Asia Patent Alliance

How Foreign Public Knowledge in the Art is Handled in China

In October of 2009, worldwide public knowledge and use became the judgment standard for novelty in China (China Patent Law Article 22). For patent applications before the revision, because universal common knowledge was not utilized, facts that were presented outside of China were not grounds for refusal.

After the revisions, “technology disclosed in foreign countries” could be used as proof that as patent lacks novelty or inventive step in a trial for invalidation. In addition, “technology disclosed in foreign countries” could also be used as proof to defend common knowledge in the art in infringement suits.

However, there is a special requirement for procedures using foreign proof. Affirmation procedures such as going to the Chinese consulate to receive validation from the notary public etc. are required. On the other hand, if proof is obtained through the national public rout (for example, foreign references received from the SIPO), exceptions are made if the other party admits to the credibility of the proof.

If the foreign references are patent documents or patent application documents that can be obtained by public, there is no need to receive validation from the notary public. If the foreign references are publications that are not offered globally, validation will be required.