You are here

Patent Procurement

Legal Basis

On April 1, 1985, the Chinese Patent Law entered into effect.

It was revised on September 4, 1992 for the first time and the revised Patent Law came into force on January 1, 1993.

On August 25, 2000, it was revised for the second time and the revised Patent Law came into force on July 1, 2001.

On December 27, 2008, the Patent Law was revised for the third time and the revised Patent Law came into force on October 1, 2009.

On June 3, 1980, China became a member of the World Intellectual Property Organization (WIPO).

On March 19, 1985, China acceded to the Paris Convention for the Protection of Industrial Property (Stockholm Act).

On January 1, 1994, China became a member of the Patent Cooperation Treaty (PCT).

On July 1, 1995, China became a member of the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure.

On September 19, 1996, China entered into the Locarno Agreement Establishing an International Classification for Industrial Designs.

On June 19, 1997, China entered into the Strasbourg Agreement Concerning the International Patent Classification.

On April 23, 1999, China became a member state of the International Convention for the Protection of New Varieties of Plants (1978 Act).

On December 11, 2001, China acceded to the WTO Agreement and thereby became a Member of the WTO. The TRIPs Agreement became effective in China at the same time.

Language

All filing documents and formal communications with the State Intellectual Property Office (SIPO) and the Patent Re-examination Board must be in Chinese.

Types of Patent

There are three types of patent, i.e. patent for invention, patent for utility model and patent for design.

Patent Duration

The duration of a patent for invention is twenty years, the duration of a patent for utility model or design is ten years, counted from the filing date in China.

Definition of Invention / Utility Model and Design

“Invention” means any new technical solution relating to a product, a process or improvement thereof.

“Utility model” means any new technical solution relating to the shape, the structure, or their combination of a product, which is fit for practical use.

“Design” 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.

Unpatentable Subject Matters

No patent right shall be granted for any of 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;

5. Substances obtained by means of nuclear transformation;

6. Any design of pattern, color or their combination on two-dimensional printed articles and mainly for identifying functions.

For processes used in producing products referred to in item (4), patent may be granted.

Deposit of Biological Material

Where an application for invention concerns a new biological material which is not available and which cannot be described in the application in such a matter as to enable the invention to be carried out by a person skilled in the art, the applicant shall deposit a sample of the biological material with an international depository authority (IDA) under the Budapest Treaty before the date of filing, or, at the latest, on the date of filing (or the priority date, where a priority is claimed), and submit, at the time of filing, or, at the latest, within four months from the filing date, a receipt of deposit and a viability proof from the depository authority.

Patentability of Computer Software

Computer software per se is not patentable. However, computer software may be protected under the Copyright Law, and, may also be protected under the Patent Law if it belongs to a technical field, resolves a technical problem and reaches a technical result.

Invention-Creation Relying on Genetic Resources 

No patent shall be granted for an invention-creation that is made relying on genetic resources, which are obtained or utilized in a way violating the relevant laws or administrative regulations. For invention-creations made relying on genetic resources, the direct and original sources of said genetic resources should be disclosed in the description. If the applicant fails to indicate the original sources of the genetic resources, he should explain the reasons.

Novelty

For patent applications filed on or after Oct. 1, 2009, “absolute novelty standard” is adopted.

An invention or utility model is novel if it does not belong to any prior art known to the public before the filing date of said invention or utility model in the country or abroad. Novelty is destroyed by an application, filed earlier by any person including the applicant himself that describes an identical invention or utility mode and is published by SIPO after the filing date of the said invention or utility model.

A design is novel if it does not belong to any prior design known to the public before the filing date of said design in the country or abroad. Novelty is destroyed by a design application, filed earlier by any person including the applicant himself and published after the filing date of said design application.

Inventiveness

An invention possesses inventiveness if, compared with the prior art, the invention has prominent substantive features and represents a notable progress.

A utility model possesses inventiveness if, compared with the prior art, the utility model has substantive features and represents progress.

Any design for which patent right may be granted shall be obviously distinguished from any prior design or combination of the features of the prior designs. 



