Administrative Measures for Patent Priority Examination (2017)(Administrative Order No. 76)-Patent-Shenzhen deep trust patent Agency Co., LTD

Administrative Measures for Patent Priority Examination (2017)(Administrative Order No. 76)

Release Time：

2017-06-28

Order of the State Intellectual Property Office

Number seventy-six

The Administrative Measures for Patent Priority Examination have been deliberated and adopted by the Executive Committee of the Bureau and are hereby promulgated and shall come into force as of August 1, 2017.

Secretary Shin Changyu

June 27, 2017

Measures for the administration of patent priority examination

Article 1 These Measures are formulated in accordance with the relevant provisions of the Patent Law of the People's Republic of China and the Implementing Rules of the Patent Law of the People's Republic of China (hereinafter referred to as the Implementing Rules of the Patent Law) in order to promote the optimization and upgrading of the industrial structure, promote the implementation of the national intellectual property strategy and the construction of a powerful country in intellectual property rights, serve innovation-driven development, and improve the patent examination procedures.

Article 2 These Measures shall apply to the priority examination of the following patent applications or cases:

(1) An application for a patent for invention at the stage of substantive examination;

(2) Application for patent for utility models and designs;

(3) Review of applications for patents for inventions, utility models or designs;

(4) Invalidation of patents for invention, utility model or design.

Where priority examination is carried out in accordance with bilateral or multilateral agreements signed between the State Intellectual Property Office and patent examination institutions of other countries or regions, it shall be handled in accordance with relevant provisions and these Measures shall not apply.

Article 3 A patent application or patent reexamination case under any of the following circumstances may request priority examination:

(1) involving energy conservation and environmental protection, new generation information technology, biology, high-end equipment manufacturing, new energy, new materials, new energy vehicles, intelligent manufacturing and other key national development industries;

(2) industries that are mainly encouraged by the people's governments of provinces and cities divided into districts;

(3) involving the Internet, big data, cloud computing and other fields and the technology or product update speed;

(4) the applicant or the applicant for patent review has made preparations for exploitation or has begun exploitation, or has evidence to prove that another person is exploiting the invention-creation;

(5) where a patent application for the same subject matter is filed for the first time in China and an application is filed in another country or region;

(6) other matters of great significance to the national interest or public interest require priority examination.

Article 4 An invalidation case under any of the following circumstances may request priority review:

(1) In respect of a patent infringement dispute involving an invalidation case, the parties have requested the local intellectual property office to handle it, brought a suit in a people's court, or requested arbitration and mediation organizations to mediate;

(2) The patent involved in the invalidation case is of great significance to the national or public interests.

Article 5 A request for priority examination of a patent application or patent reexamination case shall be approved by all the applicants or all the applicants for reexamination; A request for priority examination of an invalidation case shall be subject to the consent of the person requesting invalidation or all the patentees.

The local intellectual property office, the people's court or the arbitration and mediation organization dealing with and hearing the patent infringement dispute may request priority review of the invalidation case.

Article 6 The number of priority examination of patent applications, patent reexamination cases and invalidation cases shall be determined by the State Intellectual Property Office according to the examination capacity of different professional and technical fields, the number of patents granted in the previous year and the number of cases pending trial in the current year.

Article 7 For patent applications or patent reexamination cases requesting priority examination, electronic application shall be adopted.

Article 8 Where an applicant submits a request for priority examination of an application for a patent for invention, utility model or design, it shall submit a request for priority examination, information materials on prior art or prior design and relevant supporting documents; In addition to the circumstances in item 5 of Article 3 of these Measures, the request for priority review shall be signed by the relevant department of The State Council or the provincial intellectual property office.

Where a party submits a request for priority examination of a patent reexamination or invalidation case, it shall submit a request for priority examination and relevant supporting documents; In addition to patent reexamination cases that have been given priority examination in the substantive examination or preliminary examination procedures, the request for priority examination shall be signed by the relevant department of The State Council or the provincial intellectual property office.

Where a local intellectual property office, a people's court, or an arbitration and mediation organization makes a request for priority review of an invalid declaration case, it shall submit a request for priority review and explain the reasons.

Article 9 After accepting and examining the request for priority examination, the State Intellectual Property Office shall promptly notify the applicant of the review opinions.

Article 10 Where the State Intellectual Property Office agrees to conduct priority examination, the case shall be closed within the following time limit from the date of consent:

(1) the first notice of examination opinions on an application for a patent for invention shall be issued within 45 days and the case shall be concluded within one year;

(2) the application for a patent for utility model or design shall be concluded within two months;

(3) the patent reexamination case shall be concluded within seven months;

(4) cases of invalidation of invention and utility model patents shall be concluded within five months, and cases of invalidation of design patents shall be concluded within four months.

Article 11 With respect to a patent application for priority examination, the applicant shall make a reply or supplement as soon as possible. The time limit for the applicant to reply to the notice of examination opinions on invention patent shall be two months from the date of publication of the notice, and the time limit for the applicant to reply to the notice of examination opinions on utility model and design patent shall be 15 days from the date of publication of the notice.

Article 12 In case of any of the following circumstances concerning an application for priority examination, the State Intellectual Property Office may stop the priority examination procedure, handle it according to the ordinary procedure, and promptly notify the applicant of priority examination:

(1) After the request for priority examination has been approved, the applicant shall amend the application documents in accordance with paragraphs 1 and 2 of Article 51 of the Implementing Rules of the Patent Law;

(2) The time limit for the applicant to reply exceeds the time limit prescribed in Article 11 of these Measures;

(3) The applicant submits false materials;

(4) An abnormal patent application is found in the course of examination.

Article 13 Under any of the following circumstances, the Patent Reexamination Board may suspend the procedure of priority examination, handle the case according to the ordinary procedure, and promptly notify the applicant of priority examination:

(1) Delay in reply by the applicant for review;

(2) After the request for priority review is agreed, the applicant for invalidation shall provide additional evidence and reasons;

(3) After the request for priority examination has been agreed, the patentee modifies the claim by means other than deletion;

(4) The patent reexamination or invalidation procedure is suspended;

(5) The trial of the case relies on the examination conclusions of other cases;

(6) Difficult cases, and subject to the approval of the Chairman of the Patent Reexamination Board.

Article 14 The State Intellectual Property Office shall be responsible for the interpretation of these measures.

Article 15 These Measures shall come into force as of August 1, 2017. The Administrative Measures for Priority Examination of Invention Patent Applications, which came into effect on August 1, 2012, shall be repealed simultaneously.

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Patent Law of the People's Republic of China (Amended in 2020)

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Measures for the Administration of Patent Agency (Order No. 6 of the State Administration for Market Regulation)

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