Absolute novelty, inventiveness (non-obviousness) and industrial applicability are the three basic requirements for patentability. 

Absolute Novelty:   The absolute novelty requires absolutely no prior publication, no public use, no prior patenting and no prior offer for sale or display at an exhibition of the subject matter before the filing date.  If the publication, exhibition, and public use are for research or experimental purposes, such subject matter do not loose its novelty, however the patent application for such subject matter must be filed within six (6) months.  

Inventiveness (Non-Obviousness): A patent may not be granted to an invention that simply utilizes the technology or knowledge of a prior art that is obvious to persons skilled in the art.  

Industrial Applicability: An invention may not be granted a patent unless it is industrially applicable.  The Patent Law does not require the applicability of an invention to a stage of application in industrial production.  An invention, which is considered workable in the future is also allowable.  These are especially significant for a chemical patent where applicants need not prove that everything covered by the claims would work. 

Who can file a patent application with State Intellectual Property Office (SIPO)?

Inventor(s) and Assignee(s) who owns the entire right of the invention are allowed to file a patent application.  

However, if an assignee who owns the entire right of the application files the patent applicant, an assignment executed by the concerned inventor(s) is required.  

There are three types of patents namely Invention patent, Utility Model patent and New Design patent. 

Invention Patent includes methods, processes, new use, or objects without a specific shape such as chemicals, pharmaceuticals, beverages and flavoring products

Utility Model Patent includes novel creation or improvement or new technical solution to a three-dimensional product such as construction or fixture of an object.  It takes a shorter time for the examination and authorization by the China Patent Office as compared to Invention patent. It carries a lower level of inventiveness requirement as opposed inventiveness requirement for invention with respect to prominent substantive features and notable progress.　

New Design Patent includes novel creation with respect to shapes, patterns, colors, or any combination thereof.

There are two ways for foreign nationals to procure patent protection in China:
1.  by filing a convention patent application; or
2.  by filing a PCT patent application entering into Chinese national phase.

Convention patent application includes Invention, Utility model and design patent applications.   The priority time limit for inventions is twelve (12) months. The application can be still filed as a non-convention application after the lapse of twelve (12) months grace period, however the application must be filed before the application first filed in another country is published. 　

A PCT application may enter the Chinese National Phase within 20 or 30 months commencing from the earliest date of the right of priority or the date of filing a PCT international application. However the PCT application time limit could be extended by two (2) additional months with payment of fees.  

1.         specification and drawings;

2.         an original Assignment executed by the inventor(s) if the applicant is not the inventor himself;

3.         an original executed power of attorney; and 

4.         certified copy of the corresponding patent application, if applicable. 

Please note that the specification in Chinese language must be submitted at the time of filing.

Normally, it takes about a year or two after filing a Request for substantive Examination.

What are the required documents for filing a Utility Model patent application?

1.         specification and drawings;

2.         an original Assignment executed by the inventor(s) if the applicant is not the inventor himself;

3.         an original executed power of attorney; and 

4.         certified copy of the corresponding patent application, if applicable. 

Please note that the specification in Chinese language must be submitted at the time of filing.

1.         specification and drawings;

2.         an original Assignment executed by the inventor(s) if the applicant is not the inventor himself;

3.         an original executed power of attorney; and 

4.         certified copy of the corresponding patent application, if applicable.

Normally it takes about a year or so.

SIPO do not accept foreign language specification, a Chinese language specification must be submitted at the time of filing the application. 

Two or more inventions belonging to a single general inventive concept can be filed as one patent application. 

For Example, the following set of claims are permitted by SIPO:

Product + Product claims.

1.  A system comprising features A, B, and C.

2.  A system comprising features A, B, and D.

Product + Process claims.

1.  A system comprising features A, B and C.

2.  A process for manufacturing a system comprising the steps of forming the feature A, forming the feature B and forming the feature C. 

Process + Process claims.

1.  A process for manufacturing a system comprising the steps of forming the feature A, forming the feature B and forming the feature C.

2.  A process for manufacturing a system comprising the steps of forming the feature A, forming the feature B and forming the feature D.

Product + usage claims.

A system comprising features A, B, and C.

A process using the system including the device comprising features A, B, and C.

Product + Process + device claims.

1.  A device comprising features a, b, and c.

2.  A system including the system including the device comprising features a, b, and c.

3.  A process for manufacturing a system comprising the steps of forming the feature a, forming the feature b and forming the feature c.