Conventional Priority and Domestic Priority

Conventional priority for patent applications for invention and utility model can be claimed within twelve months from the date of first filing outside China. Conventional priority for patent applications for design can be claimed within six months from the date of first filing outside China.

Domestic priority for patent applications for invention and utility model can be claimed within twelve months from the date of first filing in China. Where the subject of an earlier application for invention or utility model falls under any one of the following circumstances, it may not be taken as the basis for any later application for invention or utility model to claim a domestic priority:

1. where it has claimed foreign or domestic priority; 2. where it has been granted a patent right;

3. where it is a divisional application.

The earlier application shall be deemed to have been withdrawn on which a new application claiming domestic priority is filed.

Domestic Priority

Domestic priority for patent applications for invention and utility model can be claimed within twelve months from the date of first filing in China. Where the subject of an earlier application for invention or utility model falls under any one of the following circumstances, it may not be taken as the basis for any later application for invention or utility model to claim for a domestic priority:

1. where it has claimed foreign or domestic priority; 
2. where it has been granted a patent right; 
3. where it is a divisional application.

The earlier application shall be deemed to have been withdrawn when a new application claiming domestic priority is filed.

National Phase of PCT Applications

A PCT application should enter into Chinese national phase within 30 months from the priority date.

If the applicant for a PCT application fails to go through the relevant formalities for entering into the Chinese national phase within 30 months from the priority date, he may, after paying a surcharge for the late entry, go through these formalities before the expiration of the time limit of 32 months from the priority date.

First-to-File Rule

The Chinese patent system adopts the first-to-file rule. Where two or more applicants file patent applications for the identical invention, utility model or design, the patent right shall be granted to the applicant whose application was filed first. 


Filing Documents

A patent application for invention or utility model must include the following documents:

-Power of Attorney, signed by the applicant (Notarization or legalization is not required);

- Specification with claims and abstract;

- Drawings, if any;

- Certified copy of the prior application, if a priority is claimed; and

- Assignment of priority right, if the applicant in China differs from that of the prior application.

A patent application for design must include the following documents:

-Power of Attorney, signed by the applicant (Notarization or legalization is not required);

- Drawings or photographs of the design;

- Brief description of the design;

- Certified copy of the prior application, if a priority is claimed, and

- Assignment of priority right, if the applicant in China differs from that of the prior application.

Claim Format

"European" claim format, which contains a preamble portion defining the technical features of the prior art and a characterizing portion defining the technical features of the invention, is highly recommended for independent claims.

Publication

Patent application for invention is published promptly upon expiration of eighteen months from the filing date or the priority date, whichever is earlier, after a preliminary examination.

Substantive Examination

Patent application for invention is examined as to the substance. In order to initiate the substantive examination procedure, an applicant must submit a formal request within three years from the Chinese filing date (or the priority date, if any). Otherwise, the application shall be deemed to have been withdrawn.

Patent application for utility model or design is not examined as to the substance. Patent will be issued automatically after preliminary examination.

Duty of Information Disclosure

When the applicant of a patent application for invention requests substantive examination, he shall provide pre-filing date reference materials concerning the invention. SIPO may ask the applicant to furnish any search reports and examination results issued by foreign patent authorities, such as EPO, USPTO and JPO, during the examination of the corresponding foreign applications.

Unity Requirement

A patent application for invention or utility model shall be limited to one invention or utility model. Two or more inventions or utility models may be filed in one application, provided that they belong to a single general inventive concept, that is to say, they shall be technically interrelated and contain one or more identical or corresponding special technical features. The expression "special technical features" shall mean those technical features that define a contribution which each of those inventions, considered as a whole, makes over the prior art.

A patent application for design shall be limited to one design incorporated in one product. Two or more similar designs of the same product or two or more designs, which are incorporated in products belonging to the same class and being sold or used in sets, may be filed in one application. The expression "the same class" means that the products incorporating the designs belong to the same class in the classification of design. The expression "being sold or used in sets" means that the products incorporating the designs have the same designing concept and are customarily sold or used at the same time.

