On December 21, 2023, the China National Intellectual Property Administration (CNIPA) announced the permissibility of restoring a priority claim, effective from January 20, 2024. The restoration process aligns with patent examination guidelines, encompassing the following conditions:
- Chinese Invention Patent or Utility Model Applications:
- Applications submitted after 12 months but on or before 14 months from the priority date are eligible for priority claim restoration.
- Restoration is contingent upon providing a valid reason for missing the deadline.
- Chinese National Applications Based on a PCT International Application:
- (i) Restoration is allowed if the priority claim restoration has been accepted by the receiving office (RO) of the PCT application.
- (ii) If no request for restoration was filed at the international stage, the applicant can submit a request within 2 months after entering the Chinese national phase, accompanied by a valid reason for the delayed priority claim.
- (iii) If the request for restoration at the international stage was rejected, the applicant can file a request within 2 months after entering the Chinese national phase, provided a valid reason for missing the priority deadline is presented.
Notably, the new examination guideline does not explicitly specify whether CNIPA will consider the “due care” criterion or the “unintentionality” criterion for restoring priority claims in Chinese national patent applications. This lack of explicit specification suggests that CNIPA may accept both grounds, “due care” and “unintentionality,” thereby adopting a more flexible approach compared to European or Japanese standards and aligning more closely with the U.S. standard.