Brief introduction of Chinese Patent System

2016-09-20
Katherine HE
Borsam IP  ————————————————



It has become more and more important for the inventors to protect their creations in China. The patent system in China is young, and comparing with the developed countries, it still has great room to improve. After the establishment of PRC, the new government enacted the first law in 1950 to protect the patent rights, which specifically stipulated the requirement, procedures of patent application, examination and opposition, and also the obligation and rights of patentee. But in the later 30 years, the development of Chinese patent system is not as good as expected, and the subsequent amendment and new rules didn’t change the situation.

In 1984, the government enacted the Chinese Patent Law, which came into force from April 1, 1985 and was heralded as a new beginning for Chinese patents. Patent applications then grew by over 20% each year from 1984 to 1992, and this then led to a rapid increase in Chinese patent applications. However, loopholes of the current system began to surface. The law was then amended three times which led to the formation of the current version in 2008.
 
In contrast to countries in Europe and America, China has three types of patent which are the invention patent, utility model patent and design patent.
 
1.    INVENTION PATENT
 
The protection of an invention patent starts 20 years from the date of filing, and it is necessary for there to be a stricter examination for it to obtain the stable patent right. A similarity exists here with other countries, where the requirements of having an invention patent are obviousness, novelty and practicability.
 
What are the obviousness, novelty and practicability?
 
Obviousness means that, as compared with prior art, the invention has prominent substantive features and represents notable progress.
 
Novelty means that, the invention or utility model does not form part of the prior art, nor does it have any entity or any record of an individual filing previously before the date of filing with the Patent Office. An application relating to the identical invention or utility model disclosed in patent application documents published or patent documents announced on or after said filing date.
 
This practicability means that the subject matter of a patent application for invention or utility model must be one which can be made or used in an industry and can produce effective results. 
 
Which types of invention patent can you apply for?
 
Any technical solution of a product, method or improvement to the product are capable of being applied for. Although this carries the exception of scientific discoveries, rules and methods for mental activities, methods for the diagnosis or for the treatment of diseases, animal and plant varieties and also substances obtained by means of nuclear transformation.
 
How to file an invention patent?
 
It is of paramount importance that Article 10.1 of Chinese patent law is complied with. Therefore, it is imperative that the foreign applicants (including individual, legal entity and social organizations) entrust a Chinese agency to file the patent application in China on their behalf. As the administrative management authority of patent agency, SIPO issues a license for the qualified patent agency to deal with the patent issues.
 
Secondly, it is wise to find a patent attorney to draft the specification or a patent translator to do the translation if you already have a patent specification.
 
If you are looking for guidance on how to file an invention patent application in China you can refer to www.borsamip.com .
 
2.    Utility model
 
The protection for a utility model patents is 10 years from the filing date which mainly protects the structure and the construction of a product. The examination on a utility model is rather loosely defined in comparison to an invention patent because it does not have to accept any substantive examination. After the preliminary check of formalities, the patent certificate will then be issued.
 
However, this does not mean that you will receive stable patent rights because the examination is actually added as post-processing. The applicant or any interested party may request for an evaluation report of the utility model to confirm/challenge the patent rights.
 
What is the evaluation report?
 
It is a kind of search report issued by SIPO for utility model patent and design patents only. In this report, SIPO provides its opinion on the patentability of the questioned patent according to Chinese patent law and the rules for implementation of patent law. Nevertheless, please note that this report is used as a reference in legal actions but it does not put the patent to death.
 
 
How do you obtain the evaluation report?
 
Any interested party or patentee can request SIPO to issue a report by submitting a simple request and paying 2400 CNY in administration fees.
 
How do you file the utility model patent?
 
Essentially, it is the same as the process for invention patents. Please visit this link to find out about the steps involved if you wish to file a utility model patent in China: www.borsamip.com
 
 
3.    Design patent
 
The protection for a design patent is 10 years from the date of filing. This mainly protects the shape of the product. A similarity exists with the utility model, the examiner doesn’t search for the design patent but just checks the formalities and the correspondence relationship of each drawing. Also, after it is granted, any interested party or patentee can request an evaluation report from SIPO to confirm or challenge the rights.
 
Can I use a photo of the product to file the design patent?
 
The drawings are the most important parts of a design patent, normally, we request 7 drawings for an application, i.e. the front view, rare view, left side view, right side view, top view, bottom view and stereogram but some of them are capable of being omitted. SIPO accepts both line drawings and photos for an application, but there is also restriction on the line drawings and photos, for example, imaginary lines and shadows. Meanwhile, a difference exists with the US, SIPO doesn’t accept the design patent application for parts of a product. 
 
How to file the design patent application in China?
 
Here is another article about the filing of design patent in China: www.borsamip.com .
 
This is a brief introduction of the Chinese patent system, if you have any specific questions, please feel free to contact us via mail@borsam.cn .