![]() |
The Law Firm ofLouis Ventre, Jr.Registered Patent Attorney PEOPLE'S REPUBLIC OF CHINA |
![]() |
PATENTS IN CHINAThis 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 PATENTS1. 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? 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?
9. What kinds of inventions may not be granted patent rights? (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-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 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? 13. When must an applicant request the right of priority and how is the
request made? 14. What patent examination system has China adopted? 15. When is an application published? 16. How may an applicant respond to a rejection of the patent
application? 17. Is there any appeal from a rejection by the Reexamination Board? 18. What are the legal reasons for rejecting an
application? (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? 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 Click Here to Fill-In a Web Form Email
This file last modified 05/19/20. |