Filing of a Divisional Application

A divisional application can be filed by the applicant before the expiration of two months from the date of receipt of the notification to grant the patent right for the initial Chinese patent application. Where the initial Chinese patent application has been finally rejected, withdrawn or deemed to have been withdrawn, no divisional application can be filed.

If a first generation of divisional application has been filed based on the initial Chinese patent application, even though the initial Chinese patent application was granted a patent right or finally rejected, withdrawn or deemed to have been withdrawn, a further generation of divisional patent application may still be filed based on the first generation of divisional application if a unity objection was raised during the prosecution of the first generation of divisional application. 

Multiple Dependent Claim

A multiple dependent claim, which refers to two or more claims, shall refer to the preceding one in the alternative only, and shall not serve as a basis for any other multiple dependent claims.

Amendment of Application

Amendment of a patent application is allowed, but may not go beyond the scope of the original disclosure contained in the initial description and claims.

For a patent application for invention, the applicant may amend its application on its own initiative when requesting for substantive examination, or within three months from the date of receipt of the notification from SIPO informing the entry of the application into the stage of substantive examination. 


For a patent application for utility model or design, the applicant may amend his application on his own initiative within two months of the filing date.


Rejection and Appeal

If a patent application is found to be unacceptable by SIPO, and the applicant has been given at least one opportunity to make a response, a final rejection shall be made.

The rejection made by SIPO can be appealed to the Patent Reexamination Board. 


Where the applicant is not satisfied with the decision of the Patent Reexamination Board, he may, within three months from the date of receipt of the notification, institute legal proceedings before the court.

Invalidation

Anyone may request the Patent Reexamination Board to declare a patent invalid from the date of announcement of the grant of the patent right.

Where the patentee or the person who made the request for invalidation is not satisfied with the decision of the Patent Reexamination Board declaring the patent right invalid or upholding the patent right, such party may, within 3 months from receipt of the notification of the decision, institute legal proceedings before the court.

The Scope of Protection of a Patent Right 

The scope of protection of a patent for invention or utility model is determined by the terms of the claims. The description and the drawings may be used to interpret the claims.

The scope of protection of a patent for design is determined by the design of the product as shown in the drawings or photographs. The brief description may be used to interpret the design of the product as shown in the drawings or photographs.

After grant of a patent right for invention or utility model, the patentee has the right to prevent others from making, using, offering to sell, selling or importing the patented product, or using the patented process, or using, offering to sell, selling or importing the product directly obtained by the patented process, for production or business purposes and without his authorization.

After grant of a patent right for a design, the patentee has the right to prevent others from making, offering to sell, selling or importing the product incorporating the patented design, for production or business purposes and without his authorization.

Foreign filing license 

Where any entity or individual intends to file a patent application in a foreign country for an invention or utility model made in China, he or she must first request the SIPO for confidentiality examination so as to get a foreign filing license. The violation of this stipulation will make the same invention or utility model invalid in China.

Right of Prior User

It is not an infringement if, before the filing date of a patent application, a person has already made the identical product, used the identical process, or made necessary preparations for producing the identical product or using the identical process, and this person continues to make the product or use the process within the original scope only, after the patent application is granted.

Annuity

The annuity for the year when the application is granted shall be paid within two months from the date of receipt of the notification to grant the patent right. The subsequent annuities shall be paid in advance before the expiration of the preceding year.

A grace period of six months for paying the annuities is available.

Representation

Foreign entities and individuals having no permanent residence or business premises in China must be represented by a patent agency that is legally established in China in patent prosecution and other proceedings before SIPO and the Patent Reexamination Board.

Assignment and License Contract

Where a patent or patent application is assigned, there must be a written contract and the assignment must be recorded with SIPO. The assignment comes into force after it is recorded.

Any license contract shall, within three months from the date of coming into force, be submitted to SIPO for recordation.

Any assignment of patent or patent application to a foreigner by a Chinese entity or individual must be handled in accordance with the laws and administrative regulations.
 

Patent Marking

The applicant or patentee has the right to mark the application number or patent number on his product covered by his patent application or patent or on the package of that product.