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22 March 2021
Due partially to significant incentives for patent application filings, such as RMB rewards or subsidies, potentially lower corporate income tax requirements, IPO listing requirements, among others, Chinese entities have become the top filing of patent applications worldwide by many measures.
However, according to Aaron Wininger, Director of the China Intellectual Property Law Practice, Schwegman, Lundberg & Woessner, P.A, China is now switching from quantity to quality by withdrawing patent applications not filed for the purposes of innovation.
“Also, subsidies for domestic filings will end by June of this year,” he says. “China defines 'irregular' applications that will be withdrawn as:
Simultaneously or successively submitting multiple patent applications that are obviously the same in invention-creation content, or are essentially formed by simple combinations of different invention-creation features or elements The submitted patent application contains fabricated, forged or altered inventions and creations, experimental data or technical effects, or plagiarism, simple replacement, a patchwork of existing technology or existing designs, etc.
The invention-creation of the submitted patent application is obviously inconsistent with the actual research and development capabilities and resource conditions of the applicant and inventor The invention-creation content of multiple patent applications submitted is mainly generated randomly by computer programs or other technologies The invention-creation of the submitted patent application is an invention deliberately formed for the purpose of circumventing patentability examination, which is obviously inconsistent with technical improvement or design common sense, or has no actual protection value, is inferior, piles up, or unnecessarily limits the scope of protection Creation, or content without any search and review significance In order to evade the supervision measures against irregular patent applications, multiple patent applications that are substantially related to a specific entity, individual or address are scattered, submitted sequentially or in different places Not buying or reselling patent application rights or patent rights for the implementation of patented technologies, designs or other legitimate purposes, or falsely altering inventors or designers Patent agencies, patent agents, or other institutions or individuals, acting as agents, inducing, instigating, helping others, or conspiring with them to implement various types of irregular patent applications Other irregular patent applications and related behaviors that violate the principle of good faith and disrupt the normal order of patent work
“These come from the “Measures Regarding the Regulation of Patent Applications” (关于规范申请专利行为的办法), Which were released March 12, 2021,” says Winger.
He adds, “The significance broadly is that China is making the switch from quantity to quality in patent applications. We'll see a reduction in patent application filings but an increase in quality Chinese patents. The patent industry is becoming professionalized. Presumably, all patent applications will now undergo an initial examination to determine if they are irregular. Applications that have text substantially similar to other applications may get withdrawn. Applicants will be notified first though and can challenge that decision with a good explanation.”
In ensuring patents won’t get cancelled, Winger says to submit inventive applications.
“Don't submit fraudulent applications that are only copies of existing applications,” he says. “Don't file duplicate applications for your own inventions (instead, file divisional patent applications, which are excluded from the measures). Applicants will get notices if their applications are deemed irregular and can respond so they don't get cancelled.”
Excel V. Dyquiangco
