{"id":4435,"date":"2024-01-08T17:26:22","date_gmt":"2024-01-08T09:26:22","guid":{"rendered":"http:\/\/en.junlongip.com\/?p=4435"},"modified":"2024-01-08T17:30:34","modified_gmt":"2024-01-08T09:30:34","slug":"highlighted-amendments-to-implementing-regulations-of-patent-law-2023","status":"publish","type":"post","link":"http:\/\/en.junlongip.com\/?p=4435","title":{"rendered":"Highlighted Amendments to Implementing Regulations of Patent Law 2023"},"content":{"rendered":"\t\t
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On December 21,\u00a02023, CNIPA released new “Implementing Rules for the Patent Law of the People’s Republic of China” (referred to as the “New Rules”), and released the “Patent Examination Guidelines” on the same day. So far, the new supporting rules and regulations for the Patent Law amended in 2020 have finally been released.<\/p>

The New Rules includes 13 chapters and 149 rules in total. These amendments are mainly concerned with improvements to patent filing, patent examination, connection between national laws and international rules, and patent enforcement and judicial protection. We hereunder explain some of the significant and highlighted amendments by roughly classifying them into these categories.<\/p>

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Part I. Improvements to Patent Creation and Filing<\/b><\/strong><\/p>

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(<\/b><\/strong>1) Refining the design patent application drafting to connect current national patent laws and the Hague Agreement<\/b><\/strong><\/p><\/div>

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One of the highlights of the current patent law is the introduction of a partial design system, the increase of national priority for designs, and the extension of the protection period of design patent rights. In addition, China has now joined the Hague Agreement. This implementation rule uses a special chapter (Chapter 12) to stipulate the review rules for industrial design applications through the Hague Agreement.<\/p>

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Regarding partial designs, new Rules 30 and 31 respectively stipulate the requirements for pictures or photos submitted for design applications, and the requirements for brief descriptions. Specifically, in case of a partial design patent application, the applicant should still submit an overall view of the entire product, and use a combination of dotted lines and solid lines to indicate the scope to be protected. Otherwise, the applicant should indicate the part for which protection is sought in the brief description.<\/p>

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Regarding national priority of a design patent application, Rule 35 of the new Rules stipulates that a design patent application can claim the priority of an earlier Chinese invention patent application or an earlier Chinese utility model application (domestic priority). When the earlier application is a design application, the earlier application will be deemed to have been withdrawn from the date of filing of the subsequent application. However, if the earlier application is an invention or utility model application, the earlier invention or utility model application will not be deemed to have been withdrawn.<\/p>

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(2) Priority claim restoration, addition and correction<\/b><\/strong><\/p>

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Regarding the time limit for claiming priority, Article 29 of the current Patent Law stipulates a 12-month time limit for claiming priority for an invention patent application, and a 6-month time limit for a design patent application. Under the current Law, if these time limits are missed, there is no way to restore the claim for priority.<\/p>

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In contrast, according to new Rule 36, the applicant can claim priority as long as the later patent application is filed within 14 months from the priority date. However, it should be noted that \u201cjustifiable reasons” and payment of a priority restoration fee are required if the claim is filed between the 12th<\/sup>\u00a0and 14th<\/sup>\u00a0month.<\/p>

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On the other hand, under the current Patent Law, the applicant is required to state all priority claims while submitting the patent application, and is not allowed to make any additions or corrections later on. However, new Rule 37 makes it possible. According to Rule 37, if an invention or utility model patent applicant has requested priority when submitting a patent application, even if one or more of the priorities are omitted or incorrectly filled, the applicant can still reclaim the right of priority within 16 months from the priority date, or request to add or correct the priority within 4 months from the filing date. However, this rule does not apply to a design patent application.<\/p>

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(<\/b><\/strong>3) Clarifying the filing date and service date in case of an E-filing <\/b><\/strong><\/p>

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New Rules recognizes the e-filing as one of the written filing forms, and clearly stipulate in Rule 4 that the date of submission of various documents submitted in electronic form is the date of entry into the specific electronic system designated by the CNIPA. Vice Versa, the date of service of various documents served in electronic form is\u00a0the date of entry into the electronic system recognized by the parties.<\/p>

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In practical operations prior to the new Rules, CNIPA uniformly used the rule of “issuance date + 15 days” to determine the delivery date, regardless of service by post, or personal delivery or by electronic means. After the new implementation rules come into effect, for the service by electronic means, the service date shall always be the exact date when the documents make their way into the electronic system recognized by the parties, i.e., the e-mail inbox. There will be no more the additional 15 days.<\/p>

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(4) Relaxed conditions for public disclosure without loss of novelty <\/b><\/strong><\/p>

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\u00a0New Rule 33 relaxes the conditions for public disclosure without losing novelty by enlarging the scope of allowable academic conference or technical conference to cover \u201cacademic conferences or technical conferences convened by\u00a0international organizations recognized by the relevant competent authorities of the State Council\u201d.\u00a0In contrast, the current Patent Law only recognizes the academic conferences or technical conferences convened by the State Council or National Academic Organization.<\/p>

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(5) <\/b><\/strong>I<\/b><\/strong>ntroduction of request for delayed examination<\/b><\/strong><\/p>

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New Rule 56.2 stipulates that the applicant may submit a request for delayed examination of a patent application. This delayed examination applies to all three types of patent applications, but the time tables for submitting the request vary. According to the new Guidelines for Patent Examination, for an invention patent application, the applicant is allowed to file the request for delayed examination at the same time of requesting substantive examination. The applicant can request a one-, two- or three-year delay of the examination.<\/p>

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P<\/b><\/strong>art II. Improvements to Patent Examination and Review<\/b><\/strong><\/p>

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