9 March 2016
Patent right is also an important intellectual property right. The works protected by the Patent Law in China include inventions, utility models and designs. For inventions and utility models, protection focuses mainly on the technical aspects of products, such as a shock-absorbent function in a watch or stabilising technology in a toy train. Design patents refer to the novel designs of a product’s shape, pattern and colour, or the combination of the three, which have aesthetic value and are suitable for industrial application.
Under the Patent Law, inventions mean new technical solutions proposed for a product, a process or the improvement thereof. Technical solutions mean the use of the laws of nature to solve problems in production, scientific research and laboratory test, and they usually comprise certain technical features. There are two major types of invention: product invention and process invention. Product invention covers all articles created by humans, while process invention covers all processes invented or created by making use of the laws of nature. Process invention can be further classified into production process and operation process. As such, a new product and its process of production or process of use can be the subject of application for an invention patent.
Inventions granted patent right must possess novelty, creativeness and utility. Novelty means that no like invention or utility model has been published inside or outside of China, or openly used or made known to the public in other ways in China, prior to the date of application for a patent. It also means that no other party has applied for a patent for the same invention or utility model to the patent office under the State Council and recorded the same invention or utility model in patent application documents published after the application date. Creativeness means the invention in question has outstanding substantive features and significant improvement, and the utility model in question has substantive features and improvement compared with technologies that existed prior to the application date. Utility means the invention can be produced or used and can bring about positive effects.
In China, where the examination and approval of a patent is concerned, the principle of first-to-file applies. That is, when two or more applicants submit an application for the same patent to the Patent Office, the patent right will be granted to the individual or entity that files the application first. Since the technology or a design that is the subject of a patent application must possess novelty, the applicant should apply for a patent before disclosing their achievement or launching their product onto the market so that the application will not be pre-empted due to early disclosure.
According to the provisions of the Paris Convention and China’s Patent Law, any enterprise filing an application for a patent in any of the member countries can enjoy a six months’ priority right in other member countries. In other words, the enterprise can first apply for an invention, utility model or design patent in any one of the Paris Convention member countries, and then apply for a patent in China or other member countries claiming the right of priority within six months’ time. The use or publication of an identical or similar invention, utility model or design after the priority date (first application date) will not harm the novelty of the invention, utility model or design concerned.
The term of invention patent protection is 20 years while that of utility model and design patent protection is 10 years, all counted from the date of filing. The enterprise to which a patent is granted should pay an annual patent fee to maintain the validity of the patent right. Failing to do so could result in the patent losing its validity.