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China Issues Draft Administrative Measures Allowing Foreign Patent Agencies to Open Representative Offices

On October 26, 2021, the China National Intellectual Property Administration (CNIPA) issued the Administrative Measures for the Establishment of Permanent Representative Offices in China by Foreign Patent Agencies (Draft for Comment) (外国专利代理机构在华设立常驻代表机构管理办法(征求意见稿)).  The draft Measures will allow foreign patent agencies to open up representative offices in China (as distinct from foreign law firms, which are already allowed to open up representative offices).  However, unlike trademark agencies opened by many foreign firms, patent representative offices will not be allowed to prosecute Chinese patent applications.

In order to qualify to open up a Representative Office in China, the foreign patent agency must meet the following conditions:

(1) Legally established abroad;
(2) It has substantively carried out patent agency business for more than 5 years, and has not received self-discipline or administrative punishment due to its practice;
(3) The chief representative of the representative office has full civil capacity and patent agent qualification, has practiced patent agent for no less than 2 years, has not received self-discipline or administrative punishment for his practice, and has not received criminal punishment for any intentional crime;
(4) Has  more than 10 patent agents practicing in their home country.

Representative Offices and engage in the following business activities:

(1) Provide parties with consultation on patent affairs in the country or region where the foreign patent agency has been approved to engage in patent agency business;
(2) Accept the entrustment of a party or a Chinese patent agency to handle patent affairs in a country or region where the foreign patent agency has been approved to engage in patent agency business;
(3) Accepting the entrustment of the parties or Chinese patent agencies to provide professional consulting services for Chinese enterprises’ overseas investment, overseas early warning, overseas rights protection and other patent-related matters;
(4) On behalf of foreign parties, entrust a Chinese patent agency to handle Chinese patent affairs.
Representative Offices are explicitly forbidden from engaging in “engage in Chinese patent affairs and Chinese legal affairs such as agency patent applications and invalidation of patent rights.”
Further, Representative Offices will not be able to hire registered Chinese patent agents thereby perhaps requiring Chinese patent agents to suspend their licenses before joining a Representative Office.
One Chinese commentator has asked “Is the Wolf Coming?” presumably concerned about foreign competition. But based on these draft measures, the answer is a definite no.
Comments are due by November 5, 2021. The full text of the Draft Measures is available here: 《外国专利代理机构在华设立常驻代表机构管理办法(征求意见稿)》(Chinese only).
Principal, and Director of the China Intellectual Property Practice

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