Patent
FAQ of Chinese Patent Application

Functions of the State Intellectual Property Office of P. R. China (SIPO) Patent Law
What is a Chinese Patent?
What are the differences among invention patent, utility model patent and design patent?
What Can Be Patented?
Who May Apply For a Patent?
What are Conditions for Granting Patent Rights?
Filing an application
Fees
Examination of Invention Patent Application
Examination of Utility Model Patent and Design Patent Application
Amendments to Application
What Happen If the Application is Rejected?
Divisional Application
Duration of a Patent
Invalidation of Granted Patent
What is the nature of patent?
Assignment of patent
Provisional protection
Compulsory Licensing
Confidentiality Examination (Foreign Filing License)
Provisional protection after publication
Online Search Resources
Patent Agency

Functions of the State Intellectual Property Office of P. R. China (SIPO)
The State Intellectual Property Office of P. R. China (SIPO) is an agency of the State Council of China. The SIPO accepts and examines patent applications and grants patents on inventions when applicants are entitled to them; it releases patent-related information, publish patent gazettes, records assignments of patents, maintains a search database for public use. It publishes the Patent Examination Guideline.

Patent Law
The Constitution of P.R. China gives National People's Congress the power to enact laws relating to patents. Under this power National People's Congress has from time to time enacted and amended the patent law. The first patent law was adopted in 1984. The patent laws underwent several revisions. The current patent law was amended for the third time in accordance with the Decision of the Standing Committee of the Eleventh National People's Congress on Amending the Patent Law of the People's Republic of China at its 6th Meeting on December 27, 2008.

The patent law specifies the subject matter for which a patent may be obtained and the conditions for patentability. The law establishes the State Intellectual Property Office of P. R. China (SIPO) to administer the law relating to the granting of patents and contains various other provisions relating to patents.

The current Patent Law of P. R. China is available here.

What is a Chinese Patent?
A patent for an invention is the grant of a property right to the applicant, issued by the State Intellectual Property of P. R. China (SIPO). Generally, the term of an invention patent is 20 years (utility patent and design patent is 10 years) from the date on which the application for the patent was filed in China subject to the payment of annuity fees. Chinese granted patents are effective only within mainland China (NOT effective in Hong Kong, Macau or Taiwan). Patent term extensions are NOT available in China under any circumstances.
There are three types of patents: invention patent, utility model patent and design patent.
1) Invention Patent
Inventions mean new technical solutions proposed for a product, a process or the improvement thereof.

2) Utility Models Patent
Utility models mean new technical solutions proposed for the shape and structure of a product, or the combination thereof, which are fit for practical use.

3) Design Patents
Designs mean, with respect to a product, new designs of the shape, pattern, or the combination thereof, or the combination of the color with shape and pattern, which are rich in an aesthetic appeal and are fit for industrial application.

What are the differences between invention patent, utility model patent and design patent?
In China, there are three types of patent: invention patent, utility model patent and design patent. While the former two, invention patent and utility model patent, protect technical solution, the last one, design patent protects the ornamental design of a product. For invention patent, the term of protection is 20 years and it protects both product (e.g. a new kind of knife) and process (e.g. method of making a new kind of knife) with higher level of inventiveness. For utility model, the terms is 10 years and it only protects product with structure (e.g. a new kind of knife) but not process. In another word, utility model patent does not protect liquid (e.g. chemical agent), gaseous (chemical gas) or substances (e.g. chemical compound) product and process (e.g. method of making a new kind of knife).

What Can Be Patented?
The patent law specifies the general field of subject matter that can be patented and the conditions under which a patent may be obtained.

1) Invention Patent
Inventions mean new technical solutions proposed for a product, a process or the improvement thereof.
2) Utility Models Patent
Utility models mean new technical solutions proposed for the shape and structure of a product, or the combination thereof, which are fit for practical use.
3) Design Patents
Designs mean, with respect to a product, new designs of the shape, pattern, or the combination thereof, or the combination of the color with shape and pattern, which are rich in an aesthetic appeal and are fit for industrial application.

