CHANG TSI
Insights
In intellectual property (IP) management, protecting patent lifespans—especially for inventions and pharmaceuticals—is key to safeguarding R&D investments and market exclusivity. For those operating in China, understanding Patent Term Adjustment (PTA) and Patent Term Extension (PTE) under the Patent Law of the People's Republic of China is essential. This article simplifies core rules, calculations, and practical details to help leverage these tools.
PTA and PTE are rooted in Article 42 of China’s Patent Law, which sets baseline terms and extension conditions:
Baseline Patent Terms: The term of patent right for inventions shall be twenty years, the term of patent right for utility models shall be ten years, and the term of patent right for designs shall be fifteen years, all commencing from the filing date.
PTA: Where a patent right for an invention is granted after the expiration of four years from the filing date and after the expiration of three years from the date of the request for substantive examination of the application, the patent administration department under the State Council shall, at the request of the patentee, extend the term of the patent to compensate for the unreasonable delay in the granting process of the invention, except for the unreasonable delay caused by the applicant.
(In simple terms: Compensates for unreasonable delays in invention patent granting (not caused by the applicant). Applies if the patent is granted 4+ years after filing and 3+ years after the substantive examination request)
PTE: In order to compensate for the time taken for the review and approval process before the marketing of a new pharmaceutical product, the patent administration department under the State Council shall, at the request of the patentee, extend the term of the new pharmaceutical-related invention which has been approved for marketing in China. The compensation term may not be more than five years, and the total effective term of the patent right may not be more than fourteen years from the date of marketing approval.
(In simple terms: Compensates for pre-market review time of new pharmaceuticals. Eligible drug-related patents can extend by up to 5 years, with the total effective term (from marketing approval) not exceeding 14 years.)
1. PTA Compensation Period Calculation
PTA only covers delays not caused by the applicant, after deducting reasonable delays and applicant-caused unreasonable delays. The formula is:
Compensation Period = Unreasonable Delays (non-applicant) – Reasonable Delays – Unreasonable Delays (applicant)
Specific scenarios for each category:
| Category | Scenarios |
| Unreasonable Delays (non-applicant) | - Excessive delay in grant date vs. filing date and substantive examination request date. - Note: CNIPA (China National Intellectual Property Administration) reports average invention patent examination time is 16 months. PTA only applies if examination exceeds 4 years, so its use is limited. |
| Reasonable Delays | - Applicant amends documents during review or in response to review notifications. - Examination suspension due to patent application right disputes. - Court-ordered preservation of patent application rights. - Other procedures (e.g., administrative litigation). |
| Unreasonable Delays (applicant) | - Failing to respond to official notifications on time. - Requesting deferred examination. - Using "incorporation by reference" (including external documents in the application). - Requesting right restoration. - Not choosing early processing when a PCT application enters China’s national phase (30-month deadline). |
2. PTA vs. PTE: Core Comparison
PTA and PTE serve different needs—below is a clear breakdown:
| Parameter | Patent Term Adjustment (PTA) | Patent Term Extension (PTE) |
| Application Scope | All granted invention patents (excludes "simultaneous dual applications"—concurrent invention and utility model filings). | Patents for innovative drugs and qualifying improved new drugs approved for marketing in China. Eligible types: product invention, preparation method invention, medical use invention patents. |
| Application Timing | Within 3 months of the patent grant date. | Within 3 months of the new drug’s marketing approval date. |
| Examination Fee | CNY 200 (≈ USD 28 / EUR 26) | CNY 200 (≈ USD 28 / EUR 26) |
| Extended-Term Annuity | CNY 8,000/year (≈ USD 1,123 / EUR 1,042). No fee for extensions < 1 year. | Same as PTA: CNY 8,000/year. No fee for extensions < 1 year. |
Why This Matters for IP Strategy
Final Takeaway
China’s PTA and PTE balance IP protection with innovation, especially in pharmaceuticals. For IP professionals, tracking timelines (e.g., PTA examination windows, PTE marketing approval alignment) is the key to maximizing patent value.
Share your PTA/PTE experiences or questions in the comments—let’s build insights for global IP strategy.
