Page 9 - 2020 Policy Watch-Comparison of Secret Sale Patent

The American Chamber of Commerce in South China
POante-snatleLbawar in the Chinese
The Chinese Patent Law does not specify an on-sale bar
like the Leahy-Smith American Invention Act. It is held
in China that whether a patent application that was on
sale before the date of filing is patentable depends on
whether it is disclosed or available to the public. If it is ä¼???·ç?ï¼???????为使?¶æ?为ç???????并å?
available to the public, the sale makes it a prior art and
thus lose its novelty. A patent application with a lack of
novelty is un-patentable in accordance with Article 22
of the Chinese Patent Law.
Article 22 of the Chinse Patent Law states that
??ny 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
does not form part of the prior art; nor has any entity
or individual filed previously before the date of filing
with the patent administration department under the
State Council an application related to the identical in-
vention or utility model disclosed in patent application
documents published or patent documents announced
after the said date of filing.
The prior art referred to in this Law means any tech-
nology known to the public before the date of filing in
China or abroad.??
Chapter 3 of the Guideline of Examination for Patents
defines ??rior art?? further. ??rior art means any tech-
nology known to the public before the date of filing in
China or aboard. The prior art includes any technology
which has been disclosed in publications in China or
abroad, or has been publicly used or made known to
the public by other means in China or aboard, before
the date of filing.
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