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Patent Rights

Update time:2016-01-27  source:

The works protected by the Patent Law in China include inventions, utility models and designs. For inventions and utility models, protection is mainly on the technical aspects of the products. For example, watches with shock-absorbent function and toy trains with stabilising technology maintaining the stability of the train in fast movement are within the scope of protection for inventions and utility models. Design patents refer to the novel designs of a product’s shape, pattern or combination thereof, as well as the combination of colours, shapes and patterns, 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 make 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 human beings, while process invention covers all processes invented or created by making use of the laws of nature. Process invention can also be further classified into production process and operation process. As such, a new product and its process of production or process of use can apply for invention patent.

Inventions granted patent right must possess novelty, creativeness and utility. Novelty means no like invention or utility model has been published in publications whether in 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 patent, and no other party has applied for patent for the same invention or utility model to the patent office under the State Council and recorded the same 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 when compared with technologies existed prior to the application date. Utility means the invention can be produced or used and can bring about positive effects.

Utility models mean new technical solutions proposed for the shape and structure of a product, or the combination thereof. The differences between a utility model and an invention are:

(1) a utility model must be a product with a definite shape and not a process or a product with no regular shape;

(2) a utility model must be fit for practical use and the requirements for creativeness are not high. Any product with any technical improvement may apply for utility model patent.

A design patent protects the shape, pattern and colour, or combination thereof, of a product. In practice, the subject matter of a design patent includes a product with a special shape (e.g. a telephone set) or a product packaging (e.g. a wine bottle). As such, the range of works for which design patent may be obtained by enterprises is very broad.

To obtain a design patent, the design must possess novelty, namely, compared with an existing design or a combination of the features of an existing design known to the public whether in or outside of China prior to the application date, the design in question bears substantial differences, and that there does not exist any conflict with any prior lawful rights. Hence, enterprises should apply for design patent before launching a product on the market and should not publicly disclose their product design before filing the application.

It should be noted that a design will not lose its novelty if the design is first disclosed at an international exhibition organised or recognised by the Chinese government, or if the design is disclosed by any party without the consent of the applicant, provided that within six months the owner makes an application to register the design at China’s patent administration department.

In China, where examination and approval of patent is concerned, the principle of first-to-file applies. According to the provisions of the Paris Convention and China’s Patent Law, any enterprise filing an application for 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 invention, utility model or design patent in any one of the Paris Convention member countries, and then apply for 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 counting 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 which the patent may lose its validity.

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