Alterations in relation to the patent legislation of China, Japan and Brazil

China

On June 1, 2021, the fourth revision to the Patent Law of China, which was finalised on October 17, 2020, entered into effect, marking the first change in the law since 2008 and comprising notable changes to the law on design patents, amongst other alterations.

The term for protection of a design patent in China has been extended from a period of 10 years from the date of filing, to a period of 15 years from the date of filing, applicable to design applications filed on, or after, June 1, 2021. Applications filed prior to this date will retain the previous 10-year length of protection. This amendment is a step forward for China in terms of joining the Hague Agreement, which requires a minimum design validity term of 15 years for designs.

Another significant alteration to the rules regarding design patents is the allowance of the registration of partial designs starting from June 1, 2021, with the previous law obliging applicants to file a design in relation to, and together with, a whole product. Whilst partial design applications may now be filed with the Chinese Patent Office, the Revised Rules for the Implementation of the Patent Law have yet to be adopted, meaning that the examination of partial design applications will be initiated after the aforementioned rules are available. The criteria for examination, and the formality requirements for a partial design application, will also be set out in the awaited Revised Rules.

Further, design patent applications filed with the Chinese Patent Office on or after June 1, 2021 will be able to claim domestic priority in the jurisdiction. As with the aforementioned issue of the current absence of Revised Rules, the examination of applications claiming domestic priority will be initiated once the Revised Rules have been released.

Moreover, a new element has been added to the provisions for the 6-month novelty grace period, protecting the disclosure of patent subject matter if said disclosure was made in the public interest upon occurrence of a national emergency, or any extraordinary state of affairs, for example, the disclosure of pharmaceutical patent subject matter in relation to a pandemic.

Japan

The Japanese Patent Office (JPO) also introduced new provisions in relation to designs, applicable to those filed on or after April 1, 2021.

The newly implemented amendments introduced to the design law of Japan afford applicants the option of filing one application covering multiple designs with the JPO, with the previous law only allowing single design applications.

The alterations have also abolished the Table for Classification of Articles. Previously, the table was used to classify articles in relation to industrial designs, whereas from April 1, 2021, an applicant must clearly state the articles to which an industrial design relates in the application.

Furthermore, the amendments introduced a remedy which allows for the submission of documents in relation to a design priority claim after the expiration of the stipulated time limit for the filing thereof. This remedy is applicable to any priority claim for which the priority period has ended, filed on or after April 1, 2021.

Brazil

The patent validity term in Brazil has been altered as per the decision made by the Brazilian Supreme Court, in relation to a lawsuit initiated on April 7, 2021 by the Public Prosecutor Office.

The term for patent validity in Brazil previously constituted either a period of 20 years from the date of filing, or 10 years from the date of grant, whichever option granted the longest term of protection. A decision by the Brazilian Supreme Court on May 6, 2021 ruled that the minimum patent validity term of 10 years was unconstitutional. Following this, the Court determined that patents in Brazil would henceforth be granted for a period of 20 years from the date of filing, regardless of the field to which the patent relates, abolishing the option of a patent protection term being calculated as 10 years from the date of grant.

On May 12, 2021, the Supreme Court further confirmed that the aforementioned ruling would have no effect on patents already registered, with two exceptions. As such, patents which were granted in relation to pharmaceutical or medical inventions, as well as patents subject to invalidity proceedings which were filed prior to April 7, 2021 if, during the proceedings, it was argued that the 10 year term of protection from the date of grant was unconstitutional, would have their protection term amended from 10 years from the date of grant, to 20 years from the filing date.

The alterations to the intellectual property laws of China, Japan, and Brazil demonstrate an international presence of modernisation in the process for obtaining protective rights in the field of innovation. In turn, these legislative advancements will provide for a more solid base on which to apply for IP rights, encouraging applicants to file in these jurisdictions.