Rapid Report: The Third Revision of the Implementing Regulations of the Patent Law（2023-12）
The long-awaited Implementing Regulations of the Patent Law (IRPL) was released on December 21, 2023 and will come into effect on January 20, 2024, following two and a half years since the fourth Amendment to the Patent Law. The revised IPRL includes 149 clauses in total with 2 newly added chapters, 30 newly added clauses, and 52 clauses modified.
This IRPL revision relates to many modifications and mainly includes the following contents:
1. For the compensation of patent protection terms incurred by the delayed examination, namely PTA, IRPL provides specific provisions on the conditions eligible for examination delays and the calculation method for the term compensation.
2. For the drug patents term compensation, namely PTE, IRPL provides specific provisions regarding the meaning of "new drug related invention patents" referred to in the Patent Law, the deadline for filing compensation requests and corresponding requirements, the calculation method of the compensation period, and the scope of protection for drug patents during the compensation period.
3. Regarding the priority system for invention or utility model patents, "priority restoration system" (priority restoration can be requested within 2 months from the expiration date), "priority increase and correction system" (for those who have already requested priority, priority increase or correction can be requested within 16 months from the priority date or 4 months from the application date), and "Incorporation by Reference system" (for those who have already requested priority, missing or incorrectly submitted application documents can be submitted within 2 months or a designated period from the date of application submission, based on the content of the priority text.).
4. Regarding designs, the requirements for partial designs on application documents and the conditions for requiring domestic priority of designs have been clarified. In order to comply with the requirements of the Hague Agreement, a special chapter on special provisions for international design applications has been installed to make corresponding provisions for the alignment between the international design application and domestic procedures.
5. Regarding the rewards and remunerations for service inventions, the amount of rewards for service inventions has been increased. For the remunerations after exploitation of the patent, it has been revised to comply with the provisions of the Law of the People's Republic of China on the Promotion of the Transformation of Scientific and Technological Achievements, and no longer stipulates specific amounts or calculation methods.
6. Regarding the principle of good faith, IRPL adds new provisions that patent applications should follow the principle of good faith. All types of patent applications should be based on real invention creative activities without any fraud. This clause is clearly prescribed as the new legal basis for rejection and invalidation.
7. Regarding open licenses, specific provisions have been made for the timing and requirements of open license declarations, situations where open license declarations are not published, and recordation after the establishment of open licenses.
8. Regarding the request for delayed examination, it is clearly prescribed that the applicant may submit a request for delayed examination for the patent application.
9. Regarding the calculation of the deadlines, for various documents in electronic form, it is clearly prescribed that the date of entry into the electronic system is the delivery date, and the default "15 days delivery" mailing period calculation is no longer applicable.
10. Regarding the scope of application for the restoration of rights, it has been added that the applicant may request the restoration of the right to submit a request for reexamination within 2 months from the expiration date of the request for reexamination.
The revision of the IRPL has made significant institutional adjustments, which is of great significance or implementing the amendments to the Patent Law, improving the quality of patent applications and examinations, strengthening patent protection, and improving the patent system.