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Patent Guide

TYPES OF PATENT

There are three types of patent: invention patent, utility model and design patent.

DEFINITION OF INVENTION / UTILITY MODEL AND DESIGN

“Invention” refers to any new technical solution relating to a product, a process or an improvement thereof.
“Utility model” refers to any new technical solution relating to a product’s shape, structure, or a combination thereof, which is fit for practical use.

“Design” refers to any new design of a product’s shape, pattern or a combination thereof, as well as the combination of the color and the shape or pattern of a product, which creates an aesthetic feeling and is fit for industrial application.


FILING DOCUMENTS


A patent application for invention or utility model must include the following documents:
1. A request, a description and its abstract,and claims shall be submitted.
2. An application shall expressly specify the name of the invention or utility model, name of the inventor, name and address of the applicant, and other matters.
3. Drawings, if any;
4. Certified copy of the prior application, if a priority is claimed.
5. Assignment of priority right, if the applicant in China differs from that of the prior application.
6. Power of Attorney, signed by the applicant (Notarization or legalization is not required);

A patent application for design must include the following documents:
1. Drawings or photographs of the design;
2. Brief description of the design;
3. Certified copy of the prior application, if a priority is claimed,
4. Assignment of priority right, if the applicant in China differs from that of the prior application.
5. Power of Attorney, signed by the applicant (Notarization or legalization is not required);

RIGHT OF PRIORITY


If, within twelve months from the date the applicant first files an application for an invention or utility model patent in a foreign country, or within six months from the date the applicant first files an application for a design patent in a foreign country, he files an application for a patent in China for the same subject matter, he may enjoy the right of priority in accordance with the agreements concluded between the said foreign country and China, or in accordance with the international treaties to which both countries have acceded, or on the principle of mutual recognition of the right of priority.


An applicant who requests the right of priority shall submit a written declaration at the time of application and submit, within three months, duplicates of the patent application documents filed for the first time. Where no written declaration is submitted or no duplicates of the patent application documents are submitted at the expiration of the specified time limit, the applicant shall be deemed to have waived the right of priority.

NATIONAL PHASE OF PCT APPLICATIONS

A PCT application should enter into Chinese national phase within 30 months from the priority date.
If the applicant for a PCT application fails to go through the relevant formalities for entering into the Chinese national phase within 30 months from the priority date, he may, after paying a surcharge for the late entry, go through these formalities before the expiration of the time limit of 32 months from the priority date.

EXAMINATION AND APPROVAL OF PATENT APPLICATIONS

Where it is found after a substantive examination that there is no reason to reject the patent invention application, the patent administrative department of the State Council shall make a decision to grant a patent for the invention, issue an invention patent certificate, and register and announce it. The patent right for invention shall become effective as of the date of announcement.

Where it is found after the preliminary examination that there is no reason to reject the application for patenting a utility model or design, the patent administrative department of the State Council shall make a decision to grant a patent for the utility model or design, issue the relevant patent certificate, and register and announce it. The patent right for utility model or design shall become effective as of the date of announcement.

ANNUITIES PAYMENT

The patentee shall pay annual fees commencing from the year when the patent right is granted.
The annuity for the year when the application is granted shall  be paid within two months from the date of receipt of the notification to grant the patent right.
The subsequent annuities shall be paid in advance before the expiration of the preceding year.
A grace period of six months for paying the annuities is available.

DURATION OF PATENT RIGHTS

The duration of an invention patent shall be twenty years, the duration of the patent for a utility model or design shall be ten years, counted from the date of application.

PROCEDURES FOR FILING A NEW PATENT APPLICATION FOR INVENTION

Preparation or drafting the patent application→file with SIPO→SIPO issues Notification of Acceptance (5working days)→ preliminary examination (about 3 months)→ publication(the application shall be published promptly after the expiration of eighteen months from the date of filing(or priority date); the application shall be published earlier upon the applicant’s request)→ substantial examination → Office Action responding→patent right granting, registration, announcement→ issuing the patent certificate (2-3 years).

PROCEDURES FOR FILING A NEW PATENT APPLICATION FOR UTILITY MODEL/DESIGN

Preparation or drafting the patent application→file with SIPO→SIPO issues Notification of Acceptance (5 working days)→ preliminary examination → patent right granting, registration, announcement (about 6 months)→issuing the patent certificate (about 8 months).