BIOTECH, PHARMA AND CHEMICAL INVENTION
PATENT PRACTICE Q&A
Jiancheng Jiang, patent and trademark attorney and managing partner at specialist
AS FAR AS PHARMACEUTICS AND BIOTECHNOLOGY ARE
Intellectual Propertyfirm Peksung, talksto The American Lawyer aboutthefilingand
application of patent prosecution practice in biotech, pharma and chemical inventions.
CONCERNED, WHAT ARE PATENTABLE SUBJECT MATTERS
AND WHAT ARE NOT UNDER CHINESE PATENT LAW?
IN CHINA, chemical and biochemical products such as pharmaceutical compounds, proteins and nucleic
acids are patentable.
The Chinese Patent Law prescribes that patent
rights shall not be granted for invention-creations that
violate the law or social ethics, or harm public interests.
It is also prescribed that patent rights shall not be
granted for inventions that are accomplished by relying
on genetic resources which are obtained or used in
violation of the provisions of laws and administrative
In this regard, cloning of human beings, commercial
use of human embryos and human embryo stem cells
and their preparation are not patentable for ethical
reasons as they are considered to contravene social
The stipulation in the law concerning genetic
resource was newly introduced by the Third
Amendment of the Patent Law in 2008. According to
this stipulation, if one acquires and uses genetic
resources by way of violating the relevant stipulations
of China’s laws and makes an invention by employing
the genetic resources, that invention is not patentable.
The term “genetic resources” in the law means any
materials of human, animal, plant, microbial or other
origin containing functional units of heredity and having
actual or potential value and the term “inventions that
are accomplished by relying on genetic resources”
means inventions which are accomplished by exploiting
the hereditary function of the genetic resources.
Nevertheless, genes, including human genes, are
patentable if they are isolated for the first time, contain
a sequence that has not previously been disclosed, and
has an established utility in industry.
WHEN A GENETIC RESOURCE OR A NEW BIOLOGICAL
MATERIAL IS INVOLVED IN A PATENT APPLICATION, WHAT
SPECIAL FORMALITIES DOES THE PATENT APPLICANT
HAVE TO GO THROUGH WHEN FILING IN CHINA?
When a patent application claims an invention that is
accomplished by relying on a genetic resource, the
applicant shall indicate the direct source and original
source of the genetic resource in a special form for
disclosure of genetic resource. The form shall be filed
together with the application. If the applicant fails to do