Regulation on National Defense Patent Promulgated by the State Council, the Central Military Commission on 2004-9-17
Chapter I General Provisions
Article 1 The present Regulation is formulated in accordance with the Patent Law of the People's Republic of China for the purposes of protecting the patent rights of the pertinent national defense inventions, safeguarding the state secrets, facilitating the popularization and application of inventions and creations, promoting the development of science and technology for national defense and meeting the demands of the modern construction of national defense.
Article 2 The "national defense patent" refers to the patent of any invention that relates to the national defense interests, which is potentially important to the national defense construction and thus should be kept confidential.
Article 3 The national defense patent institution of the state (hereinafter to the NDPI) shall be responsible for accepting and examining the applications for national defense patent. If, upon examination, the NDPI believes that an applicant meets the relevant requirements of the present Regulation, the patent administrative department of the State Council shall grant the national defense patent right to the applicant.
The administrative department of science, technology and industry for national defense of the State Council and the General Armament Department of the People's Liberation Army (hereinafter referred to as the GAD) shall be responsible for the management of national defense patents of the local system and army system respectively.
Article 4 As for an invention that relates to the national defense interests or is determined as the top secret of the state for its potential importance to national defense construction, no one may apply for determining it as a national defense patent.
Prior to declassification, the applications for national defense patent and the work of keeping national patent confidential shall be managed in accordance with the Law of the People's Republic of China on Guarding State Secrets and other relevant provisions.
Article 5 The term of protection for a national defense patent shall be 20 years. It shall be calculated from the date of filing an application.
Article 6 Within the term of protection for a national defense patent, if it is necessary to change the security classification of the national defense patent, to declassify the national defense patent or to extend term of confidentiality after the termination of the national defense patent right, the NDPI may make a relevant decision accordingly. However, if it has been determined as a state secret before an application is filed for determining it as a national defense patent, permission shall be obtained from the organ or entity that previously determines the security classification and the term of confidentiality, or from its superior organ.
An entity or individual who has been granted the right of a national defense patent (hereinafter referred to as the patentee of a national defense patent) may file a written application with the NDPI for changing the security classification, declassifying the national defense patent or extending the term of confidentiality. If the entity is a state- owned enterprise or public institution or military entity, such an application shall be accompanied by the opinions of the organ or entity that previously determines the security classification and the term of confidentiality, or by the opinions of its superior organ.
The NDPI shall publish the decision of changing the security classification, declassifying the national defense patent or extending the term of confidentiality on its Internal Bulletin for National Defense Patent, inform the patentee of the national defense patent of it, and simultaneously submit the declassified national defense patent to the patent administrative department of the State Council for changing it into a general patent. The patent administrative department of the State Council shall timely announce the declassified national defense patent to the general public.
Article 7 The right to apply for a national defense patent and the right of a national defense patent may be transferred to a Chinese entity or individual within China upon approval.
When transferring the right to apply for a national defense patent or the right of a national defense patent, one shall ensure that the state secrets won't be divulged, shall guarantee that construction of national defense and the army won't be affected and shall file a written application with the NDPI. The NDPI shall conduct a preliminary examination, and then it shall, in accordance with the functions as prescribed in the second paragraph of Article 3 of the present Regulation, timely report it to the administrative department of science, technology and industry for national defense of the State Council or the GAD for examination and approval.
The administrative department of science, technology and industry for national defense of the State Council or the GAD shall make a decision of approval or disapproval within 30 days after the NDPI accepts an application. If it makes a decision of disapproval, it shall give a written notice and an explanation therefor to the applicant.
Where an applicant is approved of transferring the right to apply for a national defense patent or the right of a national defense patent, the parties concerned shall sign a written contract and shall have it registered in the NDPI. The NDPI shall publish it on its Internal Bulletin for National Defense Patent. The right to apply for the national defense patent or the transference of the right of the national defense patent shall be valid from the registration date.
Article 8 It is prohibited to transfer the right to apply for a national defense patent or the right of a national defense patent to an entity or individual outside China, or to a foreigner or foreign institution within China.
