Patents (China) [Q34]
33. Q: Can pharmaceuticals be protected by administrative protection of pharmaceuticals?

Under the amended Patent Law as in force since 1 January 1993, pharmaceutical products as such and substances obtained by means of a chemical process as such have become patentable. For pharmaceuticals of certain foreign parties already being the object of exclusive rights in the home country before 1 January 1993, under certain conditions administrative protection may be obtained in China under the Regulations on Administrative Protection of Pharmaceutical Products of 19 December 1992, and their Implementing Rules. Said administrative protection could be obtained for products of individuals and legal entities from countries and regions which have entered into bilateral agreements with China on the reciprocal protection of pharmaceuticals. Until now, such bilateral agreements have been made with the United States, Japan, the European Communities and Switzerland. Consequently, administrative protection as referred to could be obtained by individuals and legal entities from the United States, Japan, the European Communities countries (Belgium, Denmark, France, Germany, Greece, Ireland, Italy, Luxemburg, the Netherlands, Portugal, Spain and the United Kingdom), and Switzerland. The products to be eligible for administrative protection must satisfy the following criteria:

1) they may not be eligible for protection under the Chinese Patent Law as applicable prior to 1 January 1993;

2) they must be patented in the home country of applicant in the period between 1 January 1986 and 1 January 1993; and

3) they may not have been sold in China through proper commercial channels before the date of application for administrative protection.

The duration of administrative protection is seven years and six months from the issue of the certificate of administrative protection, subject to the payment of annual maintenance fees.

The agent officially designated to act as agent for foreigners in these matters is: China Huake Pharmaceutical Intellectual Property Consulting Center, address: A38, Beilishi Road, Xicheng District, Beijing 100810, China, fax: 68343258.

On 1 January 1993, also, regulations came into force providing for administrative protection for agriculture chemicals (such as herbicides, insecticides), which regulations are similar to those for pharmaceuticals as described above. The agent officially designated to act as agent for foreigners in these matters is: China Zhengda Chemical Industry Legal Affairs Center, address: Room 517, Building 16, District 4, Anhuili, Chaoyang District, Beijing 100723, China, fax: 64932511.

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