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China to Release Revised Implementing Regulations of the Patent Law and the Guidelines for Patent Examination By End of December 2022

On October 28, 2022, the China National Intellectual Property Administration (CNIPA) published the “In-depth implementation of the ‘Opinions on Strengthening Intellectual Property Protection’ promotion plan” (深入实施《关于强化知识产权保护的意见》推进计划) that sets target dates for the release of various regulations and guidelines to clarify how China’s 2021 amendments to the patent law will be implemented. Specifically, CNIPA is targeting the revision of the Implementing Regulations of the Patent Law and the Guidelines for Patent Examination by end of December 2022 “and continue to advance,” which implies further amendments to same. These revisions may be of particular interest to pharmaceutical patentees as the revisions should explain in detail how patent term extension and patent term adjustment will work. Further, China’s new open licensing system that offers reduced or eliminated annuities for open licensing of patents may be clarified.  Longer term, utility models will undergo an inventiveness examination (which was hinted at in the last draft patent examination guidelines) with CNIPA reforming the utility model system by 2025 by introducing an “obvious” lack of inventiveness examination. In total, CNIPA announced 26 revisions or drafts to intellectual property laws, regulations and guidelines to be completed over the next few years and 114 points in total to strengthen IP.

Some points that may be clarified by the end of December 2022 include: patent term extension and patent term adjustment implementation procedures; stricter examination of utility models (but this may be delayed until 2025); revisions to graphical user interface design patent application examination practice to allow for partial designs; allowance of shading in design patent applications; elimination of the 15-day mail delay extension to respond to office actions; and examination for good faith in applying for patents to eliminate “irregular” (or “abnormal”) applications.

A complete list of the revisions and drafts with dates follow:

1. Study and demonstrate the key issues of basic intellectual property laws, and form a draft proposal for basic intellectual property laws. (To be completed by the end of December 2025)

2. Promote the revision of the Implementing Regulations of the Patent Law of the People’s Republic of China and the Guidelines for Patent Examination. (To be completed by the end of December 2022 and continue to advance)

3. Further revise and improve the “Trademark Law of the People’s Republic of China”, “Regulations on the Implementation of the Trademark Law of the People’s Republic of China” and related legal norms. (continuous progress)

4. Promote the revision of the Regulations on the Implementation of the Copyright Law of the People’s Republic of China, the Regulations on the Collective Administration of Copyright, the Regulations on the Protection of Computer Software, and the Regulations on the Protection of Information Network Dissemination Rights. (continuous progress)

5. Revise the Measures for the Implementation of Copyright Administrative Punishments, the Trial Measures for Voluntary Registration of Works, the Measures for the Registration of Computer Software Copyrights, and the Measures for the Administrative Protection of Internet Copyrights, formulate the Interim Regulations on the Registration of Copyrights for Military Computer Software, and provide access to information for people with reading disabilities in a barrier-free manner. The relevant provisions of the work provided by the author. (To be completed by the end of December 2025)

 

6. Formulate and promote the “Regulations on Copyright Protection of Folklore and Art Works”. (To be completed by the end of December 2025 and to continue to advance)

7. Promote the revision of the Anti-Unfair Competition Law of the People’s Republic of China. (continuous progress)

8. Research and promote the revision of intellectual property provisions of the e-commerce law. (continuous progress)

9. Form a revised draft of the Regulations of the People’s Republic of China on the Protection of New Varieties of Plants. (To be completed by the end of December 2022)

10. Promote the introduction of the Regulations on the Protection of Trade Secrets. (continuous progress)

11. Formulate and promote the promulgation of the Regulations on the Protection of Traditional Knowledge of Traditional Chinese Medicine. (To be completed by the end of December 2022 and continue to advance)

12. Amend the “Several Provisions on Regulating the Behavior of Patent Application”. (To be completed by the end of December 2022)

13. Publish the Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues concerning the Application of Law in Handling Criminal Cases of Intellectual Property Infringement, further clarifying the applicable standards of law for crimes of intellectual property infringement. (To be completed by the end of December 2023)

14. Formulate and issue the Opinions of the Supreme People’s Procuratorate on Comprehensively Strengthening Intellectual Property Procuratorial Work in the New Era. (To be completed by the end of June 2022)

15. Formulate guidelines for the examination of evidence in the prosecution of intellectual property infringement crimes. (To be completed by the end of December 2023)

16. Formulate regulations on intellectual property prosecution and case handling, and establish and improve the intellectual property prosecution and case handling system. (To be completed by the end of December 2023)

17. Formulate and promulgate the “Notarization Industry Electronic Certificate Deposit Business Service Specifications (Trial)”. (To be completed by the end of December 2023)

18. Study and formulate cross-regional law enforcement linkage and coordination management measures for comprehensive law enforcement in the cultural market. (To be completed by the end of December 2022)

19. Study and formulate a manual for trademark administrative enforcement. Carry out in-depth research, actively solve difficult problems in trademark administrative law enforcement, further improve the rules of investigation and evidence collection, and standardize the calculation of illegal business volume. (To be completed by the end of December 2023)

20. Revise and improve the national standard for enterprise intellectual property management norms. (To be completed by the end of December 2025)

21. Promote the revision of the Measures for the Protection of Intellectual Property Rights of Exhibitions. (To be completed by the end of December 2023)

22. Formulate and issue the “Guidelines for the Protection of Intellectual Property Rights in Cross-border E-commerce”. (To be completed by the end of December 2022)

23. Formulate and issue the “Guidelines for Intellectual Property Protection of Exhibitions”. (To be completed by the end of December 2022)

24. Carry out research on intellectual property protection in the field of intangible cultural heritage. (continuous progress)

25. Carry out research on the reform of the design system. (To be completed by the end of December 2025)

26. Promoting the reform of the utility model system and introducing a examination for obvious lack of inventiveness. (To be completed by the end of December 2025)

The full 114-point plan can be found here (Chinese only).

© 2023 Schwegman, Lundberg & Woessner, P.A. All Rights Reserved.National Law Review, Volume XII, Number 303
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About this Author

Aaron Wininger IP Attorney China Portfolio Development
Director of China Intellectual Property Law Practice Schwegman Lundberg & Woessner

Aaron Wininger is a Principal and Schwegman’s Director of China Intellectual Property. Aaron counsels both U.S. and Chinese companies on portfolio development and preparation of their patent applications and office action responses. He has worked with clients in the areas of software, networks (wired and wireless), lasers, medical devices, semiconductors and physics.

Aaron prosecutes both Chinese and U.S. trademarks. He has also drafted and prosecuted hundreds of U.S. and international patent applications in a broad spectrum of areas, including computer hardware and software, the...

408-278-4059
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