Utility model patent is one of the three types of patent rights available in China. "Utility model" means a new technical solution relating to the shape, the structure, or their combination, of a product, which is fit for practical use. In other words, utility model patents protect products, but not methods. A Chinese utility model is valid for a term of 10 years from the filing date. Utility model patents in China may offer applicants and patent owners strategic advantages in terms of acquiring and enforcing patent rights in China.
Q: What can a utility model patent cover?
Any new technical solution which relates to the shape or the structure of a product, or to the combination of the shape and the structure of a product, i.e. utility model patents can be obtained for physical products, but not for methods or the composition of matter. Furthermore, the new technical solution must have utility.
Q: What cannot be registered as utility model?
Methods and processes, products without a definite shape, products that have been changed by substitution of material or differences in manufacturing technique but have retained the same known form and construction, products characterized only by a planar pattern design without resolving a technical problem, or the molecular structure and components of a substance.
Also not patentable are: computer programs, inventions contrary to the laws of the State, inventions contrary to social morality, inventions being detrimental to public interest, scientific discoveries, rules and methods for mental activities, methods for the diagnosis or treatment of diseases, animal and plant varieties, and substances obtained by means of nuclear transformation.
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Q: What is the requirement for utility models?
The requirements for filing are generally the same as those for filing a regular Chinese invention patent application, but the claims may include only one independent claim.
Where an applicant wishes to file both an invention patent application and a utility model patent application for the same invention, these must be filed on the same day with each accompanied by a notification identifying the filing of the other application. Once the invention patent is granted, the utility model patent must be abandoned otherwise the applicant risks revocation of the invention patent as the applicant is allowed to have only one patent in force for the (same) invention in China.
Q: What are the differences between invention patent and utility model patent?
1) Subject matter - UMs only protect products with new shape/structural physical features. For example, methods of production or chemical compounds are not eligible as they do not have a
shape or structure.
2) Inventiveness - although invention patents in literal terms require a higher ‘inventiveness’, in practice there is no difference.
3) Examination - UMs only require the ‘formality Examination’ or ‘preliminary examination’, while invention patents require ‘substantive Examination’, which takes longer and is much more detailed. Grounds for objections at preliminary examination are also different.
4) Term of protection - the maximum term of protection for a UM is 10 years from the filing date, while an invention patent lasts 20 years.
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