Valid Priority Claim Or Not: Chinese Practice
(Author：Yang LI; Source: Lung Tin)
In Chinese Patent Law, when a priority is validly claimed, the date of filing a first application, i.e., the priority date, is considered to be the effective filing date for the examination of novelty and inventiveness for a subsequent application claiming the priority to the first application. Further, the law recognizes both domestic priority1 and foreign priority under the Paris Convention.
An issue of valid priority claim arises when an intervening prior art reference, publicly available between the priority date of the first application and the filing date of the subsequent application, is located. The cases discussed below shed some lights on how the Chinese practice treats the validity of a priority claim. We brief and comment on the cases in order to update our readers on this issue.
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