In China, industrial property rights include "patents for invention", "patents for utility model", "patents for design" and trade marks.
Index of FAQs china
- 01. What types of industrial property rights exist in China?
- 02. What is the term of a Chinese "patent for invention" and a Chinese "patent for utility model"?
- 03. What inventions cannot be patented in China?
- 04. Can computer software be patented in China?
- 05. What language must be used for a patent application in China?
- 06. How soon after filing an application must a request for examination be filed in China?
- 07. Are patents for invention and patents for utility model subjected to substantive examination?
- 08. Are third party observations allowed in China?
- 09. On average, how long does it take for a patent application to be examined?
- 10. When can a request for extension of time be filed with the Chinese Patent Office?
- 11. When are annual fees due in China?
- 12. How can one challenge a granted patent in China?
- 13. Where can I find information on patent attorneys in China?
- 14. Is there an alternative to the SIPO homepage where I can search for Chinese patents in English?
- 15. Are machine translations available for Chinese patent documents?
- 16. Where can one obtain legal status information on Chinese patents in English?
- 17. Is online file inspection possible for Chinese patent documents?
- 18. What is the practice on patent marking in China?
- 19. Where can one find information on patents in Hong Kong?
- 20. Where can one find information on patents in Macao?
- 21. The difference between "service" and "non-service" in the statistics in Chinese patent data?
- 22. How are Chinese data handled in INPADOC?
02. What is the term of a Chinese "patent for invention" and a Chinese "patent for utility model"?
The term for a "patent for invention" is 20 years from the filing date in China; the term for a "patent for utility model" is 10 years from the filing date in China.
03. What inventions cannot be patented in China?
According to Article 5 and Article 25 of the Chinese Patent Law, the following items are unpatentable in China:
- * any invention-creation that is contrary to the laws of the state or social morality or that is detrimental to public interest
- * scientific discoveries
- * rules and methods for mental activities
- * methods for the diagnosis or for the treatment of diseases
- * animal and plant varieties
- * substances obtained by means of nuclear transformation.
04. Can computer software be patented in China?
Computer programs as such cannot be patented, but may be protected under the "Regulations on Computers Software Protection", formulated in accordance with the Copyright Law. An invention containing a computer program may be patentable if the combination of software and hardware as a whole can really improve prior art, bring about technical results and constitute a complete technical solution.
05. What language must be used for a patent application in China?
Any document submitted under the Chinese Patent Law and its Implementing Regulations must be in Chinese. For PCT applications, the document can be filed in either Chinese or English. However, a Chinese translation of the application has to be submitted within 20 months of the priority date.
06. How soon after filing an application must a request for examination be filed in China?
A request for examination has to be submitted within three years of the filing date or, if priority is claimed, within three years of the priority date.
07. Are patents for invention and patents for utility model subjected to substantive examination?
Patents for invention are substantively examined (novelty, inventive step and industrial applicability). Patents for utility model do not undergo a substantive examination but only a preliminary examination (compliance with formal requirements). However, in invalidation procedures the requirements of novelty, inventive step and industrial applicability will be determined.
08. Are third party observations allowed in China?
A system similar to the "third party observations" according to the EPC exists in China.
The following official regulation Chinese Patent Law states: "Any person may submit information to the Chinese Patent Office, from the date of publication of an application till the date of announcing the grant of the patent right, that the invention concerned is not in conformity with the provisions of the Patent Law ."(Rule 48)
09. On average, how long does it take for a patent application to be examined?
The average examination time in China in 2006 was 22 months. Examination is only started upon explicit request by the applicant (deferred examination). In China, the applicant has to file this request for examination within three years from the application date.
10. When can a request for extension of time be filed with the Chinese Patent Office?
An applicant may file a request with the Chinese Patent Office for one extension of the time limit for up to two months. When requesting an extension, a fee shall be paid to the Chinese Patent Office. The request must be filed prior to the expiration of the time limit, otherwise, the application will be deemed to have been withdrawn. The time limits for "request for substantive examination", "payment of fees", "claiming priority", "request for revocation of patent" and "request for re-examination" are statutory and cannot be extended.
11. When are annual fees due in China?
The annual fee of the year in which the patent right is granted shall be paid at registration. The subsequent annual fees shall be paid in advance within the month before the expiration of the preceding year.
12. How can one challenge a granted patent in China?
The opposition system was abolished in China in 2001and only invalidation procedures can be used to challenge a granted patent. Trial for invalidation can be filed at any time (during the lifetime of the patent).
13. Where can I find information on patent attorneys in China?
The "All-China Patent Agents Association (ACPAA)" at: http://www.acpaa.cn/english/e_default.htm offers information in English on laws and regulations, names and addresses of Chinese patent agents as well as a schedule of agents' fees.
