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The CNIPA will promote full electronification of the patent examination services to realize the "one-stop service" of patent examination and approval. From March 1, 2022 (inclusive), the CNIPA will no longer accept any paper patent certificate request for electronic patent application, and the relevant patent certificates will only be issued through the electronic patent application system. The authenticity of the electronic patent certificates can be verified through the China Patent Electronic Application Network.

(Source: CNIPA)

On February 10, according to the data released by WIPO in Geneva, Chinese applicants submitted 69500 international patent applications through PCT in 2021, a year-on-year increase of 0.9%, ranking first in the list of applications for the third consecutive year.

In 2021, the total number of PCT international patent applications increased against the trend, reaching 277500, a year-on-year increase of 0.9%, achieving a new record. The top 5 countries in terms of application volume are China, the United States (59600, +1.9%), Japan (50300, -0.6%), South Korea (20700, +3.2%) and Germany (17300, -6.4%).

A total of 13 Chinese enterprises entered the top 50 of the global PCT international patent applicant list, an increase of one enterprise over 2020. Among them, Huawei ranked first with 6952 applications for five consecutive years. A total of 19 Chinese colleges and universities rank the top 50 of the global PCT international patent applicant list in educational institutions, an increase of 4 over 2020, making China the country with the largest number of colleges and universities on the list, and the United States ranks second (18).

In terms of technical field, computer technology (9.9%) accounts for the largest proportion of PCT international patent applications, followed by digital communication (9.0%), medical technology (7.1%), electrical machinery (6.9%) and measurement (4.6%). Among the top 10 technical fields in terms of application volume, the application volume of drugs increases the fastest, reaching 12.8%, followed by biotechnology (+9.5%), computer technology (+7.2%) and digital communication (+6.9%).

Also, in 2021, 73100 international trademark applications were submitted by global applicants through the Madrid System, with a year-on-year increase of 14.4%, the fastest growth rate since 2005. China continues to rank third in the world after the United States (13276) and Germany (8799) with 5272 applications.

(Source:CNIPA)

Recently, the latest data released by the CNIPA show that in 2021, 110,000 patents for invention of foreign applicants were granted in China, a year-on-year increase of 23.0%; 194,000 trademarks were registered, a year-on-year increase of 5.2%. Among them, the invention patent authorization and trademark registration of the United States in China increased by 32.1% and 17.3% respectively year-on-year. The number of intellectual property rights of foreign enterprises in China has maintained a rapid growth, indicating that foreign enterprises have firm confidence in China's intellectual property protection and business environment.

From the "zero complaint" of intellectual property infringement realized by China International Import Expo and China International Fair for Trade in Services to the further improvement of social satisfaction with intellectual property protection to 80.61 points, China's intellectual property protection achieved remarkable results in 2021.

According to the 2021 Global Innovation Index (GII) released by WIPO, China ranks 12th, two place up from 2020 and reaching a new high. China's innovation level has been continuously improving. By the end of 2021, the number of high-value patents for invention per 10000 population in China had reached 7.5, an increase of 1.2 over the previous year.

At present, China's long-term valid patents for invention have increased rapidly, and the overseas layout ability of innovative entities has continued to improve. By the end of 2021, the number of valid patents for invention in China (excluding Hong Kong, Macao and Taiwan) that have been maintained for more than 10 years reached 323,000, a year-on-year increase of 27.7%, accounting for 11.9% of the domestic total, an increase of 0.6 percentage points from the end of the "13^th Five-Year Plan" period. China has 83000 valid patents for invention having the family patent rights overseas, with a year-on-year increase of 21.8%, of which enterprises, as innovative entities, have nearly 90%.

(Source: China Intellectual Property Information Network)

Brief introduction to the case:

In March 2019, Beijing Unitalen Law Office accepted the entrustment of Beijing Zulin Formwork & Scaffolding Co., Ltd. and filed a request for invalidation of the patent for invention entitled "Gate slot construction method and device for gate" of the patent ZL201310018684.3. In the invalidation procedure, with sufficient favorable evidence and invalidation reasons, Unitalen explained in detail that the patent involved did not meet the authorization conditions to the CNIPA. The CNIPA issued No. 41305 Decision for Invalidation on July 31, 2019, declaring all the patent rights involved invalid. The specific reasons are as follows:

The technical solutions claimed in Claims 1-13 are unclear and do not comply with the provision of Article 26, Para.4 of the Chinese Patent Law. Accordingly, the Description does not give a clear and complete explanation to the technical solutions claimed in Claims 1-13, which does not comply with the provision of Article 26, Para.3 of the Chinese Patent Law.

