The CNIPA issued the revised Detailed Rules for the Implementation of the Patent Law of the People's Republic of China On December 21, 2023, the CNIPA announced the revised Detailed Rules for the Implementation of the Patent Law of the People's Republic of China, which came into force from January 20, 2024.
Some of the amendments are as follows:
1. On the refinement of the principle of good faith and credibility Article 20 of the revised Patent Law introduces the principle of good faith, which states that "the application for patents and the exercise of patent rights shall follow the principle of good faith. The abuse of patent rights shall not harm public interests or the legitimate rights and interests of others.". Legislators hope to use this provision to combat nonstandard patent applications or abuse of patent rights. On this basis, the " Detailed Rules for the Implementation of the Patent Law " make more specific provisions, requiring patent applicants to "submit various types of patent applications based on real invention and creation activities and not engage in fraud" (Article 11 of the "Detailed Rules"), and "patent holders shall not make open license statements or obtain patent annual fee reductions during the implementation period of the open license by providing false materials, concealing facts, and other means" (Article 88 of the "Detailed Rules"). At the same time, the "Detailed Rules" stipulate the administrative responsibility for the above-mentioned illegal acts: "The department responsible for patent law enforcement at or above the county level shall give a warning and may impose a fine of up to 100000 yuan." (Article 100 of the "Detailed Rules").
2. Examination of utility model and design patent applications that clearly lack inventive step Article 50 of the revised " Detailed Rules for the Implementation of the Patent Law " further adds the provisions on whether a utility model or design patent application is obviously lacking inventive step and whether a utility model or design patent application obviously does not conform to the principle that "the design for which the patent right is granted shall be significantly different from the existing design or the combination of features of the existing design on the basis of the obvious lack of novelty in the existing examination".
3.The establishment of a " deferred examination" Paragraph 2 of Article 56 of the revised "Detailed Rules for the Implementation of the Patent Law" provides that "the applicant may file a request for deferred examination of a patent application". So far, the deferred examination has been clearly stipulated in the detailed rules for the implementation of the Patent Law. With the implementation of the new Regulations, applicants can file a request for deferred examination for three types of patent applications: invention, utility model and design. An invention patent can be deferred for 1, 2 or 3 years. A utility model can be deferred for 1 year. A design patent can be deferred for up to 36 months. 2024/02/02 10:36 IP News Bulletin for Japan and China, February 2024 https://mailchi.mp/c2205c7582ee/japan-ip-news-bulletin-15399431 5/11
4. Regarding partial designs Articles 30 and 31 of the revised "Detailed Rules for the Implementation of the Patent Law" stipulate the requirements for the filing of drawings or photographs of a design application, as well as the requirements for a brief description. First of all, the applicant applying for a partial design patent should still submit a view of the overall product, and indicate the content of the part to be protected by combining dotted lines and solid lines. Secondly, for partial designs that do not use a combination of dashed and solid lines to indicate the content of protection, the applicant should specify the part for which protection is sought in the brief description.
5. Regarding domestic priority of design patents The Patent Law stipulates the filing time (within six months from the date of the first filing of a patent application in China) and the time for filing a copy (within three months after the filing of the application). Article 35 of the revised "Detailed Rules for the Implementation of the Patent Law" stipulates that an earlier application for the domestic priority of a design may be either a design application or an invention or utility model application. When the earlier application is a design application, the earlier application is deemed to be withdrawn from the date on which the later application is filed. However, if the earlier application is an invention or utility model application, the earlier invention or utility model application will not be considered withdrawn because of the later application for a design.
6. Regarding Patent Term Compensation System A new chapter "Patent Term Compensation System" has been added to the revised "Detailed Rules for the Implementation of the Patent Law", which provides specific and detailed provisions. Patent term compensation can be divided into PTA（Patent Term Adjustment）and PTE （Patent Term Extension）. Each system has its own characteristics: Firstly, the applicable objects are different. The former applies to various invention patents, while the latter only applies to "new drug related invention patents that have obtained marketing permits", and is limited to "new drug product patents, preparation method patents, and pharmaceutical use patents that comply with regulations". Secondly, the applicable situations are different. The former is about "unreasonable delays in the authorization process of invention patents", while the latter is about "time occupied by the review and approval of new drug marketing". Thirdly, the request conditions are different. The former shall be submitted to the CNIPA within 3 months from the date of publication of the grant of patent rights, while the latter shall be submitted to the CNIPA within 3 months from the date of obtaining the marketing license for the new drug in China. Fourth, there are different compensation methods. The compensation period for the former is calculated based on the actual number of days of unreasonable delay in the authorization process of the invention patent, excluding "reasonable delay". The compensation period for the latter is determined by subtracting 5 years from the number of days between the patent application date and the date when the new drug is granted market authorization in China, in accordance with Article 42 (3) of the Patent Law. 2024/02/02 10:36 IP News Bulletin for Japan and China. Read more