Article 26 chinese patent law [Pictures]

Last updated : Sept 5, 2022
Written by : Genna Deibel
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Article 26 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.

Does China respect international patents?

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.

Does China recognize intellectual property?

China has a complete legal system for the protection of intellectual property rights. China's intellectual property law stipulates the legal responsibilities to be borne by anyone who violates the law, including civil liability, criminal liability and exposure to administrative sanctions.

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.

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.

Why is it hard 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.

Which country owns the most patents?

In 2020, China had the most patent grants worldwide with 530,127 patents granted to resident and non-resident companies or organizations.

How do Chinese protect patents?

  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.

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.”

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.

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.

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.

Is there patent term extension in China?

Patent Term Extension in China is now possible for pharmaceutical patents. On June 01, 2021, the fourth amendment of Patent Law in China entered into effect. This amendment includes significant changes, such as the introduction of Patent Term Extension (PTE) for pharmaceutical patents (Article 42(3) of the Law).

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.

What does a Chinese patent number look like?

to cite the patent number beginning with 'ZL' (the acronym of the Chinese word for patent) followed by a 13-digit number (yyyytnnnnnnn. n) or a 9-digit number(yytnnnnn.

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Article 26 chinese patent law

Comment by Emma Horikoshi

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 for your comment Emma Horikoshi, have a nice day.
- Genna Deibel, Staff Member

Comment by kwok19766

if you are joining our IP perspectives US and China webinar series for the first time this series will focus on IP issues affecting transnational portfolios with both US and Chinese assets today's webinar will will will run for one hour we encourage you to ask questions at any time throughout the program by clicking on the question section on the widget to submit your question given the volume of information we hope to get through during today's presentation it's unlikely that we'll be able to answer your questions during the presentation and therefore we will attempt to follow up individually with you after the presentation to discuss your questions please also feel free to contact us personally after the webinar if you have any additional questions the contact info for the presenters also appears at the end of the presentation and finally before we get started I should remind you that the contents of this presentation is for educational purposes only and does not necessarily reflect the opinions of efficient rixton and is also not intended to address every court or case situation next slide please so to give a little perspective on today's presentation it's been predicted to over the next five years the global spending on medicines is expected to increase by about thirty percent the farmer market in China is forecasted to grow from about a hundred and eight billion dollars annually in 2015 to over a hundred and sixty five billion by the year 2020 which represents an annual growth rate of about nine percent the u.s. farmer market was projected to be about three hundred and seventy billion dollars in 2016 and healthcare spending growth in North America is projected to rise by an average of about four and a half percent annually from 2015 to 2019 so given the size of the life sciences market in both China and the United States over the next hour we're going to discuss the important topic of post issuance in validation proceedings for patents covering these markets the life sciences and again the issues and case discussions we present today are going to relate to the life sciences industry so moving to the agenda we're going to do this on a country-by-country basis starting with the United States we're going to go through both current trends and post-grant proceedings talk about some recent developments and decisions and then also talk about what to watch for in 2017 after we finished in the United States we're going to go through the same questions for China next slide please so and actually you could skip to the next slide again um we're going to start talking at a high level about proceedings in United States for challenging patents at the USPTO post post grant and as you can see on slide number five there are several procedures talking about such proceedings at the USPTO today's presentation is going to focus on two of the proceedings towards the bottom of the slide specifically into policies review which is abbreviated IPR and post grant review which is abbreviated PGR other proceedings include supplemental examination ex parte reexamination which which is the same ex parte reexamination we've been accustomed to over the years and finally derivation proceedings again we are going to focus today on IPR proceedings and PTR proceedings next slide please so without spend too much time talking about IPR in general I thought it would make sense to give a very brief overview of some of the essential features of inter partes review as shown in the previous slide IPR is is only used to challenge [ __ ] ability of claims based on prior art and those grounds on patent buildings are limited to patent and printed publications so challenging patents using IPR is limited to prior art issues under section 102 and 103 nit ours claims are construed using the broadest reasonable interpretation VRI there are some timing issues so for example if you are sort of a complaint alleging infringement of the patent you must file an IPR petition within one year of the service of that complaint they are also barred from filing an IPR petition if you've already filed a declaratory judgment action seeking invalidity of the patent the word the burden of proof and IPR proceedings is a preponderance of the evidence there is very limited discovery available during IPR proceedings in stark contrast to district court litigation in IPR there is a very limited ability to amend claims this ability to a man claims is so limited you should almost assume that you will not be able to amend your claims during these proceedings the procedure is very fast compared to traditional reexamination proceedings and also compared to district court litigation from the date a decision on institution is granted by the Patent Office there should be a final written decision within 12 months so as you can see this is very fast there are some significant issues relating to estoppel which arise from IPR and indeed from PGR as well and typically relate to any ground that is raised or could reasonably have been raised there are there is some recent case law which limits this estoppel to some degree which is unfortunately we don't have time to really cover that and great depth but other of our webinar series will discuss these type of estoppel issues finally and importantly IPR procedures as well as PGR procedures can be settled yeah there is a strategic decision as to when you would prefer successful but most importantly up until oral hearing and and in some cases even after oral hearing these proceedings can be settled on my next slide and that's slide seven please briefly talk about PGR which is another of these new post Grom proceedings to try and invalidate past a post grant review difference from in two paws days review in that you can assert many additional grounds which are simply not available in IPR oh just it by way of review IP all was limited to section 102 and section 103 challenges based on printed publications and patents PG are still allows you to challenge patent passes on those basis will also allows you to challenge patents on on the grounds of section 101 o1 section 112 and that includes written description challenges lack of enablement challenges and indefiniteness challenges but significantly there is no provision to allow challenge to a patent on the basis of failure to provide a best mode other grounds on which you can challenge passing through gianna include double patenting inventor ship and try use significantly there is a little bit of a different standard for deciding whether or not the institute proceedings in PG are as compared to IPR again in IPR that standard is reasonable likelihood that the petitioner would prevail with respect to at least one challenged claim while in PG are that standard is more likely than not that at least one of the challenged claims is unpatentable comparing PGR petitions in the life sciences and through my presentations I'm going to refer to life science patents as those which were examined in group 16 hundred of the US Patent Office and I think it's not particularly surprising that many of the PGR challenges assert grounds including 11

Thanks kwok19766 your participation is very much appreciated
- Genna Deibel

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