Reply to the Proposal on Improving the Examination of Invention Patents | Letter of the State Intellectual Property Office in reply to the Proposal No. 3196 of the Fifth Session of the 13th National People's Congress-Industry News-Shenzhen deep trust patent Agency Co., LTD

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Reply to the Proposal on Improving the Examination of Invention Patents | Letter of the State Intellectual Property Office in reply to the Proposal No. 3196 of the Fifth Session of the 13th National People's Congress

Release Time：

2022-08-25

State Knowledge Bureau: continue to crack down on abnormal patent applications, continue to reduce the review cycle, orderly expand the scale of priority review and completely cancel the grant and reward of patent application, eliminate the evaluation indicators that do not meet the actual growth rate Guo Ailing representative: Your "Suggestions on improving the examination of invention patents" received, the reply is as follows. Your suggestions are of great reference significance for improving the quality of patent applications, speeding up the patent approval process, and better promoting innovation and development. In recent years, the bureau has actively responded to the demands of innovation subjects in practical work, continued to implement patent quality improvement projects in depth, strictly standardized patent application behaviors, and continued to optimize the examination...

"In 2021, the State Intellectual Property Office organized a special campaign to crack down on abnormal patent applications, notifying 815,000 abnormal patent applications across the country in four batches, requiring local intellectual property management departments to conduct verification, and requiring applicants to take the initiative to withdraw, and by the end of the year, the withdrawal rate of the first three batches of abnormal patent applications had reached 97%."

Recently, the State Intellectual Property Office issued a reply letter to the fifth session of the 13th National People's Congress Recommendation No. 3196. It mentions cracking down on irregular patent applications that are not designed to protect innovation. While guiding innovation subjects to improve the quality of patents, it intensified the crackdown on abnormal patent applications, formulated and issued policy documents such as the Measures on Standardizing Patent Application, the Notice on Further Strictly Standardizing Patent Application, and the Notice on Continuously and Strictly Standardizing Patent Application, and guided local governments to completely cancel subsidies and incentives for patent application. Eliminate the evaluation index of growth rate that does not meet the reality. In 2021, the special action to crack down on abnormal patent applications was organized, and 815,000 abnormal patent applications were notified to all parts of the country in four batches, requiring local intellectual property management departments to conduct verification, and requiring applicants to take the initiative to withdraw, and by the end of the year, the withdrawal rate of the first three batches of abnormal patent applications had reached 97%.

Representative of Guo Ailing:

Your "Suggestions on Improving the examination of invention patents" have been received, and your reply is as follows.

Your suggestions are of great reference significance for improving the quality of patent applications, speeding up the patent approval process, and better promoting innovation and development. In recent years, the bureau has actively responded to the demands of innovation subjects in practical work, continued to implement patent quality improvement projects, strictly standardized patent application behaviors, continued to optimize the examination process, and took multiple measures to improve the quality and efficiency of patent examination.

First, on "Policy guidance to encourage high-quality, high-value invention patent application"

(1) Strengthening overall guidance for high-quality intellectual property development. Since 2019, the Annual Work Guidelines for Promoting High-quality Development of Intellectual Property Rights have been issued to local intellectual property management departments for four consecutive years, guiding local governments to build indicator systems, policy systems and statistical systems for high-quality development of intellectual property rights. Promote and apply the "Patent Navigation Guide" series of national standards, guide local governments to build patent navigation service bases based on industrial development needs, organize and implement patent navigation projects in key industries, and serve the innovative development of enterprises and public institutions. We will encourage enterprises, universities, scientific research organizations and other innovation entities to implement national standards for intellectual property management, optimize the intellectual property management system, and strengthen the ability to create intellectual property in a targeted manner. By the end of 2021, the number of high-value invention patents per 10,000 people in China reached 7.5, an increase of 1.2 over the previous year; There were 792,000 effective invention patents for strategic emerging industries in China (excluding Hong Kong, Macao and Taiwan), an increase of 114,000 over the previous year, and 323,000 effective invention patents with a life of more than 10 years, an increase of 27.7% over the previous year, accounting for 11.9% of the domestic total, an increase of 0.6 percentage points over the previous year.

(2) Crack down on abnormal patent applications that do not protect innovation.While guiding innovation subjects to improve the quality of patents, it intensified efforts to crack down on abnormal patent applications, and formulated and issued policy documents such as the Measures on Regulating Patent Application Behavior, the Notice on Further Strictly Regulating Patent Application Behavior, and the Notice on Continuously and Strictly Regulating Patent Application Behavior.Guide local governments to completely cancel subsidies and incentives for patent applications, and eliminate evaluation indicators that do not meet the actual growth rate.In 2021, the special action to crack down on abnormal patent applications was organized, and 815,000 abnormal patent applications were notified to all parts of the country in four batches, requiring local intellectual property management departments to conduct verification, and requiring applicants to take the initiative to withdraw, and by the end of the year, the withdrawal rate of the first three batches of abnormal patent applications had reached 97%.

