CNIPA Releases Interim Measures for Handling Examination Business Related to the Implementation of the Revised Patent Law
On January 5, 2023, the China National Intellectual Property Administration (CNIPA) released the Interim Measures for Handling Examination Business Related to the Implementation of the Revised Patent Law (关于施行修改后专利法的相关审查业务处理暂行办法) effective January 11, 2023. The Measures cover design patents, grace periods, patent term adjustment, patent term extension, and other areas. These Interim Measures will supersede the prior Interim Measures effective June 1, 2021. A translation of the new Interim Measures follow.
Article 1 From June 1, 2021 (inclusive here and below), a patent applicant may submit a patent application for partial design of a product for protection in paper or electronic form in accordance with Paragraph 4 of Article 2 of the Patent Law.
When applying for a patent for a partial design, a view of the overall product shall be submitted, and the content to be protected shall be indicated by a combination of dotted and solid lines or other means. If the part to be protected includes a three-dimensional shape, the submitted view shall include a view that can clearly show the part. If the content to be protected is not indicated by a combination of dotted and solid lines in the view of the overall product, the part to be protected should be stated in the brief description.
Article 2 From the date of implementation of these Measures, for patent applications whose application date is after June 1, 2021, if the applicant believes that there is any circumstance specified in Item 1 of Article 24 of the Patent Law [grace period], the applicant may submit a paper or electronic Form to make a request. The State Intellectual Property Office will examine the above-mentioned applications after the implementation of the newly revised Implementation Rules of the Patent Law.
Article 3 For an application for a design patent whose application date is after June 1, 2021, the applicant may, in accordance with Paragraph 2 of Article 29 of the Patent Law, submit a written declaration requesting the domestic priority of the design patent.
Where the applicant for a patent for design claims the right of domestic priority, and the earlier application is one for a patent for design, he or it may file an application for a patent for design on the same subject; if the earlier application is one for a patent for invention or utility model, he or it may file an application for a patent for design with the same subject matter for the design shown in the drawings.
Where the applicant for a patent for design claims the right of domestic priority, the earlier application shall be deemed to be withdrawn from the date on which the later application is filed, unless the applicant for a patent for design claims that the application for a patent for invention or utility model is based on the right of domestic priority.
Article 4 For a patent application with an application date after June 1, 2021, the applicant may submit a copy of the patent application documents filed for the first time in accordance with Article 30 of the Patent Law.
Article 5 For invention patents announced and authorized from June 1, 2021, the patentee may, in accordance with the second paragraph of Article 42 of the Patent Law [patent term adjustment], file a paper document within three months from the date of the announcement of the patent authorization. The patent term compensation request shall be submitted in the form, and the relevant fees shall be paid in accordance with the payment notice issued by the CNIPA. The CNIPA will review the above request after the newly amended Implementation Rules of the Patent Law come into force.
Article 6 A patentee may, as of June 1, 2021, , in accordance with Article 42, Paragraph 3 [patent term extension], within three months after a request for marketing approval of a new drug is approved, file a request for compensation for the duration of the patent right in paper form, and then pay the relevant fees according to the payment notice issued by the CNIPA. The CNIPA will examine the aforesaid requests after the newly amended Rules for the Implementation of the Patent Law come into force.
Article 7 From the date of implementation of these Measures, the patentee may, in accordance with Article 50, Paragraph 1 of the Patent Law, voluntarily declare in paper or electronic form the implementation of an open license for its patent. The CNIPA will review the above declarations submitted after June 1, 2021 after the newly amended Rules for the Implementation of the Patent Law come into force..
Article 8 From the date of implementation of these Measures, the accused infringer [of a design patent or utility model] may request the CNIPA to issue a patent right evaluation report in paper or electronic form in accordance with Article 66 of the Patent Law.
Article 9 From June 1, 2021, the CNIPA shall examine the patent applications in the procedures of preliminary examination, substantial examination and review in accordance with Paragraph 1 of Article 20 [good faith] and Item (5) of Paragraph 1 of Article 25 of the Patent Law [nuclear transformation methods and substances obtained by means of nuclear transformation].
Article 10 If the applicant is not satisfied with the relevant decisions made by the CNIPA in accordance with these Measures, the applicant may file an application for administrative reconsideration, a request for reexamination, or file an administrative lawsuit according to law.
Article 11 The term of protection for design patents with an application date before May 31, 2021 (including that date) is ten years, counting from the application date.
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