Restoration of Rights Procedure in Chinese Patent Applications

In China, the National Intellectual Property Administration (CNIPA) provides corresponding rights restoration procedures in the patent application process to ensure that the rights and interests of applicants and patent holders are fully protected.

Restoration Based on “Legitimate Reasons”

• According to Article 6.2 of the Implementing Regulations of the Patent Law of China, if an applicant or patentee misses the deadline due to legitimate reasons other than force majeure, he or she may file a request for restoration within two months from the date of receipt of the notice of loss of rights. The applicant or patentee is required to submit a request for restoration, pay the restoration fee, and complete the missed procedures.
• This is the primary method of restoration in China. Generally, if an applicant or patentee misses the deadline, the CNIPA will issue a "Notice of Deemed Withdrawal/Abandonment of Application" or a "Notice of Termination of Patent Rights" approximately one month later. The applicant or patentee should file a request for restoration of rights within two months of the date of the notice.
• However, there are also cases where CNIPA does not issue such notifications, for example:
  • If the applicant does not file a request for reexamination within 3 months after receiving the decision of rejection, he or she may file a request for reexamination and a request for restoration of rights within 2 months from the date of expiration of the initial period.
  • If the applicant fails to file a Chinese invention patent application under the Paris Convention within 12 months from the priority date, he or she may file an application and request restoration of the priority right within 2 months from the expiration of the initial period, that is, no more than 14 months from the priority date.

Recovery based on force majeure

• Pursuant to Article 6.1 of the Implementing Regulations of the Patent Law of China, if a patent applicant or patentee fails to complete the formalities within the prescribed time limit due to "force majeure", resulting in the loss of their rights, they may request the State Intellectual Property Office to restore their patent application or patent right within two months from the date on which the obstacle is removed and no more than two years from the expiration of such period.
• "Force majeure" generally refers to severe natural disasters or social emergencies. For example, the CNIPA issued an announcement on January 28, 2020, stating that if a delay is due to the COVID-19 pandemic, applicants or patent holders may request reinstatement in accordance with Article 6.1 without paying a reinstatement fee. However, they must state the reasons in the request, submit relevant supporting documents, and complete any missing formalities. Similarly, after the 2008 Wenchuan earthquake, the CNIPA issued a notice allowing affected applicants or patent holders to reinstate their applications, provided they only provide relevant supporting documents. In summary, while such reinstatement requests do not require a reinstatement fee, documentation demonstrating "force majeure" is required.
• In practice, the possibility of successfully restoring such rights is extremely low, and the various costs are quite large, so applicants should use it with caution.

These two types of restoration procedures demonstrate the full protection of the rights and interests of patent applicants by the China National Intellectual Property Administration and provide support to applicants in difficult circumstances. However, the restoration based on "force majeure" emphasizes the importance of submitting supporting documents, which is also key to ensuring that the restoration procedure is not abused.