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China Unveils Decision of the State Council on Amending the Implementing Regulations of the Patent Law of the People's Republic of China (with key amendments attached)

Chinese Premier Li Qiang has signed a State Council decree unveiling the Decision of the State Council on Amending the Implementing Regulations of the Patent Law of the People's Republic of China (the Decision), which will come into effect on January 20, 2024. The Decision mainly amends the Implementing Regulations of the Patent Law in the following key aspects.

 

Firstly, the amended regulations improve the patent application system to facilitate the applicants to obtain patents; clarify that electronic forms shall be regarded as written forms, and improve relevant provisions for submitting and serving various documents in electronic forms; refine the system related to priority rights, and clarify the conditions and procedures for requesting restoration of priority rights within a certain period, adding or correcting priority claims, and supplementing the claims, the description or the part thereof by reference to the earlier application documents; clarify the requirements for the patent application documents for partial designs; and broaden the circumstances under which novelty is not lost.

Key amended rules:

Rule 4  Regarding the various documents served by the patent administration department under the State Council in electronic form, the date when the documents enter into the electronic system approved by the parties shall be the date of service.

Rule 33  The academic or technical meetings referred to in Item (3) of Article 24 of the Patent Law refer to the academic or technical meetings organized or held by the competent authorities under the State Council, national academic organizations, and international organizations recognized by the competent authorities under the State Council.

 

Secondly, the amended regulations improve the patent examination system to enhance the quality of patent examination; specify that all types of patent applications shall be filed based on real invention-creation activities and shall not be filed based on falsifications; improve the reexamination system, and specify that the content for examination further includes other obvious violations of the relevant provisions of the Patent Law and its implementation regulations in patent applications in addition to the reexamination requests; adjust the confidentiality examination period; and add the delayed examination system.

Key amended rule:

Rule 50 (2)  Whether or not any application for a patent for utility model obviously falls under Article 5 or Article 25 of the Patent Law, whether or not is not in conformity with the provisions of Article 17, Article 18 paragraph one, or Article 19 paragraph one of the Patent Law; or Rule 11, Rules 19 to 22 or Rules 24 to 26 of these Implementing Regulations; whether or not is obviously not in conformity with the provisions of Article 2 paragraph three, Article 22, Article 26 paragraph three or four, Article 31 paragraph one, or Article 33 of the Patent Law or Rule 23, Rule 49 paragraph one of the Implementing Regulations; whether or not is not entitled to a patent right in accordance with the provisions of Article 9 of the Patent Law;

 

Thirdly, the amended regulations strengthen patent protection to safeguard the legitimate rights and interests of the patentees; newly add a dedicated section on patent term compensation, and clarify the conditions and time requirements for filing a request for patent term compensation, the method for calculating compensation term, the scope of compensation, and the like; and improve the patent dispute handling and mediation system.

Key amended rules:

Rule 77  Where patent term compensation is requested in accordance with the provision of Article 42 paragraph two of the Patent Law, the patentee shall file the request to the patent administration department under the State Council within three months from the date of the announcement of the grant of the patent right.

Rule 78  Where the patent term compensation is granted in accordance with the provision of Article 42 paragraph two of the Patent Law, the compensation term shall be calculated based on the actual days of unreasonable delay in the process of granting the patent for invention.

The actual days of unreasonable delay in the process of granting the patent for invention referred to in the preceding paragraph refer to the days calculated from the date after four years from the filing date of an application for a patent for invention, and after three years from the date of requesting substantive examination, whichever is later, to the date of the announcement of the grant of the patent right, minus the days of reasonable delay and the days of unreasonable delay caused by the applicant.

The following circumstance shall be a reasonable delay:

Where an applicant files on the same day applications for both patent for utility model and patent for invention relating to the identical invention-creation and is entitled to a patent right for invention in accordance with Rule 47 paragraph four of these Implementing Regulations, the provision of Article 42 paragraph two of the Patent Law shall not apply to the term of the patent right for invention.

 

Fourthly, the amended regulations strengthen patent services to promote the creation, commercialization and utilization of patents; specify that the patent administration department of the State Council shall improve the public patent information service and promote the publicity, sharing, and interconnection of patent-related data resources; refine the open licensing system, and clarify the requirements for submitting an open licensing statement and circumstances under which open licensing shall not be allowed; add exceptions to compulsory agency, simplify the formal requirements for the patent application documents, and reduce the burden on innovative entities; and improve the reward and remuneration system for work-for-hire invention-creations.

Key amended rule:

Rule 93  Where the entity to which a patent right is granted has not entered into a contract with the inventor or creator on the manner and amount of the reward as prescribed in Article 15 of the Patent Law, nor has the entity provided it in its rules and regulations formulated in accordance with the laws, it shall, within three months from the date of the announcement of the grant of the patent right, award to the inventor or creator a sum of money as prize. The sum of money prize for a patent for invention shall not be less than RMB 4,000 Yuan; the sum of money prize for a patent for utility model or design shall not be less than RMB 1,500 Yuan.

 

Fifthly, the amended regulations newly add special provisions for an international application for a design to comply with the Hague Agreement Concerning the International Registration of Industrial Designs (1999); and clarify that an international application for a design shall be regarded as an application for a patent for design filed to the patent administration department of the State Council, and make provisions for the conformity with the domestic system for an application for a patent for design in terms of priority claims, novelty grace period, divisional application, and the like.

Key amended rule:

Rule 35  Where an applicant for a patent for design claims the right of domestic priority, if the earlier application is one for a patent for invention or utility model, the applicant may file an application for a patent for design for the same subject matter as the design shown in the drawings; if the earlier application is one for a patent for design, the applicant may file an application for a patent for design for the same subject matter as the design shown in the drawings.

 

The full text of the Decision of the State Council on Amending the Implementing Regulations of the Patent Law of the People's Republic of China in Chinese is available at:  https://www.gov.cn/zhengce/content/202312/content_6921633.htm

 

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