Patent rights shall not be granted for any of the following:
(1) scientific discoveries;
(2) rules and methods for intellectual activities;
(3)methods for the diagnosis or treatment of diseases;
(4) animal or plant varieties;
(5) substances obtained by means of nuclear transformation; and
(6) designs that are mainly used for marking the pattern, color or the combination of the two of prints.
The patent right may, in accordance with the provisions of this Law, be granted for the production methods of the products specified in Subparagraph (4) of the preceding paragraph.

Patent rights shall not be granted for invention-creations that violate the law or social ethics, or harm public interests.

Patent rights shall not be granted for inventions that are accomplished by relying on genetic resources which are obtained or used in violation of the provisions of laws and administrative regulations.

Who May Apply For a Patent?
According to the law, for employment inventions, which means the invention accomplished in the course of performing the duties of an employee, or mainly by using the material and technical conditions of an employer, the employer has the right to apply for a patent. After such application is granted, the employer shall be the patentee. For an invention that is accomplished by using the material and technical conditions of an employer, if the employer has concluded a contract with the inventor or designer providing the ownership of the right to apply for the patent or the ownership of the patent right, such provision shall prevail.

For non-employment inventions, the inventor or designer has the right to apply for a patent. After such application is granted, the said inventor or designer shall be the patentee. No unit or individual shall prevent the inventor or designer from filing a patent application for a non-employment invention.

An inventor or designer shall have the right to state in the patent documents that he is the inventor or designer.

With regard to an invention-creation accomplished by two or more units or individuals in collaboration, or an invention-creation accomplished by an unit or individual under the entrustment of another unit or individual, the right to apply for a patent shall be vested in the units or individuals that have accomplished the invention-creation in collaboration or in the unit or individual that has done so under entrustment, unless it is otherwise agreed upon. After the application is granted, the applying unit(s) or individual(s) shall be deemed the patentee(s).

What are Conditions for Granting Patent Rights?
1. Invention Patent
Inventions for which patent rights are to be granted shall be ones which are new, inventive and useful.
a. Novelty
Novelty means that the invention or utility model concerned is not prior art; no patent application is filed by any unit or individual for any identical invention or utility model with the SIPO before the date of application for patent right, and no identical invention or utility model is recorded in the patent application documents or the patent documentations which are published or announced after the date of application.

b. Inventiveness
Inventiveness means that, compared with the prior art, the invention possesses prominent substantive features and indicates remarkable advancements, and the utility model possesses substantive features and indicates advancements.

c. Usefulness
Usefulness means that the said invention or utility model can be used for production or be utilized, and may produce positive results.

Prior art mean the technologies known to the public both domestically and abroad before the date of application.

2 Utility Model Patent
Utility models for which patent rights are to be granted shall be ones which are new, inventive and useful.

a. Novelty
Novelty means that the invention or utility model concerned is not prior art; no patent application is filed by any unit or individual for any identical invention or utility model with the SIPO before the date of application for patent right, and no identical invention or utility model is recorded in the patent application documents or the patent documentations which are published or announced after the date of application.

b. Inventiveness
Inventiveness means that, compared with the existing technologies, the utility model possesses substantive features and indicates advancements.

c. Usefulness
Usefulness means that the said invention or utility model can be used for production or be utilized, and may produce positive results.

Prior Art mean the technologies known to the public both domestically and abroad before the date of application.

3. Design Patent
A design for which the patent right is granted is not an prior design, and no application is filed by any unit or individual for any identical design with the SIPO before the date of application for patent right and no identical design is recorded in the patent documentations announced after the date of application.

Designs for which the patent right is to be granted shall be ones which are distinctly different from the prior designs or the combinations of the features of existing designs.

Designs for which a patent right is granted shall be ones which are not in conflict with the lawful rights acquired by others prior to the date of application.

Prior designs mean designs that are known to the public both domestically and abroad before the date of application.

4. Exception of Losing Novelty
Within six months before the date of application, an invention for which an application is filed for a patent does not lose its novelty under any of the following circumstances:
(1) It is exhibited for the first time at an international exhibition sponsored or recognized by the Chinese Government;
(2) It is published for the first time at a specified academic or technological conference; and
(3) Its contents are divulged by others without the consent of the applicant.

Filing an application
1. Invention Patent
An application for an invention patent is made to the State Intellectual Property Office (SIPO) and includes:
(1) A petition;
(2) A description;
(3) A claims;
(4) An abstract:
(5) Drawings (when necessary);
(6) A Power of Attorney (when necessary);
All application documents must be in the Simplified Chinese language (Traditional Chinese not accepted).

