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PATENTS IN CHINA , PCT NATIONAL PHASE INTO CHINA
Chinese Patent Application for Invention, Utility Model, and Industrial Design
  Types of Patent   Novelty
  Filing Documents   Inventiveness
  Substantive Examination   Domestic Priority
  Entry of PCT Applications   Duty of Information Disclosure
  Amendment of Application   Rejection and Appeal
  Invalidation   The Power of the Patent Re-examination Board
  The Scope of Patent Protection   Maintenance Fee and Annuity
 
Types of Patent

There are three types of patent, i.e. patent for invention, patent for utility model and patent for design.

All filing documents and formal communications with the State Intellectual Property Office (SIPO) and the Patent Re-examination Board must be in Chinese.

Invention means any new technical solution relating to a product, a process or improvement thereof.

Utility model means any new technical solution relating to the shape, the structure, or their combination of a product, which is fit for practical use.

Design means any new design of the shape, the pattern or their combination, or the combination of the color with shape or pattern of a product, which creates an aesthetic feeling and is fit for industrial application.

The duration of patent for invention is twenty years, the duration of patent for utility model and design is ten years, counted from the filing date in China.

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Novelty

An invention or utility model is novel if, before the filing date, no identical invention or utility model has been disclosed in publications anywhere in the world, or has been publicly used or made known to the public by any other means in China. Novelty is destroyed by an application, filed earlier by other person that describes an identical invention or utility mode and is published by the State Intellectual Property Office after the filing date of the said invention or utility model.

A design is novel if it is not identical with and similar to any design, which, before the filing date, has been publicly disclosed in publications anywhere in the world or has been publicly used in China, and must not be in conflict with any prior right of any other person.

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Filing Documents

Each application for invention or utility model must include the following documents:

- Power of Attorney, signed by the applicant (Notarization or legalization is not required);
- Specification with claims and abstract;
- Drawings, if any (two sets of formal drawings);
- Certified copy of the prior application, if a priority is claimed; and
- Assignment of priority right, if the applicant in China differs from that of the prior application.

Each application for design must include the following documents:

- Power of Attorney, signed by the applicant (Notarization or legalization is not required);
- Drawings or photographs of the design, in triplicate (min. 3x8cm, max. 15x22cm);
- Certified copy of the prior application, if a priority is claimed, and
- Assignment of priority right, if the applicant in China differs from that of the prior application.

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Inventiveness

An invention possesses inventiveness if, compared with the technical solutions existing before the filing date, the invention has prominent substantive features and represents a notable progress.

A utility model possesses inventiveness if it has substantive features and represents progress.

There is no inventiveness requirement for design patent.

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Substantive Examination

Patent application for invention is examined as to the substance. In order to initiate the substantive examination procedure, applicant must submit a formal request within three years from the Chinese filing date or the priority date, whichever is earlier. Otherwise, the application shall be deemed to have been withdrawn.

Patent application for utility model and design is not examined as to the substance. Patent will be issued automatically after preliminary examination.

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Domestic Priority

Domestic priority for patent applications for invention and utility model can be claimed within twelve months from the date of first filing in China. Where the subject of an earlier application for invention or utility model falls under any one of the following circumstances, it may not be taken as the basis for any later application for invention or utility model to claim for a domestic priority:

1. where it has claimed foreign or domestic priority;
2. where it has been granted a patent right;
3. where it is a divisional application.

The earlier application shall be deemed to have been withdrawn when a new application claiming domestic priority is filed.

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Entry of PCT Applications
A PCT application should enter into Chinese national phase within 30 months from the priority date.

If the applicant for a PCT application fails to go through the relevant formalities for entering the Chinese national phase within 30 months from the priority date, he may, after paying a surcharge for the late entry, go through these formalities before the expiration of the time limit of 32 months respectively from the priority date.

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Duty of Information Disclosure

When the applicant of a patent application for invention requests substantive examination, he shall provide pre-filing date reference materials concerning the invention. The State Intellectual Property Office may ask the applicant to furnish any search reports and examination results issued by foreign patent authorities, such as EPO, USPTO and JPO, during the examination of the corresponding foreign applications.

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Amendment of Application

Amendment of patent application is allowed, but may not go beyond the scope of original disclosure in the initial description and claims.

For patent application for invention, applicant may amend its application on its own initiative when the request for substantive examination is submitted, or within three months from the date of receipt of the notification from the State Intellectual Property Office informing the entry of the application into the stage of substantive examination.

For applications of utility model and design, applicants may amend the applications on their own initiative within two months from the filing date.

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Rejection and Appeal

If a patent application is found to be unacceptable by the State Intellectual Property Office, and the applicant has been given at least one opportunity to make a response, a final rejection shall be made.

The rejection made by the State Intellectual Property Office can be appealed to the Patent Re-examination Board.

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Invalidation

Anyone may request the Patent Re-examination Board to declare a patent invalid from the date of announcement of the grant of the patent right.

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The Power of the Patent Re-examination Board

Decision made by the Patent Re-examination Board on the patentability of patent application for invention, utility model and design, as well as on the validity of patent for invention, utility model and design can be appealed to court, within 3 months counted from the date on which the notification from the Patent Re-examination Board is served.

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The Scope of Patent Protection
The scope of protection of the patent for invention or utility model 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 design is determined by the product incorporating the patented design as shown in the drawings or photographs.

After the grant of the patent right for an invention or utility model, the patentee has the right to prevent others from making, using, offering to sell, selling or importing the patented products, or using the patented processes, or using, offering to sell, selling or importing the product directly obtained by the patented processes, for production or business purposes and without his authorization.

After the grant of the patent right for a design, the patentee has the right to prevent others from making, selling or importing the product incorporating patented design, for production or business purposes and without his authorization.

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Maintenance Fee and Annuity

From the third year after the filing of a patent application for invention and before it is granted a patent right, the applicant is required to pay for the maintenance fee. However, maintenance fee is not due until the applicant receives the notification to grant the patent right. Payment of the accumulated maintenance fees should be made within two months from the date of receipt of the notification.

The first annuity shall also be paid within two months from the date of receipt of the notification to grant the patent right. The subsequent annuities shall be paid in advance within the month before the expiration of the preceding year.

Grace period for paying the annuities is six months.

   

 

   

FAQs PATENTs

What's Intellectual Property?

What's a Patent under Chinese Patent Law?

How is a  Patent for Invention/Utility Model/Industrial Design Granted in China?

What Are Requirements for Filing a Patent Application in China?

How to Filing PCT Application for National Phase into China within 30 months?

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FAQs TRADEMARKs

What's a Trademark under Chinese Trademark Law?

How is a Trademark  Registered in China?

What are the documents and information required for an application for a trademark registration in China?
Who can file an opposition against a trademark that has been preliminarily approved and published in Chinese Trademark Gazette?
Intellectual Property Rights Protection in Hong Kong

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