Article 9 Anyone who needs to entrust a patent agency to apply for a national defense patent or to handle other matters related to national defense patent shall entrust a patent agency designated by the NDPI to do so. The patent agency and its personnel shall be obliged to keep confidential the state secrets they learn in handling the national defense patent application and other matters related to national defense patent.
Chapter II Application, Examination and Authorization of National Patent
Article 10 Anyone who applies for a national defense patent shall submit an application, description and its abstracts, claims and other documents to the NDPI.
The national defense applicant shall prepare the application documents according to the requirements and uniform formats as prescribed by the NDPI and shall submit them to the NDPI by personal delivery, confidential correspondence or any other secret way. The applicant may not post them by ordinary mail.
The day when the NDPI receives the national defense patent application documents shall be the date of filing an application. If the application documents are submitted by confidential correspondence, the date of mailing indicated by the postmark shall be the date of filing an application.
Article 11 The NDPI shall regularly appoint a person to examine the common patent applications in the patent administrative department of the State Council. If it finds that an application involves the interests of national defense or is of potential importance to the construction of national defense and thus it is necessary to keep it secret, then upon consent of the patent administrative department of the State Council, this application shall be changed into an application for national defense patent and the applicant shall be informed of the change.
After a common patent application has been changed into an application for national defense patent, the NDPI shall examine it in accordance with the relevant provisions of the present Regulation.
Article 12 Any invention to which the right of national defense patent may be granted must possess novelty, inventiveness and practical applicability
Novelty means that, before the date of filing an application, no identical invention has been publicly disclosed in publications within China or abroad or has been publicly used or made known to the public by any other means within China, nor has any other person previously filed an application which described the identical invention or obtains the right of national defense patent after the date of filing an application.
Inventiveness means that, as compared with the technology existing before the date of filing an application, the invention has prominent substantive features and represents a notable progress.
Practical applicability means that the invention can be made or used and can produce effective results.
Article 13 Under any of the following circumstances, an invention for which a national defense patent is applied does not lose its novelty within six months before the date of filing an application:
(1) It is, for the first time, exhibited at an internal exhibition sponsored by the corresponding administrative department of the State Council or the corresponding administrative department of the People's Liberation Army;
(2) It is, for the first time, made public at a academic or technological conference internally held by the administrative department of the State Council or the pertinent administrative department of the People's Liberation Army; or
(3) It is disclosed by any other person without the consent of the applicant.
Under any of the circumstances as listed in the preceding paragraph, the applicant for national defense patent shall make a statement when it files an application, and shall provide the relevant documentary evidence within 2 months from the date of filing an application.
Article 14 If, upon examination over an application for national defense patent, the NDPI considers that the application doesn't meet the requirements of the present Regulation, it shall inform the applicant for national defense patent to present an argument or revise or make supplements and corrections to its application for national defense patent within a specified time limit. If the applicant fails to make a response within the specified time limit without any reasonable ground, it shall be regarded as having withdrawn its application for national defense patent.
Within 6 months from the date of filing an application, or when the applicant for national defense patent make a response to the notice of opinions on preliminary examination, the applicant for national defense patent may, on its own initiative, requests to revise its application for national defense patent.
The revisions made by the applicant to its national defense patent application documents may not exceed the scope of disclosure contained in the initial description and claims.
Article 15 After the applicant for national defense patent has presented an argument or has revised or has made supplements and corrections to the national defense patent application documents, if the NDPI still considers that the application doesn't meet the requirements of the present Regulation, it shall dismiss the application.
Article 16 The NDPI shall set up a National Defense Patent Reexamination Board, which shall be responsible for reexamining the national defense patents and announcing invalid ones.
The National Defense Patent Reexamination Board shall consist of technical experts and legal experts. Its position of director member shall be concurrently held by the person-in- charge of the NDPI.
