Elgar Intellectual Property Law and Practice series
Edited by Stefan Luginbuehl and Peter Ganea
Chapter 4: BIOTECHNOLOGICAL, CHEMICAL AND PHARMACEUTICAL INVENTIONS I: GENERAL
Patent protection of chemical, pharmaceutical and biotechnological inventions in China differs quite significantly from the majority of Western jurisdictions, as compared to other technical fields. This is especially true with regard to two aspects. One is the scope of subject matter that is eligible for patent protection. The other is how broad a claim can be to be in line with law and practice, and how the description must be formulated to support an allowable claim. The first version of the Chinese Patent Act of 1984 did not provide patent protection for chemical, pharmaceutical or biological substances. Patent protection for these subject matters became available only after the first amendment to the Chinese Patent Act in 1993. From 1993 to 2006, the examination practice of the Chinese Patent Office (now SIPO) in relation to applications for such inventions was generally in line with the practice of other major patent jurisdictions. However, in 2006, stricter Guidelines for Patent Examination (hereinafter ‘Guidelines’) became applicable. The 2006 version of the Guidelines, as well as its subsequent versions, emphasized that the predictability of an invention in the chemical field (including pharmaceutical and biotechnology) is generally low and that most of the technical effects have to be verified by experimental data. Based on this understanding, the examination practice of SIPO has become increasingly strict over the years. Meanwhile, the allowable scope of protection has become so limited in some cases that it has become virtually meaningless to seek protection for the invention at issue. Nevertheless, there is still some room for
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