Foreigners apply for a china patent:
Where any foreigner, foreign enterprise or other foreign organization having no habitual residence or business office in China applies for a china patent, or has other patent matters to attend to, in China, it or he shall appoint a patent agency designated by  the patent administration department under the State Council to act as his or its agent.
     Where any Chinese entity or individual applies for a patent or has other patent matters to attend to in the country, it or he may appoint a patent agency to act as its or his agent.

 

What is the protection extent of china patent?
According to the article 1 of the China Patent Law, the law protect patent rights for inventions-creations, and according to the article 2 of this Law£¬inventions-creations mean inventions£¬utility models and designs. Thereafter, the China Patent Law protects the rights of inventions-creations, utility models and designs.

 

What is invention?
The Rule 1 of Chapter one of the Implementing Regulations of the China Patent Law says that invention means any new technical solution relating to a product, a process or improvement.

 

What is utility model?
According to the rule 2 of Chapter one of the Implementing Regulations, utility model in the China Patent Law represents any new technical solution relating to the shape, the structure, or their combination, of a product, which is fit for practical use.

 

What does design in the China Patent Law means?
Design, in the word of the China Patent Law, means any new design of the shape, the pattern or their combination, or the combination of the color with shape or pattern, of a product, which creates an aesthetic feeling and is fit for industrial application.

 

What is priority principle?
Priority principle means whenever two or more than two applicants for one invention patent, the patent right will be granted to the first applicant no matter who finishes the invention first.

About China Patent duration:
The duration of China Patent for invention is twenty years, the duration of patent for utility model and design is ten years, counted from the filing date in China.

China Patent refuse the following categories:
According to Article 5 and Article 25 of the China Patent Law, the following items are unpatentable in China:
(1)any invention-creation that is contrary to the laws of the state or social morality or that is detrimental to public interest
(2) scientific discoveries;
(3) rules and methods for mental activities;
(4) methods for the diagnosis or for the treatment of diseases;
(5) animal and plant varieties;
(6) substances obtained by means of nuclear transformation.
For processes used in producing products referred to in items (4) of the preceding paragraph, patent right may be granted in accordance with the provisions of this Law.

 

What language must be used for China patent application?
Any document submitted under the China Patent Law and its Implementing Regulations must be in Chinese. For PCT applications, the document can be filed in either Chinese or English. However, a Chinese translation of the application has to be submitted within 20 months of the priority date.

 

About substantive examination of China patents for invention and utility model:
Patents for invention are substantively examined (novelty, inventive step and industrial applicability).
Patents for utility model do not undergo a substantive examination but only a preliminary examination (compliance with formal requirements). However, in invalidation procedures the requirements of novelty, inventive step and industrial applicability will be determined.

 

How long does it take for a China patent application to be examined?
The average examination time in China in 2006 was 22 months. Examination is only started upon explicit request by the applicant (deferred examination). In China, the applicant has to file this request for examination within three years from the application date.

 

When are annual fees due of China patents?
The annual fee of the year in which the patent right is granted shall be paid at registration. The subsequent annual fees shall be paid in advance within the month before the expiration of the preceding year.

 

How can one challenge a granted China patent?
The opposition system was abolished in China in 2001 and only invalidation procedures can be used to challenge a granted patent. Trial for invalidation can be filed at any time.

 

Where I can search for China patents?
the official homepage of the China patent Office (SIPO) at http://www.sipo.gov.cn/sipo_English/, there is another recommended website at: www.cnpat.com.cn/.

 

What is the difference between "service" and "non-service" in the statistics in China patent data? 
In China, a "service invention" is an invention by an employee of a company made in execution of his tasks as opposed to a "non-service invention" made by an individual inventor. This distinction involves questions such as adequate remuneration for the employee.
The definition of a "service invention" vs. "non-service invention" according to Article 6 of the China Patent Law is as follows: "A "service invention" is an invention made by a person in execution of the tasks to the entity to which he belongs or made by him mainly using the material and technical means of the entity. For service inventions, the right to apply for a patent belongs to the entity. After grant, the entity shall be the patent holder. For a "non-service invention", the right to apply for a patent belongs to the inventor. After grant, he shall be the patent holder."