Article 17 If an applicant for national defense patent refuses to accept the decision of the NDPI on dismissing the application, it shall, within 3 months from receipt of the notice, ask the National Defense Patent Reexamination Board to conduct reexamination. After the National Defense Patent Reexamination Board conducts reexamination and makes a decision, it shall notify the applicant for national defense patent of the said decision.
Article 18 If it is held that there is no reason to dismiss a national defense application upon examination, or it is improper to dismiss a national defense application upon reexamination, the patent administrative department of the State Council shall decide to grant the applicant the right of a national defense patent, authorize the NDPI to issue a national defense patent certificate to the applicant and simultaneously disclose the date of filing an application for the national defense patent, the date of granting the right of national defense patent and the number of the national defense patent through the patent bulletin published by the patent administrative department of the State Council. The NDPI shall register the matters relating to the national defense patent and publish them on the Internal Bulletin for National Patent.
Article 19 Where an entity or individual considers that the grant of the right of a national defense patent is not consistent with the present Regulation, it (he) may ask the National Defense Patent Reexamination Board to declare the right of the national defense patent invalid.
Article 20 After the National Defense Patent Reexamination Board examines an application for announcing a national defense patent invalid and makes a decision, it shall notify the applicant and the patentee of a national defense patent of the said decision. The NDPI shall publish the decision on declaring the right of a national defense patent invalid on the Internal Bulletin for National Patent, and the patent administrative department of the State Council shall publish it on the patent bulletin.
Chapter III The Exploitation of National Defense Patents
Article 21 The NDP shall, within 3 months from the day when it grants the applicant the right of a national defense patent, submit the duplicates of the relevant documents of the national defense patent to the corresponding administrative department of the State Council or the corresponding administrative department of the People's Liberation Army, which shall, within 4 months from the day after receipt of the duplicates of the relevant documents, put forward opinions in writing about the exploitation of the national defense patent and inform the NDPI of its opinions.
Article 22 The corresponding administrative department of the State Council or the corresponding administrative department of the People's Liberation Army may permit its designated entities to exploit the national defense patents of its own system or department. If it is necessary to designate entities to exploit a national defense patent other than those of its own system or department, it shall file a written application to the NDPI, which shall, in accordance with the functions as stipulated in the second paragraph of Article 3 of the present Regulation, report that to the administrative department of science, technology and industry for national defense of the State Council or the GAD for approval. Upon approval, the said patent may be exploited.
The NDPI shall register the information concerning the designated exploitation of national defense patents and shall publish it on the Internal Bulletin for National Defense Patent.
Article 23 An entity exploiting a national defense patent of others shall sign a written contract with the patentee of this national defense patent, shall pay fee to the patentee of the national defense patent in accordance with Article 25 of the present Regulation and shall report that to the NDPI for archival purposes. Except the entities as stipulated in the contract, the exploiting entity may not allow any other entity to exploit the national defense patent.
Article 24 Where a patentee of a national defense patent permits an overseas entity or individual to exploit its national defense patent, it shall ensure that the state secrets won't be divulged, shall guarantee that the construction of national defense and the army won't be affected and shall file a written application with the NDPI. The NDPI shall conduct a preliminary examination in pursuance of the functions as stipulated in the second paragraph of Article 3 of the present Regulation, and then timely submit it for examination and approval to the administrative department of science, technology and industry for national defense of the State Council, or the GAD.
The administrative department of science, technology and industry for national defense of the State Council, or the GAD shall, within 30 days after the NDPI accepts the application, make a decision of approval or disapproval. If it makes a decision of disapproval, it shall give a written notice and an explanation therefor to the applicant.
Article 25 Anyone who exploits the national defense patent of others shall pay the national patent exploitation fee to the patentee of a national defense patent. If the exploitation of a national defense patent, which is derived from using the scientific research funds directly allocated by the state for national defense or from the scientific research activities by using other national defense funds, is consistent with the purposes of the funds from which the national defense patent is derived, it (he) may only be required to pay the necessary national defense patent exploitation fee except there are otherwise stipulations in the scientific research contract or in the description of scientific research project.
