On February 3, the State Council Information Office held a press conference. Yin Xintian, Director and Spokesperson of the Treaty and Law Department of the State Intellectual Property Office, and Liu Xiaoxia, Deputy Director of the Education, Science, Culture and Health Department of the Legislative Affairs Office of the State Council The relevant situation of the revision of the Implementing Rules of the Patent Law was introduced.
The revised implementation rules include 9 new provisions, deletion of 5 provisions, and substantial modifications to 47 provisions. The revised content mainly involves seven aspects: confidentiality review of external patent applications, genetic resources information disclosure system, patent right evaluation reporting system, compulsory licensing and relevant Regulations on encouraging innovation.
Confidentiality review also requires specific standards
Article 20 of the revised Patent Law stipulates that in Applications for Foreign patents for inventions or utility models completed in China must be submitted to the patent administration department of the State Council for confidentiality review in advance.
"According to the original law, when applying for a patent abroad, you must first apply for a Chinese patent." Xie Guanbin said, "But the implementation effect in practice is very poor, especially when it comes to to wholly-owned companies, joint ventures or R&D institutions established by foreign companies in China in accordance with the law."
Wholly-owned companies, joint ventures or R&D institutions established by foreign companies in China in accordance with the law. Institutions are nominally "Chinese entities" as mentioned in the old law, but often in the name of entrustment or cooperation, they stipulate through contracts that the rights to these inventions and creations belong to the parent company, and first apply for patents in foreign countries in the name of the parent company, thus avoiding the first Apply for a patent in China.
The new Patent Law changes the original requirement of applying for a patent first to a confidential review, but it has caused some doubts in terms of review standards and review time.
The Implementing Rules further define "inventions or utility models completed in China" as referred to in the Patent Law as "substantial content of the technical solution completed within the territory of China." It also provides more specific provisions on the procedures for confidentiality review.
"If the State Intellectual Property Office believes that confidentiality may be involved, it needs to inform the Applicant within four months at the latest and six months at the latest. To make the mostThe applicant will then be notified of the decision as to whether confidentiality is required. "Yin Xintian said.
Yin Xintian also pointed out that the four months and six months here are the maximum periods required for review, and not every review requires It took so long to complete.
"Technically speaking, what is rare in the legislation is that it sets out the review period in a different direction. Applicants may apply to a foreign country without receiving a decision requiring confidentiality within six months. "Xie Guanbin said, "This is more beneficial to protecting the rights and interests of applicants. ”
However, Xie Guanbin believes that although the implementation rules have relatively detailed provisions, the "substantive content" mentioned here is still relatively vague and lacks a specific standard. , otherwise it will be difficult for the applicant to determine whether a confidentiality review is required.
