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PATENTS IN CHINA

This page provides a summary of questions and answers provided by the State Intellectual Property Office of China (SIPO) downloaded 27-AUG-2013.

ABCs ON CHINA PATENTS

1. How many types of industrial property rights exist in China?

There are three kinds of industrial property rights in China, including patent, trademark and copyright. Three types of patents are: "patents for invention", "patents for utility model" and "patents for design."

2. What is the duration of Chinese patent?

The duration of China Patent for a utility patent is twenty years from the filing date in China. The duration of utility model patent and design patent is ten years from the filing date in China.

3. What kind of invention cannot be patented in China?
No patents will be issued in China for categories specified in Article 5 and Article 25 of the China Patent Law. These include:

  1. anything contrary to the laws of the state or social morality or that is detrimental to public interest;
  2. scientific discoveries;
  3. rules and methods for mental activities;
  4. methods for the diagnosis or for the treatment of diseases, except that a process used in producing a product for the treatment of a disease is patentable;
  5. animal and plant varieties; and
  6. substances obtained by means of nuclear transformation.

4. Can computer software be patented in China?

Computer programs are not patentable, but may be copyrighted under the "Regulations on Computers Software Protection." An invention containing a computer program may be patentable if the combination of software and hardware as a whole can improve prior art, bring about technical results and constitute a complete technical solution.

5. What language must be used for a patent application in China?

Any document submitted under the Chinese Patent Law and its Implementing Regulations must be in Chinese. For PCT applications, the document can be filed in either Chinese or English. However, a Chinese translation of the application must be submitted within 20 months of the priority date.

6. Are Chinese patents for invention and patents for utility model subjected to substantive examination?

Utility patent applications are substantively examined for novelty, inventive step and industrial applicability. Applications for a utility model do not undergo a substantive examination. A preliminary examination is made for compliance with formal requirements. However, in invalidation procedures the requirements of novelty, inventive step and industrial applicability will be determined.

7. When are annual fees due in China?

An annual fee is due in the year in which the patent right is granted and shall be paid at registration. Subsequent annual fees shall be paid in advance within the month before the expiration of the preceding year.

8. What is the difference between three kinds of patent?

Rule 1, Chapter 1, Implementing Regulations of the China Patent Law states that invention includes any new technical solution relating to a product, a process or improvement.

Rule 2, Chapter 1, Implementing Regulations of the China Patent Law states that a utility model in the China Patent Law includes any new technical solution relating to the shape, the structure, or their combination, of a product, which is fit for practical use.

A design invention includes 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.

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-citizens who have fixed residences or business sites, or foreign enterprises or organizations located in China, enjoy the same privileges of Chinese citizens in the respect of patent right protection, i.e. they have the rights either to apply for patents the same as Chinese citizens and to enjoy protection from the Chinese Patent Law.

Any non-citizen enterprise or other foreign organization having no fixed residence or business site in China may file an application for a patent in China. The application shall be treated under the Patent Law in accordance with any 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.

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 a member country to apply for patent or trademark in another member country after submitting same application in his or it own country.

Priority means an applicant has the right to apply for protection of his or its patent or trademark in another member country within a fixed duration from the filing date of the first application. Thus, the filing date of the first application in a member country is regarded as the filing date in another member country. The fixed duration is typically within 6 months for a design application and within 12 months for a utility or utility model application.

13. When must an applicant request the right of priority and how is the request made?
A
rticle 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 an examination system for a utility application, a utility model or design application. Upon the request of the applicant, the Patent Administration Department under the State Council publishes the application, and a subsequent examination is conducted upon request of the applicant.

A preliminary examination is conducted on an application for a utility model or design. Whenever there is a case involving in the utility model, the court and patent administration department can ask for the patentee to provide an examination report sealed by SIPO. This is a supplementary measure to remedy any deficiency in preliminary examination.

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.

 

 

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