Ii. On "Reasonably Optimizing Review Procedures and Effectively Utilizing Social Resources"

(1) On the integration of acceptance procedures and preliminary trial procedures. According to Article 39 of the Rules for the Implementation of the Patent Law, the scope of examination of the acceptance procedure for invention patents includes whether the application documents are complete, whether the language of the application documents is Chinese, the identification of the content of the application documents, the applicant's principal qualification, and the necessary entrustment and agency. One of its main functions is to determine the date of application, China's patent system is the first application system, as soon as possible to determine the date of application is very important to the applicant. According to the provisions of Article 44, paragraph 1, of the Rules for the Implementation of the Patent Law, the scope of examination of the preliminary examination procedure for invention patents includes the formal examination of the application documents, the examination of obvious substantive defects, the formal examination of other documents, and the examination of relevant expenses. One of its main functions is to prevent the public interest from being harmed by the publication of inventions that clearly violate the provisions of patent law. Therefore, the scope and functions of the two procedures are very different. If the two procedures are merged, the content of the review is not reduced and the effect on reducing the review cycle is limited. In addition, before the preliminary examination, it is also necessary to conduct classification and confidentiality review of patent applications. When the application documents do not meet the acceptance conditions and the application date cannot be determined, the integration of the two procedures will delay the time for the applicant to receive the relevant notice, resulting in the applicant being unable to overcome the defects in time and determine the application date as soon as possible.

(2) On parallel publication procedures and substantive review procedures. The examination of invention patent in our country adopts the system design of early announcement and request examination. According to the relevant provisions of the Patent Law, if the application for an invention patent passes the preliminary examination, the Bureau shall publish it after 18 months from the date of filing or at the request of the applicant; At the same time, within three years from the filing date of an invention patent application, the applicant may at any time request the Bureau to conduct a substantive examination of its application. This system is designed to facilitate the dissemination of technical information in a timely manner, while also giving applicants time to consider whether they need to publish and proceed to the substantive examination stage. "Eighteen months" and "three years" are institutional arrangements made in the context of balancing the interests of the applicant and the public, not the periodic period of the examination process, the applicant can request early publication of the application and request substantive examination, so that its invention patent application can enter the substantive examination procedure earlier. As for the suggestion of using social search power mentioned by you, our bureau has carried out relevant research on new patent examination models such as separation of examination and examination and search outsourcing. In the next step, we will carefully study and learn from your suggestion to explore the feasibility of using external search power.

In addition, for the shortening of the patent examination cycle that you are concerned about, our bureau has continuously improved the examination efficiency by moderately expanding the examination team, strengthening the examination capacity building, and carrying out the intelligent upgrade of the examination system. Since 2001, it has set up 7 patent examination cooperation centers in Beijing, Jiangsu, Guangdong, Henan, Hubei, Tianjin, Sichuan and other places, becoming an important force in the patent examination team. Actively explore the application of new technologies such as artificial intelligence and big data in patent examination work, improve the efficiency of examiners to search and compare documents, and assist in the realization of refined examination management. By the end of 2021, the examination period of high-value invention patents has been reduced to 13.3 months, and the average examination period of invention patents has been reduced to 18.5 months. At the same time, a comprehensive application of priority review, intellectual property protection center pre-examination and other ways to meet the needs of innovation subjects to speed up patent approval. For example, since 2016, it has continuously optimized the review procedures for the whole process of electronic applications submitted after pre-examination by the Intellectual Property Protection Center, reducing the average review period from application to authorization to less than 80 days.

Third, the adjustment of the priority review system

(1) Expanding the scope of technical areas for priority review. In order to promote the optimization and upgrading of industrial structure and service innovation-driven development, in August 2012, the Bureau issued and implemented the "Measures for the Administration of Priority Examination of Invention Patents" (hereinafter referred to as the "Measures"), and was revised in August 2017 to further enrich and expand the circumstances for the application of patent priority examination, covering the national and local key development and encouragement of industries. Hot areas with rapid technological update iteration and short product life cycle, applications with conversion implementation needs and potential infringement risks, and applications submitted abroad through the Paris Convention and the Patent Cooperation Treaty (PCT). The key technical areas are listed rather than exhaustive. For example, localities can make recommendations according to their actual needs to meet the needs of supporting local economic construction and encouraging the development of advantageous industries. Applicants who have conversion needs or are at risk of potential infringement may also apply for priority review, regardless of technical field restrictions.

(2) Setting certain thresholds for priority review. According to the "Patent Examination Guide", the Bureau of invention patent applications, except for special circumstances such as priority examination, in accordance with the order of receipt of the examination. That is to say, "priority" is the principle, "special circumstances" is the exception, and priority review belongs to this exception. In order to promote the optimization and upgrading of the industrial structure, so that the priority review channels are used by innovative subjects with real needs, certain threshold requirements are set in the Measures, and the required submission materials and forms and ways are clarified.

In the next step, the Bureau will continue to crack down on abnormal patent application behaviors, continue to reduce the review cycle, orderly expand the scale of priority review, effectively enhance the sense of gain of the majority of innovation subjects, and add impetus to the implementation of the new development concept, the construction of a new development pattern, and the promotion of high-quality development.

Thank you very much for your concern and support for intellectual property work, and your suggestions and suggestions will be carefully studied and absorbed by the bureau, and further improved and perfected in combination with work practice. We hope that you will continue to pay attention to the development of the intellectual property cause and give us valuable suggestions and suggestions.

State Intellectual Property Office

August 15, 2022

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