The "national defense patent exploitation fee" as mentioned in the preceding paragraph refers to the essential expenditure incurred in the exploitation of a national defense patent for offering technical materials, training personnel and further technical development.
Article 26 The amount of the fee for exploiting or using a national defense patent shall be determined by the patentee of a national defense patent and exploiting entity through negotiation. If they fail to come to an agreement, the issue shall be arbitrated by the NDPI.
Article 27 The state shall compensate the patentee of a national defense patent. After the NDPI issues a national defense patent certificate, it shall pay the compensation fee for national defense patent to the patentee of the national defense patent. The amount of compensation fee shall be determined by the NDPI. If the patent is for a service invention, the patentee of the national defense patent shall pay at least 50 % of the compensation fee for national defense patent to the inventor.
Chapter IV Management and Protection of National Defense Patents
Article 28 The Internal Bulletin for National Defense Patent published by the NDPI falls within the scope of state secret documents. The range of its readers shall be decided by the NDPI.
The Internal Bulletin for National Defense Patent may publish the following contents:
(1) The items as recorded in an application for national defense patent;
(2) The claims for a national defense patent;
(3) The abstracts of the description of an invention;
(4) The grant of a national defense patent;
(5) The termination of a national defense patent;
(6) The announcement on invalidity of a national defense patent;
(7) The right to apply for a national defense or the transference of a national defense patent;
(8) The designated exploitation of a national defense patent;
(9) The records of a license contract on the use of a national defense patent;
(10) The change of the security classification or declassification of a national defense patent;
(11) The extension of the term for the confidentiality of a national defense patent;
(12) The change of name or address of a patentee of a national defense patent; and
(13) Other relevant items.
Article 29 After the grant of a national defense patent, one may, upon permission of the NDPI, consult the descriptions of the national defense patent under any of the following circumstances:
(1) Requesting to declare the national defense patent invalid;
(2) Being in the need of exploiting a national defense patent;
(3) Occurrence of any dispute over the national defense patent; or
(4) Due to the needs of scientific research for national defense.
A consulter shall be obliged to keep secret the state secrets he learns during the consulting.
Article 30 The corresponding administrative department of the State Council, the corresponding administrative department of the People's Liberation Army and the administrative departments of science, technology and industry for national defense of the provinces, autonomous regions, and municipalities directly under the Central Government shall each designate an institution to be responsible for the management of national defense patents and shall notify the NDPI of it. All such institutions shall be subject to the operating guidance of the NDPI.
The army entities undertaking tasks of scientific research or production for national defense or participating in armament orders, entities for which the State Council performs the obligations of the investor, and public institutions directly under the State Council shall each designate a corresponding department to manage their respective national defense patents.
Article 31 The NDPI may mediate the following disputes over national defense patent at the request of a party concerned:
(1) Any dispute over the ownership of the right to apply for national defense patent and the national defense patent right;
(2) Any dispute over the qualification of the inventor or creator of a national defense patent;
(3) Any dispute over the award and remuneration of the inventor or creator of a service invention-creation; and
(4) Any dispute over the fees for using or exploiting the national defense patent.
Article 32 Except when it is otherwise provided in the Patent Law of the People's Republic of China and the present Regulation, anyone who exploits a national defense patent without the permission of the patentee of the national defense patent, it (he) infringes upon its (his) national defense patent right, the parties concerned shall solve it through negotiation if any dispute is caused. If the parties concerned refuse to negotiate, or if they fail to reach an agreement through negotiation, the patentee of a national defense patent may file a lawsuit in the people's court or require the NDPI to solve the issue.
Article 33 Anyone who divulges the state secrets in violation with the present Regulation shall be punished in pursuance of the Law of the People's Republic of China on Guarding State Secrets and other relevant provisions of the state.
Chapter V Supplementary Provisions
Article 34 Anyone who applies for a national defense patent to the NDPI and go through other formalities with it shall pay the fees according to the relevant provisions.
Article 35 The pertinent provisions in the Patent Law of the People's Republic of China and the Detailed Rules for the Implementation of the Patent Law of the People's Republic of China are applicable to the national defense patents, but the specific provisions in the present Regulation shall prevail.
