Patents

Basic Information  |  Enforcement  |  Documents Needed to File Patent Application

Basic Information

Types of Patents
The Chinese Patent Law affords protection for inventions, utility models and designs.

Duration of Patents
The duration of patents is 20 years for inventions and 10 years for utility models and designs, all starting from the filing date.

Extensibility of Patent Terms
The duration of patents is not extensible.

Patentability
Chemicals and pharmaceuticals are patentable. The second indication of medical use of a known drug can also be protected under the Patent Law by using an appropriate claim format.

Microorganisms and other biological materials per se are patentable.

Animal and plant varieties are not protected under the Patent Law, but under a separate regulation.

Computer software per se is not patentable, but is protectable under the Copyright Law, and can be protected under the Patent Law if disclosed and claimed as a part of an invention that utilizes technical means and can produce technical effects.

Methods for the diagnosis or for the treatment of diseases are not patentable.

Priority
Convention priority of 12 months for invention and utility model applications, and 6 months for design applications, can be claimed.

Domestic priority of 12 months for invention and utility model applications is also available.

Translation of Priority Documents
Translation of the cover page of the priority documents is required. Translation of the full text is only necessary when required by the Patent Office.

Requirements for Grant of Patent Right
Novelty: An invention or utility model is novel if no identical invention or utility model has been described in publications anywhere in the world, or has been publicly used or made known to the public by any other means in China, before the filing date. Novelty is destroyed by a published patent application that describes an identical invention and has an earlier filing date.
A design is novel if it is not identical with or similar to any design that has been publicly disclosed in publications anywhere in the world or has been publicly used in China, before the filing date.

Inventiveness: An invention is inventive if, compared with the technical solutions existing before the filing date, the invention has prominent substantive features and represent a notable progress. A utility model is inventive if it has substantive features and represents progress.
There is no inventiveness requirement for designs.

Unity: For invention and utility model applications, one application should claim one invention or utility model. Two or more inventions or utility models belonging to a single general inventive concept may be claimed in one application. For design applications, one application may contain two or more designs that are incorporated in products belonging to the same class and being sold or used in sets.
If an application is found not in compliance with the unity requirement, the applicant will be required to restrict the claims. Divisional applications can be filed at anytime during the pending period of the parent applications.

Duty of Information Disclosure
Applicants are required to submit prior art information to the Patent Office when requesting substantive examination. During the examination, an applicant may also be required by the examiner to provide search report or examination result that has been made by foreign patent examination authorities during the examination of corresponding foreign applications.

Deposit of Biological Materials
If a patent application relates to a biological material that is not available to the public, the applicant is required to deposit a sample of the biological material with an international depository authority (IDA) under the Budapest Treaty on or before the Chinese filing date (for a non-PCT application) or international filing date (for a PCT application), and provide the Chinese Patent Office a receipt of deposit and the viability report from the IDA within three months from the Chinese filing date (non-PCT application) or the date of entry into national phase in China (PCT application).

Substantive Examination
Patent applications for inventions are examined as to substance. To initiate the examination procedure, applicants must request examination within 3 years from the Chinese filing date or the priority date if priority is claimed.
Utility model and design applications are not examined as to substance. Patents will be issued automatically after preliminary examination.

Extension of Time
Time limits for making responses to official actions can be extended upon petition and payment of official fees.
In inter partes procedures, such as invalidation, designated official time limits can be extended once, up to two months. The time extension request should be made with the consent of all parties involved.

Amendment of Applications
Amendments of applications is allowed, but may not go beyond the scope of original disclosure in the description and claims. An applicant may amend its application on its own initiative at the time of requesting examination, or within 3 months after receipt of the official notice informing the applicant that the application has entered the substantive examination stage.
For utility model and design applications, amendment on applicants' initiative can be made within two months from the filing date.

Final Rejections and Appeals (Re-examination)
An application will be finally rejected if it is found to be unacceptable by the examiner and the applicant has been given an opportunity to make a response.
Rejections are appealable to the Patent Re-examination Board.

Appealability of Board's Decisions
Decisions made by the Re-examination Board can be further appealed to a special court in Beijing.

Opposition, Revocation and Invalidation
Anyone may challenge the validity of an issued patent by lodging an invalidation request with the Patent Re-examination Board anytime after the patent is issued.
Opposition / revocation procedure is no longer available.

Maintenance Fees and Annuities
During the pending period of an application, an annual maintenance fee is to be paid starting from the third year. An applicant should pay the cumulated maintenance fee at the time the application matures into a patent. Once a patent is issued, an annual payment of annuities must be made (Grace period: six months).

Assignment
Assignment of a Chinese patent or patent application from a Chinese company or individual to a foreign company or individual must be approved by the Ministry of Foreign Trade and Economic Cooperation and the Ministry of Science and Technology.
Assignments of Chinese patents or patent applications must be in writing.
Assignment contracts should be registered with the Chinese Patent Office. An assignment becomes effective upon registration.

Working Language
All filing documents and formal communications with the Patent Office and the Patent Re-examination Board must be in Chinese.

The Scope of Patent Protection
The scope of protection of the patent for inventions and utility models is determined by the terms of the claims. The description and the appended drawings may be used to interpret the claims. The scope of protection of designs is determined by the products incorporating the designs as shown in the drawings or photographs.
Patentees have the right to prevent others from making, using, selling and offering for sale the patented products (or products incorporating patented designs), or using the patented processes, or using or selling the products directly obtained by the patented processes, for production or business purposes.
Patentees also have the right to prevent others from importing the patented products or products directly obtained by the patented processes, if the products are imported for sale or for use for production and business purposes.

Right of Prior Users
It is not an infringement if, before the filing date of a patent application, a person has already made an identical product, used an identical process, or made necessary preparations for its making or using, and this person continues to make or use it within the original scope after the patent is issued.

Marking
Marking is not compulsory, but recommended. Number of patent application or patent should be indicated.