Interpretation of the Five Highlights of the 2023 New Patent Law Implementation Rules

Patent law plays an important role in protecting the legitimate rights and interests of patentees, encouraging inventions and creations, promoting the application of inventions and creations, improving innovation capabilities, and promoting scientific and technological progress and economic and social development. In order to ensure the smooth implementation of the Patent Law, the 95th Executive Meeting of the State Council passed the "Decision of the State Council on Amending the Implementing Rules for the Patent Law of the People's Republic of China", which came into effect on February 1, 2010. This revision of the "Implementation Rules" has the following major new highlights.

1. Specific provisions on the scope and procedures for patent confidentiality review in foreign countries

The Patent Law provides for completion in China When applying for a patent in a foreign country for an invention-creation, it must be submitted to the patent administration department of the State Council for confidentiality review in advance. The "Decision" further clarifies the scope of confidentiality review, defines "inventions or utility models completed in China" as mentioned in the Patent Law as inventions or utility models with the substantive content of the technical solution completed in China, and requires confidentiality review. The review procedures are specified in detail. If you directly apply for a patent in a foreign country or submit an international patent application to a relevant foreign institution, you must make a request in advance to the patent administration department of the State Council and explain its technical plan in detail; If an institution submits an international patent application, it shall submit a request to the patent administration department of the State Council before applying for a patent in a foreign country or submitting an international patent application to the relevant foreign institution.

2. Clearly define what is patentable for inventions and creations that rely on genetic resources

Patent Law Provisions When applying for a patent for an invention-creation that relies on genetic resources, the source of the genetic resources must be stated. The Decision further stipulates in accordance with the provisions of the Convention on Biological Diversity that "genetic resources" refer to genetically modified materials obtained from humans, animals, plants or microorganisms. Materials that are functional units and have actual or potential value. At the same time, considering that although some inventions and creations make use of biological resources, they do not use genetic functions and should not fulfill the obligation to disclose source information of genetic resources, the "Decision" defines "inventions and creations that rely on genetic resources" as those that make use of genetic resources. Inventions and creations completed by the genetic functions of resources. In addition, the "Decision" also stipulates the method of disclosing the source information of genetic resources: when applying for a patent for an invention-creation that relies on genetic resources, the applicant should explain it in the request.

3. Specify the form of applying for a patent right evaluation report and the time limit for the patent administration department to make a patent right evaluation report

The Patent Law modifies the utility model patent right search report system to a utility model and design patent right evaluation report system, clarifying that the patentee and its interested parties can request the patent administration department of the State Council to make a patent right evaluation report. As evidence for hearing and handling patent infringement disputes. In order to facilitate parties to obtain patent right evaluation reports, the "Decision" makes specific provisions on the form in which parties apply for a patent right evaluation report and the time limit for the patent administration department of the State Council to make a patent right evaluation report: Request To make a patent right evaluation report, the requester shall submit a request for a patent right evaluation report and indicate the patent number; the patent administration department of the State Council shall make a patent right evaluation report within 2 months after receiving the request.