 

The people's courts of P.R.C. accept the following cases of china patent disputes:
1. disputes over the ownership of the right to apply for china patent;
2. disputes over the ownership of the china patent right;
3. disputes over contracts for assignment of the patent right or the right to apply for china patent;
4. disputes arising from patent infringement;
5. disputes arising from counterfeiting other persons' patents;
6. disputes over the exploitation fee after the publication of the applications for patent for invention and before the grant of the china patent right;
7. disputes over the reward and remuneration for the inventors or creators of service inventions;
8. cases of pre-litigation requests for stopping infringement or for property preservation;
9. disputes over the qualification of inventors or creators;
10. cases of dissatisfaction with the reexamination decisions by the Patent Reexamination Board to uphold rejection of applications;
11. cases of dissatisfaction with the reexamination decisions by the Patent Reexamination Board on requests for invalidation of the patent right;
12. cases of dissatisfaction with the reexamination decisions by the Patent Administrative Organ under the State Council on execution of compulsory licenses;
13. cases of dissatisfaction with the adjudication by the Patent Administrative Organ under the State Council on the royalties for execution of compulsory licenses;
14. cases of dissatisfaction with the administrative reexamination decisions by the Patent Administrative Organ under the State Council;
15. cases of dissatisfaction with the administrative decisions by the administrative authorities for china patent affairs; and
16. any other cases of china patent disputes.

Who can request for invalidation of a china patent£¿
Where, starting from the date of the announcement of the grant of the patent right by the China Patent Office, any entity or individual considers that the grant of the said patent right is not in conformity with the relevant provisions of China Patent Law, it or he may request the Patent Reexamination Board to declare the patent right invalid.

 

What action should be taken after receiving the rejection decision from the China Patent Office£¿
If the application is rejected by the China Patent Office, applicant may£¬within three months from the date of receipt of the rejection, request the Patent Reexamination Board to make a reexamination. The reexamination request must state the reasons and may be accompanied by the relevant supporting documents. When requesting for reexamination, applicant may amend the application, however, such amendment must be limited to only that part of the application to which the rejection decision relates. If the applicant for China Patent is not satisfied with the decision made by the Patent Reexamination Board, it or he may, within three months from the date of receipt of the notification, institute legal proceedings in the people's court.

 

China Patent application requirements:
Each application for invention or utility model must 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 (two sets of formal drawings);
- Certified copy of the prior application, if a priority is claimed;
- Assignment of priority right, if the applicant in China differs from that of the prior application.

 

     Each application for design must include the following documents£º
- Power of Attorney, signed by the applicant (Notarization or legalization is not required);
- Drawings or photographs of the design, in triplicate;
- Certified copy of the prior application, if a priority is claimed;
- Assignment of priority right, if the applicant in China differs from that of the prior application.

 

the China Patent Office consider inventiveness:
An invention possesses inventiveness if, compared with the technical solutions existing before the filing date, the invention has prominent substantive features and represents a notable progress.
A utility model possesses inventiveness if it has substantive features and represents progress.
There is no inventiveness requirement for design patent. 

 

About substantive examination of China Patent:
Patent application for invention is examined as to the substance. In order to initiate the substantive examination procedure, applicant must submit a formal request within three years from the Chinese filing date or the priority date, whichever is earlier. Otherwise, the application shall be deemed to have been withdrawn.
Patent application for utility model and design is not examined as to the substance. Patent will be issued automatically after preliminary examination.

 

Duty of Information disclosure of the China Patent:
When the applicant of a patent application for invention requests substantive examination, he shall provide pre-filing date reference materials concerning the invention. The China Patent Office may ask the applicant to furnish any search reports and examination results issued by foreign patent authorities,during the examination of the corresponding foreign applications.

 

Amendment of Application of the China Patent:
Amendment of patent application is allowed, but may not go beyond the scope of original disclosure in the initial description and claims.
For patent application for invention, applicant may amend its application on its own initiative when the request for substantive examination is submitted, or within three months from the date of receipt of the notification from the State Intellectual Property Office informing the entry of the application into the stage of substantive examination.
For applications of utility model and design, applicants may amend the applications on their own initiative within two months from the filing date.

 

Rejection and appeal of the China Patent:
If a patent application is found to be unacceptable by the China Patent Office, and the applicant has been given at least one opportunity to make a response, a final rejection shall be made.
The rejection made by the China Patent Office, can be appealed to the China Patent Re-examination Board.  

 

The Power of the China Patent Re-examination Board:
Decision made by the China Patent Re-examination Board on the patentability of patent application for invention, utility model and design, as well as on the validity of patent for invention, utility model and design can be appealed to court, within 3 months counted from the date on which the notification from the China Patent Re-examination Board is served.

