1 Entrusting a Patent Agency
This is governed by the provisions of Section 6.1 of Chapter 1 of this Part.
2 Claiming Priority
Applicants claiming priority must comply with Articles 29 and 30 of the Patent Law, Articles 34 and 35 of the Implementing Regulations of the Patent Law, and the relevant provisions of the Paris Convention.
According to Article 29(1) of the Patent Law, a design patent application’s priority claim can be based on foreign priority, meaning if an applicant files a design patent application in China within six months from the date of the first patent application for the same design in a foreign country, they may claim priority under an agreement signed between that country and China, an international treaty to which both countries are party, or based on the principle of mutual recognition of priority rights.
Article 29(2) of the Patent Law allows for domestic priority claims for design patent applications if the applicant files another application with the Patent Office for the same subject within six months from the date of the first patent application in China.
The subject of the earlier application for claiming priority should be the design shown in the drawings of an invention or utility model patent application or the subject of a design patent application.
According to Article 34(4) of the Implementing Regulations, if the earlier application for foreign priority does not include a brief description of the design and the brief description submitted according to Article 31 of the Implementing Regulations does not exceed the scope depicted in the pictures or photographs of the earlier application, the right to claim priority is not affected.
Per Article 35(1) of the Implementing Regulations, an applicant can claim one or multiple priorities in a design patent application.
In preliminary examination, each claimed priority must be examined for compliance with the relevant provisions of this chapter.
2.1 Claiming Foreign Priority
2.1.1 Earlier and Later Applications for Claiming Priority
To claim foreign priority, the earlier application must be for an invention, utility model, or design patent.
Other provisions are governed by Section 6.2.1.1 of Chapter 1 of this Part.
2.1.2 Declaration of Priority Claim
This is governed by the provisions of Section 6.2.1.2 of Chapter 1 of this Part.
2.1.3 Copy of the Earlier Application Documents
To claim priority, a copy of the earlier application documents must be submitted within three months from the date of filing the later application. If not submitted within this period, the examiner should issue a notice deeming the priority claim as not made.
Other provisions are governed by Section 6.2.1.3 of Chapter 1 of this Part.
2.1.4 Applicant of the Later Application
The applicant of the later application claiming priority and the applicant recorded in the copy of the earlier application should be the same, or one of the applicants recorded in the earlier application.
If the applicants are entirely different, and the priority right is transferred from the applicant of the earlier application to the applicant of the later application, a transfer of priority right document signed or sealed by all applicants of the earlier application should be submitted within three months from the filing date of the later application. If there are multiple applicants for the earlier application and multiple different applicants for the later application, a transfer of priority right document signed or sealed jointly by all applicants of the earlier application transferring the right to all applicants of the later application can be submitted; alternatively, separate transfer of priority right documents for each applicant of the later application can be submitted.
If the applicant fails to submit the transfer of priority right document within the deadline, or the submitted document does not meet the requirements, the examiner should issue a notice deeming the priority claim as not made.
2.2 Claiming Domestic Priority
2.2.1 Earlier and Later Applications for Claiming Priority
The earlier and later applications for claiming priority must meet the following requirements:
(1) The earlier application must be for an invention, utility model, or design patent and not be a divisional application.
(2) The subject of the earlier application must not have claimed foreign or domestic priority, or if it has claimed such priority, it must not have enjoyed priority rights.
(3) The subject of the earlier application must not have been granted a patent right.
(4) The later application claiming priority must be filed within six months from the filing date of its earlier application.
When examining item (3) above
, the date of the later application claiming priority is used as the time reference. When examining item (4), for applications claiming multiple priorities, the earliest earlier application’s filing date is used as the time reference. That is, the later application claiming priority must be filed within six months from the filing date of the earliest earlier application.
If the earlier application does not meet one of the above conditions, for the respective priority claim that does not meet the conditions, the examiner should issue a notice deeming the priority claim as not made.
When examining priority rights, if it is found that the Patent Office has already issued a notice of grant of patent rights and notice for registration procedures for the earlier application, and the applicant has completed the registration procedures, the examiner should issue a notice deeming the priority claim as not made for the later application. In the preliminary examination, the examiner should examine whether the subject of the later application is clearly unrelated to that of the earlier application. If the subjects are clearly unrelated, the examiner should issue a notice deeming the priority claim as not made.
2.2.2 Declaration of Priority Claim
This is governed by the provisions of Section 6.2.2.2 of Chapter 1 of this Part.
2.2.3 Copy of the Earlier Application Documents
This is governed by the provisions of Section 6.2.2.3 of Chapter 1 of this Part.
2.2.4 Applicant of the Later Application
The applicant of the later application claiming priority should be the same as the applicant recorded in the earlier application. If they are different, the applicant of the later application should submit a priority right transfer document signed or sealed by all applicants of the earlier application within three months from the filing date of the later application. If the applicant of the later application fails to submit the priority right transfer document within the deadline, or if the submitted document does not meet the requirements, the examiner should issue a notice deeming the priority claim as not made.
2.2.5 Procedure for Deeming the Earlier Application as Withdrawn
For applicants claiming domestic priority, their earlier application is deemed withdrawn from the date of filing the subsequent application, except when the design patent application’s applicant claims an invention or utility model patent application as the basis for domestic priority.
If the applicant claims domestic priority and it is deemed to comply with the regulations in the preliminary examination, if the earlier application is a design patent application, the examiner should issue a notice deeming the earlier application as withdrawn. If the applicant claims multiple domestic priorities and they are deemed to comply with the regulations, if the earlier application includes a design patent application, the examiner should issue a notice deeming the respective earlier design patent application as withdrawn.
An earlier application deemed withdrawn cannot request restoration.
2.3 Withdrawal of Priority Claim
This is governed by the provisions of Section 6.2.4 of Chapter 1 of this Part.
2.4 Priority Claim Fee
This is governed by the provisions of Section 6.2.5 of Chapter 1 of this Part.
2.5 Restoration of Priority Claim
This is governed by the provisions of Section 6.2.6.1 of Chapter 1 of this Part.
3 Disclosure Without Loss of Novelty
This is governed by the provisions of Section 6.3 of Chapter 1 of this Part.
4 Declaration of Withdrawal of the Patent Application
This is governed by the provisions of Section 6.6 of Chapter 1 of this Part.
5 Change of Bibliographic Data This is governed by the provisions of Section 6.7 of Chapter 1 of this Part.
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