Article 22 2 chinese patent law [Expert-Advice]

Last updated : Sept 27, 2022
Written by : Jenice Asperheim
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Article 22 2 chinese patent law

Are Chinese patents valid in Australia?

A Chinese design patent protects the visual appearance of a product and is equivalent to an Australian registered design. In order to be valid, the design must be new, and substantially different from prior designs or combinations of prior designs.

Does China have a patent grace period?

There is only a very limited 6 month grace period for public disclosure before filing a Chinese Patent Application and it only applies to publication of the invention at recognized exhibitions or at academic or technological meetings or where disclosure occurred without the permission of the applicant.

What Cannot be patented in China?

In China, inventions related to animals and plants are hard to patent. Animal species and plant varieties are not patentable. An “animal” includes an animal individual, a transgenic animal individual, an embryonic stem cell of an animal, a germ cell, an oosperm, an embryo, etc.

Are Chinese patents enforceable?

There is no issue regarding the unenforceability of a patent in China, and all patents are enforceable unless invalidity is proved.

How does China protect intellectual property?

  1. Register your IP.
  2. Perform Takedowns on Chinese Websites.
  3. Register with Customs.
  4. Engage a Brand Monitoring Service.
  5. Monitor Chinese TM Filings.

Is a US patent valid in Australia?

Patents are only enforceable within the territory they were granted. For example, a US patent will only provide protection for your invention within the USA. Hence, if you want your foreign patent to be enforceable in Australia, you must register here as well.

How long does a Chinese patent take?

The average processing time for patent registration procedure in China is 3 years. Inventions may also be protected as Utility Models in China, which are subject to formal examination only. However, conversion of a patent application into a utility model and vice versa is not possible.

How long does it take to file a patent in China?

Substantive examination must be initiated within three years of the filing date upon request by the applicant. In 2016, the average time for a patent to be granted by CNIPA was 22 months. However, the process may take longer depending on the complexity of the application.

Does China have provisional patent applications?

In such a case, Chinese patent law has provided “provisional protection” for the published patent application, i.e. “After the publication of an application for a patent for invention, the applicant may require the entity or individual exploiting the invention to pay an appropriate fee.”

Do patents apply in China?

A patent may be filed directly in China with the help of a patent agency or patent attorney; An international patent application can be filed under the Patent Cooperation Treaty (PCT), indicating China as one of the designated states.

How do patents work in China?

Invention patents require a full examination by CNIPA before being granted. A patent lasts for 20 years from the date that you file it. Utility model—granted for a new technical solution or improvement relating to the shape and/or structure of a product which is fit for practical use.

When can you oppose a patent in China?

How can I challenge a granted patent in China? The opposition system was abolished in China in 2001. The only way to a challenge a granted patent is through the invalidation procedure. Requests for invalidation can be filed at any time, even after the patent has expired.

Are US patents valid in China?

* That is, these forms of intellectual property only provide protection in the country in which they were registered. This means that trademarks and patents registered in the United States offer no protection in China.

Where can I find Chinese patents?

Patent Search and Service System of SIPO” is provided by State Intellectual Property Office of the P.R.C. and China Patent Information Center with higher authority and reliability. The system collected Chinese patent information since 1985 and free download the full text of Chinese patent.

Do Chinese laws support intellectual property?

China has acceded to the major international conventions on protection of rights to intellectual property. Domestically, protection of intellectual property law has also been established by government legislation, administrative regulations, and decrees in the areas of trademark, copyright, and patent.

Why is it so difficult to enforce intellectual property rights in China?

Foreign firms have long complained that enforcing their intellectual property rights in China is difficult due to local judicial protectionism, challenges in obtaining evidence, small damage awards, and a perceived bias against foreign firms.

Can I copy a patent from another country?

Patents are territorial rights. In general, the exclusive rights are only applicable in the country or region in which a patent has been filed and granted, in accordance with the law of that country or region.

Does a U.S. patent cover the world?

Since the rights granted by a U.S. patent extend only throughout the territory of the United States and have no effect in a foreign country, an inventor who wishes patent protection in other countries must apply for a patent in each of the other countries or in regional patent offices.

Can you get a global patent?

Contrary to what many inventors might assume, there is no such thing as an "international patent"; that is, a single patent that protects your invention in all of the world's 195 countries. Each country has its own system of patent enforcement and registration, which makes enforcement complication for inventors.

How much does it cost to get a patent in China?

Cost of Filing Patents for Invention in China The official charge of filing an application is 950 RMB (renminbi) and the attorney fee is 5500 RMB. Filing a PCT application including the publication fee within the stipulated time costs 950 RMB with an additional attorney cost of 6000 RMB.

