China utility model application is one of the available categories of patents in China. Utility models are sometimes referred to as small inventions because they have comparatively lower level of inventive step and are less costly than an invention. Below is a brief introduction to utility model application in China.
I. Features of Utility Model Application
A utility model patent application is different from an invention patent application in several key respects.
First, a utility model application is directed to innovations in limited areas - specifically, technical solutions related to the shape and/or structure of a product. Methods, uses and chemical compositions or compounds do not constitute statutory subject matters for utility model applications.
Second, a utility model application is subject to only a preliminary examination substantially on formalities. This means that no prior art search and no assessment of novelty or inventive step for the claimed solution are conducted during the examination by the State Intellectual Property Office (SIPO).
Third, the standard of inventive step for a utility model patent is lower than that for an invention patent. For a utility model, the examiner will normally focus on the technical field to which the utility model belongs, unless there is a clear technical teaching.
II. Requirements on Utility Model Patent
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 invention in China.
The utility model patent has a maximum term of 10 years. Where coincident utility model and invention patent applications are filed, the utility model patent may serve to protect the applicant’s commercial interests pending grant of the longer 20-year invention patent. There is a glitch, however, for those applicants who file PCT applications. Where an applicant has filed a PCT patent application and wishes to obtain patent protection in China based on the PCT application, the applicant must choose either an invention patent application or a utility model patent application, but not both, at the time of national phase entry.
III. Examination and Grant
A utility model patent application can often be granted well within a year from filing largely owing to the fact that the application is subjected to only a formal examination procedure and not a substantive examination procedure. Consequently, if the formal examination shows the application to be in order, the application will proceed to grant in a relatively short time period compared to an invention patent application.
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