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View of Supreme Court on Foreign Clinical Trial Period in Patent Term Extension Application
Article 4 of the Regulations for Governing Patent Term Extensions, which was amended and took effect on 1 April 2018, stipulates that “the patent term extension period for a pharmaceutical, or its manufacturing process patent, includes (1) the foreign clinical trials and domestic clinical trial periods needed for issuance of drug market approval by the Central Authority; and (2) the period needed for local regulatory review;” “the above-mentioned foreign clinical trials and domestic clinical trial periods are limited to those necessary for issuance of market approval by the Central Authority.” Regarding the calculation of the foreign clinical trial period, the Patent Examination Guidelines Governing Patent Term Extensions (“PTE Guidelines”) which were amended and took effect on 1 April 2018, provide that “if a foreign clinical trial is used as a basis to file for a patent term extension, the points of the foreign clinical trial should be explained. For example, the clinical trial name, the trial number, the trial drug, the trial stage, etc.; and the study start date and study completion date described in the clinical trial report needs to have met the requirements of the International conference on harmonization for registration of pharmaceuticals for human use, and are considered as the start date and end date of a foreign clinical trial.” According to the PTE Guidelines, the end date of a foreign clinical trial should be the “study completion date.”