Introduction

The patent system is a cornerstone of intellectual property protection. On 17 October 2020, the Standing Committee of the National People’s Congress adopted the Decision on Amending the Patent Law of the People’s Republic of China, which came into effect on 1 June 2021. Following this, on 5 February 2022, China acceded to the Hague Agreement Concerning the International Registration of Industrial Designs (1999 Act). This agreement came into force on 5 May 2022.

To ensure the effective implementation of the revised Patent Law and align with the Hague Agreement, the State Administration for Market Regulation and the China National Intellectual Property Administration (CNIPA) submitted a draft amendment to the Implementation Rules of the Patent Law for approval. On 11 December 2023, Premier Li Qiang signed State Council Order No. 769, officially promulgating the revised Implementation Rules of the Patent Law (hereinafter the “Rules”), which took effect on 20 January 2024.

I. Key Amendments to the Implementation Rules

(A) Enhancements to the Patent Application System

1. Recognition of Electronic Submissions as Written Forms

• Article 2 of the revised Rules states that electronic formats, including data messages that can visibly present content and be retrieved at any time, are recognised as written forms.

• Article 4 specifies that:

• The filing date for documents submitted electronically is the date they are received in the designated CNIPA system.

• The delivery date for electronic communications is when they enter a recipient-approved system.

2. Requirements for Partial Design Patent Applications

• Article 30 requires that partial design patent applications include views of the entire product, with the protected portion indicated using a combination of solid and dashed lines or other methods.

• Article 31 stipulates that a brief description of the protected portion must accompany the application unless already indicated in the submitted views.

3. Relaxation of Novelty Requirements

• Article 33 expands the scope of academic or technical conferences under Article 24(3) of the Patent Law, preserving novelty for inventions disclosed at internationally recognised conferences within six months of their initial disclosure.

4. Refinement of Priority Rules

• Articles 35 and 36 detail conditions for claiming domestic priority for design patents and allow restoration of priority for invention or utility model applications within two months of a missed deadline, provided there are justified reasons.

• Articles 37 and 45 permit applicants to amend or supplement priority claims within 16 months of the earliest priority date or two months of the filing date.

(B) Reforms to the Patent Examination System

1. Regulation of Abnormal Patent Applications

• Article 11 introduces the principle of good faith, requiring patent applications to be based on genuine inventive activities and prohibiting fraudulent filings.

• This principle serves as a rejection ground during preliminary (Article 50) and substantive (Article 59) examinations and as a basis for invalidation (Article 69).

2. Shortened Confidentiality Review Periods

• Article 9 reduces the timeframes for issuing notices and decisions on confidentiality reviews for foreign patent applications to two and four months, with extensions of up to two months for complex cases.

3. Deferred Examination Requests

• Article 56 allows applicants to request deferred examination upon notification by the CNIPA.

4. Enhanced Re-Examination Authority

• Article 67 enables the CNIPA to identify and address other clear violations of the Patent Law during re-examinations, even beyond the scope of the original request.

(C) Strengthened Patent Protection Mechanisms

1. Introduction of Patent Term Compensation

• Chapter V addresses compensation for patent term reductions under Article 42 of the Patent Law, detailing eligibility, calculation methods, and scope, particularly for pharmaceutical patents.

2. Improved Patent Dispute Resolution

• Article 95 expands the authority for resolving patent disputes to include municipal and district governments, increasing accessibility and efficiency.

(D) Promoting Patent Creation and Commercialisation

1. Enhanced Public Patent Services

• Article 16 mandates the CNIPA to improve public patent services by publishing accurate, timely patent data and facilitating data sharing and interoperability.

2. Relaxation of Mandatory Representation Rules

• Article 18 allows applicants or patentees to handle certain matters (e.g., submitting prior application copies or paying fees) independently, making it easier for foreign entities without a local presence to apply for patents in China.

3. Detailed Open Licensing System

• Articles 85–88 refine the open licensing system, specifying conditions, prohibited uses, and safeguards against fraudulent fee reductions.

4. Improved Rewards for Employee Inventions

• Articles 92–94 increase statutory rewards and compensation for employee inventions, encouraging the use of equity, options, or dividends to share innovation benefits.

5. Simplified Patent Evaluation Reports

• Articles 62–63 expand eligibility for requesting evaluation reports and allow applicants to request these reports during patent registration procedures, reducing burdens on innovators.

(E) Alignment with International Rules

1. Recognition of Hague Agreement Dates

• Article 137 considers the international registration date under the Hague Agreement as the filing date for design patent applications in China.

2. Harmonisation of Procedures

• Articles 139–142 align priority, novelty grace periods, and divisional application procedures with international practices.

3. Examination of International Design Applications

• Articles 138 and 143 mandate the CNIPA to examine international design applications published by the International Bureau and issue decisions accordingly.

II. Key Considerations for Enterprises

1. Adherence to Good Faith Principles

Enterprises must ensure that patent applications are genuine to avoid rejection or invalidation under the new good faith requirements.

2. Timely Application for Patent Term Compensation

Companies should utilise compensation mechanisms for delays in patent processing, particularly for pharmaceutical patents, to extend protection periods.

3. Development of Invention Reward Policies

Enterprises should establish clear policies for compensating inventors to avoid disputes and comply with statutory requirements.

4. Maximising Open Licensing Opportunities

Businesses should leverage the open licensing system to enhance patent utilisation and reduce costs.

5. Efficient Dispute Resolution

The expanded authority for patent dispute resolution enables faster and more accessible solutions. Enterprises should actively engage with these mechanisms to resolve conflicts.

These amendments provide a robust framework for patent protection, encouraging innovation while aligning with international standards. Enterprises should adapt their strategies to leverage these reforms effectively.