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Frequently Asked Questions

How long does it take to file?

        The average examination time in China in 2006 was 22 months. Examination is only started upon explicit request by the applicant (deferred examination). In China, the applicant has to file this request for examination within three years from the application date.

What problems could occur during the patent examination process?

        During the patent examination process, rejections and objections to the claims may arise. In order to avoid and minimize rejections or objections to the claims, we recommend you to use our Patent Search before you file the Patent Application. The report generated by the Patent Search will better inform us of the potential problems and risks that may arise during your application. If any rejection or objection arises, we have a team formed by experienced attorneys that will advise you on the appropriate course of action.

How long is the duration of a patent?

        The duration of patent right for inventions is twenty years, and the duration of patent right for utility models or designs is ten years, counted from the filing date.

How much will it cost to apply and maintain a patent or trademark in China?

        For complete information about the cost of applying and maintaining a patent, please view our Fee Schedule.

What are the require documents for applying for a patent in China?
        Each application for invention or utility model must include the following documents: Power of Attorney, signed by the applicant (Notarization or legalization is not required); Specification with claims and abstract; Drawings, if any (two sets of formal drawings); Certified copy of the prior application, if a priority is claimed; Assignment of priority right, if the applicant in China differs from that of the prior application.
Each application for design must include the following documents£º Power of Attorney, signed by the applicant (Notarization or legalization is not required); Drawings or photographs of the design, in triplicate;
- Certified copy of the prior application, if a priority is claimed; Assignment of priority right, if the applicant in China differs from that of the prior application.
Can outside law firms/companies file for a patent directly?

        If the applicant, legal entity or organization does not have a residential or business address in China, they must appoint a patent agency legally established to represent them in the patent prosecution procedure in China.

In what language should the application be submitted?

        Any document submitted under the Chinese Patent Law and its Implementing Regulations shall be in Chinese. When a certificate or a certified document submitted is in foreign languages, and when the Patent Office deems necessary, the applicant will be required to submit a Chinese translation of the certificate or the certified document within a prescribed time limit.

What is the ‘right to priority’?

        The right of priority originates from the Paris Convention for The Protection of Industrial Property (PCT) for the convenience of people from the member country to apply for patent or trademark in the other member countries after submitting same application in his or it own country. The so-called priority means an applicant has the right to apply for protection of his or its patent or trademark, in a fixed duration, in all member countries after submitting the application in one of the member countries, and thus his or its application in other member countries shall be regarded, in some respects, the filing day as the date of the first application. In other words, in a fixed duration, this applicant, comparing others applying for the same subject matter after, enjoys the priority privilege. This is the origin of priority right. With the progress of patent system, priority right has expanded from solely in foreign countries to the applicant's country. According to the article 29 of the Patent Law of PRC, within twelve months from the date on which any applicant first files in a foreign country an application for a patent for invention or utility model, or within six months from the date on which any applicant first files in a foreign country an application for a patent for design, he or it files in China an application for a patent for the same subject matter, he or it may, in accordance with any agreement concluded between the said foreign country and China, or in accordance with any international treaty to which both countries are party, or on the basis of the principle of mutual recognition of the right of priority, enjoy a right of priority. The duration of priority right starts from the second day of submitting the first application.

What are the three kinds of patents and what are the differences?

        The three types of patents are invention, utility and design. Invention refers to any new technical solution relating to a product, a process or improvement. Utility model in the China Patent Law represents any new technical solution relating to the shape, the structure, or their combination, of a product, which is fit for practical use. Design refers to any new design of the shape, the pattern or their combination, or the combination of the color with shape or pattern, of a product, which creates an aesthetic feeling and is fit for industrial application.

Can we use CPTO to file for a Copyright in China?

        No, at this time we do not file copyright applications.

What are the difference between patent law in PRC, US and Europe?

        In general, we share some universal patent principles, though small differences between various patent systems exist. Similar ideologies are accepted in major patent-related fields but some aspects are a bit different. The following section reviews the basic dimensions of patent systems and then specifies some major differences.

1. The principles of "First-to-File" vs. "First-to-Invent"

        The majority of countries, including China and European countries, employ the “first-to-file” principle.  The United States, Canada, and the Philippines are the only exceptions. According to the “first-to-file” principle, a patent will be granted to the first applicants filing an accepted application.
        In contrast, in the United States employs the "first-to-invent" principle, where a patent should be granted to the person who first develops an invention. Due to this principle, some patents granted by U.S. Patent & Trademark Office have been revoked and reassigned to the "real" inventor accordingly. The “first-to-invent” system protects the small inventor who may not have the sophistication or resources needed to file for a patent quickly.
        This distinction is the most significant difference between the patent systems of the world.

2. What Can be Patented?

        In the US, any person who “invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent.” Furthermore, the process or thing needs to be deemed useful, concrete and tangible, rather than just an abstract idea. In most other countries, most notably China and the members of the European Patent Convention, are more hesitant to grant patents in some of these fields. In China, specifically, you are not able to patent (1) any invention-creation that is contrary to the laws of the state or social morality or that is detrimental to public interest, (2) scientific discoveries, (3) rules and methods for mental activities, (4) methods for the diagnosis or for the treatment of diseases, (5) animal and plant varieties, or (6) substances obtained by means of nuclear transformation.
        In addition, the PRC classifies the Utility Model patent as an independent item, whereas the Utility Model falls into the field of invention in the United States, rather than acting as an independent item of patent.

3. Who Can Get a Patent?

        In China and most European countries both an individual or a company can apply for a patent. However, only natural persons are able to apply for a patent in the United States. Therefore, the rules for inventions created during time of employment by a company differ.
When someone creates an invention during his employment in China and Europe, it’s a common practice that the company owns the right to apply for a patent. This is not possible in the United States. Therefore, in order to protect the intellectual property of a company in the USA, the employee will typically have a clause in his employment contract stating that he assigns all his patent rights to the company. The filing is then done on behalf of the employee, but the rights immediately go to the company.
        Before patenting an employee’s invention, most countries, including China and European countries, require the employer to prove that the employee's activities are in some way related to the invention. If the janitor invents a new medicine, his company will not automatically own the patent rights to that medicine. The company may be required to pay the inventor fair compensation, unless his salary is deemed adequate for an inventor.



CPTO – Add: Room 2518 Building A,No.1555 Kong Jiang Road,Yangpu District,Shanghai,China. Ph: 0086-21-55090237