Snapshot: Patent System in China

Both products and processes are protected by patents. You can use your IP rights to prevent others from manufacturing, using, or selling your invention in China.

Certain types of inventions are not eligible for patent protection in China. Patents are not available for the following products:

• scientific discoveries;
• rules and methods of mental activities, such as software and business methods;
• methods for the diagnosis or the treatment of diseases, such as medical procedures;
• animal and plant varieties;
• substances obtained by means of nuclear transformation; and
• a design that is used primarily for the identification of a pattern, color, or a combination of the two on printed flat works.

Ownership of patents

A service invention is one produced by a company employee while at work or primarily using the company’s material and technical resources, and the company will own the patent unless the company and the employee agree otherwise.

If the invention is not a service invention, the inventors will co-own the invention as well as the patent on it.

Ownership of an invention and its patent will be determined by the agreement for an invention developed by an independent contractor or a joint venture; if no agreement exists, the party who completes the invention will own the invention and its patent.

Patent ownership and transfer are officially recorded in the China National Intellectual Property Administration’s patent register (CNIPA).

Anyone can request the CNIPA for a copy of the register relating to patent ownership and transfer.

Contents of patent applications

The applicant for a patent must disclose the invention in a complete and coherent manner. A person competent in the art can repeat the invention, which is the general criteria for the clear and complete requirements. The title of the invention, the technical field to which it belongs, the technical background of the invention, the content of the invention (the technical problems to be solved, the solutions, and the technical effects), and figures to illustrate the invention should all be included in the description.

Filing additional claims

If a prior patent application contains more than one invention, the patent applicant may file one or more divisional applications to prosecute additional claims to the invention disclosed in that application. The claims in the divisional applications must be oriented to separate inventions than those claimed in the prior application, and the content of the divisional applications must not extend beyond the original scope of the prior application.

Patent opposition

Any person may register a third-party opinion with the patent office to challenge the grant of a patent for an invention from the time the applicant files a patent application with CNIPA. Before the patent right is granted, a third-party opinion must be filed. Even if the third-party opinion is approved by the patent office, the patent office will not respond to the party who filed it.

There is no process in place at the patent office to resolve priority issues between various applicants for the same invention. The applicants must either discuss and come to an agreement on priority disputes or take them to court. If the applicants are unable to come to an agreement, neither party will have priority to the invention.

Patent amendment and re-examination

The court can only assess the claims during a case and has no right to modify the patent claims.

Any time after the grant, the patentee may revoke the patent right in the patent office.

Duration of the patent

A patent right for invention lasts for 20 years, whereas utility models last for 10 years and design patents last for 15 years. The time period will begin when the patent application is filed. Patent protection will begin when the patent right is granted, not when the patent is first filed.

***Other Articles***

– You could see How To Register Trademark in China here.

– You could visit here to see Procedure of Trademark in China.

– You could visit here to check Required documents of filing trademark in China.

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