Time Has Run Out for China’s 15-Day Mailing Rule | Foley & Lardner LLP
As of January 20, 2024, applicants are no longer able to enjoy a 15-day grace period for most response deadlines pertaining to patent applications being pursued in the Chinese National Intellectual Property Administration (CNIPA). This change was announced in Order 769 on December 21, 2023, and took effect on January 20, 2024. CNIPA’s elimination of this grace period is similar to the European Patent Office’s (EPO) recent elimination of its 10-day rule, which we wrote about here.
The change in China eliminates the 15-day grace period for responding to communications sent electronically, which includes most CNIPA correspondence. With the elimination of the grace period, an electronic communication is considered delivered on the date printed on the correspondence, and response deadlines are measured from the printed date.
However, in the event the CNIPA does mail correspondence requiring a response, the 15-day grace period will apply. That is because the grace period is based on the presumption that physical correspondence sent by mail will have been delivered 15 days from the date printed on the correspondence, and the response period is measured from the presumptive delivery date.
As with the elimination of the EPO’s 10-day rule, elimination of this grace period may require practitioners to adjust their response practices, but will simplify the calculation of deadlines.
Other Changes
While not discussed here, Order 769 enacted additional changes warranting attention, including provisions relating to patent term adjustment, patent term extension, protection of partial designs, addition or correction of priority claims, restoration of priority rights, and incorporation by reference. Applicants pursuing patents in China may want to consult with patent counsel on how they may impact their portfolios.
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