or the amendments have been made by the applicant, both applications shall be rejected. 4.5.2.2 Same Applicant Where the same applicant filed the applications for the identical design successively and both applications conform to other requirements for granting the patent right but no patent right was granted to any of them, the examiner shall issue an Office Action to the later application and notify the 1,86 PRELIMINARY EXAMINATION applicant that the later application does not conform to the provisions of Rule 13.1 of the Regulations unless the applicant withdraws its/his earlier application. Where the applicant did not respond within the time limit, the application shall be deemed to have been withdrawn. Where the applicant insists on holding the later application and does not withdraw the earlier application without proper reason, the later application shall be rejected. Where the patent right was granted for the earlier application, the examiner shall issue an Office Action about the later application and notifying the applicant that the later application does not conform to the provisions of Rule 13.1 of the Regulations. Where the applicant does not respond within the time limit, the application shall be deemed to have been withdrawn. Where the applicant insists on holding the later application without proper reason, the later application shall be rejected. PATENT CLASSIFICATION 1,87 Chapter 4 Patent Classification 1. Introduction This Chapter involves the classification of the patent for invention and the patent for utility model only. For the classification of the patent for design, the provisions of Section 2.4, Chapter 3 of this Part shall apply. The Patent Office adopts the "International Patent Classification" (Int. Cl) to conduct the classification for application for patent for invention and application for patent for utility model. The newest Chinese text of the "International Patent Classification" shall be the working text of the classification. Where there is a divergence of the interpretation, the newest English text or French text shall prevail. The purposes of classification are as follows: (1) Establishing the file of patent which is valuable for searching; (2) Distributing the application for a patent for invention or for utility model to the examiners; (3) Arranging the application for a patent for invention or for utility model according to the classification number to systematically disclose to the public or announce. 2. Contents of Classification The classification department shall classify the subject matter of the technology of each application for a patent for invention or utility model, provide a complete classification number which represents the inventive information of an invention or utility model. Where necessary, the indexing code relating to the relevant classification number shall be provided. The above-mentioned inventive information of the invention or utility model refers to the technical information relating to the invention or utility model per se, i.e., the technical information which directly relates to the technical subject matter of the application for a patent for invention or utility model seeking protection. The above-mentioned technical information expressed by the indexing code is the supplement of the classified information (such as, indicating the basic composition of a compound or a mixture or the component cluster of a compound) or to indicate the use or application of a classified technical subject matter. 1,88 PRELIMINARY EXAMINATION 3. Technical Subject Matter 3.1 Determination of the Technical Subject Matter 3.1.1 General Principles It shall take claims as the main basis combining appropriately with the description (including drawings) to determine a technical subject matter. 3.1.2 Entirety Where the examiner takes the claims as the main basis to determine the technical subject matter, it must know the entire technical contents in the claims. Where the examiner takes the independent claim as the basis to determine the technical subject matter, it shall combine the technical features indicated in the preamble portion with the technical features indicated in the characterizing portion. 3.1.3 Importance Where the examiner takes the claims as the main basis for determining the technical subject matter, the importance shall be the independent claim. Where there is more than one independent claim, usually the importance shall focus on claim 1. 3.1.4 Combine with Description The purpose of appropriately combining with the description (including drawings) to determine technical subject matter is to correctly understand or clarify the technical features indicated in the claims which constitute the contents seeking protection. 