The business climate in terms of production and consumption in China continues to improve, and it continues to be a popular international destination for businesses seeking expansion. A growing domestic market hungry for cutting-edge, globally recognized brands and products accompanies its increasing capacity to produce sophisticated manufactured goods and complex services.
China’s intellectual property system has made significant strides over the past decade, and it has become easier to hand patent infringement in China in general.
By 2021, China (not including other legal areas like Taiwan, Xiamen and Hong Kong) had issued 696,000 invention patents, 3.120 million utility models, and 786,000 design patents. Since 2020, when there were 530,127 issued innovation patents and 2,377,223 granted utility models, utility model registrations had increased by nearly 31%.
In China, patent applications are based on the first-to-file principle. If two or more applicants submit identical patent applications for the same invention or solution, the applicant who applied first is granted the patent.
It is important first to clarify what types of patent rights, what patents are important for your company and what type of protection you need both in a shorter term of protection and a longer-term.
Chinese patents and patent protection in China include traditional invention patents, design patents, and utility model patent protection. For companies seeking to protect their intellectual property, these various patent types and the improved Chinese patent law also provide foreign applicants of patents on utility models with vital benefits. One of the main reasons for this is that utility model patents often require less creativity and can be granted much faster.
Utility model patents are available for physical items but not for processes or compositions of matter. They cover any novel technological solution relating to the form or structure of a product or the combination of the shape and design.
Although utility model patents are designed to cover relatively minor improvements to existing technology, they may be an effective weapon for patentees since they are fast, inexpensive to apply for and carry the same remedies as innovation patents, including monetary and injunctive relief.
Once the Chinese utility model application and examination are finished innovation patent is issued, the utility model patent must be abandoned, or the applicant risks having the invention patent revoked, as applicants are only allowed to have one patent in effect in China for the same invention.
A utility model patent and utility model protection are only valid for ten years as opposed to twenty years for Chinese invention patents and 15 years for design patents. When utility model and innovation patent applications are filed concurrently, the utility model patent may protect the applicant’s business interests until the longer, twenty-year invention patent is issued.
Product designs that lack a defined shape, products that undergo material or manufacturing technique changes but retain their known shape and construction, and products characterized by a pattern that does not solve a technical problem will be denied through a preliminary examination and are not eligible for utility model registration.
In the Chinese utility model system, utility model patents are available only for products with specific shapes, structures, and combinations. As a result, foreign companies should notice that a Chinese utility model patent is inapplicable to pharmaceutical methods and products, chemical entities, or novel materials.
Examination and approval
Utility model patent applications are frequently granted within one year of filing. The reason that you get the exclusive right to the patented product this fast in Mainland China is partly that they undergo only a formal examination and not a substantive one. As a result, if the application of this type of patent passes the standard inspection different from an innovation patent application, it will be granted relatively quickly by the Chinese Patent Office.
Utility models are evaluated concerning their immediate technical solution to determine whether the invention possesses meaningful characteristics and advances state of the art.
By contrast, invention patent grants are evaluated against their own and other pertinent technical disciplines to determine whether it possesses significant substantive characteristics and significantly advance prior art.
Utility models are subject to the same novelty requirements as inventions when examined by the China National Intellectual Property Administration, even though there is a lesser degree of inventive step for utility models. Patent laws require utility model patents to have notable features and an advantage, which is less stringent than the requirement for invention patents, which need conspicuous substantive features and exceptional improvements. Utility model patents help cover changes to existing items that might not qualify for an invention patent.
Obtaining utility model patents is often less expensive than obtaining innovation patents, and the rights are typically granted to the patent owner within six to twelve months after the filing date in China.
The covered product may be of a nature that does not require additional protection beyond the ten years provided by a utility model patent. Due to the speed of how infringers can copy the product, the utility model patent allows for more aggressive enforcement against infringers than an innovation patent would.
Patent applicants can utilize a technique known as double-filing
There is a strong correlation between the scope of the two types of patents, which results in numerous patent applications being filed twice. In this case, an application would be filed under both categories. The utility model is abandoned following the grant of the invention patent.
Suppose an applicant wishes to file both an invention patent application and a utility model patent application for the same invention on the same day. In that case, each application must be accompanied by a notice indicating the filing of the other application.
Thus, the applicant may benefit from both the utility model’s early patent protection, which is often granted within a year, as opposed to three to five years and the inventive patent’s longer-term protection that equals exclusive rights for twenty years as opposed to ten.
What about the date of filing? It is important to remember that applicants must file parallel applications on the same day, along with a statement that they were filed concurrently.
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.
