Deep & Far Newsletter 2020 ©
The Greater China IP – Latest Development
TIPO Announces New Measures for Interviews
For applicants who would like to have an interview with the examiner in regard to their patent application, TIPO has announced expedient measures for the duration of the Covid-19 epidemic and the resultant need for safety measures. If the applicant cannot attend the interview in person, the patent attorney will be allowed to bring his or her own recording device to enable video-conferencing to take place at the interview location. Thus, real-time communication between the applicant and the examiner can take place and any issues concerning the patent can be resolved without any delay. TIPO hopes this will enable the patent prosecution to continue without unnecessary delays during this pandemic.
More Details about China’s Patent Law Amendments
Partial designs will now be patentable. Any novel design created with respect to the shape, pattern or color of a portion of an article of manufacture or the entire article may potentially be patentable. Also, the patent term for design patents will be extended from 10 to 15 years from the date of filing. Another change will be that a domestic design application will be able to be a valid priority basis for another design application. That means a design patent applicant can claim priority to an earlier Chinese design application filed within 6 months. This new practice will be in tandem with the process for claiming international priority. Measures are being considered to deal with the situation where an invention patent application has been granted after more than 4 years from filing or 3 years after examination which constitutes an unreasonable delay if not caused by the applicants themselves. Although the CNIPA hasn’t decided yet on the details of the measures, it is likely to decide on a patent term adjustment as compensation. Likewise, to make up for the period of time when a drug patent is unenforceable due to a market approval examination by the National Medical Products Administration, the patentee can ask for a term adjustment for a maximum of 5 years. The Fourth Amendment to the Patent Lawwill not become effective until June 1, 2021, so further regulations and adjustments are expected in the intervening period.
The Chinese Version of the Pharmaceutical Patent Linkage System
As part of the China Patent Law 4th Amendment, an early settlement mechanism for drug patent disputes has been introduced. Article 76 states: “In the process of regulatory approval of drug marketing, if a dispute arises between the applicant for drug marketing authorization and the relevant patentee or interested party due to the patent right of the patented drug, the relevant party may file a lawsuit with the people’s court, and petition for a judgement on whether the drug-related technical solution falls within the scope of protection of patent rights of the counterpart drug. The drug regulatory department of the State Council may, within the prescribed time limit, make a decision on whether to suspend the approval of the listing of relevant drug based on the effective judgement of the people’s court. The applicant for drug marketing authorization and the relevant patentee or interested party may also ask for an administrative ruling from the patent administration department of the State Council for the dispute over patent rights related to the patented drug.” This new measure means the generic drug registration and approval process is linked with the patent of the original drug, and that will prevent infringement on the patent rights of the original drug. Further adjustments to the timing of the early settlement mechanism are still being worked out.