Article 36 The present Regulation shall come into force as of November 1, 2004. The Regulation on the National Defense Patents approved by the State Council and the Central Military Commission on July 30, 1990 shall be simultaneously abolished.
(Source: Invest in China)
国务院、中央军事委员会令 （第418号）
现公布《国防专利条例》，自2004年11月1日起施行。 国务院总理 温家宝 中央军委主席 江泽民 二00四年九月十七 日
国防专利条例
第一章 总则
第一条 为了保护有关国防的发明专利权，确保国家秘密，便利发明创造的推广应用，促进国防科 学技术的发展，适应国防现代化建设的需要，根据《中华人民共和国专利法》，制定本条例。
第二条 国防专利是指涉及国防利益以及对国防建设具有潜在作用需要保密的发明专利。
第三条 国家国防专利机构（以下简称国防专利机构）负责受 理和审查国防专利申请。经国防专利机构审查认为符合本条例规定的，由国务院专利行政部门授予国防专利权。 国务院国防科学技术工业主管部门和中 国人民解放军总装备部（以下简称总装备部）分别负责地方系统和军队系统的国防专利管理工作。
第四条 涉及国防利益或者对国防建设具有潜在作用被确定为绝密级国家秘密的发明不得申请国防 专利。 国防专利申请以及国防专利的保密工作，在解密前依照《中华人民共和国保守国家秘密法》和国家有关规定进行管理。
第五条 国防专利权的保护期限为20年，自申请日起计算。
第六条 国防专利在保护期内，因情况变化需要变更密级、解 密或者国防专利权终止后需要延长保密期限的，国防专利机构可以作出变更密级、解密或者延长保密期限的决定；但是对在申请国防专利前已被确定为国家秘密的， 应当征得原确定密级和保密期限的机关、单位或者其上级机关的同意。 被授予国防专利权的单位或者个人（以下统称国防专利权人）可以向国防专利机 构提出变更密级、解密或者延长保密期限的书面申请；属于国有企业事业单位或者军队单位的，应当附送原确定密级和保密期限的机关、单位或者其上级机关的意 见。 国防专利机构应当将变更密级、解密或者延长保密期限的决定，在该机构出版的《国防专利内部通报》上刊登，并通知国防专利权人，同时将解密 的国防专利报送国务院专利行政部门转为普通专利。国务院专利行政部门应当及时将解密的国防专利向社会公告。
第七条 国防专利申请权和国防专利权经批准可以向国内的中国单位和个人转让。 转让国防专利申请权或者国防专利权，应当确保国家秘密不被泄露，保证国防和军队建设不受影响，并向国防专利机构提出书面申请，由国防专利机构进行初步审查 后依照本条例第三条第二款规定的职责分工，及时报送国务院国防科学技术工业主管部门、总装备部审批。 国务院国防科学技术工业主管部门、总装备 部应当自国防专利机构受理申请之日起30日内作出批准或者不批准的决定；作出不批准决定的，应当书面通知申请人并说明理由。 经批准转让国防专 利申请权或者国防专利权的，当事人应当订立书面合同，并向国防专利机构登记，由国防专利机构在《国防专利内部通报》上刊登。国防专利申请权或者国防专利权 的转让自登记之日起生效。
第八条 禁止向国外的单位和个人以及在国内的外国人和外国机构转让国防专利申请权和国防专利权。
第九条 需要委托专利代理机构申请国防专利和办理其他国防专利事务的，应当委托国防专利机构 指定的专利代理机构办理。专利代理机构及其工作人员对在办理国防专利申请和其他国防专利事务过程中知悉的国家秘密，负有保密义务。
第二章 国防专利的申请、审查和授权
