Elgar Intellectual Property Law and Practice series
Edited by Stefan Luginbuehl and Peter Ganea
Chapter 11: CONFIDENTIALITY EXAMINATION
The revised Patent Act introduced in 2009 the so-called ‘confidentiality examination’ for any inventions made in China (including Hong Kong and Macau) and for which patent protection is sought outside of China. The confidentiality examination consists of a mandatory screening and disclosure of the inventions made in China to SIPO and other related ministries for each relevant technology sector. It thus aims at examining which technologies are researched in China and who applies for patents. Furthermore, it avoids an uncontrolled outflow of inventions made in China. A request for confidentiality examination has to be filed with SIPO prior to filing an application abroad. If the applicant does not file a request for a confidentiality examination and directly applies for a patent outside of China in relation to an invention made in China, no patent will be granted to the applicant for the territory of China, as any subsequent patent application in China will be refused on the grounds of lack of patentability. Furthermore, third parties can invoke non-compliance with this procedure as a ground for invalidation, and administrative and criminal proceedings may be initiated. The fact that confidentiality examination would have shown the applicant to be perfectly entitled to have filed a patent application abroad is irrelevant. No remedy is granted in the law for accidental oversight. If an invention is qualified as important for national security or other vital state interests, filing a patent application abroad in relation to such invention will be prohibited.
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