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    National Defense Patents Ordinance
    Hit:989 Time:2010/10/21 20:30:04

    The People's Republic of China Premier Wen Jiabao of the PRC Central Military Commission Chairman Jiang Zemin on Sept. 17 signed Decree No. 418, announced the newly established "National Defense Patents Ordinance."
    Newly established "national defense patent regulations," Chapter 5 of the 36, including general principles, national defense patent application, examination and licensing, the implementation of national defense patent, patent management and protection of national defense and the Annex and so on.
    Newly established "National Defense Patents Ordinance" Since Nov. 1, 2004 shall come into force

    Chapter I General Provisions

    The first defense of the invention in order to protect the patent rights, to ensure that national secrets, to facilitate the popularization and application of inventions to promote the development of national defense science and technology to meet the needs of national defense modernization, according to "Patent Law", the development of this Ordinance.

    The second patent is related to national defense interests of national defense and the potential role of national defense patent be kept confidential.

    Third national defense patent (hereinafter referred to national defense patent agency) is responsible for receiving and reviewing the national defense patent application. Institutional review by the national defense patent that meet the requirements of the Ordinance, granted by the patent administration department under the State Council, national defense patent.

    The State Council department in charge of national defense science and technology industry and the PLA General Armament Department (hereinafter referred to as the General Armament Department) are responsible for the local system and the military system of national defense patent management.

    Article related to national defense interests or the potential role of national defense building was identified as state secret invention shall not apply for national defense patent.

    National defense patent applications and patent defense confidentiality, in accordance with the decrypted before "The People's Republic of China on Guarding State Secrets," and state the relevant regulations.

    Article V national defense patent protection period is 20 years from the date of filing.

    Article VI of national defense patent protection period, due to changes in circumstances need to change the security classification, decryption, or national defense patent to be extended after the termination of the period of secrecy, national defense patent agencies can make changes to classifications, decryption, or to extend the confidentiality period for the decision; but the application of national defense before the patent was identified as state secrets, shall obtain the consent of the original term of classification of the secret and confidential organs, or its superior authority's consent.

    Was awarded the national defense patent to the unit or individual (hereinafter referred to as national defense patent holder) can be made to the national defense patent agencies change classifications, decrypt or written application to extend the confidentiality period; state-owned enterprises and institutions or the military unit shall be attached to the original classification of the secret and confidentiality period for organ, or its superior organ views.

    National defense patent agencies should change the security classification, decryption, or the decision to extend the confidentiality period, the agency published in the "national defense patent internal communications" on the post, and inform the national defense patent holder, while decryption of the national defense patent patent administration department under the State Council in turn as an ordinary patent. The patent administration department shall promptly declassified national defense patent to the public.

    Article VII of the right of national defense and national defense patent application for a patent upon approval, to the domestic transfer of units and individuals in China.

    Transfer of national defense or national defense patent application for a patent right shall be to ensure that national secrets are not leaked, to ensure national defense and army building will not be affected, to submit a written application of national defense patent, the patent by the defense agency, after preliminary examination in accordance with the Ordinance Article 2 provides that the division of responsibilities, timely submitted to the State Council department in charge of National Defense Science, Technology and Industry, the General Armament Department approval.

    The State Council department in charge of national defense science and technology industry, General Armament Department shall accept applications for national defense patent agency within 30 days from the date of approval or disapproval decision; decision not to approve the decision, it shall notify the applicant in writing and explain the reason.

    Approved transfer of the right of national defense or national defense patent application for a patent, the parties shall enter into a written contract and registration of national defense patent, patent agencies by the defense in the "national defense patent internal communications" published. The right of national defense or national defense patent application for a patent assignment from the date of registration.

    Article VIII against the units and individuals abroad, and foreigners in domestic and foreign institutions to transfer the right of national defense patent applications and national defense patent.

    Article need to apply for patent agency handling national defense patent and other patent matters of national defense, national defense patent agency shall entrust a patent agency designated by handle. Patent agency and its staff in the process of national defense patent applications and other patent matters of national defense state secrets learned in the course, has a duty of confidentiality.

    Chapter II national defense patent application, review and authorize

    Article for national defense patent, the patent agency shall submit to the defense request, a description and its abstract, and claims and other documents.

    National defense patent applicant shall be in accordance with the requirements of national defense patent agencies, and common formats for written documents and confidential communication in person or after the transmission of confidence, and other institutions of national defense patent shall be mailed by ordinary mail.

    National defense patent agencies receive national defense patent application documents the date of filing; application documents confidential communications by mail, of postmark date of filing.

