In China, patent rights are granted upon application. Foreign patents cannot be automatically protected in China. Foreigners have to apply for patent rights in China. The National Intellectual Property Administration (“NIPA”, formerly known as State Intellectual Property Office) is in charge of the administration of patents.

What can be patented in China?

In China, there are three types of patent: inventions, utility model, and design.

• The invention refers to any new technical solution pertaining to any or all of a product or process or the improvement thereof. For example, Qualcomm Inc registered the “method and apparatus for increasing sensitivity of global positioning satellite receiver” as an invention. 
• The utility model refers to any new technical solution relating to the shape, the structure, or their combination, of a product, which is fit for practical use. For example, Apple Inc. registered the “electronic device and earphone” as a utility model.
• The design refers to any new design pertaining to the shape, the pattern, or their combination, or the combination of color and shape or pattern, of a product, which creates an aesthetic feeling and is fit for industrial application. For example, Chanel registered the shape of the bag as a design, as the following figure.

What cannot be patented in China?

In China, not all invention, utility model or design can be patented. Patent will not be granted for any of the following:

• scientific discoveries;
• rules and methods for intellectual activities;
• methods for the diagnosis or treatment of diseases;
• animal or plant varieties;
• substances obtained by means of nuclear transformation; and
• designs that are used principally to identify the pattern, color or a combination thereof, of plane presswork.

What are the conditions for granting patent?

• Conditions for inventions and utility model. Any invention or utility model for which a patent right is to be granted shall possess novelty, creativity and practical applicability.
• The novelty means an invention or utility model that is in no way attributed to any existing technology; and no entity or individual has filed an application with respect to such invention or utility model with the NIPA before the filing date and recorded such invention or utility model in documents pertaining to the patent application released or in patent documents announced after the official filing date. The existing technology refers to the technology known to the public both in China and abroad before the filing date. 
• The creativity means, compared with existing technology, an invention has prominent substantial features and represents notable progress, and a utility model has substantial features and represents any progress.
• The practical applicability means an invention or utility model can be manufactured or used and may produce positive results.
• Conditions for design:
• Any design shall not be attributable to any existing design; and no entity or individual shall have filed an application with the NIPA, with respect to such design before the filing date nor recorded such design on patent documents officially announced after the filing date.
• Any design shall be distinctively different from existing designs or combinations of the features of existing designs.
• Any design shall not be in conflict with the lawful rights obtained by others before the filing date.

How does a foreigner apply for a patent?

The patent application must be filed with the NIPA. Any foreigner without any habitual residence or business address in China shall entrust a patent agency legally set up in China to apply for a patent on its behalf.

Does a foreign patent enjoy priority when applying for a patent in China?

Yes. If the same applicant files an application for a patent pertaining to the same subject in China, and the foreign country has concluded an agreement or an international treaty with China, the applicant may enjoy a right of priority. The priority period for the invention or utility model is 12 months. The priority period for the design is 6 months. The priority period starts from the date on which the applicant first applies for patent in a foreign country.

What is the term of protection for patents?

The term of protection varies depending on the type of patent:

• Invention - 20 years starting from the filing date. 
• Utility Model - 10 years starting from the filing date. 
• Design - 10 years starting from the filing date.

How to assign or license a patent?

• Assignment

A pending application or a registered patent can be assigned or transferred. The assignment contract shall be in writing and registered with NIPA. The assignment shall take effect as of the date of its registration.

• License

A registered patent can be licensed to another, but a pending application cannot be licensed.

Disclaimer

This article and its contents are not regarded as formal legal opinions or suggestions of IsCham member, Chamzon Law Firm or its lawyers. If you require legal advice or professional analysis, please contact the lawyers of Chamzon Law Firm, or contact your regular contact lawyer. For more details, please contact: dwang@chamzonlaw.com or info@ischam.org.