Edited by Stefan Luginbuehl and Peter Ganea
Chapter 3: PREREQUISITES FOR PROTECTION
According to Article 2(2), (3) Chinese Patent Act, an invention patent right refers to a new technical solution, developed for a product, process or the improvement thereof. Utility model rights are provided for new technical solutions proposed for the shape and structure of a product, or the combination thereof, which are fit for industrial applicability. Under certain circumstances or with respect to certain subject matter the patentability for invention patents and utility models is excluded by statute. The relevant provisions are Articles 5, 20(4) and 25 Chinese Patent Act. The patentability is excluded regardless of the fact of whether the technical solution as provided for in the application filed with SIPO would otherwise meet the prerequisites for the grant of patent rights. According to Article 5 Chinese Patent Act, the grant of patent rights is excluded if it would constitute a violation of law, be contrary to social morality or detrimental to public interest. Laws in the sense of Article 5 Chinese Patent Act include only statutes enacted by the National People’s Congress (NPC) (laws in the narrow sense). Examples under Article 5 Chinese Patent Act are tools for gambling or for forging bank notes, invoices, identification cards, and seals. If only the exploitation of the technical solution, such as manufacturing, sale or utilisation of a product is legally restricted, this will not affect the patentability of the product or its manufacturing process, as is the case with weapons, for example. The Patent Examination Guidelines contain detailed explanations regarding
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