第十条 申请国防专利的，应当向国防专利机构提交请求书、 说明书及其摘要和权利要求书等文件。 国防专利申请人应当按照国防专利机构规定的要求和统一格式撰写申请文件，并亲自送交或者经过机要通信以及 其他保密方式传交国防专利机构，不得按普通函件邮寄。 国防专利机构收到国防专利申请文件之日为申请日；申请文件通过机要通信邮寄的，以寄出的 邮戳日为申请日。
第十一条 国防专利机构定期派人到国务院专利行政部门查看普通专利申请，发现其中有涉及国防利益或者对国防建设具有潜在作用需要保密的，经国务院专利行政部门同意后 转为国防专利申请，并通知申请人。 普通专利申请转为国防专利申请后，国防专利机构依照本条例的有关规定对该国防专利申请进行审查。
第十二条 授予国防专利权的发明，应当具备新颖性、创造 性和实用性。 新颖性，是指在申请日之前没有同样的发明在国外出版物上公开发表过、在国内出版物上发表过、在国内使用过或者以其他方式为公众所 知，也没有同样的发明由他人提出过申请并在申请日以后获得国防专利权。 创造性，是指同申请日之前已有的技术相比，该发明有突出的实质性特点和 显著的进步。 实用性，是指该发明能够制造或者使用，并且能够产生积极效果。
第十三条 申请国防专利的发明在申请日之前6个月内，有下列情形之一的，不丧失新颖性： （一）在国务院有关主管部门、中国人民解放军有关主管部门举办的内部展览会上首次展出的； （二）在国务院有关主管部门、中国人民解放军有关 主管部门召开的内部学术会议或者技术会议上首次发表的； （三）他人未经国防专利申请人同意而泄露其内容的。 有前款所列情形的，国 防专利申请人应当在申请时声明，并自申请日起2个月内提供有关证明文件。
第十四条 国防专利机构对国防专利申请进行审查后，认为不符合本条例规定的，应当通知国防专 利申请人在指定的期限内陈述意见或者对其国防专利申请进行修改、补正；无正当理由逾期不答复的，该国防专利申请即被视为撤回。 国防专利申请人 在自申请日起6个月内或者在对第一次审查意见通知书进行答复时，可以对其国防专利申请主动提出修改。 申请人对其国防专利申请文件进行修改不得 超出原说明书和权利要求书记载的范围。
第十五条 国防专利申请人陈述意见或者对国防专利申请进行修改、补正后，国防专利机构认为仍然不符合本条例规定的，应当予以驳回。
第十六条 国防专利机构设立国防专利复审委员会，负责国防 专利的复审和无效宣告工作。 国防专利复审委员会由技术专家和法律专家组成，其主任委员由国防专利机构负责人兼任。
第十七条 国防专利申请人对国防专利机构驳回申请的决定 不服的，可以自收到通知之日起3个月内，向国防专利复审委员会请求复审。国防专利复审委员会复审并作出决定后，通知国防专利申请人。
第十八条 国防专利申请经审查认为没有驳回理由或者驳回 后经过复审认为不应当驳回的，由国务院专利行政部门作出授予国防专利权的决定，并委托国防专利机构颁发国防专利证书，同时在国务院专利行政部门出版的专利 公报上公告该国防专利的申请日、授权日和专利号。国防专利机构应当将该国防专利的有关事项予以登记，并在《国防专利内部通报》上刊登。
第十九条 任何单位或者个人认为国防专利权的授予不符合 本条例规定的，可以向国防专利复审委员会提出宣告该国防专利权无效的请求。
第二十条 国防专利复审委员会对宣告国防专利权无效的请求进行审查并作出决定后，通知请求人 和国防专利权人。宣告国防专利权无效的决定，国防专利机构应当予以登记并在《国防专利内部通报》上刊登，国务院专利行政部门应当在专利公报上公布。
第三章 国防专利的实施
第二十一条 国防专利机构应当自授予国防专利权之日起3个月内，将该国防专利有关文件副本 送交国务院有关主管部门或者中国人民解放军有关主管部门。收到文件副本的部门，应当在4个月内就该国防专利的实施提出书面意见，并通知国防专利机构。
第二十二条 国务院有关主管部门、中国人民解放军有关主