Edited by Xijie Cheng

 

On December 21, 2023, at 5 PM, the National Intellectual Property Administration of China announced a comprehensive update to its patent regulations, including the revised "Implementing Regulations of the Patent Law of the People's Republic of China," the updated "Patent Examination Guidelines (2023)," and the "Regulations on the Norms of Patent Application Behavior (2023)." This extensive overhaul of patent law, due to its breadth and depth, necessitates a prolonged period of adaptation and integration. Let's first discuss the revisions related to the handling of abnormal (irregular) patent applications.

 

Building on the established principle of "good faith" within the patent law, the implementing regulations further refine its application. For instance, a new Article 11 has been added to the revised "Implementing Regulations of the Patent Law of the People's Republic of China," stating:

Article 11: Patent applications must adhere to the principle of good faith. All types of patent applications should be based on genuine inventive activities, and the falsification or fabrication of inventions is strictly prohibited.

 

The revised "Patent Examination Guidelines (2023)" provide explicit directives on how to apply this principle in patent examination, referencing the "Regulations on the Norms of Patent Application Behavior (2023)" for guidance.

 

The "Regulations on the Norms of Patent Application Behavior (2023)" primarily aim to regulate behaviors concerning patent applications, focusing on the continued crackdown on abnormal patent applications. These regulations redefine "abnormal patent applications" and outline the corresponding measures to address them.

 

Article 3 of the "Regulations on the Norms of Patent Application Behavior (2023)" describes abnormal patent application behaviors as including:

1. The submission of multiple patent applications with significantly identical inventive content or those formed by simply combining different inventive features or elements;

2. Patent applications that involve the fabrication, forgery, alteration of inventive content, experimental data, or technical effects, or that plagiarize, replace, or piece together existing technology or designs;

3. Patent applications whose inventive content is primarily randomly generated through computer technologies or the like;

4. Patent applications with inventive content that clearly does not conform to the principles of technological improvement or design, or that degrade, amass, or unnecessarily limit the scope of protection;

5. Applicants submitting multiple patent applications without actual research and development activities and who cannot provide reasonable explanations;

6. The malicious dispersal or sequentially or heterogeneously filing of multiple patent applications substantially associated with a specific entity, individual, or address;

7. The transfer or acquisition of patent application rights for improper purposes, or the fraudulent change of inventors or designers;and

8. Other abnormal patent application behaviors that violate the principle of good faith and disrupt the normal order of patent work.

 

Although previous practices did not specifically target foreign applicants' Chinese applications, the "Patent Examination Guidelines (2023)" now include the principle of "good faith" as stated in Article 11 of the Patent Law Implementation Rules within the substantive examination stage of international applications entering the national phase. This means that the provision applies equally to Chinese and foreign applicants.

 

Moreover, the "Patent Examination Guidelines (2023)" specify that during the examination phase for invalidation requests, the collegial panel can, on its own initiative, examine cases that are in clear violation of the good faith principle. Therefore, incorporating this principle into the grounds for invalidation is a critical and cautious point to consider in this legislative adjustment.

 

This revision marks a significant step forward in China's commitment to ensuring the integrity of its patent system, and it signals a clear expectation for applicants to uphold the highest standards of good faith in their patent activities within China.