Newsletter
Newsletter-China National Intellectual Property Administration Issues Guidelines for Invention Patent Applications Involving Standards
In light of the need to integrate technological innovation with industrial standards, Standard Essential Patent (SEP) has become a key battleground in global technological competition. On March 14, 2026, the China National Intellectual Property Administration (CNIPA) issued the “Guidelines Regarding Standard Essential Patents (SEPs)” (hereinafter referred to as the “Guidelines”) to guide and regulate domestic and foreign innovators in drafting high-quality SEP application documents, and to promote the effective integration of patents with the formulation of international standards. The main contents of the Guidelines are summarized as follows:
I. Policy Background
The formulation of the Guidelines reflects an important part of China’s intellectual property strategy raised during the 14th Five-Year Plan period, aiming to implement the specific tasks set out in the “Outline for Building a Powerful Intellectual Property Nation (2021-2035)” regarding the “promotion of effective integration of patents and international standards.” With the surge in SEP applications in fields such as cellular mobile communications, audio and video codec, and wireless networks (Wi-Fi), there is a significant demand from patent applicants on how to improve the quality of patent applications and ensure that granted patent rights precisely correspond to standards. The Guidelines were developed in response to this background, providing applicants and patent agents with a systematic methodology.
II. Major Content of the Guidelines—Strategic Shift from “Patent Application” to “SEP Deployment”
The Guidelines are divided into four chapters, covering the basic concepts of standards, the synergy between standards and the Patent Act, application strategies, and drafting strategies, thereby establishing a comprehensive knowledge system for SEP applications. The following points in the Guidelines are particularly noteworthy:
1. Patent Deployment Strategies Throughout the Standardization Lifecycle
For the first time, the Guidelines systematically align patent deployment with the standardization process along a timeline as follows:
(1) Early Stage of Standardization (Standard Proposal Stage): It is recommended to complete patent applications as early as possible before submitting standard proposals. The Guidelines point out that even if the standard proposal only covers the general technical direction, patent applicants should anticipate possible development trends of the standard and arrange initial patent applications to secure the earliest filing date.
(2) Mid-Stage of Standardization (Drafting, Review, and Public Comment Stages): At this stage, relevant technical solutions are subject to changes. The Guidelines state that by submitting new patent applications or making amendments to existing patent cases, applicants can refine and focus their patent deployment in line with the development direction of standard discussions.
(3) Late Stage of Standardization (Standard Freeze and Release Stages): The Guidelines indicate that after the standard is frozen, patent applicants may, based on the final version of the standard, utilize mechanisms such as deferred patent examination to adjust patent claims during the examination process, striving to obtain granted patents that closely correspond to the standard.
Accordingly, SEP deployment is no longer a one-off technical disclosure, but requires deep coordination and cooperation among standardization teams, R&D teams, and patent teams to formulate a dynamic application strategy spanning several years.
2. Three Major Application Strategies
Chapter 3 of the Guidelines emphasizes three legal considerations closely integrated with the standardization process:
(1) Priority Claim System: A patent applicant may make full use of the 12-month priority period by filing the first patent application (priority application) before submitting the standard proposal, and then, within the priority period, file subsequent applications with priority claim to cover the improved technical solutions developed during standard discussions. This approach ensures an earlier “priority date” while allowing for the timely filing of improved solutions and follow-up patent applications.
(2) Grace Period for Novelty: For situations where, due to special reasons (e.g., temporary proposals raised at standardization meetings), patent applications could not be filed in advance, the “grace period” stipulated in the 2024 Implementing Regulations of the Patent Act may be invoked to safeguard the novelty of the patent application. For example, according to the Implementing Regulations, if an invention was disclosed at an international conference recognized by the relevant department of the State Council, such disclosure does not affect the novelty of the patent application. This provides a crucial “remedial” pathway for inventions disclosed at standardization meetings. However, the Guidelines emphasize that this is only a remedial measure and is not recommended as a routine practice.
(3) Deferred Examination: The Guidelines point out that deferred examination is an effective tool to address the misalignment between the “patent examination cycle” and the “standard freeze cycle.” A patent applicant may request deferred examination (for up to three years) when filing a request for substantive examination. Combined with the three-year period from the filing date to request substantive examination, an invention patent application may enjoy a maximum six-year pendency from the filing date, allowing applicants to adjust patent claims after the standard is frozen, thereby achieving precise alignment with the standard.
3. Drafting Strategies for High-Value SEPs
Chapter 4 of the Guidelines elaborates on drafting strategies for SEPs, which are critical to determining the ultimate value of SEPs. The main strategies include:
(1) Align Patent Claims with Standard Language: Use standard terminology as much as possible. Independent claims should exclude non-essential features (i.e., features not likely to be included in the standard) to achieve broader coverage.
(2) Leave a Backup Plan in Dependent Claims: Independent claims should “cover the core of the invention” while dependent claims, through “tree-structured references” and “parallel technical solutions,” should be drafted both vertically and horizontally to cover various possible implementations. This approach reserves room for future amendments in response to uncertainties in standard development. Parallel technical solutions also provide space for amendments during invalidation proceedings, enhancing the stability of patent rights.
(3) “Single-Entity Drafting” for Easier Enforcement: For technical solutions involving multi-party interactions, the invention should be described from the perspective of a single implementing entity (such as a terminal device or a base station), covering all steps involved. This avoids multi-entity interactive drafting, reduces the complexity of infringement determination, clarifies tortious liability, and lays the foundation for subsequent enforcement.
(4) Specification as the Basis for Patent Amendments: The specification should include multiple embodiments to support broad claim scope and anticipate possible directions of standard development. If the specification is not sufficiently detailed or broad, it will be difficult to amend claims to align with the standard in the future without exceeding the original disclosure.
(5) Clear and Definite Claim Scope: Claims should clearly define the scope of patent protection to be sought. For terms already adopted by the standard, explanations are generally unnecessary; for terms not yet included in the standard, definitions or explanations should be provided in the specification to avoid indefiniteness. Additionally, the sequence or parallel order of method steps and consistency of technical means should be clearly described.
(6) “Inter-Generational Argumentation” for Inventive Step Responses: For patent applications in the telecommunication field such as “parameter optimization” or “inter-generational adaptation,” the Guidelines provide specific response strategies. For example, when responding to an inventive step examination opinion for a patent application, the patent applicant may emphasize technical problems unique to the new generation and demonstrate the deep integration of technical means with the new generation, rather than mere adaptation.
Issuance of the Guidelines is an important initiative by the CNIPA to enhance patent quality and guide innovation in the context of new quality productive forces. Our firm (Lee and Li, Attorneys-at-Law and Beijing Lee and Li - Leaven Intellectual Property Agency Co., Ltd., our Greater China strategic alliance partner) has long focused on SEP mining, drafting, standard alignment, patent prosecution, and judicial decisions in SEP-related disputes, and continues to assist clients in SEP deployment and patent application protection. We will continue to monitor SEP-related practical developments and share the latest information with our clients.
Should you or your company have any questions regarding these Guidelines, or wish to discuss specific SEP deployment strategies in greater depth, please feel free to contact us at any time.