Chinese Patent Law has been amended for the third time and the newly revised Patent Law went into effect on October 1, 2009. Through the amendment, 36 items have been revised. The main amendments are shown as follows for your information:
Absolute novelty standard
In order to be in line with patent practice worldwide, the new Patent Law adopts the absolute novelty standard in stead of the so-called blended novelty standard. This means that the prior art is explicitly defined, and includes also the public use or other means of disclosure outside China.
Forbidden for doubling patent
The scope of Interfering Applications is expanded from “any other person” into “any entity or individual”. This means that the Application of the Applicant himself will interfere the latter application also. It will certainly prohibit the patent applicant from extending patent term by filing utility model first. Where the same applicant had applied for both patent for utility model and patent for invention for the identical invention, it is noteworthy that the applications for invention and utility model shall be filed on the same day.
Higher requirements on design patent
The new Patent Law regulates that not only shall a design patent not be identical or similar with prior design, but it shall also be significantly different from the combination of elements of prior designs. The additional requirement on difference from element combination of prior designs is somewhat like the inventiveness requirement on invention and utility model. Furthermore, two-dimensional designs made of patterns, colors or their combination, mainly for the purpose of indication are not patentable according to the new Patent Law. Obviously, the threshold for design patents becomes higher than before.
Other new requirements for design
In addition to the above revisions in item 3, the new Patent Law also provides other requirements for designs. First, the optional brief description of the design becomes compulsory for design applications, and the description may be used to interpret the drawings or photos when constructing the protection scope of design patents. Second, a design application for multiple similar designs of a product becomes possible. Third, offer for sale is also specified as infringement on design patents in the new Patent Law. Fourth, a search report will also be required to enforce design patents as that for utility models.
Disclosure of genetic resource
According to the Patent Law, the origin of the genetic resource is to be disclosed in the specification if accomplishment of the invention relies on the acquiring and using of such genetic resource, and no patent shall be granted for those inventions if the acquisition or use of the resource violates the relevant laws and regulations. The impact of this provision on the Chinese patent practice depends greatly upon how genetic resource will be defined and what will constitute illegal acquisition and use.
Exemption of patent infringement
The new Patent Law extends the scope of patent infringement exemption:
(1) Parallel import is explicitly defined as non-infringement
(2) The Bolar exception is adopted for pharmaceutical related patents.
