Navigating the Restoration Process in Patent Reexamination Procedures in China
In the complex world of intellectual property, the patent reexamination process can present numerous challenges, particularly when it comes to the restoration of rights. This guide provides a comprehensive overview of restoration procedures within the patent reexamination framework, including updated practices from the China National Intellectual Property Administration (CNIPA) as of 2024.
Common Scenarios for Restoration Procedures
- Failure to File a Reexamination Request: When the applicant misses the three-month deadline but submits the request within five months.
- Incomplete Payment of Reexamination Fees: The reexamination request is timely but the full fee isn’t paid on time.
- Non-Compliance with Correction Notices: The applicant fails to respond within the time specified in a notice.
- Failure to Respond to Reexamination Notices: No response is filed within the set deadline.
Timeframes for Filing Restoration Procedures
- For the above scenarios, a request for restoration must be submitted within 2 months of receiving a CNIPA notice.
- Applicants may also initiate restoration proactively in scenarios 1–3 before any notice is issued.
- Under force majeure, restoration can be requested within 2 months of the obstacle’s removal, but no later than 2 years from the original deadline.
2024 CNIPA Updates
- Article 6(2) of the Implementing Regulations has been reaffirmed as the legal basis for restoration due to “legitimate reasons”.
- CNIPA may now proactively assess eligibility for restoration based on submitted facts, even without a specific request in limited situations.
- New procedures were introduced for priority restoration under the Paris Convention and PCT, aligning with China’s international commitments.
Who Handles Restoration Procedures?
- With Agency: The authorized agency files on behalf of the applicant. A new agency requires a reexamination power of attorney.
- Without Agency: The applicant must handle submission personally.
How to File for Restoration of Rights
- Submit the Request for Restoration of Rights in Reexamination Procedures and relevant documents.
- Complete the missed procedures that caused the loss of rights.
- Pay a restoration fee of 1,000 yuan as per Article 6(2), if applicable.
Submission Methods
- Electronic: Via the China Patent Electronic Application System under the reexamination and invalidation module.
- Paper: Applicants without electronic access may submit paper copies (only one copy required).
Conclusion
Restoring rights during the patent reexamination process requires a timely and precise approach. By understanding the relevant timeframes, procedures, and the latest CNIPA policies, applicants can protect their intellectual property rights effectively.
Disclaimer
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