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Patent Examination Guidelines Amendment (Draft for Comments)

Recently, the State Intellectual Property Office released Patent Examination Guidelines Amendment (Draft for Comments) (hereafter referred to as Draft for Comments), seeking comments from public.

The relevant responsible person of the State Intellectual Property Office indicated that to further improve the quality of grants of utility model and design, the State Intellectual Property Office started the amendment work to the Chapters 2 and 3 of the Part I of Patent Examination Guidelines. The Draft for Comments is about to amend the Sections 11 and 13 of the Chapter 2 of the Part I and the Sections 8 and 11 of the Chapter 3 of the Part I of Patent Examination Guidelines. The original intention of the amendment was to encourage the examiners to find out existing arts or designs and it is inadvisable to limit the access of the examiners to find out the existing arts or designs and conflicting application information in the examination of whether the utility model is of novelty and whether the design is obviously not conforming Article 23(1) of Patent Law. Therefore, it is suggested to delete the expression of “usually do not search” and “without search” from the Patent Examination Guidelines. Likewise, with respect to the examination conducted by the examiner in accordance with Article 9 of Patent Examination Guidelines, it is also inadvisable to limit their access to find out the same inventions and creations. And thus, it is suggested to delete the expression “usually do not search in the examination”.

According to the introduction, with respect to the scope of preliminary examination of the utility model and design, Article 44 of the amended Implementing Regulations of Patent Law of People’s Republic of China brought into Article 22(2) and (4) and Article 23(1) of Patent Law of People’s Republic of China, that is, to examine whether the utility model is obviously not conforming the provisions of novelty and practicability and whether the design is obviously an existing design and whether there is conflicting applications, so as to properly expand the scope of preliminary examination on the condition of not changing the current preliminary examination system of utility model and design. 

It was reported that this Draft for Comments was released by the Legislative Affairs Office of State Council (http://www.chinalaw.gov.cn) and the website of State Intellectual Property Office simultaneously to seek comments from the public. The public may provide their comments and advises in writing with the State Intellectual Property Office via website, email, fax, correspondences, etc. by March 18, 2013.

Date: February 25, 2013           Source: State Intellectual Property Office

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