 

The Scope of China Patent Protection:
The scope of protection of the China Patent for invention or utility model is determined by the terms of the claims. The description and the appended drawings may be used to interpret the claims.
The scope of protection of design is determined by the product incorporating the patented design as shown in the drawings or photographs.
After the grant of the patent right for an invention or utility model, the patentee has the right to prevent others from making, using, offering to sell, selling or importing the patented products, or using the patented processes, or using, offering to sell, selling or importing the product directly obtained by the patented processes, for production or business purposes and without his authorization. 
After the grant of the patent right for a design, the patentee has the right to prevent others from making, selling or importing the product incorporating patented design, for production or business purposes and without his authorization. 

 

 Maintenance Fee and Annuity of the China Patent:
From the third year after the filing of a patent application for invention and before it is granted a patent right, the applicant is required to pay for the maintenance fee. However, maintenance fee is not due until the applicant receives the notification to grant the China Patent right. Payment of the accumulated maintenance fees should be made within two months from the date of receipt of the notification.
The first annuity shall also 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 within the month before the expiration of the preceding year.
Grace period for paying the annuities is six months. 

 

China patent policy:
According to official statistics, China's patent applications had exceeded 3 million by the end of June, 2006.
China had received more than 4.98 million applications for registering trade marks by the end of 2006, with the number of registered trade marks exceeding 2.77 million.
Currently, China has more than 600 patent agent organizations. The Patent and Trademark Law Office under the CCPIT remains the largest agency authorized to manage overseas-related intellectual property.
Patent applications in China have soared, almost doubling between 2000 and 2004, according to a report issued Monday by the World Intellectual Property Organization(WIPO). That's sure to provide fodder for those who predict that China will overtake the U.S. as the world's most innovative economy. But the U.S. isn't giving up the fight just yet.
In 2000, China passed Germany to become the fifth-largest country for patent filings, partly because many German inventors are now sending their applications straight to the European Patent Office(EPO). Now, however, China has passed the European Patent Office as well and moved into the fourth spot. (Due to a data error, the report originally stated that China was still in fifth place.) With over 130,000 patent applications in 2004, it has almost caught up to the Republic of Korea. But it's still far behind the top two: Japan and the United States. India is lagging in 11th place, with 17,466 patent applications in 2004--fewer than Brazil, but more than France.

 

China Patent system - An Overview
There was no sustained indigenous intellectual property protection system in Chine for long. The P.R.C began to establish an intellectual property protection regime based on the Soviet model during the year 1949. In 1978, China adopted the open-door policy. The China Patent Law was first promulgated on March 12, 1984. There are three types of patents: patents for inventions, utility models and designs.
After the grand of the patent, any person (either an individual or an entity) who believes that the patent should not have been granted pursuant to the China Patent Law  can request that the China Patent Reexamination Board declare the patent invalid. The rule 64(2) of the Implementing Regulations provides a list of grounds on which an invalidation request can be based on such grounds include issues relating to, inter alia,
  Novelty, inventiveness, and practical applicability;
  Enablement and written description;
  Amendments that go beyond the scope of the patent application¡¯s original disclosure;
  Whether the subject matter is patentable;
  Double patenting; and
  Formal matters.

 

Why do I need a china patent?
If your invention has Chinese market potential and you think that another company could make profits from your invention, you need protection from a patent.
-A patent gives you the right to exclude others from making your product.
-As a patent gives exclusivity, the patent holder has time to market the invention without competition making him/her able to charge higher prices.
-It gives the right to initiate legal action against anyone that is making or selling, without permission, the patent holder invention.
-You can make money by licensing or selling your invention to someone else.
-It gives you priority over third parties wanting to register their patents in countries that do not require registration.


What is PATENT SEARCH?
patent search assists you in evaluating the chances of obtaining a china patent for your invention and claims.
According to china patent office statistics, there are high numbers of patent applications that are not granted. The reason why 100% of patents are not granted is primarily due to rejections that arise in the patent review process. There are many reasons a patent request may be declined, but the most common reasons for rejection are (1) there is prior art, (2) a similar patent is already granted, or (3) that the invention is not new.
The Patent Search will help you on the different claims you can file, and what the requirements would be to apply for your patent.
Finally, with the Patent Search you will save time and money. Usually the China Patent Office takes three years to decide whether to approve the invention patent grant or to reject the patent application. For this reason, if you do not complete a thorough and expert search, it is likely that you will lose not only the money for the patent application fees, but also a lot of time and energy.


