China’s IP plan: ambitious and practical
The China National Intellectual Property Administration (CNIPA) released its Fourteenth Five-Year Plan for Patent and Trademark Examination (the “plan”) in January 2022. The plan outlines its work for 2021-2025, and aims to create greater alignment with the objectives of other higher-level government plans, such as the Outline of Construction of Competitive Intellectual Property State (2021-2035) and the Fourteenth Five-Year Plan for the Protection and Utilization of Intellectual Property.
At the outset, the plan emphasises China’s transition from a country that relies on imported IP to a country that will create its own IP as needed.
As a result, there will be a growing emphasis on improving the quality of domestically owned and created IP, so that it can compete with other counties by relying on its own high-value and high-quality IP.
This article summarises several measures and mechanisms mentioned in the plan.
The establishment of a service-oriented administrative body
The CNIPA has set out several goals in the plan and outlines the measures that will be implemented to achieve such goals.
Further adjustment on the examination period
Although China has improved the pace at which patent and trademark applications are examined, the CNIPA would like to reduce the average patent examination period to 15 months and the trademark examination period to four months (from filing to first publication) by 2025.
It is worth noting that the CNIPA emphasis on “faster” examinations will not sacrifice the quality of the examination process, and the specific details of each case should be taken into account by the examiner.
Strengthening of the coordination between trademark examinations and reviews
The lack of coordination between related trademark prosecution proceedings contributes to a great deal of inefficiency and consumes significant resources for both trademark owners and the trademark authorities.
One very common example of such a systemic inefficiency would be when a bad-faith trademark registration is cited against a later application filed by the true owner. Under these circumstances, the true owner will need to commence contentious proceedings (eg, an opposition, invalidation and/or non-use cancellation action) against the bad-faith registration. However, due to the complex nature of contentious proceedings and the backlog of contentious cases at the CNIPA, the CNIPA’s emphasis on accelerating examinations of trademark applications (set at four months), the true owner’s trademark application will be examined prior to the conclusion of the related contentious proceedings.
As a result, the true owner will have no choice but to appeal the rejection of their own trademark application, while waiting for the conclusion of the contentious proceedings.
This dilemma could be resolved by providing a right to suspend examination of a trademark application when there is a finding of bad faith in relation to a cited prior mark. Alternatively, if the time to resolve contentious proceedings could be shortened, this would strengthen the coordination of trademark examination and review proceedings.
Implementation of diversified patent examination models
To increase the efficiency of patent examination proceedings, the CNIPA had already adopted diversified examination models which can be requested by a patent applicant when certain conditions are met, which are summarized as follows:
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