Getting a patent in a marketplace with millions of people is crucial. If you seek international protection in the Chinese market and Obtain exclusivity over your inventions, you need to get a patent in china.
the People’s Republic is one of the most dynamic and promising economies in the world. China National Intellectual Property Administration “ CNIPA” has further reformed the Patent Law four times, in order to meet the demands emerging from the booming market
Keep reading while we explore the system and law of patents in china and dig deeper into the problems of intellectual property in china and IP’s new milestones in terms of the relatively short history of Chinese Patent Law.
History of the patent in China
The first law of patents in china came into force in 1985, which is quite late compared with other countries in the same region. Frankly, this lateness was for many reasons such as the weak enforcement of intellectual property due to the huge population, propr the opening up of china’s economy in 1978, especially during the cultural revolution, inventions only belonged to the country, not to the inventors.
Although Patent laws became into force late, they evolved very quickly and were revised four times to date, three times respectively in 1992, 2000 and 2008 and the fourth revision was proposed in 2012, the final version was promulgated in October 2020 and became effective into force on 1 June 2021 and is still applicable till now.
Development was not only concerned with patents in china, but other aspects of IP in china also developed at the same rate. To name few the first judicial body specialised in IP was created in Beijing in 2014. Nowadays china already has 18 courts and 4 tribunals specialised in IP and a chamber of the Supreme Court that exclusively specialises in intellectual property matters, which leads to more accurate, fast, and high-quality administrative and judicial proceedings for individuals and companies which seek patents in china.
All of this has been translated into that china become the largest user of the PCT system with 68,720 applications in 2020. All of these facts, prove that intellectual property in china has been perfectly exploited, which made it one of the well-known and recognised five jurisdictions of reference on the IP matter, along with the United States, Europe, Japan and Korea.
Today, China become one of the market leaders in R&D and international patent applications with more than 1.3 million applications in 2019 compared to 300000 in 2010. And this evolution led to the protection of patents in china becoming a must from a strategic point of view.
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The Patent In China Law
The fourth version of the patent law in china includes a series of important, that reflect the intentions of China to strengthen its patent system and provide it with more protection modifications among several key points.
- Improve Patent Examination.
- New principles for “Non-prejudicial Disclosure”.
- New Principle of “Good Faith”.
- Strengthen patent protection.
- Improve design patent protection.
- Improve protections concerned with drugs.
- Extent protection term.
- Introducing the drug patent linkage system.
- Improve the legal rights of the patentee.
- Improve damage rewarding system and new punitive damage.
- Improve rules of evidence.
- Enhance patent enforcement systems.
- Promote Exploitation of paten.
Patent In China
In Fact, a Patent is territorial restricted so if you have patent protection in any country around the world, that doesn’t mean that your rights will still be protected in china as well. A protected invention in the inventor’s country can be easily copied and released into markets in china so if you plan to extend your business in china you cant sue infringers and prove the damage they have caused, as china applies the “first-to-file” law, not the “first-to-use” one.
Foreign patent applicants who don’t have offices in China need to submit their applications through a registered Chinese patent attorney. The application can be hand-delivered or mailed, or filed via the CNIPA’s representative offices located in provincial intellectual property offices.
And there are a set of documents that are required to be in Chinese:
- Name of the invention.
- Specifications.
- Name of the design.
- Name and address of the applicant.
- Name and address of the designer.
- Description of the invention protection scope.
- Key technical aspects of the patent.
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Does China Have Patent Laws?
According to regulations and laws, patent in china is categorized into 3 types
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Invention Patent:-
An Invention patent is used to protect new, nonobvious, and possibly to implement technical solutions. The protection period of patents in china is 20 years from the filing or priority date (whichever is earlier).
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Utility Patent:-
A utility patent is used to protect new shapes, structural physical features, or a combination of them. The protection Period for a utility patent in china is 10 years from the filing date.
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Design patent:-
A design patent is used for unique designs such as patterns, shapes, colours, or a combination of them. The protection Period for a design patent in china is 15 years from the filing date and is not renewable. To obtain a design patent in china, your design must be scientifically distinguished and novel and never published anywhere before the date of application.
For design patent protection, after the new law comes into force, the applicant can apply for a design patent for certain parts of their products, as they can show in solid lines, while the unclaimed part in a doted way or any other way.
In fact, this development in design patent protection will eliminate the adverse effects caused by the institutional differences between China and other countries and regions in the patentable subject matter of the design patent and will boost the protection available under the design patent system and stimulate design innovations.
Laws of the patent in china allow you to file invention patents and utility patents for the same invention which is a great advantage that you can make use of. Also, laws prevent patent protection for:
- Methods of diagnosis or treatment of disease for humans and animals.
- Substances obtained by nuclear transformations.
- Designs that comprise patterns, colours or a combination of them on printed 2D works.
- Scientific discoveries.
- Methods for intellectual activities.
- Software, but patents can be granted for software programs combined with hardware.
The Patent In China Cost
The patent cost varied according to different factors, depending on the kind of patent, the number of tasks of the patent attorney, and the complexity of the patented invention. Filling a patent application involves three nature of expenses including professional drawings expenses, patent office expenses, and patent attorney expenses.
Patent Law Firms In China
You have three ways to file a patent in china
- With the help of a patent attorney or patent agency.
- If the applicant has an international patent application, it will be filled under the PCT as china is one of the member states.
- To fill a patent from a foreign country you need to file a second application in china within 6 months for a design patent, 12 months for an invention patent and a utility patent. Take note that the foreign country must be a member of the Paris convention.
After the application is obtained, the examination process starts to determine whether the requirement are met or not. the patent office may conduct a second examination in case of need.
If the patent gets approval, the applicant needs to register the patent within two months from the notification date, the last step is that the patent certificate will be issued and announced if this step doesn’t take place, the patent will be treated as abandoned.
In case of patent application rejection, the applicant can start the examination process again within a period that doesn’t exceed 3 months after rejection notification, through the Re-examination and Invalidation Department of the Patent Office (RIDPO).
To sum up, china is strongly committed to intellectual property rights and proceeds in the development and restructuring of its legal framework, which definitively breaks away from its questionable reputation of yesteryear.
