China patent application is one of the domestic intellectual property services provided by Tannet’s IP Service Center. Patents in China are granted by the State Intellectual Property Office (SIPO). There are three types of patents: invention patents, utility model patents, and design patents. Invention patents are substantively examined, while utility model patents are subject only to a formal examination. The following are frequently searched questions concerning patent application in China.
Q: Who can apply for a patent in China?
Pursuant to Article 18 of the Chinese Patent Law, any foreigner, foreign enterprise or other foreign organization having no habitual residence or business office in China files an application for a patent in China, the application shall be treated under this Law in accordance with any agreement concluded between the country to which the applicant belongs and China, or in accordance with any international treaty to which both countries are party, or on the basis of the principle of reciprocity.
Q: What are the conditions of granting patent right?
Any invention or utility model for which patent right may be granted must possess novelty, inventiveness and practical app1icability, and any design for which patent right may be granted must not be identical with and simi1ar to any design which, before the date of filing, has been publicly disclosed in publications in the country or abroad or has been publicly used in the country, and must not be in conflict with any prior right of any other person.
Q: What is the difference between three kinds of patent in China?
According to China’s Patent Law, invention means any new technical solution relating to a product, a process or improvement.
Based on 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.
In the word of the China Patent Law, 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.
Q: 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.
Q: What will be the duration of patent protection in China?
The duration of patent right for inventions is twenty (20) years, the duration of patent right for utility models and patent right for designs is ten years, counted from the date of filing, but basing on the rules of 39 and 40 of the Patent Law, the patent right for invention, utility model and design shall come into effect as of the date of the announcement. Therefore, the above-mentioned duration is just a calculating formula, but not exactly same as the years mentioned above.
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