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.
I. Invention Patents
As in Europe, in China an invention patent is granted for new technical solutions or improvements to a product or process, provided that the technical solutions have a practical applicability. An invention patent must not have been previously published overseas or in China, and must not have been used in China prior to the patent application.
When compared to existing technology, the invention patent must have an advantage. ‘Previously published’ refers to whether it has been disclosed to the public through publications such as newspapers, magazines, journals, online publications etc. before the application date of the patent. If an identical invention has been published before the application date, this will destroy the ‘novelty’ (or ‘newness’) of the patent, which is a requirement for application.
II. Utility Model Patents
Utility Model Patents (UMs) are very similar to invention patents; however UMs only protect products with new shape or structural physical features. UMs are not unique to China. In fact, there are more countries in the world that have a UM system than those that do not. European Union Member States with the UM system include Austria, Belgium, Denmark, Finland, Germany, Italy, and the Netherlands, among others. The USA and the UK do not have a UM system.
A common practice under the Chinese system is the parallel filing of a UM and an invention patent, followed by the abandonment of the UM once the invention patent is officially granted. This way, the applicant can benefit from the early patent protection granted by the UM, as well as the longer term protection granted by the invention patent (once eventually approved).
III. Design Patents
A design patent must not have been published overseas or in China, and must not have been used in China. In addition, a design patent cannot conflict with the prior rights of another person. The phrase ‘not have been used in China’ means that the product has not been publically used in China. As a general rule, if a company sells their products in China before filing for registration, this will destroy the ‘novelty’ of the patent.
An application for a design patent includes any of the following external features of a product:
• The shape of a product;
• The pattern of a product;
• The shape and pattern of a product;
• The shape and colour of a product;
• The shape, pattern and colour of a product.
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