Transitional Measures for Implementation of the Amended Implementing Rules of the Patent Law （Feb 1，2010）

The Transitional Measures for Implementation of the Revised Implementing Rules of the Patent Law were published by the State Intellectual Property Office of China (“SIPO”) on January 21, 2010, and stipulate the application of the old and new implementing rules of the Patent Law. Unless otherwise specified, the non-amended implementing rules are applicable to patent applications or patents granted based on applications filed before January 31, 2010, and the amended implementing rules are applicable to patent applications or patents granted based on applications filed after February 1, 2010.  In addition, these transitional measures also provide regulations on the filing of invalidation requests according to the novelty of the design patent, the response to the cancellation of an invalidation request, PCT applications entering into the Chinese stage, and the payment of fees.

The processing fees canceled include the application maintenance fee, (original Article§90(3), 94), the fee for requesting suspending procedure, the fee for requesting compulsory license of patent implementation, and the fee for requesting a ruling on compulsory license (original Article§90(5)). Previously an application maintenance fee was paid for the period from the 3rd year after the filing date until the year before the granting of a patent right. After February 1, 2010, the application maintenance fee is cancelled by the SIPO.

Transitional Measures for Implementation of the Amended Implementing Rules of the Patent Law

No.54

The Transitional Measures for the Implementation of Amended Implementing Rules of Patent Law are hereby promulgated after being adopted at the Executive Meeting of the Office and shall come into effect on February 2, 2010.

January 21, 2010

Article 1 For the purpose of the implementation of the Decision of the Standing Committee of the National People's Congress on Amending the Implementing Rules of the Patent Law of the People's Republic of China issued on January 9, 2010, these Measures have been formulated in accordance with Article 84 of the Legislation Law.

Article 2 The non-amended implementing rules are applicable to patent applications or patents granted based on applications filed before February 1, 2010 (excluding this date), and the amended implementing rules are applicable to patent applications or patents granted based on applications filed after February 1, 2010 (including this date, hereafter the same), unless a patent application is filed prior to February 1, 2010 and patent rights granted based on such application are governed by the special provisions of the following clauses.

Article 3 The examination of patent invalidation requests filed after February 1, 2010 based on nonconformity with Article 23.3 of the Patent Law is subject to the provisions of Article 66.3 of the amended Implementing Rules of the Patent Law.
Article 4 The examination of patent invalidation requests filed after February 1, 2010 is subject to the provisions of Article 72.2 of the amended Implementing Rules of the Patent Law.
Article 5 Where the applicant of an international application handled the procedures for entering into China after February 1, 2010, the international application is subject to the provisions of Chapter 10 of the amended Implementing Rules of the Patent Law.
Article 6 The application for suspending relevant procedures with the SIPO filed after February 1, 2010 is subject to the provisions of Article 93 and Article 99 of the amended Implementing Rules of the Patent Law, namely the fee for requesting suspending procedures is not to be paid.
The application for the refund of overpayment, duplicate payment, or mistaken payment of patent fees after February 1, 2010 is subject to Article 94.4 of the amended Implementing Rules of the Patent Law.
The payment of application fees, printing fees for patent publication and additional application fees after February 1, 2010 is subject to Article 95 of the amended Implementing Rules of the Patent Law.
The handling of the registration procedure for granting patent rights after February 1, 2010 is subject to Article 93 and Article 97 of the amended Implementing Rules of the Patent Law, namely the application maintenance fee is not to be paid.

Article 7 Article 8 These Measures shall be implemented as of February 1, 2010.
Related Website:  http://www.sipo.gov.cn/sipo2008/zwgs/ling/201001/t20100121_488378.html.

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（Responsible person for text：Mr. Aizawa）

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