China: Amendments To The Chinese Patent Examination Guideline Effective On November 1, 2019

On September 23, China National Intellectual Property Administration ("CNIPA") formally announced the latest Amendment to the Patent Examination Guidelines ("Guidelines"), which will become effective on November 1, 2019. The stated purpose of the Amendment is to improve patent quality and efficiency of examination.

Below is a summary of the keys amendments and our comments.


Our comments

1. Allowing "inventions utilizing stem cells separated or obtain from human embryos less than 14 days from fertilization and not from in vivo developments."

In the earlier Guidelines, any stem cell related inventions were strictly prohibited from being patented. We think this is a positive change that will allow a portion of the stem cells related inventions to be patentable.

2. Relaxation of rules regarding in-person interviews and telephone interviews, possible to have interview before the 1st OA.

We think this is a positive change that will make the interviews with examiners easier, more flexible and available at anytime during substantive examination. We believe this will further promote communications and mutual understandings between examiners and patent attorneys.

3. Prioritized examination for certain cases and situations, according to "Rules for Prioritized Patent Examination," issued in 2017.

Some domestic applicants may be able to take advantage of the rules, which are difficult for foreign applicants to comply. Instead, foreign applicants wishing to accelerate examination of their patent applications may utilize the relevant PPH mechanisms, which could save as much time as the prioritized examination would provide.

4. When an invention application and a utility model application are filed on the same day for the same invention, the invention application will not be examined on a prioritized basis.

The examination of the invention application would probably be delayed. The reason given by the CNIPA is that, from the utility model application, the applicant more than likely already has patent protection for the same invention.

5. Applicants may request delayed examination for invention and design patent applications, by  one,  two,  or  three  years.  The  delayed examination for invention patent applications should be applied on the same time with the applicant's    request  for  substantive examination. Requests       for  delayed examination of design patent applications, on the  other  hand,  shall  be  submitted  by  the applicant at the same time as the applications for designs are submitted.    

This change will give applicants more flexibility in deciding when to have their applications examined.

6. Further clarification on submission requirements on design patent application for Graphical User Interface(GUI) :

1) Titles for design patent applications related to GUI should clearly state "the main use of the GUI and the product the GUI is used for," but should not merely contain phrases such as "Software Graphical User Interface" or "Operation Graphical User Interface."

2) No longer require figure/photo that shows the GUI within the final product, except projection equipment product.

3) A design application including GUI should, in brief description, clearly explain the GUI's use, which should correspond to the use in the title.

4) In a design application including GUI, if only orthographic view figures are submitted, the application should exhaustively list all final products that the GUI will be used in.

These changes intend to make the formality examination of GUI related design patent applications easier and more straight forward. However, applicants should pay attention to the details requirements in 1), 3) and 4).

7. When the examiner cites "common knowledge" in inventiveness related comments, he "should be able to provide sufficient relevant evidence or explanation," if the applicant questions the cited common knowledge.

When the examiner alleges that a technical feature in the claim that contributes to the solution of the technical problem is "common knowledge," he "should usually provide relevant evidence."

We think this is a positive change that will put some restrictions on how the Examiners cite "common knowledge" in Office Actions.

8. In an Invalidation Petition, when analyzing inventiveness by using two or more combinations of prior art references, the petitioner should "first analyze and compare the most important combination."

If the most important combination is not clearly indicated, the first used combination shall be assumed as the most important combination.

While this change will probably make the examiner's job a little easier, it forces the petitioner to indicate which combination is the most important one. Although, in practice, this should not be a problem in most cases, we still think the examiner should consider every combination with the same attention. Also, in some cases, it is difficult for the applicant to indicate which combination is most important.

9. When analyzing inventiveness using the three-step method, after analyzing the distinctive features of the claimed invention, as compared to the closest prior art, the examiner should rely on the technical effects achieved by the distinctive feature in the claimed invention to determine the technical problem actually solved by the invention.

We think that this is a positive change that will require the examiner to focus on the technical effects achieved by the distinctive feature in the claimed invention, rather than the effects in general.

10. When analyzing inventiveness using the three-step method, "for technical features that mutually support each other in function and have an interactive relationship with each other, the examiner should consider the technical features as a whole and their relations with each other in achieving the technical effects in the claimed invention."

This is also a positive change that will require the examiner to consider the technical features as a whole and their interactions, rather than attacking each feature individually.

Some more detailed aspects of the above changes will be clarified in practice. We at China Sinda are following the developments closely and will provide further updates in this regard. Please let us know if you have any questions.

China Sinda Intellectual Property.

November 1, 2019

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.

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