Raising the Bar of Novelty

Sam Engutsamy, November 17, 2009.

China¡¯s most recent legislative process, which amended its Patent Law (¡°2008 Act¡±), lacked one distinctive ingredient, international conformity. The 2008 Act came around through China¡¯s own push to strengthen and enforce its own domestic intellectual property regime. To date, China¡¯s Patent Law has been amended three times; the 1992 signing of the International Patent Cooperation Treaty, the 2000 amendment (¡°2000 Act¡±) resulted through China¡¯s accession to the World Trade Organisation, and the implementation of the TRIPS agreement. The 2008 Act introduces new aspects under the Patent Law and also amends previous provisions, aligning its law with international standards.

An amendment to the 2000 Act changed novelty provisions. In order to attain protection under the law, inventions patents and utility models, are required to possess three qualities; (i) novelty; (ii) inventiveness; and (iii) practical applicability. Under Article 22 of the 2000 Act, the novelty requirement would be satisfied if the invention or utility model in question had not been publicised anywhere in the world or used within China before the application filing date.

However, adjustments under the 2008 Act revises Article 22 and now promotes a global test of novelty whereby should an invention or utility model fall within the realms of ¡°prior art¡± then the novelty requirement shall be deemed not to have satisfied the requirements and therefore, not patentable under Chinese Laws. Under the 2008 Act,¡°Prior art¡± is defined as ¡°any technology known to the public before the filing date of the patent application in China or abroad.¡± This amendment aligns China¡¯s Patent regime with the standards under Article 54(2) of the European Patent Convention which states that, ¡°the state of the art shall be held to comprise everything made available to the public by means of a written or oral description, by use, or in any other way, before the date of filing of the European patent application.¡±

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