The worldwide directory of patent agents, which can be searched by country, is available at: http://www.epo.org/focus/ip-webguide/directories.html
14. Is there an alternative to the SIPO homepage where I can search for Chinese patents in English?
In addition to the official homepage of the State Intellectual Property Office (SIPO) at http://www.sipo.gov.cn/sipo_English/, there are two other recommended websites:
www.cnpat.com.cn: click on the "China Patent Abstract Database" link. In the top part of the screen there is an English search mask giving access to English abstracts for Chinese patent documents and bibliographic data for Chinese utility models. In addition, drawings can be displayed as image data.
SIPO's "Experimental Platform of Patent Information Services" can be accessed at: http://pub.cnipr.com/enpubpisfts/common/page.do?method=cnSearch. It contains English abstracts for Chinese patent documents and bibliographic data for utility models. The English search interface gives also access to Chinese full documents (image data) for laid-open publications. English legal status information for Chinese documents is also available.
15. Are machine translations available for Chinese patent documents?
There is currently a lot of research going on in the field of Chinese machine translation tools, but we can not say if and when such a tool will be made available to the public.
16. Where can one obtain legal status information on Chinese patents in English?
You can obtain legal status information in English via the Chinese Patent Office's new "Experimental Platform of Patent Information Services" at http://pub.cnipr.com/enpubpisfts/common/page.do?method=lawSearch.
The English legal status data is basically identical to that published in Chinese, and both are both updated every week. However, for the English data there is a time lag of at least six months. Further information on how to use this source can be found in an article in the EPO's Patent Information News, issue 03/2007 at http://documents.epo.org/projects/babylon/eponet.nsf/0/8DE934EBCCE32895C12573630045312A/$File/Patentinfo_news_0703_en.pdf
17. Is online file inspection possible for Chinese patent documents?
Currently, it is not possible to access to the Chinese patent register online. File inspection can only be ordered from the Chinese Patent Office (SIPO) via a Chinese patent attorney.
18. What is the practice on patent marking in China?
Patent marking is not compulsory in China, but may be done in accordance with the "Regulation on Affixing of Patent Marking and Patent Number" effective since 1 July 2003. According to these regulations, the type of patent must be specified in Chinese and the number of the patent application or patent issued by the Chinese Patent Office (SIPO) must be indicated correctly.
19. Where can one find information on patents in Hong Kong?
The website of the "Intellectual Property Department of the Hong Kong Special Administrative Region of the People's Republic of China" can be accessed at: http://www.ipd.gov.hk/
20. Where can one find information on patents in Macao?
The website of the "Macao Special Administrative Region Economic Service" at:
http://www.economia.gov.mo/page/english/redirect_e.jsp?CurrentPage=law
21. The difference between "service" and "non-service" in the statistics in Chinese patent data?
In China, a "service invention" is an invention by an employee of a company made in execution of his tasks as opposed to a "non-service invention" made by an individual inventor. This distinction involves questions such as adequate remuneration for the employee.
The definition of a "service invention" vs. "non-service invention" according to Article 6 of the Chinese Patent Law is as follows: "A "service invention" is an invention made by a person in execution of the tasks to the entity to which he belongs or made by him mainly using the material and technical means of the entity. For service inventions, the right to apply for a patent belongs to the entity. After grant, the entity shall be the patent holder. For a "non-service invention", the right to apply for a patent belongs to the inventor. After grant, he shall be the patent holder."
22. How are Chinese data handled in INPADOC?
Here is a selection of the most relevant INPADOC-Newsletters referring to Chinese patent data, kind codes and number formats used in the INPADOC database (the links below are pointing to PDF files):
http://www.european-patent-office.org/inpadoc/news/inf/inf_06_33.pdf
http://www.european-patent-office.org/inpadoc/news/inf/inf_06_31.pdf
http://www.european-patent-office.org/inpadoc/news/inf/inf_06_14.pdf
http://www.european-patent-office.org/inpadoc/news/inf/inf_05_16.pdf
http://www.european-patent-office.org/inpadoc/news/inp/inp_0501.pdf
http://www.european-patent-office.org/inpadoc/news/inp/inp_0501.pdf
http://www.european-patent-office.org/inpadoc/news/inf/inf_05_05.pdf
http://www.european-patent-office.org/inpadoc/news/inf/inf_05_02.pdf
http://www.european-patent-office.org/inpadoc/news/inf/inf_05_25.pdf
http://www.european-patent-office.org/inpadoc/news/inf/inf_05_17.pdf
http://www.european-patent-office.org/inpadoc/news/inp/inp_0402.pdf
http://www.european-patent-office.org/inpadoc/news/ipg/ipg9910.pdf
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