TYPES OF PATENT
There are three types of patent, i.e. patent for invention, patent for utility model and patent for design.
PATENT DURATION AND DURATION COMPENSATION
The duration of a patent for invention is twenty years, the duration of a patent for utility model is ten years, the duration of a patent for design is 15 years, counted from the filing date in China.
Nevertheless, If four years have elapsed since the date of application for a patent for invention, and three years have elapsed since the date of the request for substantive examination, the patentee may request CNIPA to compensate the unreasonable delay period as caused by CNIPA in the examination of an invention patent, except for unreasonable delays caused by the applicant. Furthermore, in order to compensate for the time occupied by the review and approval of new drug marketing, the patentee may request CNIPA to compensate the term of the patent right for invention patents related to new drugs that have obtained marketing authorization in China. The compensation period shall not exceed five years, and the total effective patent right period after the new drug is approved for marketing shall not exceed 14 years.
UNPATENTABLE SUBJECT MATTERS
No patent right shall be granted for any of the following:
1. Scientific discoveries;
2. Rules and methods for mental activities;
3. Methods for the diagnosis or for the treatment of diseases;
4. Animal and plant varieties;
5. Means of nuclear transformation and substances obtained by means of nuclear transformation;
6. Any design of pattern, color or their combination on two-dimensional printed articles and mainly for identifying functions.
For processes used in producing products referred to in item (4), patent may be granted.
PATENTABILITY OF COMPUTER SOFTWARE
Computer software per se is not patentable. However, computer software may be protected under the Copyright Law, and, may also be protected under the Patent Law if it belongs to a technical field, resolves a technical problem and reaches a technical result.
CONVENTIONAL PRIORITY AND DOMESTIC PRIORITY
Conventional priority for patent applications for invention and utility model can be claimed within twelve months from the date of first filing outside China. Conventional priority for patent applications for design can be claimed within six months from the date of first filing outside China. Domestic priority for patent applications for invention and utility model can be claimed within twelve months from
the date of first filing in China. Domestic priority for patent applications for design can be claimed within six months from the date of first filing in China. Where the subject of an earlier application for invention or utility model or design falls under any one of the following circumstances, it may not be taken as the basis for any later application for invention or utility model or design to claim a domestic priority:
1. where it has claimed foreign or domestic priority;
2. where it has been granted a patent right;
3. where it is a divisional application.
The earlier application shall be deemed to have been withdrawn on which a new application claiming domestic priority is filed.
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. PCT number is sufficient for us to give you our quotation.
FILING DOCUMENTS
A patent application for invention or utility model shall include the following documents:
-Power of Attorney, signed by the applicant (Notarization or legalization is not required);
- Specification with claims and abstract;
- Drawings, if any;
- Certified copy of the prior application or DAS number, if a priority is claimed;
- Assignment of priority right, if the applicant in China differs from that of the prior application;
A patent application for design shall include the following documents:
-Power of Attorney, signed by the applicant (Notarization or legalization is not required);
- Drawings or photographs of the design;
- Brief description of the design;
- Certified copy of the prior application, if a priority is claimed, and
- Assignment of priority right, if the applicant in China differs from that of the prior application.
CLAIM FORMAT
"European" claim format, which contains a preamble portion defining the technical features of the prior art and a characterizing portion defining the technical features of the invention, is highly recommended for independent claims.
PUBLICATION
Patent application for invention is published promptly upon expiration of eighteen months from the filing date or the priority date, whichever is earlier, after a preliminary examination.
SUBSTANTIVE EXAMINATION
Patent application for invention is examined as to the substance. In order to initiate the substantive examination procedure, an applicant must submit a formal request within three years from the Chinese filing date (or the priority date, if any). Otherwise, the application shall be deemed to have been withdrawn. Patent application for utility model or design is not examined as to the substance. Patent will be issued automatically after preliminary examination.
UNITY REQUIREMENT
A patent application for invention or utility model shall be limited to one invention or utility model. Two or more inventions or utility models may be filed in one application, provided that they belong to a single general inventive concept, that is to say, they shall be technically interrelated and contain one or more identical or corresponding special technical features. The expression "special technical features" shall mean those technical features that define a contribution which each of those inventions, considered as a whole, makes over the prior art. A patent application for design shall be limited to one design incorporated in one product. Two or more similar designs of the same product or two or more designs, which are incorporated in products belonging to the same class and being sold or used in sets, may be filed in one application. The expression "the same class" means that the products incorporating the designs belong to the same class in the classification of design. The expression "being sold or used in sets" means that the products incorporating the designs have the same designing concept and are customarily sold or used at the same time.
FILING OF A DIVISIONAL APPLICATION
A divisional application can be filed by the applicant before the expiration of two months from the date of receipt of the notification to grant the patent right for the initial Chinese patent application. Where the initial Chinese patent application has been finally rejected, withdrawn or deemed to have been withdrawn, no divisional application can be filed. If a first generation of divisional application has been filed based on the initial Chinese patent application, even though the initial Chinese patent application was granted a patent right or finally rejected, withdrawn or deemed to have been withdrawn, a further generation of divisional patent application may still be filed based on the first generation of divisional application if a unity objection was raised during the prosecution of the first generation of divisional application.
MULTIPLE DEPENDENT CLAIM
A multiple dependent claim, which refers to two or more claims, shall refer to the preceding one in the alternative only, and shall not serve as a basis for any other multiple dependent claims.
AMENDMENT OF APPLICATION
Amendment of a patent application is allowed, but may not go beyond the scope of the original disclosure contained in the initial description and claims. For a patent application for invention, the applicant may amend its application on its own initiative when requesting for substantive examination, or within three months from the date of receipt of the notification from CNIPA informing
the entry of the application into the stage of substantive examination. For a patent application for utility model or design, the applicant may amend his application on his own initiative within two months of the filing date. For national phase of PCT application, the applicant may amend the application documents simultaneously when the proposed PCT application enters into China.
REJECTION AND APPEAL
If a patent application is found to be unacceptable by CNIPA, and the applicant has been given at least one opportunity to make a response, a final rejection shall be made. The rejection made by CNIPA can be appealed to the Patent Reexamination and Invalidation Department (PRID) of CNIPA. Where the applicant is not satisfied with the decision of PRID, he may, within three months from the date of receipt of the notification, institute legal proceedings before the court.
INVALIDATION
Anyone may request the PRID to declare a patent invalid from the date of announcement of the grant of the patent right. Where the patentee or the person who made the request for invalidation is not satisfied with the decision of PRID declaring the patent right invalid or upholding the patent right, such party may, within 3 months from receipt of the notification of the decision, institute legal proceedings before the court.
THE SCOPE OF PROTECTION OF A PATENT RIGHT
The scope of protection of a patent for invention or utility model is determined by the terms of the claims. The description and the drawings may be used to interpret the claims. The scope of protection of a patent for design is determined by the design of the product as shown in the drawings or photographs. The brief description may be used to interpret the design of the product as shown in the drawings or photographs. After grant of a patent right for invention or utility model, the patentee has the right to prevent others from making, using, offering to sell, selling or importing the patented product, or using the patented process, or using, offering to sell, selling or importing the product directly obtained by the patented process, for production or business purposes and without his authorization. After grant of a patent right for a design, the patentee has the right to prevent others from making, offering to sell, selling or importing the product incorporating the patented design, for production or business purposes and without his authorization.
Should you have any questions, please do not hesitate to contact us via our email address: patent@lexgoal.cn.
