Understanding the Three Types of Patents in China: An Overview

In the world of innovation, ideas are the new currency, and protecting these ideas is of utmost importance. This is particularly true in a market as robust and fast-paced as China. China’s intellectual property laws, including its patent system, provide a solid structure that both local and foreign companies can leverage to safeguard their inventions and maintain their competitive edge. The three major types of patents in China are the invention patent, the utility model patent, and the industrial design patent.

 

1. Invention Patent

An invention patent in China protects innovative technical solutions related to a product, a process, or any improvement of these. This patent mirrors the conventional understanding of patents, offering protection for significant technical advancements such as new pharmaceutical compounds, advanced manufacturing processes, or unique technological enhancements.

To qualify for an invention patent, an idea must display novelty, creativity, and practical applicability. However, it’s critical to emphasize that China operates under a ‘first-to-file’ system. It means that the first person to file a patent application owns the rights to the invention, highlighting the urgency to protect an innovation swiftly. An invention patent in China provides a lengthy protection period, 20 years from the filing date, underscoring the substantial value of fast action in securing long-term rights to a groundbreaking invention.

 

2. Utility Model Patent

The utility model patent focuses on protecting new solutions relating to the shape, structure, or a combination of both, of a product that is fit for practical use. This type of patent tends to cover simpler inventions or enhancements and is often applicable to products with rapid life cycles, where swift, short-term protection is advantageous.

It’s worth noting that the novelty requirement for a utility model patent is lower than that of an invention patent, making it a suitable choice for incremental advancements. Despite having a shorter protection duration—10 years from the filing date—the significance of quickly securing a utility model patent in China’s first-to-file system remains paramount.

 

3. Industrial Design Patent

An industrial design patent protects new designs regarding the shape, pattern, or their combination, of a product, creating an aesthetic appeal and having an industrial application. This patent type protects the visual design elements of a product and plays a pivotal role in industries where aesthetics matter significantly, such as fashion, furniture, and consumer electronics.

Similar to the other two types, an industrial design patent must be novel, creative, and aesthetically pleasing. It is protected for 15 years from the date of filing, underscoring the need for prompt filing to protect these valuable design assets.

 

The Importance of Filing Patents Directly in China

An essential factor to consider when seeking patent protection in China is its distinct first-to-file system, which differs from the patent systems of many other countries. In China, the first party to file a patent application is granted the rights to the invention, regardless of who initially created the invention. 

This system creates a unique scenario where even if you hold a patent for your invention in another country, you do not automatically own the patent rights in China.

In other words, having a patent in your home country does not guarantee your rights in China. 

Even if you have already commercialized your product elsewhere, someone else can file a patent for the same invention in China and gain exclusive rights. If this happens, you could face potential legal hurdles in producing or selling your product in the Chinese market. Consequently, it’s of the utmost importance for both domestic and foreign inventors to understand that the first to apply in China owns the rights to the invention, and the patent application should be filed there promptly.

Furthermore, while international patent applications can provide protection in multiple jurisdictions, they can often be a more complex and slower process. In contrast, the direct filing of a patent application in China is quicker and more efficient. This process can expedite obtaining patent protection and offers a more robust defense against local infringers.

With the significant growth of the Chinese market, many businesses are keen to expand their operations into the region. However, the failure to recognize the importance of filing a patent directly in China can expose businesses to substantial risks, including loss of market share, legal disputes, and damage to reputation.

 

FAQs

  1. What are the three types of patents in China? China categorizes its patents into three types: invention patents, utility model patents, and industrial design patents. Each patent type offers different protections for inventors and is suited for various kinds of innovations.
  2. What is the term of protection for each patent type in China? An invention patent provides protection for 20 years, a utility model patent provides protection for 10 years, and an industrial design patent offers protection for 15 years as well, all counted from the date of filing.
  3. What is the ‘first-to-file’ system in China? The first-to-file system in China means that the first person to file a patent application gets the rights to the invention. This rule applies regardless of who initially created the invention.
  4. If I own a patent in another country, do I automatically own the rights in China too?  No, owning a patent in another country does not grant you patent rights in China. China’s patent system operates independently. Therefore, it’s crucial to apply for a patent in China directly if you intend to protect your invention there.
  5. Is it better to file a patent directly in China or rely on an international patent application? While international patent applications offer protection in multiple jurisdictions, they can often be a more complex and slower process. Directly filing a patent application in China is typically quicker and can provide more robust protection against local infringers.
  6. Do Chinese companies protect foreign patents? Yes, many Chinese companies, including manufacturers, distributors, and suppliers, often actively protect the patents of foreign companies in China. These entities recognize the importance of swift and effective patent application and protection in the Chinese market and see the protection as a business opportunity.
  7. How important is it to protect my invention with a patent in China? With the significant growth of the Chinese market, protecting your invention with a patent is crucial. Filing a patent directly in China helps prevent others from copying or profiting from your invention quicker and more efficiently, and can safeguard your business’s market position and prevent from Chinese companies actively protecting your patents in China.

 

Contact us if you need legal help in China, like drafting contracts that follow Chinese law, background investigation of Chinese companies, protecting patents and trademarks in China and internationally, and verification of contracts to the law in China, etc.

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.

 

Contact us if you need help with drafting of contracts that follows Chinese laws and are enforceable in China, 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 Managers Jan Erik Christensen, at janerik@ncbhub.com . We look forward to hearing from you and helping your business succeed in China.

This article is provided for informational purposes only and is not intended to replace professional legal counsel. The information contained herein does not constitute legal advice and should not be relied upon as such. Reading this article does not establish an attorney-client relationship between the reader and the author or the author’s organization. Our website aim to provide general information for educational and communication purposes.