What¡¯s the meaning of three steps?
For the patent services we have separated the process in 3 different stages that we call the " Steps":
STEP 1 Patent Search
STEP 2 Patent Application
STEP 3 Patent Issue. The reason of the separation is that you pay only for the services received, and only when you advance in the process of registration you are advised to request the following service(s).


Who decides if patents are granted or not?
Applications, other than provisional applications, filed with the China Patent Office and accepted as complete applications are assigned for examination to the respective examining technology centers having charge of the areas of technology related to the invention.
Applications are taken up for examination by the examiner to whom they have been assigned in the order in which they have been filed or in accordance with examining procedures established by the Director.
The examination of the application consists of:
-A study of the application for compliance with the legal requirements
-A search through granted patents, publications of patent applications, foreign patent documents, and available literature, to see if the claimed invention is new, useful and non-obvious.


What problems could occur during the patent examination process?
    During the patent examination process, rejections and objections to the claims may arise. It is not uncommon for some or all of the claims to be rejected on the first office action by the examiner; relatively few applications are allowed as filed.
In order to avoid and minimize rejections or objections to the claims, we recommend to order, before the Patent Application (STEP 2), the Patent Search (STEP 1). With this report the client would be properly informed and would have more elements to evaluate the risks involved. Nevertheless, if any rejection or objection arises, we have a team formed by experienced attorneys that will advise you on the appropriate course of action.


What happens if my application or claims are rejected?
You will be notified in writing of the examiner's decision by an Office "action" which is normally mailed to the attorney or agent of record.
The reasons for any adverse action or any objection or requirement will be stated in the Office action.
¡¡ãRequest for Reconsideration¡¡À means the applicant must request reconsideration in writing, and must distinctly and specifically point out the supposed errors in the examiner's Office action. After the reconsideration the applicant will be notified as to the status of the claims, rejection, objection or whether the claims are allowed. The Second Office action usually will be made final.
¡¡ãFinal Rejection¡¡À means on the second or later reconsideration, a rejection or other action may be made final. The applicant's reply is then limited to appeal in the case of rejection of any claim. Further amendment is restricted.

In what countries should I apply for my patent?
The patent protection is territorial; therefore, it is advised to apply for your patent in the countries where your business is located or where you plan to be doing business in the future.


About china patent application:
Patent applications are subject to examination and approval in China in accordance with the China Patent Law and the Implementing Regulations of the China Patent Law. For invention patents, early announcement of the application can be made upon request. For utility model and design patents, examination is only carried out as a kind of formality.
The China Patent Office is responsible for patent work nationwide. It handles and examines patent applications and grants patent rights in accordance with the law. Patent offices under the governments of provinces, autonomous regions and municipalities directly under the central government are responsible for patent administration work in their respective areas as well as handling matters involving foreign-related patents. They are also responsible for patent enforcement, settling patent disputes, as well as investigating patent infringement acts.
Applying for patents may either submit their applications direct or appoint designated patent agents. Due to the technical complexity involved in patent application, applicants are advised to appoint designated agents in order to better protect their rights. Foreign enterprises applying for patents in China should appoint those agents authorized by the China Patent Office to deal with foreign applications.

 

Documents to be submitted for patent application must be in the Chinese language.
Where there are more than two applicants and no patent agent is appointed, the first applicant designated in the application should be the representative unless otherwise stated in the application.
Application for a patent for invention or utility model should be limited to one invention or utility model. Two or more inventions or utility models belonging to a single general inventive concept may be filed as one application.
Application for a patent for design should be limited to one design incorporated in one product. Two or more designs which are incorporated in products belonging to the same class and are sold or used in sets may be filed as one application.

 

Procedures for China Patent Application and Documents Required
(a) Patent Application and Documents Required
When a patent application is filed, the applicant should submit the documents as required for the type of patent concerned. If a patent agent is appointed to handle the application, an authorization letter is also required.

Documents required for application for patent for invention or utility model (in duplicate copies):
A letter of request -- stating the title of the invention or utility model, the name of the inventor or creator, the name and address of the applicant, and other related information.
A description and its abstract -- setting forth the invention or utility model in a manner sufficiently clear and complete so as to enable a person skilled in the relevant field of technology to carry it out; where necessary, drawings are required. The abstract should state briefly the main technical points of the invention or utility model.
Claims -- these should be supported by the description and should state the extent of the patent protection asked for. If several types of protection are being claimed, they should be numbered in serial in Arabic numerals. Chemical and mathematical formulae may be included but illustrations are not allowed. The claims should contain independent claims and may also include subordinated claims.