3.1.5 Methods to Determine Technical Subject Matter (1) Generally the examiner uses the technical features stated in the preamble portion of the independent claim as the main focus, and the technical features stated in the characterizing portion as the restriction of the preamble portion. Example 1: A kind of building board used for the wall or roof is characterized as consisting of a rectangle sheet, which comprises four parts and the surface shape of each part is hyperbolic paraboloid, ... The technical subject matter is: a sheet building board which is used for wall or roof characterized in shape. Example 2: PATENT CLASSIFICATION 1,89 A crude oil composition, which has the improved pour-point feature, comprising wax-bearing crude oil and an effective additive at the amount of pour-point depressant, which mainly consists of the multipolymer selected from ethene and acrylonitrile and the polymer of the tripolymer. Its technical subject matter is: a crude oil composition characterized in an additive consisting of the multilymer containing ethane and acrylonitrile and polymer of the tripolymer. Example 3: A mechanical dampener of cotton textile machine is characterized as viscoelastic materials placed on a steel sheet so that the two materials combine as one entire piece. Its technical subject matter is: a mechanical dampener of cotton textile machine characterized by sticking viscoelastic materials on steel sheet to combine them as one entire piece. Example 4: A kind of speaker of which the piezoelectric ceramic sheet, on which there are two metal contacts, crimped at one end of the trunk-case and the opening of the speaker at the other end, is characterized in a shaking case that is equipped at the contour of the case of speaker, which is connected with the edge of the speaking opening of the case, and there is an interval between the two cases to comprise a bivalve case. The technical subject matter is: A piezoelectric ceramic sheet speaker characterized in bivalve case. (2) Under special circumstances, i.e., there is no specific position in the Classification List for a subject matter described in preamble portion of the claim, the technical feature in charactering portion shall be regarded as the main point and that the subject matter in preamble portion shall be regarded as the restriction of the charactering portion. Example 1: A switch comprising a case, a controlling device equipped in the case cover, the wire tunnel, and open & close contact, is characterized in that a photoconductive board made of transparent materials and a glow bulb indicating switch position are equipped under the opening of case cover which has one opening. The technical subject matter is: a device of the switch characterizing in indicating the position of the switch. Example 2: An active dye compound is characterized as the process of synthesis by a kind of enzyme, ... The technical subject matter is: an active dye compound characterized as the process of synthesis by enzyme. 1,90 PRELIMINARY EXAMINATION Example 3: A timing clock comprising of a case and a skeleton movement is characterized in that a case made of ceramic material, the appearance of it is... The technical subject matter is: the ceramic case of a timing clock, ... (3) Occasionally, that is, where the invention or utility has been described extremely briefly or too generally in the claims so that it is impossible to make classification based on the description, the judgment shall be made based on the technical problem resolved by the invention or utility model, technical solution, technical results or embodiment disclosed in the description. Example 1: A process of producing a general purpose motor of domestic electrical appliance is characterized in that no special use motor is equipped with the domestic electrical appliance; instead, a general purpose motor is equipped with the electrical appliance by means of spring, belt, lath, dog screw and nut, and it will be disassembled after use. The technical subject matter determined based on embodiment is: the installation elements and assemble method of the motor used in the tub of the wave-disc-type semi-automatic duplex washing machine. Example 2: A process of preparation of the following compounds and their pharmaceutical-acceptable salt: Wherein when X is CH, S, R is...; The technical subject matter determined based on embodiment is: a process of preparation of [1-(fumaroid form, 3, 4)]-1-[2-(dimethylamino) cyclohexyl]-1,3,4,5-tetryhydro-4-(4-methoxybenzene)-3-methyl-6-(methyl trifluorid)-2H-1-benzazepine-2-ketone monohydrochloride. 3.2 Types of Technical Subject Matter PATENT CLASSIFICATION 1,91 The technical subject matter is related either to the feature or function of an object per se or to the use or application of an object. Herein "object" refers to any technical object in general, regardless of tangible or intangible, such as process, product or apparatus. 3.2.1 General Object An object with a general technical subject matter refers to a technical subject matter which relates to its features or function but does not relate to the specific field of use or the technical feature of that object will not be affected without consideration of the scope of application. Example 1: A woodscrew which bas 20~skewed slots and can be used to tap screw thread. Example 2: A process of preparation of 1,2,4-triazole [1,5-C] pyrimidine-2-sulfamoyl Compound. Example 3: A generator armature iron-core used in diesel is characterized in the shape and arrangement of winding slot. Example 4: A cutting machine is characterized in a disk cutter turned around a move shaft. 3.2.2 Objects Especially Applicable for a Specific Use or Purpose An object with the technical subject matter especially applicable for a specific use or purpose is that which is intentionally improved or manufactured for a known use or purpose. For example, a DC shaking massager, in which there are two coils are winded around the frame; the massage head shakes by means of the back forth moving of a moving iron-core in the coils. 