The State intellectual Property Office (SIPO) is the authority in charge to collect and examine patent applications. The application and the other required documents shall be submitted in Chinese. Thus, they shall be translated into Chinese when they are written in foreign languages.
Invention & Utility Model
According to Chinese Patent Law and Implementing Regulations, patents protect original inventions, utility models and designs.
An invention patent is granted when a new technical improvement, solution or process is proposed for a product and such invention is novel, creative and of practical use. The same requirements have to be met for the issue of the patent utility model, which consist in a new technical solutions connected to the shape and the structure of a product.
Invention patents are granted after a substantive examination conducted by SIPO while a utility model is granted just after a preliminary examination. Once registered, the patent is published in the relevant Patent Gazette.
The term of protection of the invention and utility model patent rights is 20 and 10 years respectively from the date of application.
Foreign priority can be claimed within 12 months for invention or utility model. For design this can be claimed within 6 months, from the date of first filing outside China.
New shape of a product or a new pattern or color, or a combination of them is protectable through a design patent.
The new design should be novel and cannot conflict with the prior rights of others. Once a preliminary examination is overtaken, SIPO can grant the design patent. The maximum protection term for a design patent is 10 years.
HFG's most common Patent services are listed below
To maintain the patent right valid, the patent owner shall pay the annuity from the year when the patent right is granted.
According to the Patent Law, both the right to apply for a patent and the patent itself can be assigned.
Any assignment, by a Chinese entity or individual to a foreigner, foreign enterprise or other foreign organization must be approved by the competent authority.
The parties shall conclude a written contract and register it with the patent administration department under the State Council. The patent administration department under the State Council shall make an announcement. The assignment shall become effective as of the registration date.
The Patent Law of China adopts a first-to-file rule, i.e. where two or more applicants file patent applications for the identical invention, utility model or design, the patent right shall be granted to the applicant whose applicationwas filed first.
The examination procedures for patent applications are as below:
- For invention: Acceptance, Preliminary Examination, Publication, Substantive Examination and Grant.
- For utility model and design: Acceptance, Preliminary Examination and Grant.
The filing date and number of an application will be given after acceptance, then after preliminary examination, the application for utility model and design shall be granted if there is no cause for rejection; or the application for invention shall be published after the expiration of 18 months from the filing date. The publication can be earlier upon the request of the applicant for invention.
The application for invention shall be granted after substantive examination, i.e. the examiner shall define whether the application possess’ any novelty, inventive step or practical applicability, and the request for substance examination shall be filed by applicants within 3 years from the date of filing/priority.
Any person who believes that a granted patent does not conform to the relevant provisions of the law may request that the patent review board declare the said patent right invalid.
The patent license contract shall be recorded with the Patent Office within three months from the date of coming into force.
The Patent Office shall examine the application documents, if the documents are complying with the provisions of the Patent Law, then the Patent Office shall approve the recordation application of the license contract.
If the applicant is not satisfied with the refusal decision to the patent application, the applicant may request the Patent Re-examination Board to make a re-examination within 3 months from the date of receipt of the notice of rejection.
After acceptance of the request for re-examination, the request will be sent to the original examination department of the Patent Office for examination. If the original examination department agrees to cancel its refusal decision, the Re-examination Board will make a re-examination decision to cancel the refusal decision accordingly. If the original examination department considers that the re-examination request still does not meet the requirements of the Patent Law, the Re-examination Board will then proceed with the re-examination and make a decision of maintaining the refusal decision or supporting the request of re-examination. During the re-examination procedure, the applicant shall be provided a chance to make responses.
If the applicant is not satisfied with the decision of the Patent Re-examination Board, the applicant may institute legal proceeding in the People's Court within 3 months from receipt of the decision.
PCT (“The Patent Cooperation Treaty”) was concluded in 1970 and came into effect in 1978.
China joined PCT on January 1, 1994 and the Chinese Patent Office became a PCT International Receiving Office, International Search Authority as well as International Preliminary Examination Authority.
The PCT System (see the following figure) is a patent “filing” system, not a patent “granting” system. The PCT System provides for an international phase comprising filing of the international application, international search and written opinion of the International Search Authority, international publication and international preliminary examination. The PCT System also provides for a national/regional phase. The decision on granting patents is taken by national or regional Offices in the national phase.
International Phase (Filed in China)
As China is a PCT International Receiving Office, International Search Authority as well as an International Preliminary Examination Authority, a PCT patent application can be filed in China in Chinese or English. The Chinese Patent Office will conduct formality examination to the application documents, if passing the examination; the Chinese Patent Office shall give the international filing date, then conduct a search and make a search report accordingly. If the applicant request for international preliminary examination, the Chinese Patent Office shall make an examination report providing initial opinions on the novelty, inventive step and industrial practicability of the invention to PCT International Bureau, the applicant and each member state.
National Phase (including China)
The PCT application shall be examined and granted in the national phase. For the examination procedures of Chinese Phase, please see “General Information for Filing a Chinese Patent”.
Providing patent watch and the following search:
- Legal Status Search
- Patent Family Search
- Novelty Search
- Infringement Search
- Invalidation Search
The patent can be protected through the custom registration. Chinese Customs has the authority to stop the infringing good which are imported into china or exported out of china.
According to Patent Law, Administrative Enforcement Law and Civil Procedural Law a patent can be enforced via two routes: administrative or judicial.
The patent owner can opt for a C&D Letter to complain about an infringement.
Administrative complaint can be lodged with local Intellectual Property Offices (IPO), branches of the State Intellectual Property Office (SIPO).
Civil litigation for patent infringement can be initiated in front of selected People’s Court