Getting Patent Protection in China

With the rapid development of the Chinese economy and the enormous manufacturing capacities, it is becoming more and more important to get intellectual property protection in China.

by Harry Du

With the rapid development of the Chinese economy and the enormous manufacturing capacities, it is becoming more and more important to get intellectual property protection in China. Although generally criticized for its prevalent IP violations, China actually has been on an improving track in the past ten years. In particular, more and more companies consider it essential to get a patent for their product in China, either to protect its manufacturing base or a vast market, or both.

Before sending a patent application into the People’s Republic of China (PRC) Intellectual Property Office, China’s central authority for patent examination and issuance, it would be beneficial to understand the general patent categories and the basic application process in China.

Under the PRC Patent Law, there are three major types of protections that may be granted to an invention: patent, utility model, and appearance design.

A patent in China is similar to a utility patent in the U.S. It is a robust monopoly granted to an invention after some rigorous examination process. Same as its U.S. counterpart, a PRC patent provides 20 years of protection from the date of filing the application. The overall examination process for a patent application includes five stages: acceptance of application, initial examination, publication, substantive examination, and issuance. The substantive examination process, as expected, is the most rigorous and time-consuming step. Overall, from the date of filing to the date of issuance, getting a full-fledged patent in China takes about 2.5 – 3.5 years. As in the U.S., either a product or a method can be patented. The fundamental requirements for granting a patent include: utility, novelty, and non-obviousness.

Utility models have no U.S. counterparts. In essence it is a small patent—a simplified version of patent with less protection and more limitations, but enjoying a simplified examination process. It is much easier to get—there is no substantive examination or publication and it usually takes only about 7-9 months overall. In addition, the requirement of non-obviousness is lower for utility models than for patents. However, a utility model only affords 10 years of protection from the time of filing. Moreover, some important restrictions limit the coverage of utility model: (1) it does not cover methods; and (2) it only covers products with unique design or structures, or a combination of both.

Appearance design, as it is called in China, is essentially a counterpart of the U.S. design patent. It protects the overall appearance of the product, not any underlying functionality or mechanism. Similar to utility model, it does not require substantive examination and the overall application process only takes about 5-7 months. The time for protection for design is 10 years from the date of filing. The key for appearance design is unique appearance, not utility. However, the appearance must be replicable by industrial methods. Therefore, a genuine artistic work is, somewhat ironically, not eligible to get appearance design protection because of the difficulty to produce true replicates.

According to the PRC IPO, the number of patent applications in China has been rising constantly in the past few years. For example, the numbers of applications for patents, utility models, and appearance designs in 2010 are 391177, 409836, and 421273, respectively, demonstrating a general increase of 20-30% for each category compared with just a year earlier, 2009.

Nowadays, with the irreversible progression of globalization, it is essential to make long term plans regarding patent protection. China, as a critical component of the global product chain and market, is becoming more and more important. Please take it into consideration to get a patent in China, especially when it might help your business down the road.

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