Each document must have a top margin of 25 mm, a left side margin of 25 mm, a right side margin of at 15 mm and a bottom margin of 15mm. It is required that spacing between paragraphs should be 2.5mm to 3.5mm. The specification must have only a single column of text.

The application must have text written in a font of “Kai (楷体)”, "song (宋体)" or "Fang song (仿宋体)" (font size not set forth ) lettering style having characters that should be at least 3.5 mm to 4.5mm high.

A) Description
The written description shall contain a clear and comprehensive description of the invention or utility model so that a technician in the field of the relevant technology can carry it out; when necessary, pictures shall be attached to it. The abstract shall contain a brief introduction to the main technical points of the invention or utility model.
The following order of arrangement should be observed in framing the description:
(1) technical field: specifying the technical field to which the technical solution sought to be protected pertains;
(2) background art: indicating the background art which can be regarded as useful for the understanding, searching and examination of the invention or utility model, and when possible, citing the documents reflecting such art;
(3) contents of the invention: disclosing the technical problem the invention or utility model aims to settle and the technical solution adopted to resolve the problem, and stating, with reference to the prior art, the advantageous effects of the invention or utility model;
(4) brief description of drawings: briefly describing each figure in the drawings, if any; and
(5) mode of carrying out the invention or utility model: describing in detail the optimally selected mode contemplated by the applicant for carrying out the invention or utility model; where appropriate, this shall be done in terms of examples, and with reference to the drawings, if any.

The description of invention shall contain a clear and comprehensive description of the invention or utility model so that a technician in the field of the relevant technology can carry it out.
B) Claims
The written claim shall, based on the written description, contain a clear and concise definition of the proposed scope of patent protection.

With regard to an invention-creation accomplished by relying on genetic resources, the applicant shall, in the patent application documents, indicate the direct and original source of the genetic resources. If the applicant cannot indicate the original source, he shall state the reasons.

2. Utility Model Patent
An application for a utility model patent is made to the State Intellectual Property Office (SIPO) and includes:
(1) A petition;
(2) A description;
(3) A claims;
(4) An abstract:
(5) Drawings;
(6) A Power of Attorney (when necessary);

All application documents must be in the Simplified Chinese language (Traditional Chinese not accepted).

Each document must have a top margin of 25 mm, a left side margin of 25 mm, a right side margin of at 15 mm and a bottom margin of 15mm. It is required that spacing between paragraphs should be 2.5mm to 3.5mm. The specification must have only a single column of text.

The application must have text written in a font of “Kai (楷体)”, "song (宋体)" or "Fang song (仿宋体)" (font size not set forth ) lettering style having characters that should be at least 3.5 mm to 4.5mm high.

A) Description
The written description shall contain a clear and comprehensive description of the invention or utility model so that a technician in the field of the relevant technology can carry it out; when necessary, pictures shall be attached to it. The abstract shall contain a brief introduction to the main technical points of the invention or utility model.

The following order of arrangement should be observed in framing the description:
(1) technical field: specifying the technical field to which the technical solution sought to be protected pertains;
(2) background art: indicating the background art which can be regarded as useful for the understanding, searching and examination of the invention or utility model, and when possible, citing the documents reflecting such art;
(3) contents of the invention: disclosing the technical problem the invention or utility model aims to settle and the technical solution adopted to resolve the problem, and stating, with reference to the prior art, the advantageous effects of the invention or utility model;
(4) brief description of drawings: briefly describing each figure in the drawings, if any; and
(5) mode of carrying out the invention or utility model: describing in detail the optimally selected mode contemplated by the applicant for carrying out the invention or utility model; where appropriate, this shall be done in terms of examples, and with reference to the drawings, if any.
The description of invention shall contain a clear and comprehensive description of the invention or utility model so that a technician in the field of the relevant technology can carry it out.

B) Claims
The written claim shall, based on the written description, contain a clear and concise definition of the proposed scope of patent protection.
With regard to an invention-creation accomplished by relying on genetic resources, the applicant shall, in the patent application documents, indicate the direct and original source of the genetic resources. If the applicant cannot indicate the original source, he shall state the reasons.

