Answers to Questions Related to the Implementation of Amended Patent Law by CNIPA (May 2021)

I. Design Patent Application

According to the Patent Law before the amendment, before the new patent law comes into force (May 31, 2021) , the protection period of the patent application for design submitted and the patent right granted (including that date) was ten years.  From June 1, 2021, the applicant may temporarily submit the application for design patent to the CNIPA requesting to protect part of the product in the form of paper or offline electronic application. For the application date of the patent application for design after June 1, 2021, the applicant may submit a written statement to the CNIPA to claim the domestic priority of the design.  After the implementation of the newly amended Implementation Regulations of the Patent Law, the CNIPA will examine the aforementioned applications and the previous patent applications for design as the basis for claiming priority.

II. Patent Term Compensation and Drug Patent Term Compensation

For the invention patents announced and authorized before May 31, 2021 (inclusive), the patent term compensation system is not retroactive.  For the invention patents announced and authorized from June 1, 2021, the patentee may temporarily submit a patent term compensation request to the CNIPA in the form of paper within three months from the date of the announcement of the patent right authorization.

For the invention patents related to new drugs licensed before May 31, 2021 (inclusive), the compensation system for the period of drug patent right shall not be retroactive. From June 1, 2021, the patentee may, in accordance with paragraph 3 of Article 42 of the amended Patent Law, temporarily submit the patent term to the CNIPA in the form of paper within three months from the date of approval of the request for the marketing license of new drugs compensation.

For the submitted patent term compensation request and patent term compensation request, the relevant fees shall be paid in accordance with the payment notice issued by the CNIPA. The CNIPA will examine the aforementioned application after the implementation of the newly amended Implementation Regulations of the Patent Law.

III. Handling of Abnormal Patent Application

From June 1, 2021, the CNIPA may examine patent applications in the preliminary examination, substantive examination and reexamination procedures in accordance with the principle of good faith.

IV. Other

With regard to the request for a grace period without losing novelty, the open license for patent exploitation and the request for a patent evaluation report by the alleged infringer, from June 1, 2021, the applicant may temporarily make a request or voluntary declaration in the form of paper, and the CNIPA will examine the aforementioned application after the implementation of the newly amended Implementation Regulations of the Patent Law. 

Adapted from the CNIPA