Patent registration in China

Patent registration in the Chinese market is becoming an urgent need for Vietnamese businesses and inventors to expand their business market, create long-term value as well as find investors for their patent registration. In the article below, Viet An Law Firm will introduce to you the current regulations on patent registration in China.

Legal basis

• Patent Law of the People’s Republic of China in 2020

Patent protection requirements in China

In general, patent protection requirements in countries around the world are relatively similar, requiring inventions to meet the following requirements:

• Novelty means that the invention or utility model does not form part of the prior art
• Inventiveness means that, as compared with the prior art, the invention has prominent substantive features and represents an obvious progress
• Practical use means that the invention or utility model can be manufactured or used and can produce positive results.

Subjects that are not allowed to grant patents according to Article 5 of the Patent Law of the People’s Republic of China in 2020 include:

• No patent right shall be granted for any invention-creation that violates laws or social morality or that is detrimental to the public interests.
• No patent right shall be granted for any invention-creation where the acquisition or utilization of the genetic resources, on which the development of the invention-creation relies, violates the provisions of laws or administrative regulations.

Reasons for registering for patent protection in China

Reasons for businesses to register for patent protection in China include:

• Enterprises want to expand the scope of patent protection to China;
• Patent registration for gaining exclusive rights in the Chinese market, thereby being able to resell the right to exploit that invention in the future to another party.
• Patent registration for increasing innovation for businesses or affirming the scientific position of the inventor.

The subject matter is eligible for patent protection in Vietnam

The subject matter is eligible for patent protection includes:

Products

Products in the form of objects, for example tools, machines, equipment, components, electrical circuits…, are represented by a set of information that identifies an artificial product characterized by signs (characteristics) with structural techniques, product has the function (use) as a means to meet certain human demand; or

Products in the form of substances (including single substances, compounds and mixtures of substances), for example materials, substances, foods, pharmaceuticals…, are represented by a set of information that identifies an artificial product characterized by technical signs (characteristics) of presence, proportion and status of elements, which function (use) as a mean to satisfy certain human demand; or products in the form of biological materials, for example genes, genetically modified plants/animals…, represented by a collection of information about a product containing genetic information altered under the influence of humans, capable of self-regeneration.

Process or method (production process; diagnostic, forecasting, testing, treatment methods, etc.)

Represented by a set of information that determines how to carry out a process, a specific job is characterized by signs (characteristics) of sequence, participants, measures, and means perform operations to achieve certain goals.

New function of a known product or compound (New use)

This subject is only accepted in certain countries and is still controversial.

Patent registration application in China

Patent registration documents in China include the following documents:

• Patent application;
• Invention description;
• Scope of protection claims;
• Patent drawings;
• Commitment of the applicant;
• Contract for transfer of patent registration rights (if any);
• Power of Attorney (for intellectual property representative);
• Documents certifying priority rights (if any).

Note: Patent registration documents must be made in writing and in Chinese.

Patent registration process in China

Step 1: Apply and examine the invention

For foreign applicants who do not reside or are not headquartered in China, the application shall not be submitted directly to the China National Intellectual Property Administration (CNIPA) but must go through an authorized industrial property agent to proceed with the application.

CNIPA examiners will conduct an examination and decide whether the registered invention satisfies the requirements in terms of application form. Patent owners can ask intellectual property agents to help them prepare their registration documents.

Step 2: Examination of application

After receiving all documents and registration fees, the China National Intellectual Property Administration will conduct an examination of the application. The examination process will last about 2 years. If after the examination process the Department rejects the application, the application owner has the right within a certain period of time to prepare and send back to the Department a dispatch responding to the results of substantive examination and within a few months, the Department will proceed. review. If the Department finds the response to be reasonable and acceptable, the Department will issue a patent protection certificate.

In China, the patent examination stages go through the following steps:

• Formal examination stage
• Publication of patent application
• Substantive examination stage: Within 3 years from the filing date of the application, the applicant needs to request a substantive examination, otherwise the application will be considered withdrawn. CNIPA will consider the patentability of the subject matter filed by the patent applicant. The assessment will consider whether the invention meets the criteria of novelty, inventive step and industrial applicability (usefulness).

The time for substantive examination can be accelerated if the applicant obtains additional preliminary examination results from another intellectual property organization.

Step 3: Patent granted

The term of patent right for inventions shall be twenty years, the term of patent right for utility models shall be ten years, and the term of patent right for designs shall be fifteen years, all commencing from the filing date. Where a patent right for an invention is granted after the expiration of four years from the filing date and after the expiration of three years from the date of the request for substantive examination of the application, the patent administration department under the State Council shall, at the request of the patentee, extend the term of the patent to compensate for the unreasonable delay in the granting process of the invention, except for the unreasonable delay caused by the applicant.

Some related questions

In what ways can a patent application be filed in China?

Patent applications can be filed in China through the following forms:

• Apply for a patent directly in China. Foreign applicants must use a patent agency to process the patent application.
• File a patent application for the first time abroad (must be a Member State of the Paris Convention, such as EU countries), then apply for a patent filed in China within 12 months.
• File an international patent application under the Patent Cooperation Treaty (PCT), selecting China as one of the designated states.

When is the deadline for filing a patent application in China?

The deadline for filing a patent application claiming priority with the China National Intellectual Property Administration is 12 months from the priority date. The above deadline cannot be extended further.

Patent validity and renewal?

Patents in China are valid for twenty (20) years from the date of filing. The annual renewal fee for the first year must be paid when the patent is registered. All annual renewal fees for subsequent years must be paid in advance by the annual filing date. Late payment is possible after a grace period of six (06) months subject to payment of a corresponding surcharge.

What is the time frame of the patent registration procedure?

• The average processing time for patent registration procedures in China is 3 years, corresponding to the time limit for substantive examination.
• Inventions can also be protected as utility solutions in China. However, converting a patent application into a useful solution and vice versa is not feasible.
• The maximum protection period of a utility solution in China is ten years from the filing date.

Patent registration in China of Viet An Law Firm

• Consulting on issues related to submitting applications.
• Drafting applications for registration of inventions and utility solutions in China.
• Representing customers to register patents and monitor and respond to the application process at CNIPA;
• Receive patent registration documents and hand them over to customers;
• Prepare documents to apply for extension and maintenance of protection certificate validity
• Examine and evaluate the possibility of infringement, and coordinate with competent authorities in protecting customers’ rights to protected inventions.

Customers who have questions on patent registration in China, please contact Viet An Law Firm for the best support.

Disclaimer: This article was last updated in January 2024. Laws may have changed since then. Please contact Viet An Law to confirm the information in this article is current and for any legal assistance.