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The Grace Period for Novelty in Chinese Patent Law
The Chinese Patent Law, specifically Article 24, prescribes that an invention-creation for which a patent is applied does not lose its novelty where, within six months before the date of filing, one of the following events occurred:
(1) where it was first made public for public interest when the country is in an emergency or an abnormal state;
(2) where it was first exhibited at an international exhibition sponsored or recognized by the Chinese government;
(3) where it was made public at a prescribed academic or technological conference;
(4) where it was disclosed by any person without the consent of the applicant.
From Article 24, we know that the grace period for design applications is not available, as it is made for invention-creation only.
With regard to the "international exhibition sponsored or recognized by the Chinese government" in item (2) of Article 24, the Implementation Rules and Examination Guidelines of the Patent Law stipulate that the “international exhibitions sponsored by the Chinese government” include the international exhibitions sponsored by the State Council, various ministries and commissions, or organized by other institutions or local governments with the approval of the State Council. And "the international exhibitions recognized by the Chinese government” refer to the international expositions registered or recognized by the Bureau International des Expositions (BIE) as regulated by the Convention Relating to International Exhibitions. The so-called international exhibition means that in addition to the products of the host country, there should also be exhibits from foreign countries.
Regarding the "prescribed academic or technological conference " in item (3), it is stipulated that the term "academic or technological conference" refers to an academic or technological conference organized by relevant competent departments of the State Council or national academic organizations, excluding those conferences below the provincial level or entrusted by ministries and commissions of the State Council or national academic organizations, or the conferences organized in their names.
Disclosure at the above-excluded conferences would result in a loss of novelty unless the conferences themselves have confidentiality agreements.
If the conditions stipulated in Article 24 are met, it is necessary to submit a statement and supporting materials to the CNIPA. Specifically, if the applicant requests a grace period, it shall be declared in the application form when filing, and submit supporting materials within two months from the filing date.
The supporting materials for international exhibitions shall be issued by the organizer of the exhibition. The date, location, name of the exhibition, and the date, form, and content of the invention-creation being exhibited should be indicated in the supporting materials, and the official seal should be affixed. For example, at the Service Center for Intellectual Property Protection and Commercial Dispute Resolution of the China International Import Expo, you can apply for the "Exhibition Certificate" as the supporting material.
If it is published for the first time at a prescribed academic or technological conference, supporting (certificate) materials shall be issued by the relevant competent department of the State Council or the national academic organization that organizes the conference.
The date， place， and name of the conference, and the date, form, and content of the invention-creation being published shall be indicated in the supporting materials, and the official seal shall be affixed.
With regard to item (4) of Article 24, the disclosure caused by any person without the consent of the applicant includes the disclosure of the contents of invention-creation by others without complying with an express or implied confidentiality agreement and the disclosure caused by obtaining the content of the invention-creation from the inventor or the applicant through fraud, espionage, or other means.
If the invention-creation for a patent application has been disclosed by others without the consent of the applicant within six months before the date of application, and if the applicant has learned about it before the application filing date, he shall declare it in the application form for the grace period without loss of novelty when filing and submit supporting materials within two months from the application date.
If the applicant learns about it after the filing date, he can submit a statement requesting the grace period within two months of learning of the situation, and attach supporting materials. According to the examiner's discretion, the applicant may be required to submit proof materials within the specified time limit.
The supporting materials submitted by the applicant regarding the disclosure of the application content by others shall indicate when it was disclosed, how it was disclosed, and what was disclosed, and shall be signed or stamped by the certifier.
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