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Intellectual Property and Commercial Court


2009 Xing Zhuan Su No. 23

Decision No. 2009 Xing Zhuan Su No. 23
Date June 11, 2009
Decision Highlight

Applicants claiming for priority shall file a statement simultaneously with the patent application, and identify in the application the foreign country in which the same application was priorly filed, as well as the filing date and serial number of the application therein. The applicant shall, within four months from the local filing date, submit documents issued by the foreign country evidencing its acceptance of said foreign application. Violation of these provisions shall deprive patent applicants of their priority right as clearly stated in Art. 28 of the Patent Act. Additionally, “[w]hen a person filing a patent application or going through any other procedures in connection with patent matters has delayed beyond any statutory or given time limit, or has defaulted in payment of any fees prior to the deadline fixed therefore, the application filed or the other procedures instituted by him/her shall be dismissed, unless his/her delay to act within the given time limit or his/her failure in payment by the deadline has been corrected before an administrative decision is rendered by the Patent Authority.” “If the delay is caused by natural calamities or other causes not attributable to the applicant, the applicant may within thirty days after termination of such cause(s), file a written application with the Patent Authority for reinstating the interrupted case to its original condition by giving the reasons therefore in said application.” These two stipulations are clearly stated in Art. 17, para. 1 and para. 2 of the same Act. Therefore, an applicant who claims for priority shall submit evidencing documents no later than four months after the application date. If the deadline is missed, the applicant will lose the priority right on the date right after the deadline. This is a mandatory legal consequence which occurs accordingly, no matter whether the applicant requests for an extension of the deadline or the patent agency has notified the applicant previously or not.

Related Provision Art. 17, Paras. 1, 2; Art. 28
  • Release Date:2020-11-13
  • Update:2020-12-07