Patent Law in China
With offices in Beijing and Shanghai, Wang & Wang assists clients with the acquisition and protection of patents in the People's Republic of China. Inventors or their assignees or successors can apply for registration of invention, utility model, and design patents in China. Generally, China grants patent protection to foreign nationals based on a government agreement or an international treaty. U.S. nationals are eligible for patent registration in China because both of the countries are signatories of the Paris Convention. In addition, U.S. nationals may claim priority in accordance with the Paris Convention, so long as they file their patent application in China 30 months after filing in their home nation.
- Registration Procedure
- Term of Protection
- Types of Patents
- Conditions Barring Patentability
- Unpatentable Items
- Actions to Prevent or Revoke Registration of Patents
- Paths of Appeal
- Assignment and Licensing
- Protection of Patent Rights
A patent application must be filed with the Patent Office. Normally within 18 months from the filing date the Patent Office publishes an invention patent application. An invention patent application is subject to substantive review upon the request of the applicant within three years from the date of application. If the applicant fails to request substantive review within the designated period without justifiable reasons, the invention patent application shall be deemed to have been withdrawn by the applicant. There is no substantive review for utility model and design patents.
Term of Protection
Patent rights commence from the date of publication in the Patent Gazette. The term varies depending on the type of patent.
- Invention Patent - 20 years from the filing date
- Utility Model Patent - 10 years from the filing date
- Design Patent - 10 years from the filing date
Types of Patents
In China, industrial property rights include three types of patents:
- Invention - novel apparatus or method of achieving a useful task, must show "novelty" and may not be obvious
- New Utility Model - creations or improvements relating to the form, construction, or fitting of an object (in general, the technical requirements are not as high as for an invention patent)
- New Design - original designs relating to the shape, pattern, color or a combination thereof of an object
Conditions Barring Patentability
If any of the following conditions applies, a patent registration will be denied:
Invention and Utility Model
- Before filing, an invention or a utility model was published anywhere in the world or put to public use in China.
- A patent has already been granted to the same invention or utility model, and that patent was filed earlier than the current application.
- An invention or a new utility model was displayed in an exhibition; provided that the exhibition was not sponsored or approved by the government.
- An invention or a utility model uses conventional techniques and knowledge available before the application was filed and is thus obvious.
- Before filing for patent registration, the same or a similar design was published anywhere in the world or publicly put to use in China.
- A patent has been previously granted for the same or a similar new design, which was filed earlier than the current application.
- Any design which is obvious to people familiar with the relevant field.
The following items are not patentable in China:
- Scientific discoveries
- Rules and methods for mental activities
- Methods for the diagnosis or for the treatment of diseases
- Animal and plant varieties, not including the processes used in producing those products
- Substances obtained by means of nuclear transformation
Actions to Prevent or Revoke Registration of Patents
Invalidation may occur any time after a patent has been granted registration, usually on grounds of (1) non-obviousness; (2) similarity to another registered patent; (3) lack of applicability by a person skilled in the same field of technology; and (4) claim(s) beyond the scope of the specifications.
Paths of Appeal
In the event that the Patent Office returns an unfavorable decision on an application or invalidation action, a party may apply for relief from the Patent Re-examination Board. Appeal from the Board may be made to the Beijing First Intermediate Court, and may then be appealed through the court system.
Assignment and Licensing
A pending application or registered patent may be assigned to another. The assignment must be registered with the Patent Office. The assignment takes effect as of the date of registration. If the assignee is a foreign party, the assignment is subject to the approval of relevant authorities. A patent holder may also license its patent to other parties. A written contract must be recorded within three months in order to protect against penalties from the Patent Office.
Protection of Patent Rights
Without the patent holder's consent, no one may manufacture, use, promise to sell, sell or import patented products, or use the patent process and use, promise to sell, sell, or import products obtained through the patent process for business purposes. Unauthorized use constitutes patent infringement unless otherwise provided by law. The patent holder may request the Patent Office to impose administrative penalties on the infringer or bring a civil lawsuit against the infringer. Severe patent infringement may be subject to criminal punishment. The damages awarded to the patent holder will be calculated upon the illegal profits of the infringer, actual loss to the rights owner, or based on multiples of appropriate royalties. Fines for infringement are three times the illegal profits, or RMB 50,000 (US $6,000), or less where no profits were earned from the infringement. The patent holder may apply to a competent court for preliminary injunction against ongoing or threatened patent infringement before a lawsuit is initiated. The Statute of Limitations for patent infringement is two years starting from the date the patent holder or interested party knew or should have known of the existence of patent infringement.