China Intellectual Property - Patent Law

A patent law is enacted by authorities for the purpose of protecting the lawful rights & interests of patentees, encouraging invention-creation, promoting the application of invention-creation, enhancing innovation capability, promoting the advancement of science and technology and the economic and social development.

Range of Protection

Patent Law protects patentees’ invention-creation, which means inventions, utility models and designs.

  • Inventions mean new technical solutions proposed for a product, a process or the
    improvement thereof.
  • Utility models mean new technical solutions proposed for the shape and structure of a
    product, or the combination thereof, which are fit for practical use.
  • Designs mean, with respect to a product, new designs of the shape, pattern, or the
    combination thereof, or the combination of the colour with shape and pattern, which are rich in an aesthetic appeal and are fit for industrial application.
  • Inventions and utility models for which patent rights are to be granted shall be ones which are novel, creative and of practical use.
  • Novelty means that the invention or utility model concerned is not an existing technology (which means the technologies known to the public both domestically and abroad before the date of application).
  • Creativity means that, compared with the existing technologies, the invention possesses
    prominent substantive features and indicates remarkable advancements, and the utility
    model possesses substantive features and indicates advancements.
  • Practical use means that the said invention or utility model can be used for production or be utilized, and may produce positive results.
  • Creativity means that, compared with the existing technologies, the invention possesses
    prominent substantive features and indicates remarkable advancements, and the utility
    model possesses substantive features and indicates advancements.
  • Practical use means that the said invention or utility model can be used for production or be utilized, and may produce positive results.

Scope of Protection is Related to the Documents Submitted for the Application

  • For a design patent, the patentee shall submit a written request, drawings or pictures of the design, a brief description of the design, etc. The scope of protection shall be confined to the drawings or pictures and the brief description.
  • For an invention or utility model patent, the patentee shall submit the relevant documents, such as a written request, a written description and its abstract, and a written claim. The scope of protection shall be confined to what is claimed, explained by the written description and the pictures attached.

Conditions under Which Patent Rights Will Not be Granted

When invention-creations violate the law or social ethics, or harm public interests, or inventions that are accomplished by relying on genetic resources which are obtained or used in violation of the provisions of laws and administrative regulations.

Patent rights in China are not granted for any of the following:

  1. Scientific discoveries
  2. Rules and methods for intellectual activities
  3. Methods for the diagnosis or treatment of diseases
  4. Animal or plant varieties (the patent right may be granted for the production methods of
    the products)
  5. Substances obtained by means of nuclear transformation
  6. Designs that are mainly used for marking the pattern, colour or the combination of the
    two of prints

Application and Administration

  • For an invention or utility model patent, the applicant shall submit the relevant documents, such as a written request, a written description and its abstract, and a written claim.
  1. The written request shall include: the name of the invention or utility model, the name of the inventor or designer, the name or title and the address of the applicant, etc.
  2. The written description shall contain a clear and comprehensive description of the invention or utility model so that a technician in the field of the relevant technology can carry it out (pictures can be attached to it).
  3. The abstract shall contain a brief introduction to the main technical points.
  4. The written claim shall, based on the written description, contain a clear and concise definition of the proposed scope of patent protection.
  • For a design patent, the applicant shall submit a written request, drawings or pictures of the design, a brief description of the design, and other relevant documents. In the relevant drawings or pictures shall clearly be shown the design of the products for which patent protection is requested.
  • An applicant may amend his patent application documents, provided that the amendment does not exceed the original scope.

Duration, Termination and Invalidation

Duration

  • Invention patent right: 20 years
  • Utility model and design patent right: 10 years.
  • The patentee shall pay annual fees commencing from the year when the patent right is granted.

Under any of the following circumstances, the patent right shall be terminated before the
expiration of the duration:

  • Failure to pay the annual fee as required
  • The patentee waiving of the patent right by a written declaration
  • Any unit or individual can request that the patent review board declare the said patent right invalid.

Compulsory License

Under a compulsory license, an individual or company seeking to use another's intellectual property can do so without seeking the rights holder's consent, and pays the rights holder a set fee for the license.

  • Under any of the following circumstances, the patent administration may grant a compulsory license for exploitation of an invention or utility model patent
  1. When it has been three years since the date the patent right is granted and four years since the date the patent application is submitted, the patentee, without legitimate reasons, fails to have the patent exploited or fully exploited.
  2. The patentee's exercise of the patent right is confirmed as monopoly and its negative impact on competition needs to be eliminated or reduced.
  • Where a national emergency or any extraordinary state of affairs occurs, or public interests so require, the patent administration department may grant a compulsory license for exploitation of an invention or utility model patent.
  • For the benefit of public health, the patent administration department may grant a compulsory license for manufacture and exportation of a drug, for which a patent right has been obtained.
  • If an invention or utility model represents a major technological advancement of remarkable economic significance compared with an earlier one, and exploitation of the former relies on exploitation of the latter, the patent administration department may grant it a compulsory license to exploit the former.

Measures of Protection

  • If a dispute arises, it shall be settled through consultation between the parties.
  • If consultation fails, the patentee or interested party may take legal action before court, and may also request the administration department to handle the dispute.
  • If the infringement is believed to be established, the infringer may be ordered to cease the infringement immediately.
  1. If the infringer is dissatisfied with the order, he may take legal action within 15 days
  2. If the infringer neither takes legal action nor ceases the infringement, there may be compulsory enforcement

When investigating the infringement, different evidence should be provided for different types of patents:

  • If a dispute over patent infringement involves an invention patent for the method of manufacturing a new product, the unit or individual manufacturing the same product shall provide evidence to show that its method is different from the patented one.
  • If a dispute over patent infringement involves a utility model or a design patent, the patentee or the interested parties may be required to present a patent right assessment report prepared by the patent administration department as evidence.
    The period of limitation for action against patent right infringement shall be two years,
    commencing from the date when the infringement is known.