As a follow-up to our Wilson Sonsini Alert on March 23, 2020, which discussed the United States Patent and Trademark Office's (USPTO's) response to the COVID-19 update, today we are providing a summary of the response from the China National Intellectual Property Administration (CNIPA), which includes the Chinese Patent Office. Many companies have pending patent applications at the CNIPA, and may be concerned about their ability to respond because of the COVID-19 pandemic, or that the CNIPA may not be operational. These concerns are addressed below.

Impact for Patent Applicants

In response to the COVID-19 outbreak in China, the CNIPA has taken some steps to ensure that the rights of applicants are not negatively impacted. The CNIPA specifies that a restoration of right may be available if a deadline is not met due to the outbreak and the applicant can provide evidence such as local government declarations or announcements of emergency rules, or evidence showing the applicant has been quarantined, or diagnosed with COVID-19. This rule applies not only to patents, but also to trademarks and Integrated Circuit (IC) layouts. This rule was originally intended to apply to applicants located in China. However, it arguably applies to applicants outside mainland China because they must act through a local agent whose capability may be compromised by the outbreak. Consult your Wilson Sonsini patent attorney for the specifics of your situation if a need arises to request restoration of the loss of patent rights.

In addition, applicants outside mainland China who themselves suffered from the pandemic may also have the remedy to restore a right lost due to this uncontrollable event, or force majeure, since such a pandemic is likely to be considered by CNIPA as an "unavoidable incident." Therefore, it is recommended to collect and keep all evidence showing the impact on one's ability to meet deadlines—just in case a restoration of right is needed.

Operational Capability of the CNIPA

At the present time most of the CNIPA operations centers have come back to normal operations except for the Hubei center located in Wuhan—the city most impacted by the outbreak. There has been some difficulties reaching examiners in the Hubei center in Wuhan, and we expect there will likely be a noticeable backlog within that center. For those who are in the process of being financed (or partnering with others) and to whom a fast allowance is desirable, it is recommended to make special arrangements for such cases currently being reviewed by the Hubei center.

Michael Hostetler, Richard Wang, and Bruce Kisliuk contributed to this special COVID-19 Wilson Sonsini Alert.