Patent law in modern mainland China began with the promulgation of the Patent Law of the People's Republic of China, in 1984. In 1985, China acceded to the Paris Convention for the Protection of Industrial Property, followed by the Patent Cooperation Treaty in 1994. When China joined the World Trade Organization (WTO) in 2001, it became a member of the TRIPS agreement. Patents in China are granted by the State Intellectual Property Office (SIPO). Below are the frequently asked questions about China patent.
Why do I need a china patent?
If your invention has Chinese market potential and you think that another company could make profits from your invention, you need protection from a patent.
A patent gives you the right to exclude others from making your product. As a patent gives exclusivity, the patent holder has time to market the invention without competition making him/her able to charge higher prices. It gives the right to initiate legal action against anyone that is making or selling, without permission, the patent holder invention.
You can make money by licensing or selling your invention to someone else. It gives you priority over third parties wanting to register their patents in countries that do not require registration.
What kind of invention cannot be patented in China?
According to Article 5 and Article 25 of the China Patent Law, the following items are unpatentable in China:
(1) any invention-creation that is 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;
(5) animal and plant varieties;
(6) substances obtained by means of nuclear transformation.
For processes used in producing products referred to in items (4) of the preceding paragraph, patent right may be granted in accordance with the provisions of this Law.
What is the difference between three kinds of patent?
According to the Chinese Patent Law, three types of patents are issued in China, namely invention patents, utility model patents, and design patents.
The Rule 1 of Chapter one of the Implementing Regulations of the China Patent Law says that invention means any new technical solution relating to a product, a process or improvement.
According to the rule 2 of Chapter one of the Implementing Regulations, utility model in the China 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.
Design, in the word of the China 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.
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 has to be submitted within 20 months of the priority date.
What is the duration of Chinese patent?
The duration of China Patent for invention is twenty years, the duration of patent for utility model and design is ten years, counted from the application date in China.
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