Public opinion, as a mechanism for third-party participation in patent examination, is widely present in major global patent systems, but its strategic value is often overlooked by enterprises. This article explores the patent public opinion systems in China, the United States, and Europe.

The author of this article

Long Zhenhao, ScienBiziP

The current public opinion in patent examination has two functions: firstly, to assist in cracking down on abnormal patent applications, by reporting abnormal patent applications (such as false materials, piecing together technical solutions), and cooperating with Article 100 of the Implementing Regulations of the Patent Law on administrative penalties (warnings or fines) for fraudulent behavior, to help clean up low-quality patents; The second issue is the lack of supplementary examination resources, as examiners face a massive number of applications (according to official data, a total of 1.045 million invention patents were authorized in China in 2024, a year-on-year increase of 13.5%), and existing technical literature or invalid reasons provided by the public can compensate for search blind spots.

However, the existing public opinion process has the following limitations: the current Patent Law does not clarify the legal status of public opinions during the examination stage. During the review process, only third parties are allowed to provide existing technical literature or appeal opinions, but the opinions submitted by the public, whether the review department adopts them, and how to handle them are not fully disclosed, and there is no opportunity for the public or stakeholders to object to the reviewer’s handling. Specifically, in Section 4.9 of Chapter 8 of Part 2 of the 2023 Patent Examination Guidelines, it is mentioned that the examiner’s handling rules for public opinions: if there are substantive defects (such as lack of novelty or creativity), they will be cited in the examination opinion and notified to the applicant; Public opinion does not constitute a mandatory procedure, and the examiner may independently decide whether to adopt it, but the reasons must be explained in the examination decision.

From the perspective of enterprises, submitting public opinions can block competitors’ patent applications in advance (limiting the scope of rights or preventing authorization). Compared to invalidation of granted patents, the cost of public opinion is relatively low, and it can also invisibly eliminate the negative impact of hypothetical authorization in advance. But in order to achieve relatively accurate deterrence, companies need to continuously monitor and analyze competitors’ publicly available patents, or analyze the development trajectory of industry core technologies or products, as well as monitor relevant publicly available patent intelligence. Enterprises can carry out the above monitoring or analysis based on their own IP capabilities or resources, or entrust accounting firms to handle it. From another perspective, with the development of AI technology, it has become more convenient for third-party stakeholders to submit public opinions, and the patent application strategy of enterprise IP departments also needs to be adjusted.

From the perspective of the agency, the purpose of submitting public opinions is to carry out precise blocking, so the timing of submission and striving to effectively supplement the blind spots of the examiner’s search are very important. Providing professional opinions to assist the examiner in accurately reviewing each claim, as well as how to persuade supplementary opinions instead of refuting the examination opinions, are also important factors in achieving effective deterrence. Furthermore, to effectively address the blind spots in examiner searches, agents should possess the following abilities: familiarity with specific industry chains or related product knowledge, ability to focus on analyzing the examination history of patent families, and the ability to conduct in-depth searches.

Example of document review after public opinion

Public opinion, as a mechanism for third-party participation in patent examination, is widely present in major patent systems worldwide.

In the United States, the Pre Grant Submissions system of the United States Patent and Trademark Office (USPTO) is a procedure in which a third party submits existing technology or related information during the patent application examination stage, aimed at assisting examiners in evaluating the patentability of a patent. The core content of this system includes: only applicable to all invention patent applications (including PCT international applications entering the US phase), not applicable to reissue or review procedures; In terms of time limit, submission must be completed before the earlier of the following dates: 1) the date when the Patent Office issues the “Notice of Allowance”; 2) Six months after the initial publication of the application or the date of the examiner’s first review and publication (whichever is later).

In the European Union, according to Article 115 of the European Patent Convention (EPC), third parties may submit third-party opinions during the examination stage of European patent applications, aimed at supplementing existing technology or pointing out application defects, and assisting examiners in evaluating patentability. The examiner shall conduct a substantive examination of the opinions and specify whether they are adopted and the reasons in the examination opinions. This process is applicable from the time of application publication to the time of authorization (including objection, appeal, and other procedures), and ends before the authorization decision is issued (or before the oral hearing decision), so it should be submitted earlier to ensure that the examiner fully considers it. The scope of reasons for considering opinions is limited to patent related clauses (EPC Articles 52-57, 83-84, 123, etc.), including novelty (Art. 54), creativity (Art. 56), and industrial applicability (Art. 57); Public sufficiency (Art. 83), clarity of claims (Art. 84); Modify beyond the scope (Art. 123), etc.

(Note: The content of this article is based on current regulations in China, the United States, and Europe. Specific operations shall be subject to the latest official laws and guidelines.)