It has become fairly routine for companies to file for patent protection in China. A Chinese patent will allow a company to maintain exclusivity for a new product sold to Chinese customers. More importantly, many products are made in China. A Chinese patent may prevent a competitor from having a product manufactured in China.
However, deciding to obtain a patent in China requires a more detailed analysis. In particular, what type of “patent” should be obtained?
In this three-part series on alternate forms of patent protection in China, we will first discuss the three types of patent protection in China. In the other stories, we will discuss "Strategies for Patent Protection in China," and "Differences in the Three Types of Patent Protection in China."
In China, three different types of patent protection may be obtained, namely an invention patent, a utility model patent, and a design patent. There are advantages and disadvantages associated with each type of protection, and consideration should be given as to which type of protection should be obtained.
When people talk about a “patent," such as a Canadian patent or a US patent, they generally are thinking of protecting a new technical solution relating to a product, a process, or improvement thereof - the utility of a product or process. This is the role of a Chinese invention patent.
The requirements for an invention patent are that the invention must possess novelty, inventiveness, and practical applicability. These are the standard requirements set by the national patent law of every country. As with many patent offices around the world, prosecution of an application for a Chinese invention patent takes a long time. It typically takes two to five years for an invention patent to issue. The term of an invention patent is 20 years from the filing date.
Utility Model Patents
Chinese utility model patents are not similar to any type of patent protection in Canada or the United States. They are essentially issued as an unexamined patent but have the same test for inventiveness as an invention patent. A utility model patent may be sought for any new technical solution relating to the shape, the structure, or their combination, of a product, which is fit for practical use. Therefore, in contrast to an invention patent, a utility model patent may only be sought for a product. A utility model patent may not be sought for a chemical compound, a method, or a process. Similarly to an invention patent, the requirements for a utility model patent are that the utility model must possess novelty, inventiveness, and practical applicability. The application undergoes a preliminary examination only. If it is determined that there is no cause for rejection, the utility model patent will be granted. Therefore, utility model patents typically issue much faster than invention patents, such as six to twelve months.
A utility model patent will be published only after it is granted. The term of a utility model patent is 10 years from the filing date - significantly shorter than the term of an invention patent.
Chinese design patents protect the design of a product. They may be used to protect a new design for the shape, pattern, the shape and pattern, or the combination of the color with shape or pattern, of a product, which creates an aesthetic feeling and is fit for industrial application. Accordingly, they are similar to Canadian industrial designs or United States design patents.
The requirements for a design patent are that is must not be identical with and similar to design which, before the date of filing, has been publicly disclosed, and must not be in conflict with any prior right of any other person. Similarly to a utility model patent application, a design patent application will only undergo a preliminary examination. If it is found after preliminary examination that there is no cause for rejection, the design patent will be granted.
Similarly to a utility model patent, a design patent will be published only after it is granted. The term of a design patent is 10 years from the filing date.