joined Beijing East IP in 2002 and currently heads the Chemical/Biotech Patent Team at Beijing East IP. Mr. Xiao has being helping many multinational companies in obtaining and protecting their IP rights in China. As a patent practitioner, Mr. Xiao has extensive experience in patent drafting, filing, prosecution and reexamination at SIPO/CNIPA. Mr. Xiao also has abundant experience in litigation matters, having litigated dozens of cases before the Patent Reexamination Board, Beijing First Intermediate Court/Beijing IP Court and Beijing High Court, for Fortune Global 500 companies. In addition to his practice in chemical/biotech/pharma areas, Mr. Xiao is also experienced in prosecution and protection of industrial designs, representing various clients in many design invalidity lawsuits. Mr. Shanqiang Xiao received his B.S. degree in Polymer Materials and M.S. degree in Organic Chemistry from Tsinghua University and his LLM degree from the John Marshall Law School.
On October 17, 2020, the Standing Committee of the Thirteenth National People’s Congress (China’s top legislature) passed the Fourth Amendment to the Chinese Patent Law, which will become effective on June 1, 2021 (“Effective Date”). As I was digesting the news and browsing through the 29 newly published changes made to the previous version of the Chinese Patent Law, which was passed in 2008, a line from “The Song of the Pipa Player”, a popular poem written in 816 A.D. by Bai Juyi (one of the three most famous poets in China’s Tang Dynasty), came to mind: “Only after our repeated calls did she appear; her face half hidden behind the pipa she held.” Indeed, while the First, Second, and Third Amendment to the 1984 Chinese Patent Law each came out with clockwork precision eight years after the previous enactment—in 1992, 2000, and 2008, respectively—this Fourth Amendment took 12 years to incubate, and struck a number of new areas that will need to be further revealed in future practice.
Much has happened to the patent subject matter eligibility standard in the U.S. since Mayo. On April 27, 2020, Judge Paul Michel and John Battaglia published an excellent article on IPWatchdog analyzing the U.S. Section 101 patent subject matter eligibility jurisprudence. In that article, Judge Michel and Battaglia reminded judges and practitioners to reference “the more-favorable foreign patent laws on the patent eligibility for diagnostic testing, business methods and software … in countries such as England, China, or the European Union … to inform such a judicially created ineligibility standard, as opposed to the U.S. Constitution or a federal statute.” Here, we take a quick comparative look at the current patent subject matter eligibility standard in China.