8.2 Application for Patent in China
Patent applications are subject to examination and approval in China in accordance with its Patent Law and the Implementing Regulations of the Patent Law. For invention patents, early announcement of the application can be made upon request. For utility model and design patents, examination is only carried out as a kind of formality.
The State Intellectual Property Office is responsible for patent work nationwide. It handles and examines patent applications and grants patent rights in accordance with the law. Patent offices under the governments of provinces, autonomous regions and municipalities directly under the central government are responsible for patent administration work in their respective areas as well as handling matters involving foreign-related patents. They are also responsible for patent enforcement, settling patent disputes, as well as investigating and penalising patent infringement acts.
FIEs applying for patents may either submit their applications direct or appoint designated patent agents. Due to the technical complexity involved in patent application, FIEs are advised to appoint designated agents in order to better protect their rights. Foreign enterprises applying for patents in China should appoint those agents authorised by the State Intellectual Property Office to deal with foreign applications.
8.2.1 Points to Note in Application for Patent
Documents to be submitted for patent application must be in the Chinese language.
Where there are more than two applicants and no patent agent is appointed, the first applicant designated in the application should be the representative unless otherwise stated in the application,
Application for a patent for invention or utility model should be limited to one invention or utility model. Two or more inventions or utility models belonging to a single general inventive concept may be filed as one application.
Application for a patent for design should be limited to one design incorporated in one product. Two or more designs which are incorporated in products belonging to the same class and are sold or used in sets may be filed as one application.
8.2.2 Procedures for Patent Application and Documents Required
(a) Patent Application and Documents Required
When a patent application is filed, the applicant should submit the documents as required for the type of patent concerned. If a patent agent is appointed to handle the application, an authorisation letter is also required.
•Documents required for application for patent for invention or utility model (in duplicate copies):
- A letter of request -- stating the title of the invention or utility model, the name of the inventor or creator, the name and address of the applicant, and other related information.
- A description and its abstract -- setting forth the invention or utility model in a manner sufficiently clear and complete so as to enable a person skilled in the relevant field of technology to carry it out; where necessary, drawings are required. The abstract should state briefly the main technical points of the invention or utility model.
- Claims -- these should be supported by the description and should state the extent of the patent protection asked for. If several types of protection are being claimed, they should be numbered in serial in Arabic numerals. Chemical and mathematical formulae may be included but illustrations are not allowed. The claims should contain independent claims and may also include subordinated claims.
•Documents required for application for patent for design (in duplicate copies):
- A letter of request -- stating the product incorporating the design and the class to which that product belongs.
- Drawings or photographs of the design -- the size should be no smaller than 3 cm x 8 cm and no larger than 15 cm x 22 cm.
- A brief description of the design.
- A prototype or model of the product incorporating the design, where necessary.
(b) Approval Procedures
•Approval of patent for invention -- after the Intellectual Property Office receives an application for a patent for invention and finds it to be in conformity with the requirements of the law upon preliminary examination, it will publish the application after 18 months from the date of filing. Upon the request of the applicant, the Intellectual Property Office may publish the application earlier. Upon the request of the applicant for a patent for invention, made at any time within three years from the date of filing, the Intellectual Property Office will proceed to examine the application as to substance. If, without any justified reason, the applicant fails to meet the time limit for requesting examination as to substance, the application will be deemed to have been withdrawn. The Intellectual Property Office may, on its own initiative, proceed to examine any application for a patent for invention as to substance when deemed necessary.
•If no cause for rejection of the application for a patent for invention is found after examination as to substance, the Intellectual Property Office will make a decision to grant the patent right for invention, issue the certificate of patent for invention, and register and publish it. The patent right for invention comes into effect on the date of the publication.
•Approval of patent for utility model and design -- if no cause for rejection of the application for a patent for utility model or design is found after preliminary examination, the Intellectual Property Office will make a decision to grant the patent right for utility model or the patent right for design, issue the relevant patent certificate, and register and publish it. The patent right for utility model or design comes into effect on the date of the publication.
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