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Patentability What are the criteria for patentability in your jurisdiction? An invention or utility model must meet the following requirements to be patentable (Article 22 of the Patent Law):
- Novelty – the invention or utility model is not existing technology or disclosed in another patent application filed in China before the date of filing, but published after the date of filing.
- Inventiveness – the invention has prominent and substantive features and represents notable progress, or the utility model possesses substantive features and represents progress.
- Usefulness – the invention or utility model has practical applicability.
A design must meet the following requirements to be patented:
- Novelty – the design is not attributable to any existing design.
- Distinctive – the design is distinctively different from existing designs or a combination of existing designs.
- No conflict with other rights – the design cannot conflict with the existing legal rights of other parties (eg, trademark rights, copyrights, enterprise name rights, portrait rights and well-known trade dress rights).
In addition, an invention, utility model or design that is the subject of a patent application must meet the following definitions, respectively (Article 2 of the Patent Law):
- Invention – a new technical solution relating to a product, process or an improvement thereof;
- Utility model – a new technical solution relating to the shape, structure or a combination of shape and structure of a product which is fit for practical use; and
- Design – a new design of a product’s shape, pattern, a combination of shape and pattern or a combination of colour and shape or pattern which creates an aesthetic feeling and is fit for industrial application.
What are the limits on patentability? The following subject matter cannot be patented (Articles 5 and 25 of the Patent Law):
- inventions or creations that are contrary to Chinese laws or social morality, or that are detrimental to public interests;
- inventions or creations completed on the basis of genetic resources, where their acquisition or use breaches related laws and regulations;
- scientific discoveries;
- rules and methods of intellectual activities;
- methods for diagnosing or treating diseases;
- animal and plant varieties; and
- substances obtained by means of nuclear transformation.
Designs that comprise patterns, colours or a combination of the two on printed flat works where the main purpose of the design is to identify the source of the product on which the design is used cannot be patented.
Animal and plant varieties are protected under other laws, such as the Regulations on the Protection of New Varieties of Plants. Non-biological methods for producing animal and plant varieties can be patented.
Are there restrictions on any other kinds of invention? No other restrictions are expressly set forth in the Patent Law or applicable regulations.
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