Announcement No. 328 of the China National Intellectual Property Administration (CNIPA) promulgated amendments to the Guidelines for Patent Examination entered into force as of November 1, 2019. The announcement adds Section 8 "Order of Examination" in Chapter 7 of Part V of the Guidelines for Patent Examination, of which a deferred examination system is added in Section 8.3. The details are as follows.

"An applicant may make a request for deferred examination for patent application for invention or design. The request for deferred examination for patent application for invention shall be made by the applicant at the same time as filing the request for substantive examination, but takes effect from the date when the request for substantive examination takes effect; the request for deferred examination for patent application for design shall be made by the applicant at the same time as filing the patent application for design. The period of deferral is 1, 2 or 3 years from the effective date of the request for deferred examination. After the expiration of the period of deferral, the application will wait for being examined in order. When necessary, the Patent Office may initiate the examination procedure on its own and notify the applicant, and the period of the deferred examination requested by the applicant is terminated.” 

I. Object of deferred examination

A request for deferred examination can be made only for patent application for invention or design and cannot be made for patent application for utility model. 

II. Timing of making a request for deferred examination

The request for deferred examination for patent application for invention shall be made by the applicant at the same time as filing the request for substantive examination. The applicant may check one of the corresponding items in the request for substantive examination while making the request for substantive examination for the patent application for invention.

The request for deferred examination for patent application for design shall be made by the applicant at the same time as filing the patent application for design. The applicant may check one of the corresponding items in the request for patent application for design when filing the patent application for design.

III. Effective time.  

The request for deferred examination for patent application for invention shall take effect from the date when the request for substantive examination takes effect. The request for deferred examination for patent application for design shall take effect on the date when the request for deferred examination is made.

IV. Period of deferral

The period of deferral for patent application for invention or design shall be 1, 2 or 3 years from the date when the request for deferred examination takes effect.

A patent application for invention will wait for being examined after deferral of 1, 2 or 3 years from the receipt of the Notification on Entering the Substantive Examination Procedure. That is, without requesting deferred examination, a patent application for invention shall wait for being examined in order from the receipt of the Notification on Entering the Substantive Examination Procedure. On the other hand, in a case of a request for deferred examination, the applicant will still receive a Notification on Entering the Substantive Examination Procedure. However, the patent application for invention will not wait for being examined after receiving this Notification, but will wait for being examined in order after waiting for 1, 2 or 3 years based on the applicant's request for deferred examination.

A patent application for design shall be subject to preliminary examination in order after waiting for 1, 2 or 3 years from the date of making the request for deferred examination based on the applicant's request for deferred examination.

It is prescribed in “the Revision Draft of the Guidelines for Patent Examination (Exposure Draft)” issued on August 3, 2021 that the period of deferral for patent application for design is in months, and the maximum period of deferral is 36 months from the date when the request for deferred examination takes effect; it is also prescribed therein that if the same applicant files both a patent application for utility model and a patent application for invention for the same invention on the same day (which only refers to the filing date), the request for deferred examination shall takes effect for the patent application for invention corresponding to the patented utility, and the period of deferral is usually 4 years. At present, the revision draft is in the stage of soliciting opinions, and the final provisions have not been issued. However, through revision of a period of deferral for patent application for design and addition of provisions about deferred examination for patent application for invention among applications filed on the same day, it is more reasonable and conducive to effective implementation of the deferred examination.

V. Whether a request for deferred examination can be changed or revoked

After making a request for deferred examination, the applicant cannot change the period of deferral or revoke the request for deferred examination. At present, there are no announcement procedure, objection procedure or the like. However, when necessary, the Patent Office may initiate the examination procedure on its own and notify the applicant, and the period of the deferred examination requested by the applicant is terminated. 

It is prescribed in “the Revision Draft of the Guidelines for Patent Examination (Exposure Draft)” issued on August 3, 2021 that before the expiration of a period of deferral, the applicant may request to revoke the request for deferred examination. If provisions are met, the period of deferral will be terminated and the patent application will wait for being examined in order. At present, whether a request for deferred examination can be revoked has not been finalized. It is expected that this provision can be implemented, as will be conducive to an applicant's more flexible use of the deferred examination system.

VI. Advantages and disadvantages of deferred examination.

The deferred examination system gives an applicant more time to confirm value of his/her/its application and to determine protection scope of the application, and is conducive to the applicant's patent layout, thereby the applicant can obtain more time for competition and win greater initiative in the market. 

For patent application for design, use of the deferred examination system can defer the time of announcement of the patent application for design and shorten the time between launch of the new product and the announcement of the patent application for design, thereby reducing the time for imitation of a competitor as much as possible and maximizing interests of the applicant. 

However, deferred examination will prolong a period of temporary protection of a patent and thereby shorten a period of actual protection accordingly.