Process + device claims.

1.  A system comprising features a, b and c.

A process for manufacturing a system comprising the steps of forming the feature a, forming the feature b and forming the feature c.

However, Product + Product + Process + Process cannot be permitted:

1.  A system comprising features A, B and C.

2.  A system comprising features A, B and D.

3.  A process for manufacturing a system comprising the steps of forming the feature A, forming the feature B and forming the feature C.

4.  A process for manufacturing a system comprising the steps of forming the feature A, forming the feature B and forming the feature D.

The applicant for a patent for invention who has filed in a foreign country an application for a patent for the same invention, at the time of requesting examination as to substance, should furnish documents concerning any search made for the purpose of examining that application, or concerning the results of any examination made, in that country.  If without any justified reason, the said documents are not furnished, the application shall be deemed as withdrawn.

Is there Laid-Open system in China? 

Yes, a patent application filed will be automatically published in the Laid-Open Gazette after 18 months from the filing date.     

However, patent applications that include national defense secret or contrary to public order and morals will not be published in the Laid-Open Gazette.  Further, the patent application which ha been withdrawn within 15 months after the filing date will not be published in the Laid-Open Gazette.  

Yes, it is possible to request for an early publication of the patent application.  However, only the applicant is allowed to make such request.   

The request for early publication can be granted if the applicant provides reasonable evidence that a third party is infringing the invention.

When to apply for substantive examination for invention patents? 

A request for substantive examination can be filed within three (3) years after the filing date.  The applicant or any other person may file a request for substantive examination with the SIPO.  The patent will be granted if the patent application being examined and found to meet the patentability requirements.   

Failure to file a request for substantive examination within the prescribed time limit (within three (3) years) will be deemed withdrawn by the applicant. 

The Applicant can file a request to expedite the substantive examination of a laid-open patent application may be filed with the IPO together with related evidence if a third party has been or is commercializing the same technical contents as claimed in the application pursuant to Article 36-4 of the patent law.

When does the patent right begin to effect? Can an applicant account the damages of infringement from the filing date?

The patent right begins from the date of publication.  However, the applicant will be able to enforce this right upon the grant of the patent.  In other words, a provisional protection right will be conferred to the applicant from the date of the laying open.  

The applicant cannot exercise his patent right against the infringer and claim for damages accounting from the filing date.

How long is the Invention patent term?

Twenty (20) years from the effective filing date.  

How long is the Utility Model patent term?

Ten years (10) from the effective filing date. 

How long is the New Design patent term?

Ten years (10) from the effective filing date.

What are the unpatentable subject matters?

1.  New species of animal and plant, however with exceptions to cultivation and growth processes of  new plant species.

2.  Methods of treatment of the human or animal body by surgery or therapy and diagnostic methods practiced on human or animal body.

3.  Scientific principles and mathematical theorems.

4.  Rules and methods for playing games and sports.

5.  Other schemes and methods which can be implemented only through reasoning or memory.

6.  Inventions, the use of which is detrimental to public order, morality or public health.

7.  Substances obtained by means of nuclear transformation. 

8.  An article that is detrimental to public order, good morals, or public health. 

9.  An article the shape or the design of which is identical or similar to the party, national or military flag, the national emblem, the government medal. 

Can I request for reexamination if I am not satisfied with the decision of the Patent Office rejecting the application or revoking or upholding the patent right?

Yes, if you are not satisfied with the decision of the Patent Office rejecting the application or revoking or upholding the patent right, you can file a request for reexamination with the Patent Reexamination Board.  However, such request must be filed within three months from the date of receipt of the notification from the Patent Office. The Patent Reexamination Board shall, after reexamination, make a decision and notify the applicant, the patentee or the person who filed the request for revocation of the patent right.

Yes, if you are not satisfied with the decision of the Patent Reexamination Board rejecting the application or revoking or upholding the patent right, you can institute legal proceedings in the People’s Court within three months from the date of notification from the Patent Reexamination Board.  The decision of the Patent Reexamination Board with respect of any request, made by the applicant, the patentee or the person who made the request for revocation of the patent right, for reexamination concerning a utility model or design is final.

1.  Making, Using or selling the Patented Product.

2.  Using the Patented Process.

3.  Using or Selling the Product directly obtained by the Patented Process.

4.  Importing the Patented Product or Importing the Product directly obtained by the Patented Process.

Yes, you can.

