The Law Firm of Louis Ventre, Jr. Registered Patent Attorney PEOPLE'S REPUBLIC OF CHINA Add Site to Favorites

Patent Application  1. UTILITY -Business Method -Software -Drug   2. DESIGN   3. PLANT   4. PROVISIONAL   5. PCT Patent Infringement Opinions Designing Around Patents Patent Reexamination Patent Reissue Patent Infringement Damages Patent Licensing Foreign Filing License & Non-U.S. Filers   Invention Marketing Invention Opportunities Invention Notebook Who Is An Inventor   Trademark Application Trademark Cancellation Trademark Infringement International Trademark   Copyright Application Copyright Infringement   Trade Secrets Employment Secrecy Agreement   Cooperative R&D Agreement   Pay by Charge Card   Attorney Contact Information Attorney Biography Proximity to Patent Office   Links Frequently Asked Questions Tax Considerations   Website Index Website Use Disclaimer

PATENTS IN CHINA This page provides a summary, re-written in grammatical English, of a question and answer page provided by the State Intellectual Property Office of China on October 31, 2006.  If an authoritative source is needed, please consult the original publication. ABCs ON CHINA PATENTS 1. What is the extent of protection offered by the Patent Law of the People's Republic of China? According to the article 1 of the Patent Law of the People's Republic of China (hereinafter referred to as “the Patent Law”), the Patent Law establishes patent rights for inventions-creations.  According to the article 2 of the Patent Law, the term “inventions-creations” means inventions, utility models and designs. Therefore, the Patent Law protects the rights of inventions-creations, utility models and designs. 2. What is invention? Rule 1 of Chapter one of the Implementing Regulations of the Patent Law of the People's Republic of China (hereinafter referred as “Implementing Regulations”) states that the term “invention” means any new technical solution relating to a product, a process or an improvement. 3. What is a “utility model”? According to the rule 2 of Chapter one of the Implementing Regulations, a utility model in the Patent Law represents any new technical solution relating to the shape, the structure, or their combination, of a product, which is fit for practical use. 4. What does “design” in Patent Law mean? The Implementing Regulations define “design” to mean any new design of the shape, the pattern or their combination, or the combination of the color with shape or pattern, of a product, which creates an aesthetic feeling and is fit for industrial application. 5. What is the duration of patent protection in China? The duration of patent rights for inventions is twenty years from the date of filing.  The duration of patent rights for utility models and patent rights for designs is ten years from the date of filing.  Patent rights come into effect as of the date of the announcement, as per rules 39 and 40 of the Patent Law.  Therefore, the actual duration of patent rights is less than 20 years and extends from the date of announcement of the patent grant to 20 years from the filing date. 6. What is the priority principle? The priority principle means that a patent grant will be given to the first applicant for a patent for an invention, no matter who finishes the invention first. 7. What are the conditions of granting patent right? A patent may be granted for an invention, design or utility model if it possesses novelty, inventiveness and has practical applicability.  A patent right may be granted only if the invention, design or utility model is not identical with or similar to any prior invention, design or utility model. Therefore, no patent may issue if the invention, design or utility model has been publicly disclosed in a publication in the People's Republic of China, or in other countries, or has been publicly used in the People's Republic of China.  Further, the invention, design or utility model must not be in conflict with any prior right of any other person. 8. What are novelty, inventiveness and practical applicability? “Novelty” means that, before the date of filing, no identical invention or utility model has been publicly disclosed in a publication in the People's Republic of China or in other countries, or has been publicly used or made known to the public by any other means in the People's Republic of China, nor has any other person filed previously with the Patent Administration Department under the State Council and are recorded in the administration department. “Inventiveness” means that, as compared with the technology existing before the date of filing, the invention has prominent substantive features and represents notable progress and that the utility model has substantive features and represents progress. “Practical applicability” indicates that the invention or utility model can be made or used and can produce effective results. 9. What kinds of inventions may not be granted patent rights? No patent right may be granted for any invention-creation that is contrary to the laws of the State or social morality or that is detrimental to public interest.  Articles 5 and 25 of the Patent Law preclude issuance of a patent for the following: (1)  scientific discoveries; (2)  rules and methods for mental activities; (3)  methods for the diagnosis or for the treatment of diseases; (4)  animal and plant varieties; and, (5)  substances obtained by means of nuclear transformation. 10.  May citizens of other countries apply for patent rights in China? Non-citizen residents who have fixed residences or business sites, or foreign enterprises or organizations located in China, enjoy same the privilege as Chinese citizens in respect of patent right protection, i.e. they have the same rights to apply for patents and enjoy the protection of the Chinese Patent Law. Non-citizen-non-residents, foreign enterprises or other foreign organizations having no fixed residence or business site in China may file an application for a patent in China.  The application is treated under the Patent Law in accordance with any international agreement concluded between the country to which the applicant belongs and China, or in accordance with any international treaty to which both countries are member countries, or on the basis of the principle of reciprocity. 11.What documents are needed to apply for a patent in China? To apply for a patent on an invention or utility model, an application is filed which includes a request, a description, an abstract, and claims. To apply for a patent on a design, an application is filed which includes a request, drawings or photographs of the design, and an identification of the product incorporating the design and the class to which that product belongs. 12. What does the right of priority mean? The right of priority originates from the Paris Convention for The Protection of Industrial Property for the convenience of people from any member country.  