Patent Reexamination Board Eliminated Amid CNIPA Reorganization

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According to a notice issued by the China National Intellectual Property Administration (CNIPA) on February 14, 2019, the Patent Reexamination Board will be merged into the Patent Office of the CNIPA.  The Patent Reexamination Board was formerly a subordinate organization under the CNIPA.  However, after the merger, the Patent Office will be responsible for all duties formerly handled by the Patent Reexamination Board.

The Patent Reexamination Board was originally established in November 1984, and became a direct subordinate under the State Intellectual Property Office of China (SIPO, now CNIPA) in 2003.  Major duties of the Patent Reexamination Board included the following:

• reexamining patent applications and registrations of layout design of integrated circuits that have been denied;
• reviewing requests for patent invalidation and requests for revocation of registered exclusive rights of layout design of integrated circuits; and
• defending the Patent Reexamination Board in administrative litigations.

With elimination of the Patent Reexamination Board, these duties will now be handled by the Patent Office of the CNIPA, which will adopt new petition forms and official stamps beginning April 1, 2019.  It is expected that the procedures of patent application reexamination and patent invalidation will become clearer as the changes take effect.

The reorganization of the CNIPA is an integral part of the ongoing reform of the organization structure of China’s central government.  The changes are intended to increase administrative efficiency, reduce administrative cost, and optimize administrative resources.  The move is perceived as being directed to simplifying the examination, grant, and revocation of intellectual property rights in China.  With respect to patents, these reforms would help establish clear and consistent standards of patent rights, improve the quality of granted patents, and thus increase the commercial competitiveness of patentees and patent licensees.

Nevertheless, after the reorganization, requests for patent application reexamination and requests for patent invalidation are no longer being reviewed by an organization independent of the Patent Office. Thus, the Patent Office now conducts examinations of patent applications as well as reviews the same requests to challenge past examinations of those same patent applications.  As such, the removal of organizational independence in patent application reexamination and invalidation proceedings leaves a number of questions unanswered:

1. Will the reorganization impact the success rate of reversing Examiners’ decisions in the reexamination or invalidation proceedings?
2. Will the reorganization impact the cost for prosecuting patent applications or invalidating patents if the review authority of reexamination and invalidation lacks independence?
3. Will effective patent application reexamination and patent invalidation heavily rely on judicial review after the reorganization?

In addition to eliminating the Patent Reexamination Board, the reorganization of the CNIPA also includes creation of the Trademark Office, which will be responsible for the duties formerly handled by the Trademark Office of the State Administration for Industry and Commerce, the Trademark Review and Adjudication Board, and the Cooperation Center for Trademark Examination.