There are no substantive procedures of examination and authorization in the international phase of the PCT, then the both said need to be conducted in each country. Therefore, if we want to be authorized for patent in a certain country/region, we must choose to enter that country/region. Have you chosen to enter China? What would be paid attention to when entering?

Q1 How to calculate the time limit for PCT applications to enter China? Will it be automatically delayed on statutory holidays?

The PCT application entering China should be conducted within 30 months from the earliest priority date (if the international application has no priority, then from the international filing date), if the applicant fails to complete the entry formalities within the said limited time, it can be fulfilled within 32 months from the earliest priority date after the grace fee is paid. When the expiry date of the entry period is a statutory holiday, it will be automatically postponed to the first working day.

Q2 Can a PCT application entering China be a "same-day application"? Can the entry type be inconsistent with the international application type?

In accordance with the provisions 3.1.2 in Chapter 1, Part Ⅲ of the Examination Guidelines for Patent, it is necessary for entry statement to choose whether to obtain an “invention patent” or a “utility model patent”, choose one between the two, and it is not allowed to file two patent application at the same time. If the international application is an invention patent, we can choose it as the utility model patent to enter when entering China, and just submit the corresponding entry documents.

Q3 How long will it take to receive the notification of PCT entry into China's national phase?

Applicants initiatively submit the entry document and entry fee, then the date that entry document or entry fee late arrives date is the entry date. Only after the entry date is determined can the notification of entry into the China's national phase be issued.

If the international has been announced the entry date and the 30 months from the earliest priority date have expired, the notification of entering the China's national phase will be received around 1 to 2 months from the date of entry. If none of the abovementioned requirements is met, it will take longer to receive the notification for PCT entering China's national phase.

Q4 Can applicants conforming to the fee reduction condition enjoy the policy when a PCT application enters China?

The fee reduction policy for PCT application entering China is not exactly the same as that at home. For that international application acceptance office is China, it can be exempt from application fee and application surcharge, and for PCT international applications that are not accepted by the Chinese office shall be paid in full. For that international search authority is China, and the substantive examination request is submitted when entering the national phase, 100% of the substantive examination fee will be reduced; for that international search authority of the PCT International application is one of the Japanese Patent Office, the Swedish Patent Office, and the European Patent Office, and the substantive examination request is submitted when entering the national phase, the substantive examination fee will be reduced by 20%. The annual fee reduction policy after authorization is the same as that in China.

Q5 How to calculate the entry date for the priority restored in the international phase?

In accordance with the provision 5.2.1 of Chapter 1, part Ⅲ of the Guidelines for Patent Examination, the priority of an international application restored in the international phase (for example, the international filing date is after twelve months and within fourteen months from the said priority date) is not authorized by the Patent Office. In terms of the provisions 2 of Chapter 1, part Ⅲ of the Guidelines for Patent Examination, for that the priority of international application is not established in the national phase due to that China has made reservations to the relevant provisions of the Patent Cooperation Treaty and its implementation regulations, the time limit for completing the formalities of entering the national phase still counts from the original earliest priority date.

Q6 In what conditions can the PCT applications not enter China?

It is generally divided into four cases: ①the international publication is not designated to enter China; ②in the international phase, “withdraw international application”(PCT/IB/307 form) or “international application is considered withdrawn”(PCT/IB/325 form) has been transmitted; ③conduct the procedures for entry into China after the 32-month time limit; ④The entry documents or entry fees that confirmed the entry date were not submitted within the prescribed period.

Q7 Whether it is allowed to conduct the second entrance procedure after receiving the notification claiming that international applications cannot enter into the Chinese national phase?

In accordance with the provision 2.2.2 of Chapter 1, part Ⅲ of the Guidelines for Patent Examination, if the applicant’s procedures for entering the national phase within the time limit regulated in Article 103 of the Implementation Rules of the Patent Law do not meet the requirements, the examiner shall notify the applicant that the formalities of the national phase are flawed and they are not accepted. If the applicant completes the formalities for entering the national phase again before the expiry of the prescribed time limit and overcomes the abovementioned deficiencies, the said international application is still valid in China.

From Customer Service Centre of CNIPA

December 16th, 2021