New patent law in China

As mentioned on this IP blog on 30 October 2008, a new Chinese patent law has been anticipated for some time. On 27 December the law was finally passed and it will come into force on 1 October 2009. Some of the most important changes seen from a European point of view will be summarized below.

The introduction of “Absolute Novelty” means that prior use, oral presentations and other non-printed publications, which have taken place outside China, may now also be considered when assessing the application. In addition, earlier filed but not yet published applications will now be relevant in the assessment of novelty, regardless of who has filed the application. Under the existing law the applicants own prior applications were disregarded in this respect.

Another important change is that parallel importing will now explicitly be allowed. This means that if the owner of a Chinese patent has sold a product in another country, the buyer can legally import it into China. Moreover, under the new law, the so-called “Bolar exemption” has been implemented and covers both medication and medical apparatuses. These may thus legally be used in experiments with the purpose of achieving a marketing authorization.

For many applicants it is normal practice to apply both for a patent and for a utility model in China. In this way it is possible to benefit both from the swift grant of the utility model and from the good protection achieved with a regular patent. Under the new law the utility model must be abandoned before the patent is granted to avoid double patenting.

Those performing research and development in China will also benefit from the fact that it will no longer be required to file a patent application in China before filing abroad. However, a so-called Secrecy Examination must now be requested, the details of which are not yet in place. Whereas the requirement in the existing law applied to Chinese companies only, the new law applies to all inventions made in China.

Design applications are also covered by the Chinese patent law and it has been decided to allow more than one design in each application on the condition that they are all incorporated in the same product. In return, the application must now contain a brief description of the design.

All in all, the new law will make the situation in China much more like the situation in Europe, and it has clearly been the intention of the legislators to make use of the system easier.

Vibeke Warberg Rohde, European Patent Attorney

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