It enables a person, for a limited period of time, to apply for patent or trademark in the other member countries and claim the filing date of the application made in their home country as the filing date of the new application in the member country.  This enables the person to claim priority for a patent over any person filing after the filing date of the original application. According to the article 29 of the Patent Law, the limited period of time is within twelve months of the original filing date for an invention or utility model and within six months for design.  This time period is effective if it is in accordance with an agreement concluded between the foreign country and China, or in accordance with any international treaty to which both countries are party, or on the basis of the principle of mutual recognition of the right of priority, enjoy a right of priority. The duration of priority right starts from the second day of submitting the first application. 13. When must an applicant request the right of priority and how is the request made? Article 30 of the Patent Law of People's Republic of China states that any applicant who claims the right of priority shall make a written declaration when the application is filed, and submit, within three months, a copy of the patent application document which is first filed.  If the applicant fails to make the written declaration or to meet the time limit for submitting a copy of the patent application document, then the claim to the right of priority will be deemed not to have been made. 14. What patent examination system has China adopted? The Patent Law of China requires examination of an application for an invention, utility model or design patent. Upon the request of the applicant, the Patent Administration Department under the State Council publicizes the application, and the examination is based on the request of the applicant.  A preliminary examination is conducted for application for a patent for utility model or design. 15. When is an application published? An application is promptly published after the expiration of eighteen months from the date of filing.  Publication is required by article 34 of China's Patent Law, if upon preliminary examination, the application is found to be in conformity with the requirements of Law of Patent. 16. How may an applicant respond to a rejection of the patent application? Based on article 41 of the Patent Law, an applicant may within three months from the date of receipt of the notification, request the Patent Reexamination Board to make a reexamination. The Patent Reexamination Board shall, after reexamination, make a decision and notify the applicant. 17. Is there any appeal from a rejection by the Reexamination Board? When the applicant for a patent is not satisfied with the decision of the Patent Reexamination Board, an appeal, within three months from the date of receipt of the notification, may be made to the people's court. 18. What are the legal reasons for rejecting an application? There are 9 reasons: (1)  The subject matter of a application does not accord with the definitions of invention, utility model or design made by the Implementing Regulations of the Patent Law of the People's Republic of China, i.e. "Invention" in the Patent Law means any new technical solution relating to a product, a process or improvement thereof. "Utility model" in the Patent Law means any new technical solution relating to the shape, the structure, or their combination, of a product, which is fit for practical use. "Design" in the Patent Law means any new design of the shape, the pattern or their combination, or the combination of the color with shape or pattern, of a product, which creates an aesthetic feeling and is fit for industrial application. (2)  The subject of the application is contrary to the laws of the State or social morality or that is detrimental to public interest, according to article 5 of the Patent Law. (3)  The subject of the application is not proper subject matter for a patent.  Improper subject matter involve scientific discoveries, rules and methods for mental activities, methods for the diagnosis or for the treatment of diseases, animal and plant varieties and substances obtained by means of nuclear transformation. (4)  The invention or utility model lacks novelty, inventiveness, or practical applicability, and the subject of design is either similar to any design which, before the date of filing, has been publicly disclosed in publications in the country or abroad, or has been publicly used in the country, or in conflict with any prior right of any other person. (5)  The description of an invention or utility model is not sufficiently clear and complete. (6)  The right to a patent is not sufficiently clear, the description is not concise, or it does not convincingly solve a certain technical problem. (7)  Applicant first made an application in a foreign country for a patent for invention-creation made in China.  For any invention made in China, the law requires the applicant to file first with the patent administration department under the State Council, appoint a patent agency designated by the said department to act as its or his agent, and comply with the provisions of article 4 of the Patent Law. (8)  Applicant proposed an amendment to the application for an invention or utility model that is beyond the scope of the disclosure contained in the initial description and claims, or for a design that goes beyond the scope of the disclosure as shown in the initial drawings or photographs. (9)  Another applicant has previously applied for a patent on the same invention, utility model or design. 19. What is the basic principle of Hong Kong patent system? Hong Kong has a two-option system for patents:  a standard patent and a short-tem patent. A standard patent is 20 years at most, but that has to be renewed every year. A short-term patent is 8 years at most, and renewed every four years. A design patent is 5 years, but applicants can ask for 4 renewal terms with one renewal term of 5 years. Those applying design patent or temporary patents can apply directly in Hong Kong Intellectual Property Department. To apply for a standard patent, an applicant submits an application to the State Intellectual Property Office of China, or the British Patent Department or the Eurounion Patent Department.  Within 6 months of a grant of a patent in this first stage, a second-stage registration must be filed in Hong Kong Intellectual Property Department.  The patent will come into effect after the applicant finishes the second-stage registration. Annual Patent maintenance fees to maintain patent validity are levied by Hong Kong Intellectual Protection Department.     Home | How to Communicate | Email to: lventre@lventre.com | Useful Links Client Inventions | Bio | FAQs | Disclaimers Search Click Here to Fill-In a Web Form Email This file last modified 03/01/09. This page is http://www.lventre.com/china.html.