How is the extent of patent protection for invention and utility model determined? 

The extent of protection of the patent right for invention or utility model is determined by the claims. The description and the appended drawings are used to interpret the claims.

1.  Cessation of Infringement (Permanent Injunction)

2.  Compensation for damages

3.  Elimination of ill effects

4.  Public apology

5.  Court Costs

Within two years from the date of the knowledge of the infringing act by the patentee or any interested party.

You may request the Administrative Authority for Patent Affairs to handle this matter or you may directly institute legal proceedings in the people's court.  

Yes, it also has the power to order the infringer to compensate for the damages. 

Any party dissatisfied with the decision of the Administrative Authority for Patent Affairs may, within 15 days from the receipt of the notification, institute legal proceedings in the people's court. 

If such proceedings are not instituted within the prescribed time limit and if the order is not complied with, the administrative authority for patent affairs may approach the people's court for compulsory execution.

Yes.  The amount of damages for infringing a patent right shall be calculated according to the patentee’s loss caused by the infringement or the infringer’s profits derived from the infringement.  If it is difficult to determine the damages based on loss of patentee or the profits of the infringer, the appropriate times of a royalty for the license for the said patent may be applied.

Article 48 stipulates that where any entity which is qualified to exploit the invention or utility model has made requests for authorization from the patentee of an invention or utility model to exploit its or his patent on reasonable terms and conditions and such efforts have not been successful within a reasonable period of time, the Patent Administration Department Under the State Council   may, upon the request of that entity, grant a compulsory license to exploit the patent for invention or utility model.

Article 49 stipulates that where a national emergency or any extraordinary state of affairs occurs, or where the public interest so requires, the Patent Administration Department Under the State Council may grant a compulsory license to exploit the patent for invention or utility model.

Article 50 stipulates that where the invention or utility model for which the patent right has been granted involves important technical advance of considerable economic significance in relation to another invention or utility model for which a patent right has been granted earlier and the exploitation of the later invention or utility model depends on the exploitation of the earlier invention or utility model, the patent administration department under the State Council  may, upon the request of the later patentee, grant a compulsory license to exploit the earlier invention or utility model.         

Where, according to the preceding paragraph, a compulsory license is granted, the Patent Administration Department Under the State Council  may, upon the request of the earlier patentee, also grant a compulsory license to exploit the later invention or utility model.

Yes, Article 52 stipulates that the decision made by the Patent Office granting a compulsory license for exploitation shall be registered and announced.

Can any entity or individual granted with a compulsory license have exclusive right?

No.  Article 53 stipulates that any entity or individual that is granted a compulsory license for exploitation shall not have an exclusive right to exploit and shall not have the right to authorize exploitation by any others.

Can the patentee get a reasonable royalty fee under compulsory licensing?

Yes, Article 54 stipulates that the entity or individual that is granted a compulsory license for exploitation shall pay to the patentee a reasonable royalty fee, the amount of which shall be fixed by both parties in consultations. Where the parties fail to reach an agreement, the Patent Office shall adjudicate.

Article 55 stipulates that where the patentee is not satisfied with the decision of  the patent administration department  under the State Council  granting a compulsory license for exploitation, or where the patentee or the entity or individual that is granted the compulsory license for exploitation is not satisfied with the ruling made by the patent administration department under the State Council  regarding the fee payable for exploitation, it or he may,  within three months from the receipt of the date of notification, institute legal proceedings in the people's court.

1.         applicant(s) name, address and nationality;

2.         a trade mark specimen;

3.         priority documents, if applicable;

4.         an original executed power of attorney (POA); and

5.         a list of services/goods and class designations.

The goods and services are classified based on Nice Classification of Goods and Services.

It takes about one (1) year.

Ten (10) years from the effective filing date with unlimited ten (10) years renewals. 

Use of a registered mark in China must commence within three (3) years of its registration date, otherwise the mark will be canceled.  

Additionally, if use of the mark in China is suspended for any consecutive three (3) year time period after its registration, the mark will be canceled.

Trademark Law defines trademark use as the use of a trademark on goods or the packaging, container, label, instruction literature, price list or other similar articles of such goods and possession, display or dissemination of the aforementioned goods or articles for marketing purpose. The law additionally provides that use of a trademark in a television or other broadcast commercial, or in a newspaper or magazine advertisement, or in participation of an exhibition for the promotion of the sale of the goods shall be deemed as use.