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Article 22 2 chinese patent law

Comment by Lyman Kloos

Thanks for this great article

Thanks for your comment Lyman Kloos, have a nice day.
- Jenice Asperheim, Staff Member

Comment by Elvera

thank you for joining us today for Kristian Richardson's first webinar in our new IP perspectives you was in China webinar series my name is Tom Russell ah which I'm very pleased today to be joined by a colleague from the Han kun law firm Yan Yan Wang I'm also joined by my colleague yaw Wang and associate in the Washington DC office of Fish & Richardson for those of you are in our state our biographies will appear on the side of your screen this series will focus on IP issues affecting transnational portfolios with both US and Chinese attendees future future webinars in the series will cover ITC issues damages law industry specific topics such as patents for financial services and life sciences please keep an eye on your inbox for those invitations and you can follow us on Twitter for updates at fishing Richardson today's webinar were one for one hour and include question-and-answer period at the end of the program you may ask questions at any time throughout the program by clicking on the Q&A widget at the bottom of your screen to submit your question we'll do our best to answer them at the end of the presentation time permitting please also feel free to contact us personally after the webinar if that's easier before we get started I should remind you that the content of this presentation is for educational purposes only and there's not necessarily reflect the opinions of frisson Richardson and is also not intended to address every court or every situation thank you and as we mentioned this is an inaugural webinar series for us one and certainly that we aim to build upon the success we've enjoyed with with our other webinars including a litigation and post post grant endeavors and it's a little bit different than maybe some of our other webinars we really try and tackle a very particular topic in depth instead in this case where we try and maybe speak to some common perceptions and really try and give the audience a better sense of what were the concerns is commonly understood maybe some time back and really try and give this audience a sense of what the most current trends are and what might be in the works either is proposing some of the laws and regulations that might further revise and address expectations as related to pursuing an electro property in China itself so I'm pleased again to be joined by my colleagues yeah one of the hand Kuhn law firm with that we'll jump right into the meat of the matter again please know CLE is available for us attendees in some jurisdictions we will be releasing the CLE code near the end of the presentation so today we hope to speak and provide an overview of prominent US concerns like to provide you a brief background on Chinese patent practice we'll take a brief survey of recent news headlines will offer a comparative analysis of some prominent US concerns as interpretated in China as interpreted in China will also speak to some differences between US and Chinese priorities we'll also offer an upcoming overview of the upcoming topics maybe we'll start just to develop a common understanding would have been some of the more recent concerns as articulated in a 2000 hole at a US Patent and Trademark Office report identifying the following concerns for US companies seeking to enforce intellectual property rights in China these concerns included concerns over the Chinese pet legal regime rule of law problems issues related to evidence collection recognition and preservation effectiveness and enforcement of remedies and administrative enforcement and so walk through and walk through some of these concerns in greater detail in the next slide and really give this audience a sense of the nuanced nature the concerns that were articulated in indeed was not seen as a broad this report was not seen as a broad expression of concerns but rather dealt with some very particular topics that they believed us rights holders would would want to see addressed and the years to come as a as we witness the US companies continue to explore an electric property protection in China speaking of these higher level of concerns in greater detail some of the concerns as relates to the Chinese pet legal regime is simply the role of utility models and I think the among the most prominent concerns was really a lack of appreciation for US companies on and whether or not utility model should be pursued how they play out in practice my assessment has to be one of education more than anything else another question really related to will love questions in particular what's the basis as the cases filed the case initially has to be accepted what was the basis for that acceptance the report also discussed the thoroughness of written decisions particularly in appeals and in really desire into having a independent basis of review from a a lower court decision finally there are some questions as to what the limited use of discovery was especially for some of the injunctive of the relief that would be desire Li ideally sought earlier in a case how could discovery the better available relative to some of the pleadings requirement that would be sought after for in order to seek a preliminary injunction finally there were some questions over the to scope of damages some of the difficulty in obtaining injunctions and and finally someone other questions really spoke to the low threshold required to initiate invalidity proceedings once a litigation has begun and so with that I'll I'll really turn it over to our good friend here oh yeah and really let him speak to speak to his assessment on and you know what are the concern you know are these still concerns and have they been addressed and what are we seeing for trends so thank you young thank you Tom and thank you yalla and thank you for giving me this opportunity to share my experience practicing IP law in China with you and they're talking about the US concerns I totally agree with Tom that on this slide number six all these the topics there are legitimate concerns for multinationals in particular for US companies doing business in China I will give my high-level comment to each of them and if you have any specific questions feel free to interrupt me at any time or feel free to contact me afterwards regarding China's patent legal regime the role of utility models is the general designer for developing country so the general idea is for utility model patent it will not be examining the substantively and the obvious needs requirement is going to be lower for utility model patents so only offensive side of from a multinationals perspective yuria the multinational companies will get both utility model patents and the companion in management patents you will get the acidity model pad patents a faster because it's not examining the substantively but as soon as you get imagine patent the utility model patent will be deemed abandoned automatically so that's only offensive side on the defensive side a lot of smaller companies in particular Chinese companies they will choose to file for the utility model patents only but you can imagine that these patterns are not that a stable if they rely on th

Thanks Elvera your participation is very much appreciated
- Jenice Asperheim

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