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Restoration of Priority Claims

From Part I: Preliminary Examination Chapter 1: Preliminary Examination of Invention Patent Applications

1 Restoration Under Article 6 of the Implementing Regulations of the Patent Law

If a priority claim is considered not made and falls under one of the following circumstances, the applicant may request the restoration of the right to claim priority according to Article 6 of the Implementing Regulations of the Patent Law:

(1) Priority claim considered not made due to failure to respond within the specified period to a notification for procedural correction.

(2) At least one item in the priority claim declaration is correctly filled, but the copy of the earlier application or the priority right transfer document was not submitted within the prescribed period.

(3) At least one item in the priority claim declaration is correctly filled, but the priority claim fee was not paid or fully paid within the prescribed period.

(4) The original application of a divisional application has claimed priority.

The processing provisions for requests for restoration of rights apply as per Section 6 of Chapter 7 of Part Five of this guide.

Other reasons leading to a priority claim being considered not made are not eligible for restoration. For example, if the subject of the earlier application has already been granted a patent right, and thus domestic priority is considered not made, restoration of the right to claim priority is not granted.

2 Restoration Under Article 36 of the Implementing Regulations of the Patent Law

According to Article 36 of the Implementing Regulations of the Patent Law, if a subsequent application is filed after the twelve-month period from the application date of the earlier application has expired, the applicant may request the restoration of priority within two months from the expiration date, before the patent office prepares for publication.

To request the restoration of priority, the applicant must submit a request for restoration of priority, explain the reasons, pay the fee for the restoration request and the priority claim fee, and also complete other necessary procedures, such as submitting a copy of the earlier application, priority right transfer document, etc. If the request complies with the regulations, priority is restored, and the examiner should issue a notification of approval for the request for restoration of rights. If it does not comply, the examiner should issue a notification of disapproval for the request for restoration of rights, explaining the reasons for non-restoration.

The provisions of Article 37 of the Implementing Regulations of the Patent Law do not apply to Article 36 of the same regulations.

Paragraphs 1 and 2 of Article 6 of the Implementing Regulations of the Patent Law do not apply to applicants’ delay in the period prescribed by Article 36 of the Implementing Regulations of the Patent Law.