China Intellectual Property News:

During the "Two Sessions" this year, some NPC deputies and CPPCC National Committee members suggested the amendment to the Patent Law should grant jurisdiction to the court for prosecution of patent invalidity, in order to address the issue of the long duration of patent prosecution. As far as we know, the National Intellectual Property Administration of China is responsible for the prosecution of patent invalidity. What's your opinion on this situation?

Shen Changyu:

Thank you for your question. Indeed, the issue was raised regarding the amendment to the Patent Law during the "Two Sessions" this year. We appreciate their attention to the amendment to the Patent Law. The prosecution of patent invalidity is a fairly professional and complex issue.

As you've said, currently the National Intellectual Property Administration holds responsibility for the prosecution of patent invalidity. Speaking from the nature of the Patent Law, judgment on patent invalidity in China is an important component of the administrative process of patent right confirmation. The procedure is a subsequent administrative oversight and error-correcting program for the earlier authorization and examination act, which is similar to a special kind of administrative reconsideration. Such a system is both a legally mandated duty of the National Intellectual Property Administration and an institutional arrangement that has lasted for decades in China. Also, such duty is practiced by the patent administrations of the majority of countries around the world. China is not the only case in this regard. 

Some experts believe that the long duration of patent prosecution is partly caused by judgment on patent invalidity. Patent prosecution indeed takes a long time, but the reasons for specific cases vary. I think one important reason is that patent cases are generally complicated and involve great technical complexity, thus increasing the difficulty of prosecution.

Some attribute it to the problem of system design, while others believe it's the result of "parallel system," which means that the determination of both patent right and the infringement are charged with different authorities. These type of opinions were discussed in articles and at meetings. However, it doesn't seem quite objective. According to the analysis of the statistics, 93% of the cases on patent infringement judged in 2018 are not influenced by invalid procedures. That is to say, the "parallel system" is not the pervasive factor causing the long period for patent protection.

Some people believe that circulation in patent litigation is another cause for the unreasonable delay in filing patent infringement litigation. This type of opinion also lacks evidence. According to the statistics from 2010 to 2018, only around 30 cases of invalidation application were caused by such reason, accounting for only 0.1% of the total during the same period. So, it is not the major cause for such delay.

However, it still requires more studies from various parties to find out the specific reason. Since we brought up the issue today, I'd like to brief you about China's examination on cases of invalidation application. Currently, China examines efficiently on cases of invalidation application. In 2018, it took 5.1 months on average to examine a case of invalidation application, the shortest in the world. About 97% of the cases of invalidation application will be resolved in the administrative procedures, which supports the intellectual property protection and is widely recognized by the relevant parties. 

Shou Xiaoli:

The press conference ends here today. Thanks to Mr. Shen and our guest speakers, and thank you, everyone.

By Li Xiaohua, Chen Xia, Li Xiao, Wang Yanfang, Guo Yiming, Li Huiru, Zhang Rui, Wu Jin, Zhang Liying, Zhu Bochen, Gong Yingchun, Wang Qian, Li Shen, Zhou Jing, Jennifer Fossenbell, Laura Zheng

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