Written by Ming LIU (Ms.) and Haoyu ZHOU (Elliot)

  

The China National Intellectual Property Administration (CNIPA) issued Transitional Guideline for the Processing of Related Examination Regarding the Implementation of the New Patent Law yesterday, May 25, 2021. We outline related provisions and our comments below.

  

1.  Partial designs with broken lines will be applicable to Chinese design applications filed on or after June 1, 2021. (Article 2.4)

  

2. 15-year design patent term will be applicable to Chinese design patents filed on or after June 1, 2021. In other words, the patent term of design patents filed on or before May 31, 2021 will still be maximally 10 years. (Article 42.1)

  

3. Patent term adjustment (PTA) will be applicable to Chinese invention patent granted on or after June 1, 2021. The patentee may request patent term adjustment, in a paper format, within three months from the grant date. (Article 42.2)

  

4. Patent term extension (PTE) will be applicable from June 1, 2021 onwards, and the patentee could request for PTE, in a paper format, within three months from the date on which the new drug is authorized to market. (Article 42.3)

  

5. Open license will be applicable from June 1, 2021 onwards, and the patentee may voluntarily declare an open license, in a paper format, for exploiting his patent. (Article 50.1)

  

6. From June 1, 2021 onwards, the alleged infringer may request the CNIPA, in a paper format, to prepare a Patent Evaluation Report for the patent. (Article 66) 

  

In addition, good faith principle (Article 20.1) and “domestic priority” for design applications (Article 29.2) will also be applicable from June 1, 2021 onwards.

  

Please note that the CNIPA will not conduct examination for most of the above until the Detailed Implementation Regulations of the Patent Law are released. We are awaiting the final version of the Implementation Regulations and will keep you updated.

  

If you have any inquiries, please feel free to contact Ming LIU and Haoyu ZHOU (Elliot) at patent@foundin.cn.