1. What is the protection extent the Patent Law of the People's Republic of China ?
According to the article 1 of the Patent Law of the People's Republic of China (hereinafter refereed as Patent Law), the Patent 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 Patent Law protects the rights of inventions-creations, utility models and designs.
2. What is invention?
The Rule 1 of Chapter one of the Implementing Regulations of the Patent Law of the People's Republic of China (hereinafter referred as Implementing Regulations) says that invention means any new technical solution relating to a product, a process or improvement.
3. What is the so-called utility model?
According to the rule 2 of Chapter one of the Implementing Regulations, utility model in the 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.
4. What does design in Patent Law means?
Design, in the word of the Implementing Regulations, 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.
5. How about the duration of patent protection in China?
The duration of patent right for inventions is twenty years, the duration of patent right for utility models and patent right for designs is ten years, counted from the date of filing, but basing on the rules of 39 and 40 of the Patent Law, the patent right for invention, utility model and design shall come into effect as of the date of the announcement. Therefore, the above-mentioned duration is just a calculating formula, but not exactly same as the years mentioned above.
6. What is priority principle?
Priority principle means whenever two or more than two applicants for one invention patent, the patent right will grant to the first applicant no matter who finishes the invention first.
7. What are the conditions of granting patent right?
Any invention or utility model for which patent right may be granted must possess novelty, inventiveness and practical app1icability, and any design for which patent right may be granted must not be identical with and simi1ar to any design which, before the date of filing, has been publicly disclosed in publications in the country or abroad or has been publicly used in the country, and must not be in conflict with any prior right of any other person.
8. What are novelty, inventiveness and practical applicability?
Novelty means that, before the date of filing, no identical invention or utility model has been publicly disclosed in publications in the country or abroad or has been publicly used or made known to the public by any other means in the country, nor has any other people filed previously with the Patent Administration Department under the State Council and are recorded in the administration department.
Inventiveness means that, as compared with the technology existing before the date of filing, the invention has prominent substantive features and represents a notable progress and that the utility model has substantive features and represents progress.
Practical applicability indicates that the invention or utility model can be made or used and can produce effective results.
9. What kinds of inventions can't be granted patent rights?
No patent right shall be granted for any invention-creation that is contrary to the laws of the State or social morality or that is detrimental to public interest, article 5 of the Patent Law says, and the article 25 lists out following concrete examples:
(1) scientific discoveries;
(2) rules and methods for mental activities;
(3) methods for the diagnosis or for the treatment of diseases;
(4) animal and plant varieties;
(5) substances obtained by means of nuclear transformation.
10. What kinds of foreigners can apply for patent rights in China?
Those foreign people who have fixed residences or business sites, or foreign enterprises or organizations located in China, enjoy same the privilege of Chinese people in the respect of patent right protection, i.e. they have the rights either to apply for patents as same as Chinese people do, or to enjoy protection from the Chinese Patent Law.
Any foreigner, foreign enterprise or other foreign organization having no fixed residence or business site in China files an application for a patent in China, the application shall be treated under this Patent Law in accordance with any agreement concluded between the country to which the applicant belongs and China, or in accordance with any international treaty to which both countries are member countries, or on the basis of the principle of reciprocity.
11.What documents needed for applying a patent in China?
For applying for a patent of invention or utility model, an application shall be filed first, a request, a description and its abstract, and claims shall be submitted.
For applying for a patent for design, an application shall be filed first, a request, drawings or photographs of the design shall be submitted, and the product incorporating the design and the class to which that product belongs shall be indicated.
12. What does the right of priority mean?
The right of priority originates from the Paris Convention for The Protection of Industrial Property for the convenience of people from the member country to apply for patent or trademark in the other member countries after submitting same application in his or it own country. The so-called priority means an applicant has the right to apply for protection of his or its patent or trademark, in a fixed duration, in all member countries after submitting the application in one of the member countries, and thus his or its application in other member countries shall be regarded, in some respects, the filing day as the date of the first application. In other words, in a fixed duration, this applicant, comparing others applying for the same subject matter after, enjoys the priority privilege. This is the origin of priority right. With the progress of patent system, priority right has expanded from solely in foreign countries to the applicant's country. According to the article 29 of the Patent Law of PRC, within twelve months from the date on which any applicant first files in a foreign country an application for a patent for invention or utility model, or within six months from the date on which any applicant first files in a foreign country an application for a patent for design, he or it files in China an application for a patent for the same subject matter, he or it may, in accordance with any agreement concluded between the said foreign country and China, or in accordance with any international treaty to which both countries are party, or on the basis of the principle of mutual recognition of the right of priority, enjoy a right of priority. The duration of priority right starts from the second day of submitting the first application.
13. When shall a applicant request the priority right and how to request?
The article 30 of the Patent Law of PRC regulates that any applicant who claims the right of priority shall make a written declaration when the application is filed, and submit, within three months, a copy of the patent application document which is first filed; if the applicant fails to make the written declaration or to meet the time limit for submitting a copy of the patent application document, the claim to the right of priority shall be deemed not to have been made.
