Although Guidelines for Patent Examination has prescribed the examiner should make an examination on the supplementary experimental data submitted after the filing date since 2017, so far, some Examiners still try not to accept the supplementary experimental data for various reasons.

Recently, the Intellectual Property Court of the Supreme People's Court concluded a second-instance administrative dispute over the invalidation of an invention patent involving the invention title “Process for producing silicon oxide films from organoaminosilane precursors”. It accepted the supplementary experimental data submitted after the patent filing date and determined that the invention patent right is valid.

In the second-instance judgment, it was clarified that if the patentee submits supplemental experimental data after the filing date and claims that the data can prove the inventiveness of the patent, it can be reviewed from the following aspects: first, reviewing whether the experimental data and the corresponding evidences are authentic, legal and relevant to decide whether it should be admitted; second,  examining whether the experimental data meet the following two conditions at the same time: the patent document clearly records or implicitly discloses the facts (such as the technical effects) to be proved that the experimental data intends to directly prove; and the experimental data cannot be used to make up for the inherent defects originally present in the patent document.

Meanwhile, in the second-instance judgment, it was further emphasized that, especially when the patentee cannot predict the prior art cited by the examiner or the invalidation petitioner, the patentee can use supplementary experimental data to prove the inventiveness of the claimed technical solution.

In addition, we also noted, in order to normalize the examination standards for supplementary experimental data, the China National Intellectual Property Administration (CNIPA) issued an internal document “Guiding Opinions on the Application of Examination Standards for Supplementary Experimental Data (Draft for Comments)” in June of this year to direct the examiner how to examine the supplemental experimental data, wherein 10 cases are provided to judge whether the technical effect as demonstrated by supplementary experimental data is “obtainable” or “not obtainable”.

Therefore, from the above, we believe, the Examination standard for supplementary experimental data will be more and more objective, and thus better protect the rights and interests of applicants.