New Rules for Patent Examination and Protection in China (I)

View: 306     Date: 2023-12-25 12:11

Brief introduction to key points of Revised Implementation Regulations of Patent Law

Authors：Na ZHANG, Huaiyuan XU

Decree No. 769 of The State Council on December 21, 2023 promulgated the Decision of The State Council on Revising the Implementation Regulations of the Patent Law of the People's Republic of China, which will come into effect on January 20, 2024.

This revision is the fourth comprehensive revision to the Implementation Regulations of the Patent Law of the People's Republic of China since its first publication on January 19, 1985, and it is also the most intensive one. A total of 69 articles were amended, the number of articles in the detailed rules was changed from 123 to 149, and the number of chapters was changed from 11 to 13. Among them, 38 articles are substantively amended, 31 articles are technically amended, 30 articles are added, 4 articles are deleted, and "Chapter V Patent term compensation" and "Chapter XII Special Provisions on International Design Applications" are added.

The content of this revision is not only the further refinement of the fourth amendment of the Patent Law, but also some additional newly added systems and the adjustment and improvement of the current system. In order to facilitate the understanding of relevant legal provisions, a comparison between revisions to the Patent Law and revisions to the Implementation Regulations of the Patent Law are provided below.

The revision of the Implementation Regulations of the Patent Law mainly involves the following five aspects:

First, optimization of the patent application system to facilitate applicants to obtain patents.

Make it clear that electronic form is regarded as written form, and complete the relevant provisions for filing and submission various documents in electronic form. Refine the system related to priority, and clarify the conditions and procedures for requesting the restoration of priority within a certain period, adding or correcting priority claims, and resubmitting claims, specifications or part of them by referring to prior application documents. Clarify the requirements of documents for partial design patent application. Extend the situations enjoying novelty grace period.

Second, optimization of the patent examination system to improve the quality of patent examination.

It stipulates that all types of patent applications shall be based on genuine invention-creation activities and shall not be falsified. Optimize the re-examination system, stipulating that in addition to the request for re-examination, the examiner may also consider other situations in which the patent application clearly violates the relevant provisions of the Patent Law and the Implementation Regulations. Adjust the period of confidentiality examination. Add deferred examination system.

Third, strengthening patent protection to safeguard the legitimate rights and interests of patentees.

A new section on patent term compensation is added to clarify the conditions and time requirements for making patent term compensation requests, the calculation method of the compensation period and the scope of compensation. Optimize the patent dispute handling and mediation system.

Fourth, strengthening patent services to promote the creation, transformation and application of the patents.

It stipulates that the patent administration department under The State Council shall enhance the public service capacity of patent information, and promote the open sharing and interconnection of patent-related data resources. Refine the patent open licensing system, clearly put forward the requirements of open licensing declaration, and the circumstances of not implementing open licensing. Add exceptions for compulsory agency, simplify the form requirements for patent application documents, and reduce the burden on innovation entities. Complete the remuneration system for service inventions and creations.

Fifth, making special provisions on the international application for designs, which are in line with the Hague Agreement on the International Registration of Industrial Designs (1999).

It clarifies that an international application for design shall be regarded as an application for design patent filed with the patent administration department under The State Council, and the provisions are made for compatibility with the domestic design patent application system in terms of priority claims, novelty grace periods, and divisional applications.

Detailed interpretations of each above aspects will be provided in our following articles.