3.2.3 Special Use or Application of an Object The technical subject matter is the special use or application of an object, such as the insecticide, acaricide or aphicide containing the mixture of dimethyl -(2,2-acetamide chloride) organic phosphate and 0,0-dimethyl- S-N-(2-chlorobenzene)-N-butanamide phosphorodithioate. 3.2.4 Classifying an Object into a More General Class The technical subject matter is to classify an object into a more general class. For example, a vehicle elastic suspension which has several tumblers, two 1,92 PRELIMINARY EXAMINATION of them per se are the vehicle elastic suspension of a single wheel of the laminated spring. Herein, the laminated spring is included in vehicle elastic suspension. 3.2.5 Either a General Object or Relating to the Use or Application of the Object The technical subject matter is a general object, and it also relates to the use or application of that object. That is, it relates either to the features or function of the object per se or to its special application or its special application or combination in a more general system. For example, a camera, which can load more than one roll of film and expose the specific one of them when it is needed, and its arrangement in the plane. 4. Method of Classification 4.1 Classification as a Whole The technical subject matter shall be classed as a whole as much as possible rather than classed by each component part respectively. Example 1: A tumbler automatically-controlled bridge expansion slit device consisting of inter-beam, elastic sealing gasket, transverse-joist, supporting spring, transverse-joist sealing box and so on, is characterized in that each transverse-joist... Considering the bridge expansion slit device as a whole, it is classified in E01D19/06. Example 2: A solid garbage processing system consists of feeder and apparatuses of sorting, smashing, metal retrieving, plastic retrieving, fertilizer making and others. Considering solid garbage processing system as a whole, it is classified in B09B3/00. 4.2 Classification according to Function The technical subject matters mentioned in Section 3.2.1 of this Chapter are classified in function positions according to the function. Where there is no such a position in the Classification, it shall be classified in the application position according to its application. Example 1: A process of preparation of 1,2,4-triazole [1,5-C] pyrimidine-2-sulfamoyl Compound is classified in C07D487/04 according to its function. PATENT CLASSIFICATION 1,93 Example 2: A cutting machine is characterized in a disk cutter turned around a moving shaft. It is classified in B26D1/157 according to its function. Example 3: There is no position for the function of the stripper of the overburden in the Classification. Based on the judgment, it is mainly used for stripping the sheath of the electric wire. It is classified in H02G1/12 according to its application. 4.3 Classification according to Application The technical subject matters mentioned in Sections 3.2.2, 3.2.3 and 3.2.4 of this Chapter should be classified in application positions according to their application. Where there is no such a position in the Classification, it shall be classified in the function position. Example 1: A DC shaking massager which has two coils; the massage head shakes by means of the back and forth moving of a moving iron-core in the coils. It is classified in A61H23/02 according to application. Example 2: The insecticide, acaricide or aphicide containing the mixture of two kinds of active composition shall be classified in A61N according to its application. Example 3: The vehicle elastic suspension which has several tumblers, two of them per se are the vehicle elastic suspension of a single wheel of the laminated spring, is classified in B60G3/00 according to its application. Example 4: A protection device for overload, over-tension, delayed starting for refrigerator. There is no position of application for refrigerator-use emergent protective-circuit device in Classification List on the basis of application. After judgment, it is classified in H02H subclass according to its function as an emergent protective-circuit device. 4.4 Classification by Both Function and Application The technical subject matters mentioned in Section 3.2.5 of this Chapter shall be classified both in function position according to its function and in application position according to its application. Where there is no such a function position, it shall be classified in application position only. Where there is no such an application position, it shall be classified in function 1,94 PRELIMINARY EXAMINATION position only. Example 1: A camera, which can load more than one roll of film and expose the specific one where necessary, and its position on the plane. It shall be classified in G03B19/06 according to its function and it shall be classified in B64D47/08 according to its application. Example 2: A generator used for illumination of bicycle and animal-drawn cart which is equipped with a gear-ratio-adjustable gearbox and can be easily coupled with the wheel. There is no application position in the Classification List for this product, so it can be classified in H02K7/116 