FAQs

If your invention has Chinese market potential and you think that another company could make profits from your invention, you need protection from a patent.

A patent gives you the right to exclude others from making your product.

As a patent gives exclusivity, the patent holder has time to market the invention without competition making him/her able to charge higher prices.

It gives the right to initiate legal action against anyone that is making or selling, without permission, the patent holder invention.

You can make money by licensing or selling your invention to someone else.

It gives you priority over third parties wanting to register their patents in countries that do not require registration.

Those foreign people who have fixed residences or business sites, or foreign enterprises or organizations located in China, enjoy same the privilege of Chinese people in the respect of patent right protection, i.e. they have the rights either to apply for patents as same as Chinese people do, or to enjoy protection from the Chinese Patent Law.
Any foreigner, foreign enterprise or other foreign organization having no fixed residence or business site in China files an application for a patent in China, the application shall be treated under this Patent 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 member countries, or on the basis of the principle of reciprocity.

The right of priority originates from the Paris Convention for The Protection of Industrial Property for the convenience of people from the member country to apply for patent or trademark in the other member countries after submitting same application in his or it own country. The so-called priority means an applicant has the right to apply for protection of his or its patent or trademark, in a fixed duration, in all member countries after submitting the application in one of the member countries, and thus his or its application in other member countries shall be regarded, in some respects, the filing day as the date of the first application. In other words, in a fixed duration, this applicant, comparing others applying for the same subject matter after, enjoys the priority privilege. This is the origin of priority right. With the progress of patent system, priority right has expanded from solely in foreign countries to the applicant's country. According to the article 29 of the Patent Law of PRC, within twelve months from the date on which any applicant first files in a foreign country an application for a patent for invention or utility model, or within six months from the date on which any applicant first files in a foreign country an application for a patent for design, he or it files in China an application for a patent for the same subject matter, he or it may, in accordance with any agreement concluded between the said foreign country and China, or in accordance with any international treaty to which both countries are party, or on the basis of the principle of mutual recognition of the right of priority, enjoy a right of priority. The duration of priority right starts from the second day of submitting the first application.

The article 30 of the Patent Law of PRC regulates that any applicant who claims the right of priority shall make a written declaration when the application is filed, and submit, within three months, a copy of the patent application document which is first filed; if the applicant fails to make the written declaration or to meet the time limit for submitting a copy of the patent application document, the claim to the right of priority shall be deemed not to have been made.

The Rule 1 of Chapter one of the Implementing Regulations of the Patent Law of the People's Republic of China (hereinafter referred as Implementing Regulations) says that invention means any new technical solution relating to a product, a process or improvement.

According to the rule 2 of Chapter one of the Implementing Regulations, utility model in the 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.

Novelty means that, before the date of filing, no identical invention or utility model has been publicly disclosed in publications in the country or abroad or has been publicly used or made known to the public by any other means in the country, nor has any other people filed previously with the Patent Administration Department under the State Council and are recorded in the administration department.

Inventiveness means that, as compared with the technology existing before the date of filing, the invention has prominent substantive features and represents a notable progress and that the utility model has substantive features and represents progress.

Practical applicability indicates that the invention or utility model can be made or used and can produce effective results.

No patent right shall be granted for any invention-creation that is contrary to the laws of the State or social morality or that is detrimental to public interest, article 5 of the Patent Law says, and the article 25 lists out following concrete examples:

(1) scientific discoveries;

(2) rules and methods for mental activities;

(3) methods for the diagnosis or for the treatment of diseases;

(4) animal and plant varieties;

(5) substances obtained by means of nuclear transformation.

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.

Computer programs as such cannot be patented, but may be protected under the "Regulations on Computers Software Protection", formulated in accordance with the Copyright Law. An invention containing a computer program may be patentable if the combination of software and hardware as a whole can really improve prior art, bring about technical results and constitute a complete technical solution.

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.

The annual fee of the year in which the patent right is granted shall be paid at registration. The subsequent annual fees shall be paid in advance within the month before the expiration of the preceding year.

The duration of China Patent for invention is twenty years, the duration of patent for utility model and design is ten years, counted from the application date in China.

There are three kinds of industrial property rights in China, including patent, trademark and copyright. Patent is composed of "patents for invention", "patents for utility model" and "patents for design".

Patents for invention are substantively examined (novelty, inventive step and industrial applicability).

Patents for utility model do not undergo a substantive examination but only a preliminary examination (compliance with formal requirements). However, in invalidation procedures the requirements of novelty, inventive step and industrial applicability will be determined.

The opposition system was abolished in China in 2001 and only invalidation procedures can be used to challenge a granted patent. Trial for invalidation can be filed at any time.

The Patent Law of China regulates that China adopts an essential examination system to invention, utility model or design patent. Upon the request of the applicant, the Patent Administration Department under the State Council should publicize the application earlier, and the examination ought to be based on request from applicants. Preliminary examination system is adopted for application for a patent for utility model or design. Whenever there is a case involving in the utility model patent, the court and patent administration department can ask for the patentee to provide the examination report sealed by CNIPA. This is a supplementary measure to remedy deficiency of the preliminary examination system.