    Defense patent agencies regularly send Article to view the patent administration department ordinary patent application and found that related to national defense interests or on the potential role of national defense need for confidentiality, and by the patent administration department under the State Council, the consent of patent applications to national defense and notify the applicant.

    Ordinary patent application to national defense patent application, the defense agency in accordance with the patent provisions of this Ordinance to review patent applications to the national defense.

    Article XII of the invention patents granted to national defense, must possess novelty, inventiveness and practicality.

    Novelty, prior to the date the application is not the same invention in foreign publications published before, in the domestic publications published, or used in the country by other means known to the public, nor has any invention by others proposed in the application after application and obtain national defense patent.

    Inventiveness means that, before the same date of filing, compared with existing technology, the invention has prominent substantive features and notable progress.

    Practical applicability means that the invention can be made or used and can produce positive results.

    Article XIII of the invention for national defense patent application within 6 months before the date of any of the following circumstances, does not lose its novelty:

    (A) the competent authorities of the State Council, People's Liberation Army held the competent authorities within the exhibition was first exhibited;

    (B) the competent departments of the State Council, People's Liberation Army, held the competent departments within the academic or technological meeting for the first time published;

    (C) by any person without the consent of national defense patent applicants disclose their content.

    Of the aforementioned circumstances, the national defense patent application, the applicant shall declare, and from 2 months from the date of application to provide relevant documents.

    Article XIV of national defense agencies of the national defense patent review of patent applications that do not comply with the provisions of this Ordinance, it shall inform the national defense patent applicant to present their views within the period specified or make changes to its national defense patent application, correction; unjustified late does not reply, and the national defense patent application shall be considered withdrawn.

    National defense patent applicant from the application date or within 6 months of review comments on the first letters of reply, its defense of patent applications can take the initiative to propose amendments.

    The applicant files a patent application for its modification of national defense may not go beyond description and scope of the claims records.

    Article XV defense heard the patent applicant or patent application to modify the national defense, corrections, the national defense patent agencies that still do not meet the requirements of this Ordinance, shall be rejected.

    Article XVI of national defense patent agency set up national defense Patent Reexamination Board, responsible for national defense patent reexamination and invalidation of the work.

    Defense Patent Reexamination Board by the technical experts and legal experts, the chairman of the national defense patent agencies by the individual.

    Article XVII on national defense national defense patent application patent agency disagrees with the decision to reject the application, can the date of receipt of the notice within 3 months, the National Defense Patent Reexamination Board to review. Defense Patent Reexamination Board to review and make a decision, notify the national defense patent applicant.

    Article XVIII of national defense patent application upon examination that there was no cause for rejection or dismissal after review after that should not be rejected by the patent administration department made the decision to grant patent defense, and entrusted the national defense patent issued by the agency of national defense patent certificate, patent in the State Department Administration Gazette notice published patent application for a patent on the national defense, authorize the day and patents. The defense of national defense patent agency shall be registered patent matters and in the "national defense patent internal communications" published.

    Article XIX of any unit or individual that does not meet national defense patent right granted under this Ordinance may be submitted to the National Defense Patent Reexamination Board declaring the patent invalid defense request.

    Diershitiao National Defense National Defense Patent Reexamination Board to review patent invalid request and make a decision, notify the requester and patentee of national defense. Decision declaring the patent right invalid defense, national defense patent agency shall be registered in the "national defense patent internal communications" on the published patent administration department shall publish the Patent Gazette.

    Chapter III Implementation of national defense patent

    Twenty-one defense agency shall grant the patent date of national defense patent within 3 months, the defense a copy of the patent documents or the State Council department in charge of the PLA relevant authorities. Received a copy of the department, should be 4 months on the implementation of national defense patent written comments, and inform the national defense patent agency.

    Article 2 the State Council department in charge of the PLA the competent authorities may allow the implementation of their assigned units or departments within the system of national defense patent; need to specify the implementation of the system or outside of the department of national defense patent shall be to the national defense Patent submit a written application by the national defense patent agencies in accordance with the provisions of this Ordinance, second paragraph of the third division of responsibilities of the State Council department in charge of National Defense Science, Technology and Industry, the General Armament Department approval and implementation.

    National defense patent agency designated to implement the national defense patent to be registered, and in the "national defense patent internal communications" published.

    Implementation of Article 3 units of national defense patent to others with the national defense patent shall conclude a written contract, in accordance with Article 5 of this Ordinance, the provisions of the patentee to pay defense costs, report to the national defense patent for the record. Implementation of the unit shall not allow the contract to other establishments to implement the national defense patent.

