Incorporation by Reference: Addressing Missing or Incorrect Submissions with Priority

Under China's revised Implementation Rules of the Patent Law (effective January 20, 2024), the "Incorporation by Reference" system (Rule 45) provides remedies for missing or erroneously submitted patent application documents. Here are the key provisions and applications:

I. Applicable Conditions

Eligible Applications

Invention/Utility Model Patents (design patents excluded) that claim priority at initial filing.
Scenarios include:
- Missing or incorrect submission of entire claims/description ("missing items");
- Missing or incorrect submission of partial claims/description/drawings ("missing parts").

Time Limits

Missing parts must be supplemented within 2 months from the initial filing date or within a period specified by the CNIPA.

Exceptions

Not applicable to divisional applications;
Priority claims must comply with the 12-month deadline under Patent Law Art. 29 and cannot be restored, added, or corrected.

II. Procedures

Declaration and Supplementation

Use the standard request form (Tables 110101/120101) with an "Incorporation by Reference" declaration at the initial filing.
Submit a Confirmation of Incorporation by Reference (Table 100055) and supplementary documents (e.g., priority documents, translations) within the deadline.

Fee Payment

Additional fees apply if supplementary documents exceed page limits—failure to pay results in withdrawal.

Examination Criteria

Supplemental content must fully align with the priority documents; otherwise, the filing date may be adjusted.

III. Application Scenarios

Remedying Filing Errors

Example: Retain the original filing date by supplementing a missing description via priority documents.

PCT National Phase Entry

Aligns with PCT Rule 20.6, allowing applicants to retain internationally incorporated content in China.

IV. Key Considerations

Priority Validity: The priority claim must be valid and consistent with the supplemented content.
Strict Deadlines: Late submissions or unpaid fees lead to rejection.
Document Integrity: Supplemental materials must match the priority documents exactly.