China patent examination procedure consists of two steps, namely, preliminary examination and substantial examination. After receiving notification letters for patent grant and patent registration, the applicant may complete the registration process and pay the required fees within two months. the fees include the registration fee, publication fee, and annuity.
Preliminary Examination
For invention patent applications, preliminary examination occurs between the filing and the publication of the application. Chinese patent applications are published 18 months after the application date, as long as the application satisfies all the requirements.
The goal of the preliminary examination is to determine that:
(1) all required documents are included,
(2) all documents were submitted in a timely manner, and
(3) the application fees were paid correctly.
During the preliminary examination, the applicants have an opportunity to correct any problems identified by the examiner. If the applicant is unable to overcome any of the problems, the application is rejected. For utility model and design patent applications, the preliminary examination is the only examination process required.
Substantial Examination
The purpose of substantial examination is to determine the patentability of an invention, based on novelty, inventiveness and practical applicability. Novelty involves both an inventive step and utility.
According to Article 25 of the Chinese Patent Law, no patent right shall be granted for any of the following:
Scientific discoveries;
Rules and methods for mental activities;
Methods for the diagnosis or for the treatment of diseases;
Animal and plant varieties;
Substances obtained by means of nuclear transformation;
Request for substantial examination must be made to the Patent Administration Department (PAD) of the State Intellectual Property Office (SIPO) within three years of the date of filing or the date of priority (if priority is claimed). If the applicant fails to meet the time limit for requesting substantial examination (without a justifiable reason), the application is deemed to have been withdrawn.
An Examiner in the PAD then conducts a search to determine whether the invention was known before the priority date. If the Examiner identifies any pertinent prior art, the applicant is requested to amend the application. This process can be repeated for several times and therefore generally tales more than a year. If the applicant can not overcome the examiner’s objection, the application is rejected. Otherwise, a decision to grant the patent right is made.
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