Patent protection in one country doesn’t necessarily imply its extension in others. So, for example, an invention protected in your country can be copied and produced in China. By the time you’ll be ready to expand your business in China, you simply won’t be able to sue infringers and prove the damage by their illegal activities, if your invention is not protected.
As in many other countries, China’s National Intellectual Property Administration (CNIPA) grants patents to the “first-to-file” applicants, not the “first-to-use” ones. Therefore it’s crucial to protect your invention in China as early as possible.
The authority grants three types of patents:
- An invention patent protects mainly technical solutions that have to be new, possible to implement and nonobvious. If a patent is granted, it is protected for 20 years from the filing date or priority date (whichever is earlier).
- A utility model patent is for solutions related to new shapes, structural physical features, or a combination of both. The term of protection is 10 years from the filing date.
- A design patent is granted for unique designs related to the shape, pattern, color or a combination of them. The design will be protected for 15 years from the filing date.
According to China’s Patent Law, you can’t get patent protection for the following:
- Scientific discoveries;
- Rules and methods for intellectual activities;
- Methods for the diagnosis or treatment of diseases;
- Animal or plant varieties;
- Substances obtained by means of nuclear transformation, or methods of nuclear transformation;
- Designs that are used mainly for marking a pattern, a color, or a combination of the two, on prints.
Software programs also can’t be protected in China. However, the patent can be granted for software programs combined with hardware.
Three Ways to File a Patent
- A patent may be filed directly in China with the help of a patent agency or patent attorney;
- An international patent application can be filed under the Patent Cooperation Treaty (PCT), indicating China as one of the designated states. So the application must be submitted to the patent office in China no later than 30 months from the priority date;
- Filing a patent in a foreign country first and then filing a second application in China within 12 months for invention and utility model patents and 6 months for design patents. Thus you’ll be able to claim the priority date of the first application. A foreign country must be a Member State of the Paris Convention.
Application and Required Documents
Foreign patent applicants who don’t have business offices in China are required to submit their applications through a registered Chinese patent agent. You can easily find a Chinese IP professional in the iPNOTE marketplace.
The application and all the following documents must be in Chinese:
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The application can be hand-delivered or mailed to the CNIPA office in Beijing or you can file it via the CNIPA’s representative offices located in provincial intellectual property offices. The easiest way, however, is to submit the application online on the website of CNIPA.
Examination Process
After the application is obtained, CNIPA conducts a preliminary examination to determine if the requirements are met. If there are no reasons to reject the application, in the case of utility model and design patents, the authority grants a patent.
When it comes to the invention patent, if the Patent Office is satisfied on a preliminary examination, the patent can also be issued. However, if the applicant is willing to conduct a substantive examination, the Patent Office may proceed with it. The request has to be made within three years from the filing date.
If the application is rejected, the applicant can start reexamination of the application via the Re-examination and Invalidation Department of the Patent Office (RIDPO) of CNIPA no later than three months after being notified of the rejection.
When Patent is Granted
When the Patent Office notifies the applicant about obtaining a patent right, he or she is required to formally register the patent within two months from the date of notification. After that, a patent certificate will be issued and announced. The formality is crucial to follow as if failed, the patent will be treated as abandoned.
Use this guide to learn about applicable fees during the patent registration process in China.
