Patent protection in China
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- How do I file an invention patent application in China?
- What are the steps involved in a Chinese invention patent application? How long does it take?
- What is China’s grace period if an invention is disclosed before a patent application can be filed?
- What other types of patents are available in China?
How do I file an invention patent application in China?
In China, patents are administered by the China National Intellectual Property Administration (CNIPA). You can either file directly with CNIPA in China, or through the Patent Cooperation Treaty (PCT) method. Be sure that you are working with experienced legal counsel that can guide you through China’s patent application process.
Under the PCT, you have the option of selecting additional jurisdictions where you would like to seek patent protection as part of your patent application with the Canadian Intellectual Property Office. In order to then file for a Chinese patent through this method, you have 30 months from the date of the Canadian application or the priority date, whichever is earliest, to submit your complete application to CNIPA. Note that applications and all necessary documentation submitted to CNIPA must be in Chinese.
What are the steps involved in a Chinese invention patent application? How long does it take?
Preliminary Examination 30-45 days
Publication of Application 30-45 days
Substantive Examination 30-45 days
A complete patent application that meets the requirements of China’s Patent Law, as assessed during preliminary examination, will be published by CNIPA 18 months after the filing date, unless the applicant requests an earlier publication. Substantive examination must be initiated within three years of the filing date upon request by the applicant.
In 2016, the average time for a patent to be granted by CNIPA was 22 months. However, the process may take longer depending on the complexity of the application.
What is China’s grace period if an invention is disclosed before a patent application can be filed?
China’s Patent Law provides for a 6-month grace period under certain circumstances. Specifically, an invention will not lose its novelty if a patent application is filed within 6 months of the following public disclosures:
- The invention is exhibited for the first time at an international exhibition sponsored or recognized by the Chinese Government;
- The invention is presented for the first time at an academic or technological conference;
- The invention is disclosed by others without the applicant’s consent.
In order to avoid affecting the patentability of your invention, you should generally consider filing a patent application before making it public.
What other types of patents are available in China?
In China, besides invention patents, there are also utility model patents (UMP) and design patents.
UMPs protect technical solutions related to the shape or structure of an object; there is no equivalent type of patent in Canada. A UMP does not require a substantive examination by CNIPA in order for the patent to be granted. This type of patent generally offers a lower level of protection than an invention patent but can be obtained much more quickly and at a lower cost. UMP is therefore most suitable for innovations with a short lifespan. A UMP may also be used to protect minor innovations or improvements around your key invention patent, thereby deterring would-be competitors or imitators.
Design patents protect an object’s unique shape, colour, or combination of both. They generally correspond to industrial designs in Canada.
China’s pace of patent filings is increasing dramatically, especially in terms of utility model patents and design patents. It is important to ensure that you are not infringing on any existing Chinese patents when you enter the market. Consult a qualified lawyer to help you conduct a prior art search and consider seeking licensing agreements with Chinese patent owners if necessary.
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