New Fast Tracking Patent Application Program in China

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China has introduced a fast track examination program for patents and design patents relating to certain areas of technology, with the aim of strengthening China's intellectual property protection regime.

On 27 June 2017, the State Intellectual Property Office (SIPO) introduced a new fast tracking patent application program through issuing an administrative measure named Administrative Measures for the Priority Examination of Patent Applications (the New Measures) which came into effect on 1 August 2017. It repealed the Administrative Measures for the Priority Examination of Invention Patent
Applications (the Old Measures) issued by the SIPO on 19 June 2012.

In accordance with the New Measures, from the date of grant of a prioritized examination request, the SIPO’s examination terms for patent applications or cases are shortened as follows:

1. For invention patent applications, the first Examination Report shall be issued within 45 days, and conclusions for these applications shall be completed within one year.
2. Utility model or design patent applications shall be concluded within 2 months.
3. Patent re-examination cases shall be concluded within 7 months. And
4. Cases for invalidation of invention and utility model patents shall be concluded within 5 months, and the examination period for invalidation of design patents is no more than 4 months.

Consequently, it effectively reduces the time for getting a patent granted compared with the normal examination procedure according to which the examination term for an invention, utility model or design application is about 1.5 to 5 years, 9 to 11 months, or 5 to 7 months respectively.

However, it must be noted that this new fast track arrangement does not apply to all types of patent applications. The New Measures sets up limitation conditions based on current national policies.

First of all, patent applications, which are related to the following areas are eligibile for the new program - national key development industries involved in energy conservation and environment protection, new generation information technology, biology, high end equipment manufacture, new materials, new energy automobiles, encouraged industries focused on by the provincial or municipal governments, internet, large/cloud computing/data management.

Secondly, in order to encourage domestic applicants to file their patent applications both in China and other countries, applications for the same patent first filed in China and then in other countries or regions are subject to the new prioritized examination according to the New Measures.

Thirdly, the New Measures provides that the new fast tracking patent application program is applicable where infringement issues have arisen. It provides a better protection for the infringed patent applicants as they could not get relief in terms of patent infringement during examination procedures until the patent is granted by SIPO according to other relevant law or regulations.

Fourthly and finally, a miscellaneous provision is included in the New Measures to make the new fast tracking patent application program cover all patent applications which materially affect national or public interests.

Under the New Measures, the grant of a prioritized examination is discretionary, with the number of prioritized examinations is to be determined by the capacity of the examination division. In addition, a granted prioritized examination may be cancelled later due to reasons such as failure to respond an examination report from SIPO in time; submitting false materials; amending the patent after filing the application and so on.

A request for prioritized examination shall be made in electronic form, together with a form requesting prioritized examination endorsed by relevant department of the State Council or a local SIPO branch of the relevant province.

In 2012, a fast tracking invention patent application program was established merely for invention patent applications aimed at technology which promoted environmentally-friendly innovation in China. Five years later, China updated this program into a regulatory vehicle for promotion of its technological innovation in wider areas by expanding its applicable scope into all kinds of patents and cases of re-examination and invalidation.

Xia Yu is a Partner in the MMLC Group.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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