according to its function. When making the classification for the technical subject matters mentioned in Section 3.2.4, i.e., in order to classify an object into a more general class for classification, if it involves the feature of the object per se, the further classification according to its function shall be made. 4.5 Classification of Independent Claim And Dependent Claims The classification shall be carried out for each independent claim, as well as the important information contained in each dependent claim. The important information contained in dependent claim refers to the information which is useful for establishing the patent file and is valuable for search after judgment, i.e., it will be useful when the examiner performs the examination of the application for a patent or when the public searches for certain technical information. 4.6 Classification Steps of the Technical Subject Matter 4.6.1 Compound Where the technical subject matter is a compound, at first, it shall determine whether or not it relates to the application of that compound only. If yes, it shall be classified in application or use position only. If the answer is no, it shall go a step further to determine whether or not the application or use of the compound is a compositional part of its main technical subject matter. If yes, it shall be classified in Class C and the position of the application or use of that compound. If no, it shall be classified in Class C only. 4.6.2 Chemical Mixture or Composition Where the technical subject matter is a chemical mixture or composition, at first, the examiner shall determine whether or not there is a position in the PATENT CLASSIFICATION 1,95 Classification. If there is no such a position, it shall be classified by its application or use position only. If there is such a position, it shall go a step further to determine whether or not its application or use is a compositional part of its main technical subject matter. If yes, it shall be classified in the position of the mixture or composition and the position of its application or use. If no, it shall be classified in the position of mixture or composition only. 4.6.3 Preparation or Process of a Compound Where the technical subject matter is the preparation or process of a compound, at first, it shall determine whether or not there is a position of preparation or process in the Classification. If yes, it shall be classified in the position of that compound and the position of preparation or process, otherwise it shall be classified in the position of that compound only. 4.6.4 Equipment or Process Where the technical subject matter is an equipment or process of producing or processing an object, at first, it shall determine whether or not there is a position of classification of that equipment or process. If yes, it shall be classified in the position of that equipment or process. If no, it shall go a step further to determine whether or not there is a position for the process performed by that equipment or the position for the equipment used for performing that process. If yes, it shall be classified in that position; otherwise it shall be classified in the position for the object manufactured or processed by that equipment or process. 4.6.5 Manufactured Article Where the technical subject matter is an article, at first, it shall determine whether or not there is a position for this article in the Classification. If yes, it shall be classified in the position of that article. If no, it shall go a step further to determine whether or not there is a suitable position for its function. If yes, it shall be classified in that function position otherwise it shall be classified in the position for its application or use. 4.6.6 Multi-Steps Process, Equipment Where the technical subject matter is a multi-step process, equipment, at first, it shall determine whether or not there is a position for the combination of these processes or equipment in the Classification. (1) If yes, it shall further be determined whether or not it relates to the individual unit of the combination. If it relates to an individual unit, it shall be classified in the positions of the combination and of that unit; otherwise 1,96 PRELIMINARY EXAMINATION it shall be classified in the position of the combination only. (2) If there is no position for the combination, it shall be determined whether or not it relates to the individual unit of the combination. If it relates to an individual unit, it shall be classified in the position of the product produced by such a combination and the position of that unit. If it does not relate to the individual unit of the combination, it shall be classified in the position of the product produced by such a combination. 4.6.7 Spare Parts, Structural Components Where the technical subject matter is a kind of spare part, structural component, at first, it shall be determined whether or not it is suitable for or used for special equipment only. If yes, it shall be classified in the position for the special equipment. If not, it shall be determined whether or not there is a position for the general-use part/component in the Classification. If there is such a position, it shall be classified in that position, otherwise it shall be classified in the position for the appropriate equipment. 