The patentee Chengdu Alang Technology Co., Ltd. refused to accept the Decision for Invalidation and filed an administrative litigation to the Beijing Intellectual Property Court. The court rejected the plaintiff's claim on July 28, 2020.

Recently, Unitalen Law Office received the final judgment of the Supreme People's Court on the second instance of the case, which upheld the above Decision for Invalidation, and determined all claims of the patent involved invalid for not complying with Article 26, Para.3 and Article 26, Para.4 of the Chinese Patent Law.

Comments made by the attorney:

This case is an exemplary case in which the formal reasons in Article 26, Para.3 and Article 26, Para.4 of the Chinese Patent Law are applied to successfully invalidate the patent right for invention. From the invalidation stage to the first and second instance of the administrative litigation, Unitalen always insists that the subject of judging whether the claim is clear and whether the Description is clear and complete should be those skilled in the art with corresponding knowledge and ability, instead of the patentee himself, helping the customer win the final victory of this case.

Case brief:

On behalf of the client, Unitalen filed a request for invalidation to the CNIPA for the Chinese patent for utility model entitled "Press Barrel Assembly of Juice Machine" in December 2018. The reasons for invalidation include: the disclosure of the Description of the patent involved is insufficient, the claims are not supported by the Description, and the claims do not possess novelty or involve an inventive step. After oral hearing, the CNIPA made an examination decision on the request for invalidation in June 2019, which determined that: for those skilled in the art, the technical solutions of the present patent are vague, unable to be implemented and realized. Therefore, the technical solutions defined in the claims of the patent involved are not fully disclosed in the Description, which does not comply with the provision of Article 26, Para.3 of the Chinese Patent Law.

The patentee filed an administrative litigation to the Beijing Intellectual Property Court in September 2019 in response to the above examination decision on the request for invalidation. In the interpretation of "full disclosure" of the patent Description, the patentee put forward a completely different observations from the patent invalidation procedure. After the hearing, the Beijing Intellectual Property Court upheld the above examination decision on the request for invalidation in December 2020 and rejected the plaintiff's claim.

The patentee refused to accept the first instance judgment of Beijing Intellectual Property Court, appealed to the Supreme People's Court in early 2021, and put forward different observations in the interpretation of "full disclosure" of the patent Description from the patent invalidation procedure and the litigation procedure of first instance. After trial, the Supreme People's Court made a final judgment in December 2021, rejecting all the appellant's appeals and upholding the original judgment and the sued decision.

Case analysis:

In the patent invalidation procedure, the first instance procedure and the second instance procedure of the administrative litigation in the patent involved, the focus is whether the Description of the present patent fully discloses "the size of the juice outlet hole of the juicer is adjustable".

In the final judgment of the case, the Supreme People's Court further clarified that when judging "full disclosure" of the patent Description, generally speaking, the Description should clearly and completely explain the key improvement points of the patent involved. In the case that the Description does not disclose the specific technical means and does not give clear guidance, based on the common knowledge or the conventional technical means in the art to realize the basic functions of the key improvement points, the key improvement points should be relatively determined as far as possible, and should not be realized in different ways by those skilled in the art through different imagination. In particular, the patentee is not allowed to explain this with different expressions in different procedures to expand the protection scope of the claims.

At the beginning of the Spring Festival, service provided by Unitalen was praised by customers again - Sungrow Power Supply Co., Ltd. awarded Unitalen the honorary title of "Excellent Agency in 2021", awarded Unitalen patent attorneys AN Miao and HU Suli the title of "Golden Attorney in 2021", and CHEN Ying the title of "Rising Star Attorney in 2021".

I. Complaint filing and case filing stage

1.1 Complaint filing by the plaintiff

If one party to the decision for invalidation is not satisfied with the result of the invalidation examination decision, it may, within three months from receipt of the Examination Decision of Request for Invalidation, file an administrative litigation for patent invalidation to the Beijing Intellectual Property Court with the CNIPA as the defendant and the other party as the third party.

