Special Provisions On U.S. Patent Term And Their Reference Significance

Patent term,the duration of a patent,is an important aspect of patent rights.The claims determine the scope of patent protection,and the patent term determines the length of patent protection.Patent term is not only related to the interests of the patentee,but also related to the public interest and the formulation of public policies,so it deserves special attention.In the evolution of the patent system,there are different regulations on the starting date and length of the patent term.The United States has the most complete and complex patent system in the world.There are many rules in the US patent system that can affect the patent term,especially PTA,PTE,and TD for the double patenting.Examining these rules will be of reference significance for the improvement of China’s patent system.Patent term can be used as an effective regulatory tool for the patent system to achieve an effective balance between stimulating inventions and creating social benefits.On the one hand,the author found via statistical analysis that the different industries have different sensitivity to the patent term.Therefore,it is proposed to consider studying the feasibility of distinguishing the patent term based on technical fields(for example,determined by IPCs).For example,at an appropriate stage,consideration can be given to granting special provisions for the patent term in related fields including medicines,and pesticides(for example,beyond the standard protection period of 20 years),but the patent term in other fields should at least meet the minimum protection requirements stipulated in the TRIPS agreement.In the China patent law being discussed,the PTE and PTA rules are being introduced in the draft revision.However,there are still many specific provisions that need to be added and discussed on how to use and refine these rules.In the provisions of Article 42(3)of the draft patent law regarding PTE,the term “new drug” still lacks a clear definition in law.How to define and judge it will greatly affect the implementation effect.The author suggests that in addition to innovative drugs in chemical drugs,improved new drugs in chemical drugs and innovative drugs and improved new drugs in traditional Chinese medicines should also be included in the category,so as to promote the protection of innovation.The author also proposes that the claims on which PTE is applied should include various types of claims such as product,use and preparation method.The author also suggests giving PTE qualifications to pesticides as well.The author suggests that the corresponding relationship between the patent on which PTE is obtained and the marketed drug should be refined in legislation,and the principle of "one-to-one" should be adopted in PTE approval,especially in determining the correspondence between new traditional Chinese medicines and patent claims.Some specific suggestions on judgment principles are also provided.In addition,the author proposes the establishment of a coordination and interaction mechanism between the Patent Office(CNIPA)and the Food and Drug Administration(NMPA),so as to achieve the effective implementation of the PTE rule.In the provisions of Article 42(2)of the draft patent law regarding PTA,“unreasonable delay” should be refined.The author suggests establishing a patent prosecution dossier publication and public inquiry system to facilitate automatic calculation of PTA,and on the other hand,to enable the applicants to review and calculate the PTA,and realize the right relief for opposition to the PTA result.Under the current patent system in China,for the improper extension of the patent term in theory due to minor changes of technical embodiments,it cannot be effectively regulated by the conflicting-application rule,so there are problems of double patenting and extended protection period in disguised form damaging the public interest.The author suggests the introduction of the rules of prohibiting obviousness-type double patentingand terminal disclaimer(TD)in China to avoid the "evergreen patent" problem caused thereby.In addition,the introduction of the rule of prohibiting obviousness-type double patenting will also help regulate abnormal patent applications.