3. Design Patent
An application for a design patent is made to the State Intellectual Property Office (SIPO) and includes:
(1) A petition;
(2) Drawings or pictures of the design;
(3) A brief description of the design;
(4) A Power of Attorney (when necessary);

Drawings or pictures
In the relevant drawings or pictures submitted by the applicant shall clearly be shown the design of the products for which patent protection is requested.

The date when the SIPO receives the patent application documents is the date of application. If the application documents are delivered by post, the date of the postmark is the date of application.

If any application is filed without all the required parts for obtaining a filing date (incomplete or defective), the applicant will be served with Notification of Rectification in which he/she will be notified of the deficiencies and given a time period to complete the application filing—at which time a filing date as of the date of such a completed submission will be obtained by the applicant. If the omission is not corrected within a specified time period, the application will be deemed as abandoned.

The filing date of an application for patent is the date on which a request, description, abstract, claim(s) and any drawings necessary to understand the subject matter sought to be patented are received in the SIPO; or the date on which the last part completing the application is received in the case of a previously incomplete or defective application.

Fees
A patent application is subject to the payment of a basic fee and additional fees that include a publication fee, an substantive examination fee, issue fee, annuity fee. Current official fee can be referred from the SIPO's website:
http://www.sipo.gov.cn/zhfwpt/zlsqzn/zlsqfy/.
Total claims that exceed 10 are considered “excess claims” for which additional fees are due. For example, if applicant filed a total of 25 claims, applicant would be required to pay excess claims fees for 15 total claims exceeding 10. Total page number exceed 30 are considered "excess pages" for which additional fee are due. For example, if applicant filed a total of 35 claims, applicant would be required to pay excess claims fees for 5 total pages exceeding 30.

Examination of Invention Patent Application
1. Preliminary Examination
Upon receipt of an invention patent application, the SIPO will perform a preliminary examination as to the formality issue and obvious defects. If any formality issues found, a notification of ratification will be issued.

2. Publication of Patent Applications
If the SIPO, after preliminary examination, confirms that the application meets the requirements of this Law, it shall publish the application within 18 full months from the date of application. And it may do so at an earlier date upon request of the applicant.

3. Petition for Substantive Examination
Within three years from the date an invention patent application is filed, the SIPO may, upon request made by the applicant at any time, carry out substantive examination of the application. If the applicant, without legitimate reasons, fails to request substantive examination at the expiration of the time limit, such application shall be deemed to have been withdrawn.

4. Substantive Examination
A. Office Action
After the SIPO has made the substantive examination of the invention patent application, if it finds that the application does not conform to the provisions of this Law, it shall notify the applicant of the need to state its opinions by an Office Action within a specified time limit or to make amendment to the application. In the event of the applicant's failure to comply at the expiration of the specified time limit without legitimate reasons, the application shall be deemed to be withdrawn.

B. Applicant's Reply
The applicant may provide his/her observation in his response to office action. The applicant must reply to every ground of objection and rejection in the prior Office action. The mere allegation that the examiner has erred will not be received as a proper reason for such reconsideration.

In amending an application in reply to a rejection, the applicant must clearly point out why he or she thinks the amended claims are patentable in view of the state of the art disclosed by the prior references cited or the objections made. He or she must also show how the claims as amended avoid such references or objections. After reply by the applicant, the examiner will decide whether the observation provided by the applicant and / or the amendment has make the application patentable, and the applicant will be notified as to the opinion of the examiner. There may be three or more office action in the prosecution procedure.

Divisional Application
If two or more inventions are claimed in a single application, the applicant will be required in an Office Action to limit the application to one of the inventions. The other invention may be made the subject of a divisional application which, if filed while the first application is still pending, will be entitled to the benefit of the filing date of the first application.

5. Rejection

After the applicant states his opinions on or makes amendment to the invention patent application, if the SIPO still believes the application does not conform to the provisions of this Law, it shall reject the application.

6. Notice of Allowance
If no reason for rejection is discerned after an invention patent application is substantively examined, the SIPO shall make a decision on granting of the invention patent right, issue an invention patent certificate, and meanwhile register and announce the same. The invention patent right shall become effective as of the date of announcement.

Examination of Utility Model Patent and Design Patent Application
If no reason for rejection is discerned after preliminary examination of a utility model or design patent application, the SIPO shall make a decision on granting of the utility model or design patent right, issue a corresponding patent certificate, and meanwhile register and announce the same. The utility model patent right and the design patent right shall become effective as of the date of announcement.