5. Selection of Indexing Code 5.1 Indexing Code List 5.1.1 Special-Purpose Indexing Code List There are special-purpose subclasses and Indexing Code list Group in the Classification. They are used for indexing only and can be directly selected and used as the supplement indexing for the classified information, such as B29K subclass. 5.1.2 Common-Use Indexing Code List The common-use indexing code list arranged in the Classification, the classification number at the Group and Subgroup level, which can also be used as indexing code category, is expressed by a vertical line on the left. When using the indexing code, the slant "/" in the classification number shall be substituted by colon":". For example, when A01N25/00 is used as an indexing code, it shall be expressed as A01N25:00. 5.2 Use of Indexing Code 5.2.1 Consecutive-Use of Indexing Code It is indicated in the form of "Note" in Classification. The indexing codes in certain positions shall be used together with relevant classification PATENT CLASSIFICATION 1,97 numbers. Each group of consecutive-use indexing code shall be expressed by round brackets responsively, in which the classification number is listed and followed by indexing code. A comma is located between the classification number and indexing code in the round brackets, such as (C08F210/ 16,214:06). 5.2.2 Non-Consecutively-Use Indexing Code It is indicated in the form of "note" in Classification. The indexing codes in certain positions shall be used independently without relevant classification numbers, such as B29K9:06. 6. Classification and Mark of Indexing Code 6.1 Marking Method The classification number and indexing code shall be separated by a doubleslant. The classification number is indicated on the left of the double-slant, and on the right of it is the consecutive-use indexing code followed by non-consecutive-use indexing code. Wherein, the classification number and the non-consecutively-use indexing code is separated by comma. While there is no punctuation on either left or right side of the round brackets of the consecutive-use indexing code. Example 1: C08F210/16,255/04//(C08F21016,214:06) (C08F255/04,214:06) Example 2: B29C65/08//B29K83:00.B29L23:18 6.2 Sequence of Classification The classification numbers are arranged according to the order of the claim which they are based on. Wherein, the first classification number generally shall be extracted from the claim 1. Where the classification is made on the basis of the embodiments of the invention or utility model, the classification numbers shall be arranged according to the order of the embodiments which they are based on. Wherein, the first classification number shall be extracted from the embodiment recorded earliest, unless the applicant indicates or the examiner considers a specific embodiment is the most important one. Under such circumstances, the classification number extracted from that embodiment shall be arranged as the first one. 6.3 Reading of Classification and Indexing Code "/" in classification number is read as "slant". For example, A01B3/00 is read as A zero one B three slant zero zero. 1,98 PRELIMINARY EXAMINATION ":" in indexing code is read as "colon". For example, B29L1:00 is read as B two nine L one colon zero zero. 7. X Mark 7.1 Meaning of X Mark (1) An X mark alone means the technical subject matter is impossible to be classified in any position in Current Classification. (2) An X mark following the expression of Part, Class or Subclass, such as AX A01X or A01BX), means that although that Part, Class or Subclass includes that technical subject matter, there is no appropriate position in subordinating Class, Subclass or Group for it. (3) An X mark is arranged following an expression of the Group number, such as G01N3/00X), indicates that under the circumstances, there is no appropriate Group, this Group is the most closest one, but it is not the exact one for that technical subject matter. 7.2 Use of X Mark Where the examiner for classification thinks it is necessary to use an X mark for an application, he/she shall fill in a "Notification of Proposal to Use X Mark" and reports to the director of the relevant division. The director of the division, upon agreement with that proposal, shall consult with relevant examination department and draft a "Report of proposal to Use X Mark" together with the classification assistant of that examination department. Where the examiner for the examination as substance thinks it is necessary to use an X mark, he/she shall fill in a "Notification of Proposal to use X Mark" and submit to the director of his/her division. Where the director agrees to adopt the proposal, he/she shall report to the director general of the department and consulting with the department in charge of classification of the Department of Preliminary Examination and Procedural Administration. Upon approval, the department in charge of classification of the Department of Preliminary Examination and Procedural Administration shall draft a "Report of proposal to Use X Mark" together with the classification assistant of that department. The X mark can be used only after the above-mentioned "Report of proposal to Use X Mark" has been commented by the leaders of the First Examination Department and the relevant department, and approved by the competent leader of the Patent Office.