Date: 11 February 2020
In China it is difficult to rely on supplemental data provided after the filing of a patent application. It is also difficult to defend a granted patent where the data show that a pharmaceutical invention is plausible, or also to prove superiority and thus inventive step over prior art. Such late filing was hitherto not allowed according to the guidelines of the Chinese Patent Office.
However, as contained in a recently signed agreement, the “ECONOMIC AND TRADE AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND THE PEOPLE’S REPUBLIC OF CHINA”, under Section C: Pharmaceutical-Related Intellectual Property:
Article 1.10: Consideration of Supplemental Data
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Thus, much will depend on how the US’s treatment of this clause will be seen in China. In the future will it be possible to rely on data provided e.g. by Declarations or scientific publications made available after the filing of a patent application, and to what extent?
It will be interesting to observe how this arrangement will be handled in practice by both sides.
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