Amendments to Application
The applicant may amend the application as specified in the rules, or when and as specifically required by the examiner. a. Voluntary amendment
Amendments made in the circumstances provided by the Law are called “voluntary amendment”.Two opportunities are provided for the applicant to make voluntary amendment. Applicant may file the amendment when filing the petition of substantive examination or within three months from the date of receipt of the notification of entering the substantive examination stage.
An applicant may amend his patent application documents, provided that the amendment to the invention or utility model patent application documents does not exceed the scope specified in the original written descriptions and claims, or that the amendment to the design patent application documents does not exceed the scope shown in the original drawings or pictures.

b. Amendment upon request
Amendments made in order to overcome the defect pointed out by the examiner are called “amendment upon request”.

Where the applicant amends the application after receiving the notification of opinions of examination from the patent administration department of the State Council, he or it shall make the amendment to the defects pointed out by the notification.

When any amendment is made to the description or the claims in an application for a patent for invention or utility model, a replacement sheet in prescribed form shall be submitted, unless the amendment concerns only the alteration, insertion or deletion of a few words. Where an amendment to the drawings or photographs of an application for a patent for design is made, a replacement sheet shall be submitted as prescribed.

What Happen If the Application is Rejected?

The SIPO shall establish a patent reexamination board. If a patent applicant is dissatisfied with the decision made by the SIPO on rejecting of the application, he may, within three months from the date of receipt of the notification, file a request with the patent reexamination board for review. After review, the Patent Reexamination Board shall make a decision and notify the patent applicant of the same.

If the patent applicant is dissatisfied with the review decision made by the patent reexamination board, he may take legal action before the Beijing IP court within three months from the date of receipt of the notification.

Beijing IP Court may affirm or reverse the Office’s decision. If the applicant is not satisfied with the judgment of Beijing IP Court, he/she may appeal the judgment before Beijing Higher People’s Court which is the final judgment.

Divisional Application
An application for an invention patent or utility model patent shall be limited to one invention or utility model. Two or more inventions or utility models embodied in a single general invention concept may be handled with one application.

An application for a design patent shall be limited to one design. Two or more similar designs of one and the same product or two or more designs of products of the same kind that are sold or used in sets may be handled with one application.

If two or more inventions are claimed in a single application, the applicant will be required in an Office Action to limit the application to one of the inventions. The other invention may be made the subject of a divisional application which, if filed while the first application is still pending, will be entitled to the benefit of the filing date of the first application.

Duration of a Patent
The duration of the invention patent right shall be 20 years and that of the utility model patent right and of the design patent right shall be ten years respectively, all commencing from the date of application.

The patentee shall pay annual fees commencing from the year when the patent right is granted.

Under any of the following circumstances, the patent right shall be terminated before the expiration of the duration: (1) failure to pay the annual fee as required; or
(2) the patentee waiving of the patent right by a written declaration;
If a patent right is terminated before the duration expires, the SIPO shall register and announce such termination.

Invalidation of Granted Patent
Beginning from the date the patent administration department under the SIPO announces the grant of a patent right, if a unit or individual believes that such grant does not conform to the relevant provisions of this Law, it or he may request that the patent review board declare the said patent right invalid.

The patent reexamination board (PRB) shall examine the request for declaring a patent right invalid and make a decision in a timely manner and notify the requesting person and the patentee of its decision. The decision on declaring a patent right invalid shall be registered and announced by the SIPO.

A person that is dissatisfied with the patent reexamination board (PRB)'s decision on declaring a patent right invalid or its decision on affirming the patent right may take legal action before Beijing IP Court, within three months from the date of receipt of the notification. The Beijing IP Court shall notify the opposite party in the invalidation procedure to participate in the litigation as a third party.

What is the Nature of Patent?
After the patent right is granted for an invention or a utility model, unless otherwise provided for in this Law, no unit or individual may exploit the patent without permission of the patentee, i.e., it or he may not, for production or business purposes, manufacture, use, offer to sell, sell, or import the patented products, use the patented method, or use, offer to sell, sell or import the products that are developed directly through the use of the patented method.