    Twenty-four defense patentee foreign entity or individual to implement its national defense patent, it shall ensure that national secrets are not leaked, to ensure national defense and army building will not be affected, to the national defense patent submit a written application by the national defense patent agency After preliminary examination according to the provisions of this Ordinance, second paragraph of Article third division of responsibilities, timely submitted to the State Council department in charge of National Defense Science, Technology and Industry, the General Armament Department approval.

    The State Council department in charge of National Defense Science, Technology and Industry, the General Armament Department shall accept applications for national defense patent agency within 30 days from the date of approval or disapproval decision; decision not to approve the decision, it shall notify the applicant in writing and explain the reason.

    Article 5 implementation of the national defense patent to others, should be paid to the defense of national defense patent royalties. Implementation of the use of direct state investment in defense research funding or other national defense budget for national defense scientific research activities generated by patents, consistent with the national defense patent generated funds for the intended purpose, can only pay the necessary costs of national defense patent; but otherwise agreed by the contract research or research tasks, except as otherwise provided in the book.

    The term patent defense costs, is the defense of the patent in place to provide technical information, training staff and further development of the technology costs.

    The implementation of Article 6 of the implementation of the national defense patent specified fee or the amount of royalties from the patent holder and the implementation of the units defense consultation; can not reach an agreement, national defense patent agency ruling.

    The state shall compensate the patentee of the national defense. National defense patent agencies in the issuance of national defense patent, the patentee to pay for national defense patent compensation, the specific amount determined by the national defense patent agency. Invention belongs to, and defense patent shall be not less than 50% of the compensation issue inventor.

    Chapter management and protection of national defense patent

    28th national defense patent agency published a "national defense patent internal communications," a state secret documents, which knows the scope of the patent agency established by the defense.

    "National defense patent internal communications," published the following:

    (A) of the national defense patent bibliographic data contained in the application;

    (B) the national defense patent claims;

    (C) a summary description of the invention;

    (D) the grant of national defense patent;

    (E) Termination of national defense patent;

    (Vi) national defense patent invalidation;

    (Vii) the right of national defense patent application, the transfer of national defense patent;

    (8) national defense patent designated implementation;

    (9) national defense patent license contract for the record;

    (10) changes in security classification of national defense patent, decryption;

    (11) confidentiality of national defense patent term extension;

    (12) the name of national defense patent or the name and address changes;

    (13) Other relevant matters.

    192th defense patent right is granted, one of the following circumstances, the patent agencies agreed to by the defense, you can access to national defense patent:

    (A) for national defense patent declared invalid request;

    (B) the need for national defense patents;

    (C) the occurrence of national defense patent disputes;

    (D) the needs of national defense scientific research.

    Search in the inspection process were aware of their national obligation to keep confidential secrets.

    The third 10 the State Council department in charge of the PLA relevant authorities and the provinces, autonomous regions and municipalities directly under the National Defense Science, Technology and Industry Management department shall designate one body to manage the work of national defense patent, and inform the national defense patent agency. The management of national defense patent agencies in the business sector under the guidance of national defense patent.

    Commitment to national defense research and production tasks as well as military units involved in military orders, the State Council, perform the function of the enterprises and institutions directly under the State Council, shall designate the appropriate institutions to manage the work of the unit of national defense patent.

    31th patent agency, upon the request of defense, national defense patent disputes may mediate the following:

    (A) the right of national defense and national defense patent application for a patent ownership disputes;

    (B) the national defense patent dispute over the qualification invention;

    (C) the invention of the inventor's incentive and compensation disputes;

    (D) royalties and implementation of national defense fees dispute.

    32nd, clauses, "Patent Law" and the other provisions of this Ordinance without the permission of the patentee to implement its national defense national defense patent, meaning that its national defense patent disputes, the parties shall consult to resolve; not willing to negotiate or the negotiation fails, the defense patentee or interested party may bring a suit or request of national defense patent agencies.

    33rd in violation of the provisions of this Ordinance, leaking state secrets, according to "The People's Republic of China on Guarding State Secrets Law" and the relevant state regulations.

    Chapter V Supplementary Provisions

    34th Ordinance to the national defense patent to apply for national defense patent or other formalities, fees shall be paid as prescribed.

    35th 条 "Patent Law" and "The People's Republic of China Patent Law Implementing Rules" apply the relevant provisions of national defense patent, but has special provisions of this Ordinance in accordance with the provisions of these Regulations.

    36th article this Ordinance shall November 1, 2004 shall come into force. July 30, 1990 the State Council and Central Military Commission for approval of the "National Defense Patents Ordinance" shall be repealed simultaneously.
     

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