14. What patent examination system China adopts?
The Patent Law of China regulates that China adopts an essential examination system to invention, utility model or design patent. Upon the request of the applicant, the Patent Administration Department under the State Council should publicize the application earlier, and the examination ought to be based on request from applicants. Preliminary examination system is adopted for application for a patent for utility model or design. Whenever there is a case involving in the utility model patent, the court and patent administration department can ask for the patentee to provide the examination report sealed by SIPO. This is a supplementary measure to remedy deficiency of the preliminary examination system.
15. What is the earlier publication?
Earlier publication is one of China's examination systems to the patent application. According to a research to some countries with sophisticated patent system, a big amount of inventions have little commercial prospects, some inventions are not yet mature while some applications are submitted for the priority right. A research indicates that, generally speaking, one invention will be of little practical or commercial prospect if it has not been commercialized within two years since its filing date. Because of this, some countries always think it is not necessary to spend so much man-power, time and money to do substantial examination to those inventions, and leave a reasonably long time to the inventors to see the value of their inventions and thus to decide whether to apply substantial examination or not. Netherlands is the first country to adopt this method, and now most of countries having patent system adopt the method either. This system is not only good to patent administration, because it can save a lot of time and man-power, but also good to applicants because they can either apply earlier or have the time to evaluate the practical value and prospect to the invention before they spend time and money to apply for further substantial examination.
According to article 34 of China's Patent Law, after receiving an application for a patent for invention, the Patent Administration Department under the State Council, upon preliminary examination, finds the application to be in conformity with the requirements of Law of Patent, it shall publish the application promptly after the expiration of eighteen months from the date of filing.
16.What applicants can do with the rejection of their patent applications?
Based on article 41 of the Patent Law, an applicant for patent has different ideas with the decision of the said department, the applicant may, within three months from the date of receipt of the notification, request the Patent Reexamination Board to make a reexamination. The Patent Reexamination Board shall, after reexamination, make a decision and notify the applicant for patent.
17. How a applicant can do with the rejection from the Reexamination Board?
When the applicant for patent is not satisfied with the decision of the Patent Reexamination Board, he or it may, within three months from the date of receipt of the notification, institute legal proceedings in the people's court.
18. What is the legal gist when rejecting a application?
There are following 9 gist:
(1) The subject matter of a application does accord with the definitions of invention, utility model or design made by the Implementing Regulations of the Patent Law of the People's Republic of China, i.e. "Invention" in the Patent Law means any new technical solution relating to a product, a process or improvement thereof. "Utility model" in the Patent Law means any new technical solution relating to the shape, the structure, or their combination, of a product, which is fit for practical use. "Design" in the 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.
(2) The application subject is contrary to the laws of the State or social morality or that is detrimental to public interest, according to article 5 of the Patent Law.
(3) The application subject is not in the range of patent, such as 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.
(4) Subject of a invention patent or an utility model lack of novelty, inventiveness, or practical applicability, and the subject of design is either simi1ar to any design which, before the date of filing, has been publicly disclosed in publications in the country or abroad, or has been publicly used in the country, or in conflict with any prior right of any other person.
(5) The description of an invention or utility model is not sufficiently clear and complete.
(6) The patent right requirement is neither sufficiently clear, nor concise nor technically convinced solving a certain technical problem.
(7) Application in a foreign country for a patent for invention-creation made in China, it or he shall file first an application for patent with the patent administration department under the State Council, appoint a patent agency designated by the said department to act as its or his agent, and comply with the provisions of Article 4 of this Law.
(8) Amendment to the application for a patent for invention or utility model may go beyond the scope of the disclosure contained in the initial description and claims, and the amendment to the application for a patent for design may go beyond the scope of the disclosure as shown in the initial drawings or photographs.
(9) Other applicant has applied for the same patent already.
19. What is the basic principle of Hong Kong patent system?
According to the patent ordinances in Hong Kong, applicants can submit their applications for standard patent or short-tem patent in Hong Kong, and according to the Hong Kong Ordinance on Registered Design, applicants can apply for design patent in Hong Kong either.
Duration: standard patent is 20 years at most, but that has to be renewed every year; short-term patent is 8 years at most, and renewed every four years. Duration of design patent is 5 years, but applicants can ask for 4 terms of renewing with one term of 5 years.
Those applying design patent or temporary patents can apply directly in Hong Kong Intellectual Property Department, but if applying standard patents, applicants have to submit applications to SIPO, or British Patent Department or Eurounion Patent Department first, and finish the first registration within six months in Hong Kong Intellectual Property Department after the above-mentioned patent administration declares it, and the patent will come into effect after the applicant finishes the second registration within the six months since the day of one of above-mentioned patent administration department grants the patent.
In addition, the patentee has to pay to Hong Kong Intellectual Protection Department annually to keep the validity.
