China Accepts Priority Rights Claim for Patent Applications from Taiwan
China Accepts Priority Rights Claim for Patent Applications from Taiwan
Mainland China and Taiwan Region has agreed on reciprocal recognition of priority rights in patent, trademark and plant species applications starting from 22 November 2010 in accordance with the Cross-Straits Agreement on Intellectual Property Rights Protection ("the Cross-Straits Agreement"). To accommodate this change, the State Intellectual Property Office of the PRC (SIPO) released on 15 November 2010 Several Provisions for Patent Applications of Taiwan Compatriots ("the Provisions").
The Provisions set forth the procedural requirements for claiming priority rights in Taiwan region by Taiwan patent applicants. Pursuant to which, a Taiwan applicant who files a patent application for invention or utility model with SIPO within twelve months from the filing date of his/its earlier application of the same subject matter in Taiwan Region, or files a patent application for design with SIPO within six months from the filing date of his/its earlier application of the same subject matter in Taiwan Region, may claim the priority rights in Taiwan Region, provided that the earlier application is filed on or after September 12, 2010, i.e. the day when the Cross-Straits Agreement took effect.
Where the patent applicant from Taiwan Region has no habitual residence or place of business in China, he/it shall entrust a patent agency to handle the application in accordance with the Guidelines for Examination.
From the context of the Provisions, it can be inferred that "patent applications of Taiwan compatriots" means patent applications filed by applicants from Taiwan Region, whereas a person from Taiwan Region may be a natural person with an identity of Taiwan resident or a legal entity registered in Taiwan Region.
The Provisions further stipulate that an application containing in its application documents any wording which contravenes the existing laws, regulations and rules, in particular wording which does not pertain to technical contents, shall not be accepted. Accordingly, a patent application to be filed with SIPO, including its prior application that serves as the basis for priority rights claims, should avoid any wording which may be regarded as affecting cross-strait relationship, such as reference to Taiwan Region as a country, from appearing in its application documents.
Concurrent with the implementation of the Provisions, Several Provisions for Patent Applications of Taiwan Compatriots and Methods of Handling of Several Problems in the Procedure of Patent Applications of Taiwan Compatriots promulgated in 1993 were nullified.
