6. Current: Article 22
Any invention or utility model for which patent right may be granted must possess novelty, inventiveness and practical applicability.

Novelty means that, before the date of filing, no identical invention or utility model has been publicly disclosed in publications in the country or abroad or has been publicly used or made known to the public by any other means in the country, nor has any other person filed previously with the Patent Administration Department Under the State Council an application which described the identical invention or utility model and was published in patent application documents after the said date of filing.

Inventiveness means that, as compared with the technology existing before the date of filing, the invention has prominent substantive features and represents a notable progress and that the utility model has substantive features and represents progress.

Practical applicability means that the invention or utility model can be made or used and can produce effective results.

New: Article 23
Any invention or utility model for which patent right may be granted must possess novelty, inventiveness and practical applicability.

Novelty means that, the invention or utility model shall neither belong to the prior art, nor has any other person filed before the date of filing with the Patent Administrative department Under the State Council an application which described the identical invention or utility model and was published in patent application documents or announced in patent documents after the said date of filing.

Inventiveness means that, as compared with the prior art, the invention has prominent substantive features and represents a notable progress and that the utility model has substantive features and represents progress.

Practical applicability means that the invention or utility model can be made or used and can produce effective results.

The prior art referred to in this Law means any technology known to the public in this country or abroad before the date of filing.

Comments: According to current article 22, the relative novelty standard is used in China. That is, disclosure to the public through means other than publication in foreign countries does not constitute prior art. This is not in line with the international practice and does not help encourage real creations. Therefore, the Bill proposes to abolish the relative novelty standard and adopt the absolute novelty standard, that is, disclosure to the public through any means anywhere constitutes prior art.

7. Current: Article 23
Any design for which patent right may be granted must not be identical with and simi1ar to any design which, before the date of filing, has been publicly disclosed in publications in the country or abroad or has been publicly used in the country, and must not be in conflict with any prior right of any other person.

New: Article 24
Any design for which patent right may be granted shall neither belong to the prior design, nor has any other person filed before the date of filing with the Patent Administrative Department under the State Council an application which described the identical design and was announced in patent documents after the said date of filing.

Any design for which patent right may be granted shall be substantively different from the prior design or a combination of the features of the prior design.

Any design for which patent right may be granted shall not be in conflict with any right of any other person obtained before the date of grant.

The prior design referred to in this Law means any design know to the public before the date of filing.

Comments: In accordance with current Article 23, a previously filed design patent application (the conflicting application) does not destroy novelty of a later filed identical design patent application. This is not consistent with the relevant provisions with regard to invention patent application and utility model patent application. To settle this issue, this Bill introduces the conflicting application concept to design patent application. Besides, in order to raise the innovation level of design patents, this Bill proposes that a design patent shall be substantively different from the prior design or a combination of the features of the prior design, which is similar to the inventiveness requirement for invention patent and utility model patent.

8. Current: Article 25
For any of the following, no patent right shall be granted:
(1) scientific discoveries;
(2) rules and methods for mental activities;
(3) methods for the diagnosis or for the treatment of diseases;
(4) animal and plant varieties;
(5) substances obtained by means of nuclear transformation.

For processes used in producing products referred to in items (4) of the preceding paragraph, patent right may be granted in accordance with the provisions of this Law.

New: Article 26
For any of the following, no patent right shall be granted:
(1) scientific discoveries;
(2) rules and methods for mental activities;
(3) methods for the diagnosis or for the treatment of diseases;
(4) animal and plant varieties;
(5) substances obtained by means of nuclear transformation;
(6) designs mainly serving as a sign and made of the pattern, color or their combination of two-dimensional printed matter;

For processes used in producing products referred to in items (4) of the preceding paragraph, patent right may be granted in accordance with the provisions of this Law.

Comments: The number of design patent applications received in China is ranked first in the world each year, whereas a considerable number of them relates to two-dimensional pattern designs mainly serving as a sign. On the one hand, this does not help propel innovation activities of designs of products per se, promote the formation of China’s name brands or enhance the international competitiveness of the Chinese products. On the other hand, this will increase the intercross and superposition between the patent rights for designs and the exclusive rights for trademarks. In order to encourage designers to focus on the innovation of the design of a product per se, this Bill proposes to exclude “designs mainly serving as a sign and made of the pattern, color or their combination of two-dimensional printed matter” from the patentable object matters.

9. Current Article 26
Where an application for a patent for invention or utility model is filed, a request, a description and its abstract, and claims shall be submitted.

The request shall state the title of the invention or utility model, the name of the inventor or creator, the name and the address of the applicant, and other related matters.

The description shall set forth the invention or utility model in a manner sufficiently clear and complete so as to enable a person skilled in the relevant field of technology to carry it out; where necessary, drawings are required. The abstract shall state briefly the main technical points of the invention or utility model.

The claims shall be supported by the description and shall state the extent of the patent protection asked for.

New Article 27
Where an application for a patent for invention or utility model is filed, a request, a description and its abstract, and claims shall be submitted.

The request shall state the title of the invention or utility model, the name of the inventor, the name and the address of the applicant, and other related matters.

The description shall set forth the invention or utility model in a manner sufficiently clear and complete so as to enable a person skilled in the relevant field to carry it out; where necessary, drawings are required.

The abstract shall state briefly the main technical points of the invention or utility model.

The claims shall be supported by the description and shall define the extent of the patent protection asked for in a clear and concise manner.

For an invention-creation, the completion of which depends on genetic resources, the applicant shall indicate the direct source as well as the original source of said genetic resources in the patent application documents. If the applicant is unable to identify the original source, he/it shall state reasons therefor.

Comments: To ensure the implementation of the proposed provisions in New Article 5 with respect to genetic resources, this Bill further proposes to request the applicant to disclose the sources of genetic resources in the description of the application, including both their direct and original sources. Considering the difficulties in tracking the original sources of some genetic resources in certain cases, due to, for example, their widespread in the world or long history of use, this Bill also proposes to permit the applicant not to identify the original source if he/it can provide sufficient reasons to relieve himself/itself of this duty.

10. Current: Article 27
Where an application for a patent for design is filed, a request, drawings or photographs of the design shall be submitted, and the product incorporating the design and the class to which that product belongs shall be indicated.

New: Article 28
Where an application for a patent for design is filed, application documents such as a request, drawings or photographs of the design as well as a brief description of the design shall be submitted.

Comments: According to current Article 27, the applicant of design application may not need to file the brief description to design at most situations, and only shall file it under some certain circumstances, such as when some views are omitted, etc. New Article 28 provides that the brief description of the design is an indispensible document for a design application, which could be used to interpret the drawings and photographs, in the hope of facilitating infringement and invalidation judgment in later stages.