Chinese Provincial Intellectual Property Offices Crack Down on “Irregular” Patent Applications; 400,000 Chinese Patent Applications to be Withdrawn as Irregular?

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Earlier this month (March 2021), several provincial Intellectual Property (IP) Offices, including Jiangsu Province, Sichuan Province, Jiangxi Province, and Zhejiang Province, issued notices cracking down on irregular patent applications.  Jiangsu Province issued a notice stating that irregular applications were found for 10,495 applicants and 309 agencies, including 149 patent agencies in the province. Sichuan Province announced a total of 12,601 irregular patent applications not for the purpose of protecting innovation (79 of which have been withdrawn voluntarily), including 2,246 applicants and 113 agencies.  In Jiangxi Province there were a total of 3,469 irregular patent applications that were not intended to protect innovation, involving 946 applicants and 101 agencies.  Zhejiang Province stated there were 8,300 applicants and 242 agencies involved in irregular applications.

The Intellectual Property Office of Jiangsu Province required all municipalities to urge relevant applicants and patent agencies to conduct an examination of all outstanding patent applications, withdraw all patent applications which are truly not for the purpose of protecting innovation, and require relevant patent agencies and agents to provide an explanation of each relevant patent application and a report on the rectification results.

Jiangsu’s Notice

Jiangxi Province requires relevant applicants to examine all patent applications that have not been reviewed (a list of applicants involved shall be issued separately), and all patent applications that are truly not for the purpose of protecting innovation should be withdrawn. If they are voluntarily withdrawn, it may be handled at a lighter level as appropriate. For those who refuse to withdraw and fail to provide sufficient written evidence, they shall be dealt with strictly according to the circumstances according to the law, and relevant evidence may be transferred to the public security and credit supervision departments for disposal according to law when necessary.

Jiangxi’s Notice

Hunan Province, Hubei Province, Guangdong Province, and Shandong Province also issued notices this month that they would crack down on irregular patent applications.

Per IPR Daily, a screen shot of a notice allegedly sent by the China National Intellectual Property Administration (CNIPA) to various agencies indicated that CNIPA will probably withdraw 400,000 patent applications that were deemed irregular.

400,000 Chinese Patent Applications to be Withdrawn?

Per the draft “Measures Regarding the Regulation of Patent Applications” issued by CNIPA in February, irregular (or abnormal) patent application behavior includes:

(1) Simultaneously or successively submitting multiple patent applications that are obviously the same invention-creation, or are essentially formed by simple combinations of different invention-creation features or elements; 

(2) The submitted patent application contains fabricated, forged or altered inventions and creations, experimental data or technical effects, or plagiarism, simple replacement, patchwork of existing technology or existing designs, etc.;

(3) The invention-creation of the submitted patent application is obviously inconsistent with the applicant’s actual research and development capabilities and resource conditions;

(4) The invention-creation content of the submitted patent application is mainly randomly generated using computer programs or other technologies;

(5) The invention-creation of the submitted patent application is an invention that is deliberately formed for the purpose of evading patentability examination and is obviously inconsistent with technical improvement or design common sense, or has no actual protection value, or unnecessarily reduces the scope of protection, or contains no contents of search or examination significance;

(6) In order to evade the regulatory measures against irregular patent applications, multiple patent applications that are substantially associated with or under the control of a specific applicant are submitted in a scattered or  sequential order or in a different location;

(7) Based on an original application with authorization prospects, multiple divisional applications are proactively filed, but there is essentially no legal or technical necessity;

(8) Not buying or reselling patent application rights or patent rights for the implementation of patented technologies, designs, or other legitimate and reasonable legal purposes, or falsely altering inventors or designers;

(9) Patent agencies, patent attorneys, or other institutions or individuals who induce, abet or conspire with others, or know or should know that it is an abnormal patent application and act as an agent or help others to implement various types of abnormal patent applications;

(10) Other irregular patent applications and related actions that violate the principle of good faith and disrupt the normal order of patent work.

Unfortunately, none of the Provincial Notices specify how it was determined that a patent application was irregular.

Author: Aaron Wininger

Aaron Wininger is a Senior Attorney and Director of China Intellectual Property at Schwegman Lundberg & Woessner.

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Author: Aaron Wininger

Aaron Wininger is a Senior Attorney and Director of China Intellectual Property at Schwegman Lundberg & Woessner.