Q: What types of patents are available in China?
There are three types of patents in China, the Patent
for Invention, the Patent for Utility Model and the
Patent for Design. Note that the Patent for Invention in
China is similar to the Utility patent in the U.S. The
Patent for Utility Model in China is similar to the
Utility Model patents in Europe in that it is not
examined. Chinese patents use the First-to-file rule.
Patent for Invention
o Term 20 years from date of filing or priority date
o Excludes scientific discoveries, rules and methods for
mental activities, methods for the diagnosis or for the
treatment of diseases, animal and plant varieties, and
substances obtained by means of nuclear transformation.
�� Patent for Utility Model
o Term of 10 years from date of filing or priority date
o In addition to the limitations for patent for
invention, excludes methods and chemical compounds.
�� Patent for Design
o Term of 10 years from date of filing or priority date.
Why would one get a Chinese Utility Model patent?
The Chinese Utility Model patent may be obtained to
receive fast protection of an invention. Because it is
not examined, typical grant times are 6 months to one
year verses 1 to 4 years for an invention patent. For
technologies that are rapidly changing, such protection
may be attractive since utility models typically cost
around 40% of the cost of invention patents. Both a
utility model patent and an invention patent application
may be applied for at the same time. At the time of
examination of the Invention patent, the applicant will
be required to choose between the two patents. If the
Invention patent is chosen, the Utility model patent
will be invalidated on the date the Invention patent
Do products manufactured using a patented process
receive protection in China?
A: Yes, Under the new patent law effective July 1, 2001,
products obtained directly from a patented process have
patent protection. No one may use, offer for sale, sell,
or import into China a product that was obtained
directly from a process which has patent protection in
Is software patentable in China?
This depends on the invention in question. In general
the Chinese Patent Office considers software to be
unpatentable. However, where the invention resolves a technical
problem by technical means and produces a technical
patent protection is allowed (this is a three stage
test). Unlike recent rulings in the U.S. and Europe,
claims to media containing computer software (e.g. a
computer readable medium on which a computer program
according to claim X is recorded) are not allowed in
China. For more information please see our article on
computer related inventions and business methods in
How long does it take to get a patent in China?
A: China has been working to decrease the time it takes
to have a patent issue. The time depends upon the
technology involved and the number of applications
submitted to the Chinese patent offices. Presently,
invention patents typically take two to four years after
the entry into substantive examination and utility model
patents take 4 months to 15 months.
Can a foreign person or company file directly with the
Chinese Patent Office?
No, a foreign entity must use an approved domestic law
How do you enforce IP protection in China?
There are two basic avenues for enforcing IP protection
in China: through administrative agencies and through
the courts. When administrative agencies are provided
evidence of infringement of an intellectual property
right, they will quickly (usually within days) raid the
establishment to seize and destroy the infringing
products and methods of production. Note that the
gathering of evidence against an infringer is different
in China than in the U.S. and other parts of the world.
In China there is no discovery and depositions are not
taken from the opposing party. Evidence is obtained by
utilizing private investigation methods. China Sinda has
it's own internal expert private investigators. We are
experienced in working with administrative agencies to
have raids performed. The administrative agencies may
fine the infringer, but only Chinese courts may give and
How effective is IP protection in China?
A: Intellectual property protection in China is both
good and bad. It is good in that the Chinese government
is active in combating infringement. When proof is
obtained of infringing activity, administrative agencies
provide a method whereby the infringement may be quickly
and effectively stopped. However, there are many
infringers active in China. If a company plans on
marketing their products in China, they should plan on
establishing a continuing anti-counterfeiting effort to
keep counterfeiters at bay.
What is needed to file for a patent in China?
When a patent application is filed in China through
China Sinda., the following documents are required:
A letter of instructions indicating the type of the
application to be applied for, e.g. a patent for
invention, a patent for utility model or a patent for
design; the name, address and nationality of the
applicant and inventor; the filing date, country and
serial number of the convention patent application or
patent based on which the priority right to be claimed,
A description, claims and an abstract;
Drawings (if necessary for describing the invention) .
Power of Attorney executed by the applicant, which is
neither necessary notarized nor legalized and can be
late furnished after filing within the time limit
prescribed by the Patent Office;
Certified Priority Document, which shall be submitted to
the Patent Office within three months from the Chinese
filing date otherwise the claim of priority shall be
deemed not to have been made;
Assignment of Priority Right, either in the original
form of it singed before the Chinese filing date or a
notarized or certified copy of the original, if the
applicant for the Chinese application is different from
that recorded in the priority document, which shall be
submitted to the Patent Office within 3 months from the
Chinese filing date;
For entry into national phase in China of a PCT
international application, international publication
pamphlet, international preliminary examination report
with annex and any amendments concerned if the applicant
would like to bring such amendment into the examiner's
consideration during the examination on the application
Can patent filings be made in languages other than
No. All submissions to the Chinese patent and trademark
offices must be made in Chinese.
When can a patent application be amended?
The new Patent law further restricted the opportunities
for voluntary amendment. The applicant is allowed to
make voluntary amendments:-
�� When the substantive examination is requested and
�� Within three months from receiving notification of
entering Substantive examination.
After this any amendments, which are not necessary to
satisfy the examiner's requests in an office action, may
be rejected. In practice amendments that overcome
defects in the application are usually allowed, even if
not requested by the Examiner, as long as they do not
broaden the original scope of the claims. However, if
changes may be expected to an application, a delay in
requesting the substantive examination should be
considered in order to give more time for filing
especially if the amendments are
likely to broaden or significantly alter the form of the
12. Why does China
Sinda give such special attention to our clients
rejections from the Chinese Patent Office.
A: China Sinda
understands that the goal of patent filing is to receive
the broadest possible claim coverage. We are very
skillful in helping our clients receive the broadest
possible scope for their claims. Please contact us if we
may assist you with claim scope or any other patent
filing problem you are having in China. Sinda@chinasinda.com.