The flap of the butterfly’s wings can cause the tornado on the other side of the world.
In other words, missing payment or submitting deadlines can lead to the loss of a patent application or patent with all the ensuing consequences. And, if, the application or patent is tied up with an international cooperation, it will turn into a tornado and affect several parties at once.
In the wake of the pandemic and the subsequent global decline in business activity, many Patent Offices made it possible to restore the lost rights when an applicant or patentee missed the payment or submitting deadlines. One of the ways to restore the rights is to appeal to force majeure.
Force majeure is an extraordinary and unavoidable circumstance that objectively excludes the fulfillment of obligations under the contract terms. Among others, such circumstances include the recent pandemic.
From this point of view, the patent practice of the PRC is particularly interesting.
Patent applications for an invention undergo a mandatory substantial examination. At the same time, the applicant has the opportunity to order a substantial examination within 3 years from the priority date or the application filing date. However, during the pandemic, this period can be extended if the applicant confirms force majeure (statements by local authorities or announcements of emergency rules, or evidence showing that the applicant has been quarantined or diagnosed with COVID-19).
The gist of the matter is that, according to Chinese law, appealing to force majeure must be done within two months from the end of the force majeure and no later than two years after the original deadline.
In other words, the applicant has a kind of a buffer period up to TWO years to restore the application.
On the one side, this practice is fair and has obvious advantages. In case of difficulties due to freezing of the business activity, such applicants have the opportunity to save their application, and, consequently, the invested finances, labor, time, etc.
On the flip side, this creates certain problems for other market players.
It is common practice in market research to analyze patent portfolios and monitor the status of competitors’ patent applications. Often, monitoring is carried out using official databases of the patent documents. Therefore, two options are possible: 1) the absence of any updates on the current status of the application; or 2) information that the application has been withdrawn.
In any of the cases, it is currently not possible to understand whether the applicant is going to restore the rights, referring to force majeure due to the pandemic. The point being, even if your competitor’s Chinese application is withdrawn, you should not rush to submit your own application until the situation is finally clarified.
In general, the patent legislation of the People’s Republic of China has demonstrated that a cliché clause concerning force majeure, which, most often, is not paid much attention to, can become a life-saving straw for ones and a significant problem for others. It all depends on the professionals who assist your case.
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