All information contained herein is provided by courtesy of Tiance and all the information we provide in this page are based upon our practice experience and current situation of the Patent application in the P.R. China. It is for informational purposes only. It should not and may not be construed as legal advice. Any reader of this information should not act upon it without seeking professional counsel. However, it is hoped that the information provided here will be helpful to this site's visitors in familiarizing them with issues that may affect them.
1. Brief Introduction1) Types of patent: invention, utility model, and design. 2) Examination procedures:
2. Requirements for Filing a Chinese Patent Application1) Instruction Letter, indicating:
3. Notes:1) If the Power of Attorney fails to be submitted when filing the application, same can be filed later. Please make sure that the date of execution shall be earlier than the Chinese filing date. 2) Both priority document and assignment can be late filed but shall be filed within three (3) months from the date of filing. Otherwise, the Chinese Patent Office will issue a Notice on Deeming Not Having Requested Convention Priority. The applicant may request for restoration of the priority by submitting the priority document and/or assignment within two (2) months from the date of receiving said Notice with a payment of restoration fee. 3) Since China has joined the Budapest Treaty in July 1995, when a new microorganism species is involved in a patent application, the new microorganism species can be deposited in an international depository institution designated by the Treaty.
1. Re-examination Request
Where in the Examination Procedure of the Patent office, the applicant made the response or amendments in accordance with the opinions of the Examiner in the Office Action, but the Patent Office still takes the view that the applicant does not meet the requirements of the Patent Law and its Implementing Regulations, then the Patent Office will make a decision of refusal and notify the applicant in written.
Where the applicant is not satisfied with the refusal decision, the applicant can request for re-examination at the Patent Re-examination Board, within 3 months upon receipt of the decision. When requesting for re-examination, the applicant should file a re-examination application form, state the reasons, and provide with relevant amendments or evidences.
2. Examination for Re-examination Request
After acceptance of the request for re-examination, the request and attachments especially the amendments made by the applicant will be normally sent to the original examination department of the Patent Office for examination, which is called "preamble examination". If the original examination department of the Patent Office agrees to cancel its refusal decision in this preamble examination, the Re-examination Board will make a re-examination decision to cancel the refusal decision accordingly. When the original examination department of the Patent Office believes that the re-examination request still does not meet the requirements of relevant regulations of the Patent Law, the Re-examination Board will then proceed with the re-examination and make a decision. During the re-examination procedure, the Re-examination Board will provide a chance to the applicant to make one response.
The Re-examination Board will notify the applicant of the re-examination decision in written. Where the applicant is not satisfied with the re-examination decision, the applicant can launch a lawsuit at the People's Court within 3 months upon receipt of the decision.
1. Invalidation of Patent Right
The Chinese Patent Law stipulates that "Where, starting from the date of the announcement of the grant of the patent right by the Patent Administration Department under the State Council, any entity or individual considers that the grant of the said patent right is not in conformity with the relevant provisions of this law, it or he may request the Patent Re-examination Board to declare the patent right invalid". To maintain the solemnity of the Patent Law and interests of the public, the Patent Law sets up a "procedure for invalidation" in its patent examination procedures.
2. Responses in the procedure of invalidation
The Patent Re-examination Board will forward a copy of the invalidation request and attached documents to the patent owner, asking it/he to make responses during a subscribed time period. The patent owner as well as the invalidation request applicant should always respond the notice of forwarding invalidation request or invalidation office action of the Patent Re-examination Board during the subscribed time period, failure in timely responding will not affect the examination of the Patent Re-examination Board.
During the examination of an invalidation request, the owner of an invention patent or utility model patent can amend the claims only, and cannot broad the original patent protection scope; the owner of a design patent, however, cannot amend the application documents.
3. Examination of Invalidation Request
The Patent Re-examination Board exams the request for invalidation. During the examination, the Patent Re-examination Board can, upon request of the relevant parties, or based on the need of the case, decide to conduct oral hearings. The Patent Re-examination Board makes decision on invalidation requests and notifies the request applicant and the patent owner. The Patent Office will register and announce the decision of the invalidation. A patent invalidated is deems not existed from the very beginning.
If a party is not satisfied with the decision made by the Patent Re-examination Board on either invalidating the patent, maintaining the patent or partially maintaining the patent, can launch a lawsuit at the People's Court within 3 months upon receipt of the invalidation decision.