China is not only reacting with large quarantine measures and areas, but is also adapting its patent and trademark law to the coronavirus. Anyone in China who would miss the deadlines with regard to patents or even trademarks due to the corona virus can apply for restoration of their rights.
Before the Chinese Patent and Trademark Office (CNIPA), there are basically two ways of restoring one’s rights for patents, utility models and designs if deadlines have been missed. However, this right of restoration does not apply to Chinese trademarks.
For the special situation caused by the Corona virus with its extensive quarantine measures and isolated areas in China, the CNIPA has now issued an official notice. If the situation with the coronavirus results in the non-compliance with a deadline for patents and trademarks, the restoration of these rights is possible.
Missed time limits for patents
If, as a result of the epidemic and the situation around the coroana virus, a party has been unable to comply with a time limit laid down in the Patent Act and its implementing regulations or the time limit set by the CNIPA, which has led to the loss of its rights, the provisions of Rule 6, paragraph 1 of the Regulations of the Patent Act shall apply.
Within two months of the removal of the obstacle, the restoration of rights must be requested before the CNIPA. The condition for this is to file a request “in the state of prior art” and to state the reasons which led to the failure to observe the time limits. The parties concerned must request the restoration of the right at the latest within 2 years after the expiry of the unobserved time limit.
In addition to the reasons for the failure to comply, the facts and evidence must be set out. And the parties must add the omitted act – caused by the coronavirus – for which the deadline was missed.
The application for restitutio in integrum is free of charge.
Missed time limits for trademarks
If, due to the epidemic and the situation caused by the corona virus, a party has been unable to comply with a time limit established by the Trademark Law and its implementing regulations or with the time limit established by the CNIPA, the relevant time limit shall be suspended from the date of the obstacles and shall continue from the date on which the obstacles are removed, unless the law provides otherwise.
By analogy with the restoration of time limits for patents, the restoration of trademark rights may submit a written request for restoration of their rights within 2 months from the date of removal of the obstacles. An application for restoration of trademark rights must also state the reasons and provide the relevant evidence.
No carte blanche for restoration of missed time limits
Nevertheless, this communication is not a carte blanche for a restoration of missed deadlines. This is because it must be proven in each case that the sitatution with the coronavirus led to the missed deadlines and that at least one party in patent or trademark proceedings is directly affected by it. Also, CNIPA is still working, and this will certainly continue to be observed in the coming days or weeks.
Do you also want to protect or defend your IP rights in China?
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