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China to Revise Implementing Rules of Patent Law - China Legal News

Thu, 24 Dec 2020
Categories: China Legal Trends



Public Comments are sought on Suggestions for Revising the Implementing Rules of the Patent Law (Draft for Comments) until 11 Jan. 2021.

On 27 Nov. 2020, in order to fit into the amendment of the Patent Law, the China National Intellectual Property Administration ("CNIPA") issued the proposed Suggestions for Revising the Implementing Rules of the Patent Law (Draft for Comments) (“the Draft for Comment”, 专利法实施细则修改建议(征求意见稿)) to solicit comments from the public. The deadline for public comments is 11 Jan. 2021.

The revision of the Draft for Comments mainly covers two aspects: firstly, to add the provisions fit into revisions to the Patent Law, and secondly, to improve the relevant provisions subject to the practical needs.

The revisions to the Patent Law mainly include:

(1) to revise relevant provisions on the patent term extension, specifically, the time limit for requesting extension for the term of authorized patents, the circumstances of unreasonable delay caused by the applicant, the application requirements, drug scope and protection scope of drug patent term extension, etc.;

(2) to revise relevant provisions on the designs, including the domestic priority of the design in part or in whole;

(3) to revise relevant provisions on the open license, including the application procedures and content requirements for opening license statement, the circumstances under which opening license statement will not be announced, the procedures for withdrawing an opening license statement and its entry into force, the filing procedure and evidence materials after the grant of the opening license, etc.;

(4) to revise relevant provisions on administrative protection, such as clarifying the circumstances under which disputes over patent infringement with national significant impact shall be handled by the patent administrative department under the State Council; and

(5) to revise relevant provisions on the institutional reform, such as amendments to the expressions of the Patent Reexamination Board, etc.

The revisions subject to practical needs mainly include:

(1) to increase the relevant provisions in connection with patent cooperation treaties, such as accession by reference and recovery of priority right;

(2) to improve the relevant provisions of the design patents, including clarifying the definition of the international application for design patents related to the Hague Agreement that China proposes to be acceded to, and the determination of the application date and effective date of the international application for design patents, etc.;

(3) to improve the provisions on dealing with epidemics and other emergencies, and to extend the time limit ex officio (if any);

(4) to increase relevant provisions on the improvement of quality and efficiency in patent examination, ex officio examination in cases involving patent reexamination and invalidation, examination in violation of the principle of good faith and remedies for decisions not rejected, etc.;

(5) to increase the relevant provisions in implementing the requirements on “streamlining administration, delegating powers and improving regulation and services", such as clarifying patent right evaluation reports, exceptions to compulsory entrustment, simplification of procedures for case-by-case applications, and patent information services, etc.;

(6) to optimize relevant provisions on patent examination process, including electronic application methods, improving and simplifying the requirements for application documents, etc.; and

(7) to increase and optimize the relevant provisions on administrative protection, such as judicial verification of administrative mediation agreements on patent disputes.


Contributors: Yanru Chen 陈彦茹

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