Asia Patent Alliance

System for Extension of Patent Term Duration

The term of a patent is the period that the patent right is considered legally valid, and lasts for 20 years from the filing date. The patent term will commence on the date registration is configured. For applications filed claiming Paris Convention Priority and National Priority, deadlines are calculated from the Japanese, Chinese, or Korean  filing dates (i.e. the later filing date), therefore resulting in a one year extension. The only exception is India, where the term of a national priority application is 20 years from the first filing date. Again, 20 years will be calculated from the international filing date for international patent applications relying on the Patent Cooperation Treaty.

 The term for a patent in all countries, Japan, China, Korea, and India, is 20 years. Table 1 shows the patent term (patents, utility models, industrial designs) in various countries in Asia.

  Patent Utility Model Industrial Design
Japan 20 years from filing date 10 years from filing date 20 years from registration
China 20 years from filing date 10 years from filing date 10 years from filing date
Korea 20 years from filing date 10 years from filing date 15 years from registration
India 20 years from filing date Does not exist
15 years from priority date (with extension)

*The start and end of the term of an industrial design patent differs in Japan, China, Korea, and India.

 In Japan and Korea, the term of a patent is 20 years, but in certain circumstances, this period can be extended. For example, for fields such as pharmaceutical products and agrichemicals, because government permission must be granted for the production and sale of such products in view of safety, even if the term of the patent right has begun, the patented invention may be inoperable. Thus, in order to compensate for any time lost for the title, it is possible to extend the term of the patent right for a maximum of 5 years. The time from either 4 years after filing or 3 years after the examination request (whichever falls later) up to registration may be added to the existing patent term. However, in this case, any delay that the applicant is liable for cannot be added to the term. In contrast, there is no method of extending the patent term in China and India.

 

System for Extension of Patent Term in Asia

  Pharmaceutical/Agrichemical Field
Japan   ◯ Possible up to 5 years (No minimum period)
China X
Korea    ◯ Possible up to 5 years (No minimum period)  
India X

*Extension of the patent term due to delay of Examination

Process of Patterning a Semiconductor Substrate by In Korea, there is currently an initiative to compensate for any time lost due to a late examination. According to the initiative that is currently being deliberated,  in the event that the patent right is delayed and granted either 4 years after filing or 3 years after requesting examination (whichever is later), the patent term will be extended for the length of the delay. However, in this case, any delay that the applicant is liable for cannot be added to the term. This is a patent related arrangement incorporated according to the Fair Trade Agreement of Korea and the USA. It is a similar system to Article 154 (b) (1) 6 regarding Patent Term Adjustment (PTA) in order to guarantee the term of the patent right.

In our next issue, we will discuss pharmaceutical and agrichemical patent term extensions in more detail.