Elgar Intellectual Property Law and Practice series
Edited by Stefan Luginbuehl and Peter Ganea
Chapter 9: PATENT EXAMINATION: A GENERAL OUTLINE
China applies the first-to-file principle. If two or more persons make an invention independently of each other, the right to the patent shall belong to the person whose patent application was filed first. For this purpose, the date of filing is the priority date for applications claiming priority. This principle is actually embodied in the definition of the prior art in Article 22 Chinese Patent Act. The first-filed application forms part of the prior art for a later-filed application for the same subject-matter, thereby taking away the novelty claims of the latter. The first-to-file principle imposes an administrative burden on the inventor who has to file the application as soon as possible, so as to forestall the application for the same subject-matter by a competitor. Moreover, it renders the patent system less complex and provides a higher degree of legal certainty than a patent system based on the first-to-invent principle. Moreover, as it incites inventors to quickly disclose their new invention-creations, it is favourable to present China which promotes and encourages innovative activity and its early disclosure. On the other hand, a right of prior use under Article 69(2) Chinese Patent Act can be considered as a balance of interest for those who have made an invention but have not filed a patent application.
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