Introduction to IP Protection in China
As China continues to grow as a global economic powerhouse, understanding the country’s intellectual property (IP) protection is crucial for businesses and innovators. There are two primary types of patents in China: invention patents and utility model patents. This article explores the critical differences between these two patent types and how to choose the right protection for your innovation.
Overview of Invention Patents
Invention patents protect new technical solutions related to products, processes, or their improvements. These patents are granted to innovations that are novel, inventive, and have practical applicability. Invention patents are similar to utility patents in the United States and other countries.
Overview of Utility Model Patents
Utility model patents protect new technical solutions related to the shape, structure, or combination of products. These patents are granted to novel innovations with practical applicability but do not necessarily require an inventive step. Utility model patents are similar to “petty patents” or “innovation patents” in some countries.
Key Differences Between Invention Patents and Utility Model Patents
There are several significant differences between invention patents and utility model patents, including eligibility and requirements, the patent application process, protection duration, and enforcement and infringement actions.
Eligibility and Requirements
Invention Patents:
Invention patents require that the invention is novel, non-obvious, and has practical applicability. The invention must not have been disclosed in any prior art or known to the public before the filing date.
Utility Model Patents:
Utility model patents also require novelty and practical applicability but do not require an inventive step. This means that the innovation does not need to significantly improve existing technology to qualify for protection.
Patent Application Process
Invention Patents:
Invention patent applications require a comprehensive invention description in Chinese, including drawings and claims, which must be submitted to the China National Intellectual Property Administration (CNIPA). The application undergoes a formal examination and a substantive examination, which may take several years to complete.
Utility Model Patents:
Utility model patent applications also require a description, drawings, and claims but do not undergo a substantive examination. This means the application process is usually faster and less expensive than invention patent applications.
Protection Duration
Invention Patents:
Invention patents in China offer a maximum protection period of 20 years from the filing date.
Utility Model Patents:
Utility model patents have a shorter protection period compared to invention patents. They offer a maximum protection of 10 years from the filing date. This shorter duration may suit fast-evolving industries where innovations quickly become obsolete.
Enforcement and Infringement Actions
Invention Patents:
In the case of infringement, invention patent holders can take legal action through administrative or judicial channels. Administrative enforcement involves filing a complaint with local Intellectual Property (IP) offices, while judicial enforcement involves filing a lawsuit in Chinese courts. Successful enforcement may result in injunctions, monetary damages, and the destruction of infringing products.
Utility Model Patents:
Utility model patent holders can also pursue administrative and judicial enforcement actions. However, since utility model patents do not undergo a substantive examination, it is more common for alleged infringers to challenge the patent’s validity. As a result, utility model patent holders may need to provide additional evidence, such as expert opinions, to prove the patent’s validity in infringement cases.
How to Choose the Right Type of Patent Protection
When deciding between an invention patent and a utility model patent, several factors should be considered. These include the nature of the innovation, the speed with which protection is required, the duration of the required protection, and the potential enforcement actions.
- Nature of the innovation: If your innovation involves a new technical solution related to a product, process, or their improvements, an invention patent might be more suitable. On the other hand, if your innovation refers primarily to the shape, structure, or their combination in a product, a utility model patent may be more appropriate.
- Speed of protection: If you need protection quickly, a utility model patent might be a better choice, as it does not undergo a substantive examination and the application process is faster.
- Duration of protection: Consider the expected lifespan of your innovation. If your innovation has a long lifespan and requires a more extended protection period, an invention patent is preferable. If your innovation is likely to become obsolete quickly, a utility model patent with a shorter protection period might be more suitable.
- Enforcement actions: If you anticipate needing to enforce your patent rights, consider the potential challenges in enforcement actions. Invention patents, having undergone substantive examination, may provide more robust protection in infringement cases.
Conclusion
Understanding the differences between invention patents and utility model patents is crucial for businesses and innovators looking to protect their intellectual property in China. Each type of patent offers unique advantages and drawbacks, and it is essential to carefully consider the nature of your innovation, the speed of protection, the duration of protection, and potential enforcement actions when choosing the right type of patent protection.
FAQs
What is the main difference between invention patents and utility model patents in China? Invention patents protect new technical solutions related to products, processes, or their improvements, while utility model patents protect new technical solutions related to the shape, structure, or their combination in products.
Do utility model patents require an inventive step? No, utility model patents do not require an inventive step. They only require novelty and practical applicability.
Which type of patent has a longer protection period in China? Invention patents have a longer protection period of up to 20 years from the filing date, while utility model patents offer protection for up to 10 years.
Is the patent application process the same for invention patents and utility model patents? While both types of patent applications require a description, drawings, and claims, the processes differ in that invention patent applications undergo a formal and substantive examination. In contrast, utility model patent applications do not undergo a substantive examination.
Can I apply for both an invention patent and a utility patent for the same innovation in China? In China, you can apply for an invention patent as well as a utility model patent for the same innovation. However, you must file both applications simultaneously. Once one of the patents is granted, you must abandon the other application to avoid double patenting. Alternatively, you can do changes in the patent application, so that you end up with two different applications.
What should I consider when choosing between an invention patent and a utility model patent?When choosing between an invention patent and a utility model patent, consider the nature of your innovation, the speed at which you need protection, the duration of protection required, and the potential enforcement actions.
Are there any industries or sectors where utility model patents are more common? Utility model patents are often more common in industries with fast-paced technological advancements, such as consumer electronics, where innovations quickly become obsolete. In these cases, the shorter protection period of utility model patents may be more suitable.
How can I enforce my patent rights in China if someone infringes on them? In China, patent holders can enforce their patent rights through administrative or judicial channels. Administrative enforcement involves filing a complaint with local Intellectual Property (IP) offices, while judicial enforcement involves filing a lawsuit in Chinese courts.
Is it possible to convert a utility model patent application to an invention patent application, or vice versa? In China, it is possible to convert a utility model patent application to an invention patent application and vice versa, but there are certain conditions that must be met. The conversion must be requested within two months of receiving a notification from the China National Intellectual Property Administration (CNIPA) regarding the other type of patent application, and the applicant must withdraw the initial application.
How do invention patents and utility model patents in China compare to patents in other countries?Invention patents in China are similar to utility patents in the United States and other countries, while utility model patents are similar to “petty patents” or “innovation patents” in some countries. The primary differences between China’s patent system and those of other countries lie in the eligibility requirements, application processes, protection durations, and enforcement actions. As such, businesses and innovators must familiarize themselves with the specific patent systems in the countries where they intend to protect their intellectual property.
In conclusion, understanding the differences between invention patents and utility model patents in China is essential for businesses and innovators seeking to protect their intellectual property. By carefully considering the nature of your innovation, the speed of protection, the duration of protection, and potential enforcement actions, you can choose the right type of patent protection to secure your valuable ideas and creations in the ever-evolving and competitive Chinese market.
Contact us if you need help with background investigation of Chinese companies, protecting patents, trademarks, verification of contracts to the law in China, or help with other legal challenges that you have in China.
If you require our assistance or have further questions about our services, please do not hesitate to contact our Customer Relationship Manager, Jan Erik Christensen, at janerik@ncbhub.com. We look forward to hearing from you and helping your business succeed in China.