1.2 Case filing of the court

After receiving the Complaint and other filing materials submitted by the plaintiff, the court shall examine the contents and materials of the Complaint, register the case within 7 days, and serve the Notice of Case Acceptance and the Notice of Legal Fee Payment to the plaintiff. The court shall send a copy of the Complaint to the defendant and the third party within 5 days from the date of filing the case. The defendant shall, within 15 days from the date of receiving the copy of the Complaint, submit the Answer to Complaint and evidence materials to the court. The people's court shall send a copy of the Answer to Complaint to the plaintiff and the third party within 5 days from the date of receiving the Answer to Complaint.

II. Case trial stage

2.1 Evidence submission

After receiving the Notice to Produce Evidence served by the court, the parties may submit evidence within the time limit specified by the court. Generally speaking, the defendant CNIPA will submit to the court the statement of defense and the evidence based on which the invalidation examination decision is made, that is, the evidence submitted by the petitioner for invalidation upon filing the request for invalidation. The third party will submit the public opinion according to the situation of the case, and may also submit the evidence materials if necessary. If the party has special difficulties in adducing evidence, he may apply to the court for an extension of adducing evidence, and submit a paper application for an extension of adducing evidence at the same time.

2.2 Trial in court

According to the situation of the case, the court will arrange a court session to hear the case (due to the epidemic, except for special cases and the application of the party, the Beijing Intellectual Property Court usually adopts the way of online court hearing to hear the case remotely), conduct a comprehensive investigation of the facts of the case and listen to the opinions of the parties. Depending on the situation of the individual cases, the party may, according to the circumstances of the court trial, submit the Post-trial Attorney's Opinions within the specified date after the court trial, and the specific date shall be subject to the notice of the collegial panel.

III. First instance judgment stage

In practice, the trial cycle of first instance cases of foreign-related patent administrative litigation is generally about one and a half years. The collegial panel will make a judgment according to the relevant evidence of the case and the opinions of the parties. If not satisfied with the judgment made by the court of first instance, the foreign-related party may appeal within 30 days from the date of service of the Judgment, and the other parties may appeal within 15 days from the date of service of the Judgment. The second instance of the case will be tried by the intellectual property court of the Supreme People's court.

The above process is based on our daily handling experience and relevant legal provisions, and the actual trial of the case is not subject thereto.

Beijing Unitalen Law Office

February 25, 2022

Attachment: articles of law for reference

Patent Law of the People's Republic of China (effective from June 1, 2021)

Article 46, Para.2 Where any party is dissatisfied with the decision of the patent administrative department of the State Council on declaring a patent invalid or maintaining a patent, such party may, within three months from receipt of the notification, bring a lawsuit to the people's court. The people's court shall notify the opposite party in the procedures for requesting invalidation that it should participate in the litigation as a third party.

The Administrative Litigation Law of the People's Republic of China (effective from July 1, 2017)

Article 36 [The defendant delays providing evidence and additional evidence] Where the defendant had collected evidence when taking the administrative action, but is unable to provide such evidence for a good reason such as a force majeure, with the permission of the people's court, the time limit for the defendant to provide such evidence may be extended.

Where the plaintiff or a third party provides any ground or evidence that was not provided in the defendant's administrative disposition procedures, with the permission of the people's court, the defendant may provide additional evidence.

Article 51 [Docket the complaint] A people's court receiving a complaint shall docket it if it meets the conditions for filing a complaint as set out in this Law.

Where a people's court is unable to determine on the spot whether a complaint meets the conditions for filing a complaint as set out in this Law, the people's court shall accept the complaint, issue a written certification showing the date of receipt, and decide whether to docket the complaint within seven days. If the complaint does not meet the conditions for filing a complaint, the people's court shall enter a ruling not to docket the complaint. The written ruling shall state the reasons for not docketing the complaint. The plaintiff may file an appeal against the ruling.

Article 67 [Serve the written complaint and submit a statement of defense] A people's court shall, within five days of docketing a complaint, serve a copy of the written complaint on the defendant. The defendant shall, within 15 days of receipt of a copy of the written complaint, provide evidence for taking the alleged administrative action and the regulatory documents based on which the administrative action was taken, and submit a written statement of defense. The people's court shall, within five days of receipt of the written statement of defense, serve a copy thereof on the plaintiff.

