China: CNIPA seeks public opinion on draft amendments to the Guidelines for Patent Examination

On April 4 2019, the China National Intellectual Property Administration ("CNIPA") published the draft amendments to the Guidelines for Patent Examination ("Guidelines") and requests public feedback of any suggestions on amendments to be sent to the CNIPA. Substantive changes relate to the patentability of certain hESCs, examination of prior art combinations in an invalidation proceeding, and a new late review proceeding for a patent application. The draft amendments also include clarifications on timing and formality requirements on the applicant for filing a divisional application, examination of GUI patents, substantive examination regarding inventiveness, examiner's burden of proof for common knowledge etc., and encourage tele-communication between the examiner and the applicant by removing certain limitations.


The amendments to the Guidelines were initiated in 2017, with purposes to improve the efficiency of the examination system, develop the examination practice to suit the rapid growth of economy and technology as well as public demands, and clarify and optimize the examination procedures.

Main contents of the draft amendments to the Guidelines

1. Amendments with regard to patentability of hESCs

The proposed amendments add an exclusionary rule to the "use of Embryo for industrial or commercial purposes" in Section 3.1.2 Chapter 1 of Part II, clarifying that if a stem cell is isolated or obtained from a human embryo within 14 days of fertilization that has not undergone in vivo development, an invention made by using such a stem cell will be excluded from being an unpatentable subject matter which can be rejected on the grounds of "violating social morality." Correspondingly, the draft amendments also delete Section of Chapter 10 Part II in the current Guidelines, and clarify that human embryonic stem cells (hESCs) do not belong to human bodies at various stages of formation and development.

2. Amendments with regard to an invalidation proceeding

This part of the proposed amendments requires that in the invalidation procedure, if the requester submits multiple prior art documents and indicates two or more ways of prior art combination, one major combination shall be indicated for examination by the panel. If such a major combination is not indicated, the first combination of prior art will be considered as the main combination.

3. Late review of a patent application

The proposed amendments introduce a late review proceeding for examination of a patent application. For an invention patent application, a late review can be requested at the time of requesting the substantive examination and will take effect from the effective date of the substantive examination request. For utility models and designs, late review shall be requested at the time of filing the application. The period of late review can be 1 year, 2 years or 3 years depending on the applicant's request.

4. Amendments with regard to filing a divisional application

The proposed amendments clarify that the timing for filing a divisional application based on a divisional application objected for lacking unity shall be reviewed according to the divisional application lacking unity and the applicants of the secondary divisional application shall remain the same to the divisional application lacking unity. Failure to conform to the above requirements will cause the secondary divisional application to be unacceptable or deemed as not being filed.

5. Amendments with regard to design patents for GUIs

In March 2014, the CNIPA revised the Guidelines by issuing the No. 68 Order to include products that display Graphical User Interfaces (GUI) after power-on as a subject matter of design patents. The draft amendments merge the relevant rules in the No. 68 Order and provide further clarification on specific requirements for product names, design images, or photographs.

6. Amendments with regard to substantive examination regarding inventiveness

The proposed amended Guidelines further clarify the practice regarding substantive examination regarding the inventiveness of an invention. The draft amendments clarify that "...For technical features that functionally support each other and have an interactive relationship, the technical effects achieved by the technical features and the relationship between them in the claimed invention should be considered as a whole..." and "...the technical features in the claims that do not contribute to the resolution of technical problems do not affect the evaluation of the inventiveness of the technical solutions defined by the claims." The proposed amendments also clarify that if the Examiner considers that a technical feature contributing to solve the technical problem is common knowledge in an Office Action, he or she will have an obligation to provide the relevant evidence to prove it.

7. Amendments with regard to tele-communications between the examiner and the applicant

The proposed amendments encourage the examiner and the applicant to conduct a telephone discussion for technical matters or defects in the application whenever needed during substantive examination in order to improve the quality and efficiency of patent examination. It is also clarified that for any amendments agreed by the examiner during a telephone discussion, the applicant shall submit a formal written document reflecting the agreed amendments.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions