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Order of the State Intellectual Property Office
(No. 76)
The Measures for the Administration of the Prioritized Examination of Patents, as deliberated and adopted at the executive meeting of the State Intellectual Property Office, are hereby issued and shall come into force on August 1, 2017.
Director: Shen Changyu
June 27, 2017
Measures for the Administration of the Prioritized Examination of Patents
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Article 1 For purposes of promoting the optimization and upgrading of the industrial structure, promoting the implementation of the national intellectual property right strategy and the building of a powerful intellectual property nation, serving the innovation-driven development, and improving the patent examination procedures, these Measures are developed under the relevant provisions of the Patent Law of the People's Republic of China and the Detailed Implementation Rules for the Patent Law of the People's Republic of China (hereinafter referred to as the “Detailed Implementation Rules for the Patent Law”).
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Article 2 The prioritized examination of the following applications for patents or cases shall be governed by these Measures:
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(1) the applications for invention patents at the substantial examination stage;
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(2) the applications for patents of utility models and designs;
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(3) the review of the applications for patents of inventions, utility models and designs; and
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(4) the declaration of invalidation of the patents of inventions, utility models and designs.
Where a prioritized examination is carried out under a bilateral or multilateral agreement signed by and between the State Intellectual Property Office and the patent review institution of another country or region, the relevant provisions shall be applicable and these Measures shall not be applicable.
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Article 3 For an application for a patent or a patent review case falling under one of the following circumstances, a request for prioritized examination may be filed:
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(1) Energy conservation and environmental protection, a new generation of information technology, biology, high-end equipment manufacturing, new energy, new materials, new energy vehicles, intelligent manufacturing and other key national development industries are involved.
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(2) Industries that are encouraged by the people's governments at the provincial level and the districted city level are involved.
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(3) Internet, big data, cloud computing and other areas are involved, and the technologies or products are updated rapidly.
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(4) A patent applicant or a review applicant has been well prepared for the implementation or has already begun implementation, or has evidence proving that others are implementing its invention and creation.
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(5) A first-time application filed in China on the same specific subject is also filed in another country or region.
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(6) Other matters with great importance for the national interests or public interests and require prioritized examination.
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Article 4 For a case of declaration of invalidation falling under one of the following circumstances, a request for prioritized examination may be filed:
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(1) For the infringement disputes over the patent involved in a case of declaration of invalidation, the party has filed a request with the local intellectual property right office for handling, filed a lawsuit with the people's court or filed a request with the arbitration and mediation organization for arbitration and mediation.
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(2) The patent involved in a case of declaration of invalidation is of great importance for the national interests or public interests.
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Article 5 To file a request for prioritized examination for an application for a patent and a patent review case, the consent of all applicants or all review applicants shall be obtained; and to file a request for prioritized examination for a case of declaration of invalidation, the consent of the applicant for declaration of invalidation or all patentees shall be obtained.
A local intellectual property office, a people's court or an arbitration and mediation organization that handles or hears a case of disputes over a patent infringement may file a request for prioritized examination for the case of declaration of invalidation.
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Article 6 The number of applications for patents, patent review cases and cases of declaration of invalidation subject to prioritized examination shall be determined by the State Intellectual Property Office according to the examination capacity of different professional technical fields, the number of patent granting in the previous year, the number of cases to be examined in this year and other situation.
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Article 7 An application for a patent or a patent review case requesting for prioritized examination shall be filed by the electronic method.
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Article 8 An applicant filing a request for prioritized examination of an invention, a utility model or a design patent shall submit a written request for prioritized examination, the materials on the existing technology or the existing design information and relevant certification documents; and except under the circumstances as specified in item 5 of Article 3 of these Measures, the relevant department of the State Council or the provincial intellectual property office shall affix the recommendation opinions to a written request for prioritized examination.
A party that files a request for prioritized examination for patent review or for a case of declaration of invalidation shall submit a written request for prioritized examination and relevant certification documents; and except for a patent review case in which prioritized examination has been conducted in the substantive examination or preliminary examination procedure, the relevant department of the State Council or the provincial intellectual property office shall affix the recommendation opinions to the written request for prioritized examination.
A local intellectual property office, a people's court or an arbitration mediation organization that files a request for the prioritized examination of a case of declaration of invalidation shall submit a written request for prioritized examination and state the reasons.
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Article 9 After accepting and examining a request for prioritized examination, the State Intellectual Property Office shall notify the applicant for prioritized examination of the examination opinions in a timely manner.
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Article 10 Where the State Intellectual Property Office agrees to conduct prioritized examination, a case shall be closed within the following time limit from the date of consent:
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(1) For an application for an invention patent, the first notice of the examination opinions shall be issued within forty five days and the case shall be closed within one year.
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(2) A case of an application for a patent of utility model and design shall be closed within two months.
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(3) A patent review case shall be closed within seven months.
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(4) A case of declaration of invalidation for an invention and utility model patent shall be closed within five months, and a case of declaration of invalidation for design shall be closed within four months.
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Article 11 For an application for a patent subject to prioritized examination, an applicant shall give reply or make supplements and corrections as soon as possible. An applicant shall reply to a notice of the invention patent examination opinions within two months of the date when the notice is issued and an applicant shall reply to a notice of the patent examination opinions for utility model and design within fifteen days of the date when the notice is issued.
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Article 12 Where an application for a patent subject to prioritized examination falls under one of the following circumstances, the State Intellectual Property Office may cease the procedures of prioritized examination, handle it under the normal procedures, and notify the applicant for prioritized examination in a timely manner:
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(1) After a request for prioritized examination has been agreed to, the applicant puts forward opinions of amending the application materials under paragraphs 1 and 2 of Article 51 of the Detailed Implementation Rules for the Patent Law.
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(2) An applicant replies beyond the time limit as prescribed in Article 11 of these Measures.
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(3) An applicant submits false material.
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(4) An application is found in the process of examination to be an abnormal patent application.
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Article 13 Where a case of patent review or declaration of invalidation subject to prioritized examination falls under one of the following circumstances, the patent review committee may cease the procedures of prioritized examination, handle it under the normal procedures, and notify the applicant for prioritized examination in a timely manner:
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(1) A review applicant postpones the reply.
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(2) After a request for prioritized examination has been agreed to, an applicant for declaration of invalidation supplements the evidence and reasons.
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(3) After a request for prioritized examination has been agreed to, a patentee amends the claims by methods other than deletion.
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(4) The procedures of patent review or declaration of invalidation are suspended.
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(5) The trial of the case depends on the review conclusions of another case.
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(6) It is a difficult and complicated case and approved by the director of the patent review committee.
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Article 14 The power to interpret these Measures shall remain with the State Intellectual Property Office.
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Article 15 These Measures shall come into force on August 1, 2017. The Measures for the Administration of the Prioritized Examination of the Applications for Invention Patents that came into force on August 1, 2012 shall be concurrently repealed.
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