SIPO Promulgated Transitional Measures for the Implementation of the New Patent Law

October 20, 2009

On December 29, 2009, SIPO promulgated Transitional Measures for the Implementation of the Revised Patent Law, making clear regulations on problems which may occur during the revision of the Patent Law.

According to Article 2 of the Measures,, patent applications and patent rights accordingly subject to the Patent Law before revision prior to October 1, unless there is special regulation in the Transitional Measures for the Implementation of the Revised Patent Law and apply to revised Patent Law after October 1. This means that, for the applications which were accepted before Oct.1 but haven’t been granted patent rights yet till Oct.1, their authorizing conditions, examining procedures and the declaration of avoidance that may occur in the future still apply to the provisions before revision in principle. It is in accordance with the regulations in Article 84 of the Legislation Law of China on the principle of “l(fā)egislation is not retroactive” and can protect patent applicants and owners’ legal rights at the same time.

According to Article 3 of the Measures, petition of compulsory licensing on patent applications before Oct. 1, should be referred to the regulations of the revised Patent Law.

When patent administration departments deal with suspected patent infringement or passing-off cases, they should refer to the regulations in Article 4 and Article 5 of the Measures, that is to say, if infringement or passing-off happens after Oct.1, the revised Patent Law have the final say. It is beneficial for both the patent right owners and the public.

In order to make it convenient for foreign applicants and patent right owners to apply for patents and conduct other patent affairs, and also for the sake of constructing a fair competitive environment for patent agencies, Article 7 also defines that when foreign applicants or patent right owners consign or alter patent agency after October 1, they should follow the regulations in Article 19 of the revised Patent Law. This means that they can choose any legally established patent agency, not necessarily the ones appointed by SIPO set by Article 19 of the Patent Law before revision.