1. In the beginning

　It is important to understand the differences from Japan's IP law in order to formulate an effective IP strategy when expanding into China.Since we often compared Japan and China as Chinese who are searchers in Japan, in this paper we will discuss the exclusive interest (equivalent to patents, utility novels, and designs in Japan) system, especially the main points of Japan and China in patents. Introducing the differences and points to note when conducting a search in China. (As of December 2020)

XNUMX. XNUMX.Comparison of Chinese and Japanese patent / utility model and design systems

(1) Duration of rights and applicable law

* 2: In Japan, due to the enforcement of the "Law for Partial Amendment of Patent Law, etc.", the duration of the design right from the application for design registration after April 2020, 4 will be from the conventional registration date. It was changed from 1 years to 20 years from the filing date.

* 10: On the other hand, in China, the duration of the craftsmanship was revised from "15 years" to "2020 years" in the 10th revision of the Patent Law as a law for joining the Hague Agreement.In addition to the introduction of the partial design system, the protection period will be extended to further strengthen the protection of design right holders.The revised law was passed on October 17, 2021 and will come into effect on June 6, 1.

(2) Examination of patent application

* 2: Article 2 If the parties did not meet the deadline stipulated in the Proprietary Law or these Bylaws or the deadline specified by the Patent Administration Department of the State Council due to unavoidable reasons, the obstacle was removed if the right was extinguished. You can request the restoration of rights from the State Council's Patent Administration Department within two months from the date, or at the latest within two years from the expiration date.

The utility model has not been examined in both countries, the design has been examined in Japan, and the design has not been examined in China.

(3) Overall patent application system

* 20: Patents and utility models are subject to confidential examination, and designs are not subject to this (Article XNUMX of the Patent Law).

* XNUMX: "Multi-dependent claim" means "claim that cites multiple claims". Also known as "multi-claim".

In Japan, there are no restrictions on multi-dependent claims, but in China, multi-multi-dependent claims (multi-dependent claims subordinate to multi-dependent claims) as shown in the example below are rejected. (Article 22 of the Chinese Patent Law Implementation Regulations).

(Ex)

XNUMX. XNUMX.Precautions for China search

(1) Utility model

In China, there are as many applications for utility models as invention patents.The reason is that a patent and a utility model can be applied for in parallel for an invention with the same content, and a patent right will be granted if the utility model right is waived at the time of patent registration decision (Article 9 of the Chinese Patent Law). ).

Since it takes a long time for a patent to be granted (about 3 to 5 years), it is considered that it should be effectively used to retain the right until the patent is granted.Therefore, please note that in the case of a patent search for China, it is necessary to search for utility models in parallel with the patent.

(2) Prior application and expansion prior application

In Japan, prior applications and extended prior applications are defined as follows.

Judgment of prior application: The inventions and devices described in each [claim] of the patent application and the utility model registration application, which are the prior application and the later application, are the same (Patent Law, Article 39, Paragraph 1).

Judgment of extended prior application: The invention / device described in the specification or drawings at the time of filing the prior application is the same as the invention / device described in each [claim] of the later application (Patent Law Article 29). of 2).

On the other hand, in China, although the provision of novelty in Article 22 (2) of the Chinese Patent Law includes a part corresponding to Article 29-2 of the Japanese Patent Law, unlike Japan, the inventor or applicant is the same. Even if there is, it should be noted that the extended prior application is applied.

XNUMX.in conclusion

There are many similarities between the Japanese patent system and the Chinese patent system, but there are some differences.Based on that, the impact on the Chinese search should also be noted.As a Chinese searcher, we will continue to strive for growth and continue to contribute to China research.

Research Division Hayashi

【reference】

Overview of the IP environment in Asia
https://www.globalipdb.inpit.go.jp/country/asia/

Comparison of patent system between Japan, US and China
https://www.rita-pat.com/20100916_shiryou.pdf