Summary of Patent Term Adjustment (PTA) in China

This summary outlines the process and conditions under which a patentee can request PTA for delays in the patent examination process in China.

1. Eligibility for Compensation:

A patent for an invention is eligible for compensation if the patent was issued

1) after four years from the filing date or the entry date of a PCT application into the Chinese national phase, and 2) three years from the date of the request for substantive examination or the publication date, whichever is later, provided that the delays were not caused by the applicant.

2. Submission of Request:

The patentee must submit a request to the Chinese Patent Office within three months from the issue date of the patent and pay the corresponding fees. Compensation is only provided if the patentee actively requests it.

3. Determination of Compensation Period:

1) The compensation period is calculated based on the number of days of unreasonable delay by the Chinese Patent Office, using the formula:

     Compensation period=D (issue date)-D (date of completion of four or three years)-T (reasonable delay) – T (unreasonable delay by the applicant).

2) D (issue date): Date when the patent is issued.

3) D (date of completion of four or three years): The later of either four years after the application date or the entry date of a PCT application into the Chinese national phase, or three years after the request for substantive examination or the publication date, whichever comes later.

4) T(reasonable delay): Delays due to factors like ownership disputes or suspension of examination.

5) T (unreasonable delay by the applicant): Delays caused by the applicant, such as extensions or deferments.

4. Special Considerations:

For divisional applications, the filing date of the divisional application is used.

5. Request and Approval Procedure:

1) The patentee submits a request for compensation within three months from the issue date.

2) The Chinese Patent Office issues a notice of payment.

3) The patentee pays the examination fee (currently CNY 200 (about USD30) per case).

4) The Patent Office reviews the eligibility for compensation.

5) The Patent Office issues a notice of examination results, informing the patentee of the final calculated compensation period if the conditions are met.