In the patent practice in China, conflicting application (also called secret prior art in other countries) system is an important system that needs to be considered when evaluating novelty of a patent application. Conflicting application does not belong to the prior art, and its function is only to evaluate novelty of other later patent applications in China, preventing the same innovation from being granted repeatedly.

According to the relevant provisions of the Chinese Patent Law and Patent Examination Guidelines, in general, an earlier application or patent will constitute a conflicting application for a later patent application if the following conditions are met.

(I) The earlier application or patent is filed by any entity or individual before the China National Intellectual Property Administration (CNIPA);

(II) The filing date of the earlier application or patent is earlier than that of the later application;

(III) The earlier application or patent is published or announced on or after the filing date of the later application; and

(IV) The earlier application or patent and the later application protect the same innovation.

Regarding the relevant provisions of conflicting application, there are slight differences between China and other main IP countries. In practice, applicants, especially foreign applicants should pay attention to the following differences to avoid negative influence on the patent application and granting.

1. Conflicting application can only be used as a basis to destroy novelty but NOT inventive step in China. In contrast, in the patent practice in the US, the circumstance like conflicting application is included by the prior art, and it can be used as a basis to destroy both novelty and inventive step.

2. According to Chinese patent practice, conflicting application also includes the applicant's own Chinese patent application(s) that was filed earlier, while the application filed by the applicant himself earlier does not constitute conflicting application in the US and Japan. 

Therefore, if applicants from Japan or the US want to file patent applications in China, they should pay special attention to preventing their own patent application from constituting conflicting application. In order to avoid such self-conflict, it is suggested that the related patent applications should be filed on the same day.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.