After a design patent right is granted, no unit or individual may exploit the patent without permission of the patentee, i.e., it or he may not, for production or business purposes, manufacture, offer to sell, sell or import the design patent products.

Any unit or individual that intends to exploit the patent of another unit or individual shall conclude a contract with the patentee for permitted exploitation and pay the royalties. The permittee shall not have the right to allow any unit or individual not specified in the contract to exploit the said patent.

Assignment of patent
The right to apply for a patent and patent rights may be transferred.

If a Chinese unit or individual intends to transfer the right to apply for a patent or patent rights to a foreigner, foreign enterprise or other foreign organization, it or he shall perform the procedures in accordance with the provisions of relevant laws and administrative regulations.

For the transfer of the right to apply for a patent or of patent rights, the parties concerned shall conclude a written contract and file for registration at the SIPO, and the latter shall make an announcement thereof. The transfer of the right to apply for a patent or of patent rights shall become effective as of the registration date.

Provisional protection
After the application for an invention patent is published, the applicant may require the unit or individual that exploits the said patent to pay an appropriate amount of royalties.

Compulsory Licensing
If an invention patent of a State-owned enterprise or institution is of great significance to national or public interests, upon approval by the State Council, the relevant competent department under the State Council or the people's government of the province, autonomous region, or municipality directly under the Central Government may decide to have the patent widely applied within an approved scope and allow the designated units to exploit the patent, and the said units shall pay royalties to the patentee in accordance with the regulations of the State.

Confidentiality Examination (Foreign Filing License)
Any unit or individual that intends to apply for patent in a foreign country for an invention or utility model accomplished in China shall submit the matter to the SIPO for confidentiality examination. Such examination shall be conducted in conformity with the procedures, time limit, etc. prescribed by the State Council.

A Chinese unit or individual may file for international patent applications in accordance with the relevant international treaties to which China has acceded. The applicant for such patent shall comply with the provisions of the preceding paragraph. The SIPO shall handle international patent applications in accordance with the relevant international treaties to which China has acceded and the relevant provisions of this Law and regulations of the State Council.

With regard to an invention or utility model for which an application is filed for a patent in a foreign country in violation of the provisions of the first paragraph of this Article, if an application is also filed for the patent in China, patent right shall not be granted.

Provisional protection after publication
As a result of publication, an applicant may assert provisional protection. These rights provide a patentee with the opportunity to obtain a reasonable royalty from a third party that carry out the technology claimed in a published application. The party that carries out the technology may choose to pay the requested royalty or not. However, after the patent is granted, the third party is obliged to pay the requested royalty.

Online Search Resources
Chinese patent online search is available at http://www.pss-system.gov.cn/sipopublicsearch/enportal/index.shtml.

Patent Agency
Where a foreigner, foreign enterprise or other foreign organization without a regular residence or business site in China applies for a patent in China, the application shall be handled in accordance with the agreements concluded by the country he or it belongs to and China or the international treaties to which both the countries have acceded or in accordance with this Law on the principle of reciprocity.

If a foreigner, foreign enterprise, or other foreign organization without a regular residence or business site in China intends to apply for a patent or handle other patent-related matters in China, he or it shall entrust a legally established patent agency with the application and such matters.

If a Chinese unit or individual intends to apply for a patent or handle other patent-related matters in China, it or he may entrust a legally established patent agency with the application and such matters.

A patent agency shall abide by laws and administrative regulations and handle patent applications or other patent-related matters as entrusted by its principals. It shall also be obligated to keep confidential the contents of the inventions of its principals, unless the patent applications have been published or announced. The specific measures for administration of the patent agencies shall be formulated by the State Council.

The SIPO registers both patent agencies and patent attorneys. Registered patent agencies can be searchable from here (Chinese only): http://dlgl.sipo.gov.cn/txnqueryAgencyOrg.do

For further information, please refer to the content below:
● Overview
● Chinese Invention Patent Application
● Chinese Utility Model Patent Application
● PCT Chinese National Stage Application
● Parallel Filing of Invention Patent Application & Utility Model Application
● Chinese Design Patent Application
● FAQ of Chinese Patent Application
● Patent Law of P. R. China
● Rules for the Implementation of the Patent Law of P. R. China
Copyright © Jiaquan IP Law. All Rights Reserved. 粤ICP备16000884号