Article 22 3 chinese patent law [Updated]

Last updated : Sept 21, 2022
Written by : Victor Tonge
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Article 22 3 chinese patent law

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.

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 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.

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.

How do Chinese patents work?

China has a first-to-file patent system where patents are granted to the first person who files an application for an invention. In general, an application for a patent must be filed prior to any public disclosure of the subject invention.

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 long do Chinese patents last?

In China, since 1993 the term of a patent for invention (equivalent to utility patent) has been 20 years. The Fourth Amendment to the China Patent Law (“Amended Patent Law”) adopted in October 2020 introduced a brand-new Patent Term Extension (PTE).

Do Chinese have patents?

China has led the world in number of patent filings since 2011, according to the World Intellectual Property Indicators 2020 report from the World Intellectual Property Organization (WIPO). In 2019, WIPO reports, China filed 1.4 million patents, or 43.4 percent of the world's total patent applications that year.

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 much does a design patent cost in China?

Patents For Design The official fee for filing an application is 500 RMB along with 3200 RMB as attorney charge.

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.”

Does China have excess claim fees?

According to China's practice of patent examination, the excess claim fee for an application entering China under the Paris Convention is determined based on the number of claims upon filing. The excess claim fee will be charged in a case where there are more than 10 claims.

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.

Which country has highest patent?

In 2020, China had the most patent grants worldwide with 530,127 patents granted to resident and non-resident companies or organizations. The United States followed with 351,993 granted patents the same year.

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.

What is patent term in China?

Patent Term Adjustment (PTA) In accordance with the amended Chinese Patent Law, the Draft Guidelines provide that PTA may be available for a patent granted over four years from its filing date and three years after the date of request for examination.

Does China have more patents than the US?

GENEVA, Nov. 8 (Xinhua) -- China's intellectual property (IP) office led the world in 2020 by reporting 1.5 million patent applications, 2.5 times more than the United States, which ranked second, the World Intellectual Property Organization (WIPO) said on Monday.

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Article 22 3 chinese patent law

Comment by Booker Koso

hello Nihao and welcome to our web mall today we will be discussing Chinese patent law and practice use from a recent visit to China if you would like to submit questions to us during this presentation you can submit them through the Q&A box at the top of your screen in the lion green bar my name is Deirdre Sanders and I have 20 years experience as a patent troll my background is in biotechnology with a focus on genetics and biologics and I represent clients of all sizes from small startups to Fortune 500 calls I also represent clients in litigation further I am on the board of the Boston patent law Association one of my partner's mark Solomon will be introducing himself shortly as well and will participate with me in this webcast as you can see in this picture we had the honor of speaking at a state intellectual property office of the People's Republic of China otherwise known as psycho in Beijing this spring the 30-plus examiner's with normally more were gracious and enthusiastic hosts with a keen interest in discussing US patent law and the America Invents Act in particular patent law is relatively new in China it was enacted in 1984 and began in 1985 so fewer than two generations have been living under patent law in China it China's patent law is strongly based on more pinball but is also influenced by US law the psycho office we visited in Beijing was one of the many offices of Fogo this particular office was located between the 3rd and 4th ring roads roads imaging it is not far from the Forbidden City which is located within the first one role as you can see the a in a circle on the upper left of this map represents the location of the psycho levels and they be circled in the middle of the map is where the Forbidden City is located so as you can see they are not very far apart so this is an area full of culture and history the topics that we will be discussing today include filing considerations for filing your platinum channel examination considerations for prosecuting your patent in front of psycho monetization of your patent IP rights and enforcement of your patents and now mark will take us through the first topic than Brooke Smith Reynolds I practice in the engineering arts I have 15 years of patent law experience and 10 years of experience in electrical software control systems optoelectronics and signal processing I'm a past president with the Boston patent law sociation and I practice in my practice I represent small startups this midsize companies and fortune 500 companies I draft and prosecute muskie US patents with a strong team of colleagues and develop and execute worldwide patent strategies our firm has a trusted relationship with foreign associates around the world including of course China we're going to start with some of the topics with filing considerations to begin the process will introduce a hypothetical example that Deirdre and I worked up together and in this hypothetical we have a humanized therapeutic antibodies we could also have antibody drug conjugates methods of disease treatment using same and in this hypothetical we have an opto electronic system for observing those antibodies looking at the actual system so we have an imaging systems we prefer to it as so we have a sample that is imaged via a lens assembly into an imaging subsystem we have an image processor and a data processor and a graphical user interface GUI and which the user can interact with each of the subsystems and processors so we're going to look first at some examples of considerations for China entry in this set of examples will consider entry from the US but it could be any country around the world will focus on the US because our firm is located here in the Boston area and we have starting with one thought that should people should consider is 12-hour times the difference between Boston and Beijing so one should consider that if it's Friday morning in the US it is already too late in the week to send instructions to Chinese associates who handle patent matters before the state intellectual property office of China on behalf of foreign applicants notably in in California is 15 hours in a graduated scale between Boston and California a consideration for China entry could be the market so one should recognize that currently I just checked this morning China has about 19 percent of the world's population it is the highest populated country in the world over 1.3 billion people there so if you have a product as very commercializable you might be considering China as a market another consideration for whether you should enter trade with the patent is whether you have their patent law considerations examples of such considerations include whether you have patentable subject matter and also timing for whether or not there's been a public disclosure other considerations might include the thought of manufacturing so as most people may know is that a patent can preclude the use to occlude others from manufacturing a claimed invention China as most people know it does have quite a strong manufacturing industry while Deirdre and I were in China we did observe firsthand some of the electrical engineering manufacturing plants that ship manufacturing we also observe some biological manufacturing areas another consideration is license agreements so your company may have license agreements in a patent application and that License Agreement may specify a variety of countries around the world one especially in-house counsel should be cognizant of whether or not a License Agreement does require maintaining patent protection in a country such as China and of course there's always the marketing aspect of a company especially small startups where patent protection could be very attractive to investors as we mentioned before China does have a large share of the world's population so investors may be very interested either now or in the future in obtaining some market share and it's always good advice to have patent coverage in a place where you have a large market another consideration is enforcement enforcement is improving in China as we'll discuss later but that's a consideration whether or not the you are in your patent technology is an area where there is stronger patent protection and enforcement in a country like China so I mentioned before that there are some timing considerations the first consideration is there is a requirement for absolute novelty so if you have an inventor has publicly disclosed an invention that that would destroy the novelty in a country such as China that has a requirement for absolute novelty meaning that the invention cannot be publicly available before filing date of the patents in China it's anywhere in the world and there is no distinction between prior publications and prior use so actual use of of an invention prior to securing a filing date would prevent filings in China and obtaining patent protection there is typically no grace period in China there are some limited exceptions and China in those limited exceptions does allow for a six-month grace period so that is there are a few exceptions here without the

Thanks for your comment Booker Koso, have a nice day.
- Victor Tonge, Staff Member

Comment by Racquel

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 Racquel your participation is very much appreciated
- Victor Tonge

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