Documents required for application for patent for design (in duplicate copies):
A letter of request -- stating the product incorporating the design and the class to which that product belongs.
Drawings or photographs of the design -- the size should be no smaller than 3 cm x 8 cm and no larger than 15 cm x 22 cm.
A brief description of the design.
A prototype or model of the product incorporating the design, where necessary.

(b) Approval Procedures
Approval of patent for invention -- after the Intellectual Property Office receives an application for a patent for invention and finds it to be in conformity with the requirements of the law upon preliminary examination, it will publish the application after 18 months from the date of filing. Upon the request of the applicant, the Intellectual Property Office may publish the application earlier. Upon the request of the applicant for a patent for invention, made at any time within three years from the date of filing, the Intellectual Property Office will proceed to examine the application as to substance. If, without any justified reason, the applicant fails to meet the time limit for requesting examination as to substance, the application will be deemed to have been withdrawn. The Intellectual Property Office may, on its own initiative, proceed to examine any application for a patent for invention as to substance when deemed necessary.
If no cause for rejection of the application for a patent for invention is found after examination as to substance, the Intellectual Property Office will make a decision to grant the patent right for invention, issue the certificate of patent for invention, and register and publish it. The patent right for invention comes into effect on the date of the publication.
Approval of patent for utility model and design -- if no cause for rejection of the application for a patent for utility model or design is found after preliminary examination, the Intellectual Property Office will make a decision to grant the patent right for utility model or the patent right for design, issue the relevant patent certificate, and register and publish it. The patent right for utility model or design comes into effect on the date of the publication.

Assignment and Transfer of Patent Application Right and Patent
Patents and the right to apply for a patent are assignable. Any assignment of patents or patent application right by a Chinese entity or individual to a foreigner is subject to the joint approval of the State Council's foreign trade and economic cooperation department and science and technology administration department. If a patent is transferred for other reasons, the party concerned should complete the procedures for the change of patentee with the State Council's patent administration department by presenting the relevant supporting documents or legal documentation.

Exploitation of Patent
The patentee may make the patented product or use the patented process, or he may authorise another person to make the patented product or use the patented process. The licensing of patent rights to other parties can take the form of voluntary licensing or compulsory licensing.
(a) Voluntary Licence for Exploitation of Patent
On the basis of voluntary negotiation, a patentee (licensor) may sign a licensing contract with another party (licensee) for the conditional exploitation of the patent by the licensee for a fee within a prescribed scope, duration and geographic location.
The licensing contract signed by both parties should be in written form and filed with the Intellectual Property Office within three months from the date of signing.

(b) Compulsory Licence for Exploitation of Patent
The Intellectual Property Office may grant a compulsory licence to exploit a patent under the following three circumstances:
Where an entity which is qualified to exploit the invention or utility model has made requests for authorisation from the patentee of an invention or utility model to exploit his patent on reasonable terms and such efforts have not been successful within three years after the grant of the patent right, the Intellectual Property Office may, upon the application of that entity, grant a compulsory licence to exploit the patent for invention or utility model.
Where a national emergency or an extraordinary state of affairs occurs, or where the public interest so requires, the Intellectual Property Office may grant a compulsory licence to exploit the patent for invention or utility model.
Where the invention or utility model for which the patent right is granted is technically more advanced than another invention or utility model for which a patent right has been granted earlier and the exploitation of the later invention or utility model depends on the exploitation of the earlier invention or utility model, the Intellectual Property Office may, upon the request of the later patentee, grant a compulsory licence to exploit the earlier invention or utility model. By the same token, the Intellectual Property Office may, upon the request of the earlier patentee, also grant a compulsory licence to exploit the later invention or utility model.
The entity or individual that is granted a compulsory licence for exploitation does not have an exclusive right to exploit and does not have the right to authorise exploitation by any other parties.
The entity or individual that is granted a compulsory licence for exploitation should pay to the patentee a reasonable exploitation fee, the amount of which will be fixed by both parties in consultation. If the parties fail to reach an agreement, the China Patent Office will adjudicate.
If the patentee is not satisfied with the decision of the Intellectual Property Office granting a compulsory licence for exploitation, or if the patentee or the entity or individual that is granted the compulsory licence is not satisfied with the adjudication made by the Intellectual Property Office regarding the exploitation fee payable for exploitation, he may, within three months from the receipt of the notification, institute legal proceedings in the people's court.