If you missed the time limits according to patents in China, there are two options for restoring the rights before the Chinese Patent and Trademark Office (CNIPA). The procedure in China is similar to the restoration of rights under EPC rules, however, without remedy as Further processing.
Time limit missed – restoration in Europe
Whoever misses the time limits for the rights in patent protection can request the restoration of rights according to international regulations. The request for restoration pursuant to Rule 136 EPC(European Patent Convention) must be filed within two months of the removal of the cause of non-compliance with the period, but at the latest within one year of expiry of the unobserved time limit.
In any case, the request for restoration must be well-founded, which means “all due care required by the circumstances” have been taken, see Article 122(1) EPC.
Chinese patent law also offers such restoration of rights after failure to comply with the time limits. However, it is particularly noted that there is no such remedy as Further processing (under Rule 135 EPC) before the CNIPA.
The CNIPA’s decisions I am talking about are re-examination decisions (against a rejection decision of a patent application), and invalidation decisions (against a request for invalidation of a granted patent. The appeals against these CNIPA’s decision can only be filed in Beijing, as the CNIPA is always the defendant in such appeals. At present, only the Beijing IP Court will accept such appeals. A further appeal against the Beijing IP Court’s decision used to be filed at the Beijing High Court. However, from 1 January 2019, all appeals against the Beijing IP Court’s decisions on patent and utility model cases will be handled by the IP Tribunal of the China Supreme People’s Court (the CSPC) directly.
Such appeals had low, if not very low, reversal rate statistically. According to data kindly provided by Darts-IP:
The reversal rate of the invalidation decisions increased every year from 2014 to 2017, from about 10% to 15%; and
The reversal rate of the re-examination decisions increased every year from 2014 to 2017, from about 7% to 10%.
Together with the change of handling all appeals on patent and utility model cases by the IP Tribunal of the CSPC directly, the CSPC also now has a set of stipulations to handle such appeals, bring the Chinese patent re-examination/invalidation system closer to the international norm. Some major points are as below:
More open interpretation of sufficiency (than the CNIPA).
More open view on generalization (than the CNIPA).
Relevant technical field should refer to the lowest level in the international patent classification.
What a patentee says during infringement proceedings would be considered at invalidation.
This article was written by our IP Expert Toby Mak and originally published in the CIPA Journal. To access the full article, please click here.
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