Q：What types of patent can be provided under the
current Chinese Patent Law?
A：There are three types of patent under the current Chinese Patent
Law: Patent for Invention: 20 years from the date of filing the application
in China, subject to the payment of annual fees, no extension. Patent
for Utility Model: 10 years from the date of filing the application
in China, subject to the payment of annual fees, no extension. Patent
for Design: 10 years from the date of filing the application in China,
subject to the payment of annual fees, no extension.
How long is the protection duration of the Chinese patent?
The provisions of the Chinese Patent Law stipulates: The duration
of patent right for inventions shall be twenty(20) years counted from
the date of filing, the duration of patent right for utility models
or designs shall be ten(10) years counted from the date of filing.
Q: What items are unpatentable in China?
A: According to Articles 5 and 22, the following items are unpatentable
in China:
* Inventions contrary to the laws of the State or social morality
or being detrimental to public interest;
* Scientific discoveries;
* Rules and methods for mental activities;
* Methods for the diagnosis or for the treatment of disease;
* Animal and plant varieties;
* Substances obtained by means of nuclear transformation.
Q:How do foreigners, foreign enterprises and other
foreign organizations apply for patent in China?
A:rticle 18 of the Chinese Patent Law stipulates: "Where any
foreigner, foreign enterprise or other foreign organization having
no habitual residence or business office in China files an application
for patent in China, the application shall be treated under this 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 party, or on the basis of the principle
of reciprocity."
On March 19, 1985, China formally joined the Paris Convention; the
nationals of the member states of the Paris Convention can all apply
for patent in China; as for those countries that have not entered
for the Paris Convention, the applications can be treated according
to the principle of any agreement concluded between the country to
which the applicant belongs and China, or according to any international
treaty to which both countries are party, or on the basis of the principle
of reciprocity.
Where a foreign applicant for patent in China claims priority right,
he shall submit the priority document to the Chinese Patent Office.
Where the Chinese Patent Office deems necessary, the applicant may
be asked to supply evidences testifying his nationality, the place
of his business office or headquarter, as well as supporting materials
that the country to which he belongs recognizes that the Chinese citizens
in that country can enjoy the same rights as those that its own nationals
do.
Q: What are requirements for filing a patent application
in China?
A: * A letter of instructions indicating the type of the application
to be applied for, e.g. a patent for invention, a patent for utility
model or a patent for design; the name, address and nationality of
the applicant and inventor; the filing date, country and serial number
of the convention patent application or patent based on which the
priority right to be claimed, if any;
* A description, claims and an abstract;
* Drawings (if necessary for describing the invention) and a designated
figure attached to abstract
* Power of Attorney executed by the applicant, which is neither necessary
notarized nor legalized and can be late furnished after filing within
the time limit prescribed by the Patent Office;
* Certified Priority Document, which shall be submitted to the Patent
Office within three months from the Chinese filing date otherwise
the claim of priority shall be deemed not to have been made;
* Assignment of Priority Right, either in the original form of it
singed before the Chinese filing date or a notarized or certified
copy of the original, if the applicant for the Chinese application
is different from that recorded in the priority document, which shall
be submitted to the Patent Office within 3 months from the Chinese
filing date;
* For entry into national phase in China of a PCT international application,
international publication pamphlet, international preliminary examination
report with annex and any amendments concerned if the applicant would
like to bring such amendment into the examiner's consideration during
the examination on the application in China.
Q: May the applicant to perform the acts necessary
for entry into the national phase in China in the case that he does
not meet the 20/30-month time limits under PCT Article 22 or 39(1)?
A: Yes. Where the effect of an international
application designating or electing China cases in China due to
failure to perform the acts necessary for entry into the national
phase, the applicant may delay initiating the Chinese national phase
within two-month grace period, i.e. 22/32 months from the priority
date, and at the same time pay the grace period fee and perform
the required acts for entry into the national phase.
Q: Is it possible to apply both for a patent for invention
and a patent for utility model for the same subject matter?
A: Yes, it is possible to apply both for a
patent for invention and a patent for utility model for the same
subject matter. However, it is not possible that the same invention
is protected both by a patent for invention and a patent for utility
model. If during the substantive examination of an application for
a patent for invention it is found that for the same invention a
patent for utility model has been granted already, applicant will
be noticed and be required to choose between the two types of protection.
Q: What are the procedural steps for opposing
against Chinese patent application/patent?
A:Patent Law of the People's Republic of China : Article 45. Where,
starting from the date of the announcement of the grant of the patent
right by the patent administration department under the State Council,
any entity or individual considers that the grant of the said patent
right is not in conformity with the relevant provisions of this
Law, it or he may request the Patent Reexamination Board to declare
the patent right invalid.
Implementing Regulations of the Patent Law of the People's Republic
of China: Rule 48 Any person may, from the date of publication of
an application for a patent for invention till the date of announcing
the grant of the patent right, submit to the Patent Administration
Department under the State Council his observations, with reasons
therefor, on the application which is not in conformity with the
provisions of the Patent Law.
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