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Patent Practice: Claiming foreign priorities
Time: 2020-07-29

Patent Practice: Claiming foreign priorities

Queenie Qiu, Amber Situ | Jul 29, 2020

A Chinese patent application that can claim a right of foreign priority shall meet the following requirements:

1) After having filed a patent application in a foreign country for the first time for an invention-creation, the applicant files a patent application in China for the same subject matter;

2) For an application based on Paris Convention, the applicant files an application in China within twelve months from the date of first filing for an invention or utility model of the same subject matter; or within six months from the date of first filing for the same design; and

3) The foreign country or intergovernmental organization where the applicant first filed the application has an agreement concerning priority with China or is a member of an international treaty governing priority of which China is also a member or adopts the principle of mutual recognition for priority rights with China.

For a direct Paris Convention filing, a certified copy of the priority document shall be submitted within three months from the filing date of the Chinese application. CNIPA can access priority documents through the WIPO Digital Access Service (DAS) for foreign first filed applications with other participating IP offices of the system, such as the other IP5 Offices.

According to Rule 49ter.2 PCT, China does not accept the restoration of a priority right when the international application is filed between 12 and 14 months from the priority date. Such priority claims will be deemed not to have been made after entering the Chinese national phase. However, the 30-month deadline for entering the Chinese national phase will still be calculated based on the earliest priority date.

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