The defendant's failure to submit a statement of defense shall not affect the trial of the case by the people's court.

Article 85 [Appeal] Against a judgment of a people's court of first instance, a party shall have the right to file an appeal with the people's court at the next higher level within 15 days of the service of the written judgment. Against a ruling of a people's court of first instance, a party shall have the right to file an appeal with the people's court at the next higher level within 10 days of the service of the written ruling. If the party fails to appeal upon expiry of the aforesaid period, the judgment or ruling of the people's court of first instance shall take effect.

Article 101 [Provisions of the Civil Procedure Law shall apply] Where this Law is silent regarding any period, service of process, property preservation, court session, mediation, suspension of proceedings, termination of proceedings, summary procedure, or enforcement, among others, for administrative cases tried by the people's courts or regarding the supervision by the people's procuratorates over the acceptance, trial, adjudication, and enforcement of administrative cases, the relevant provisions of the Civil Procedure Law of the People's Republic of China shall apply.

Civil Procedure Law of the People's Republic of China (effective from January 1, 2022)

Article 276 A party which has no domicile within the territory of the People's Republic of China shall have the right to appeal against a judgment or ruling of a people's court of first instance within 30 days from the date of service of the written judgment or ruling. The appellee shall submit a written statement of defense within 30 days after receiving a copy of the written appeal. If a party is unable to file an appeal or submit a written statement of defense within the statutory period and applies for an extension of the period, the application shall be subject to the decision of the people's court.

Article 277 The period for a people's court to try a foreign-related civil case shall not be limited by the provisions of Article 152 and 183 of this Law.

Interpretation of the Supreme People's Court on Application of the Administrative Litigation Law of the People's Republic of China (effective from February 8, 2018)

Article 34 Where a defendant applies for postponing providing evidence under paragraph 1, Article 36 of the Administrative Litigation Law, it shall do so in writing with the people's court within 15 days from the date of receiving a copy of the written complaint. If the people's court permits the application, the defendant shall provide evidence within 15 days after the elimination of the good reason. Provision upon the lapse of the period shall be deemed as an absence of evidence corresponding to the administrative action against which the complaint is filed.

Article 35 The plaintiff or a third party shall provide evidence before a court hearing or the date of exchange of evidence lists as designated by the people's court. If an application for postponing providing evidence is filed for a good reason, it may, with the permission of the people's court, be provided during court investigation. Where a party provides evidence upon the lapse of the period, the people's court shall order it to state the reasons; and if it refuses to do so or states untenable reasons, it shall be deemed to have waive its right to adduce evidence.

Article 36 A party shall apply to the people's court in writing for extending the period for adducing evidence, before the lapse of the period.

If the reasons for the application are tenable, a people's court shall permit it, appropriately extend the period for adducing evidence, and notify other parties. Otherwise, the people's court shall grant no permission and notify the applicant.

Provisions (I) of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Administrative Cases Involving the Grant and Confirmation of Patents (effective from September 12, 2020)

Article 28 Where a party claims that relevant technical content belongs to common knowledge or that relevant design features belong to usual design, the people's court may require the party to provide evidence or make an explanation thereon.

Article 29 Where a patent applicant or a patentee provides any new evidence in an administrative case involving the grant and confirmation of a patent to prove that the patent application should not be rejected or the patent right should remain valid, the people's court shall generally conduct examination.

Article 30 Where a person filing a request for declaring the invalidation of a patent provides new evidence in an administrative case involving the confirmation of a patent, the people's court shall generally not conduct examination, except for the following evidence:

(1) The evidence is used to prove common knowledge or usual design that has been claimed in the procedures for examining the request for declaring the invalidation of the patent.

(2) The evidence is used to prove the knowledge level and cognitive ability of technicians in the relevant technical field or general consumers.

(3) The evidence is used to prove the overall condition of the design space or existing design of the product with a patent for a design.

(4) The evidence is used to reinforce the probative value of evidence that has been adopted in the procedures for examining the request for declaring the invalidation of the patent.

(5) The evidence is used to refute the evidence provided by any other party in legal proceedings.