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Practice Areas | China IP Practice | Q & A |
 | 8. What system is used for patent examination in China? | | |  | The Patent Law of the People's Republic of China specifies the basic examination system for invention, utility model and design. That is, preliminary examination, early disclosure and on-request substantial examination are executed on inventions, and preliminary examination is executed on utility models and designs.
An assistant examination procedure for a utility model patent is that in an infringement case involving a utility model patent, the People's Court and the patent administration department may require the patentee to submit a patent evaluation report provided by the State Intellectual Property Office, thereby making up for the shortage of the examination of utility model patents.
According to the provision of Article 35 of the Patent Law, the applicant shall make a request for substantial examination within 3 years from the date of filing, and if the applicant fails to meet the time limit for requesting without any justified reason, the application shall be deemed to have been withdrawn.
In addition, the applicant may also file a request for earlier publication before early disclosure (i.e. 18 months publication), if claiming for pecuniary damage is considered.
| | | | 9. How to determine whether a patent application requires confidential examination or not? | | | |
According to Article 4 of the Patent Law of the People's Republic of China, where an invention-creation for which a patent is applied relates to the security or other vital interests of the State and is required to be kept secret, the application shall be treated in accordance with the relevant prescriptions of the State.
In general, the invention-creation which relates to the security of the State mainly refers to a national defense special invention-creation or an invention-creation which has significant value for national defense, and the invention-creation which relates to vital interests of the State refers to an invention-creation which relates to other vital interests of the State other than the security of the State. Disclosure of these inventions-creations may affect defense capabilities of the State, damage political and economic benefits of the State, or weaken economic, scientific and technological strengths of the State.
According to the provision of Article 20 of the Patent Law of the People's Republic of China, where any entity or individual intends to apply for a patent in a foreign country for an invention or a utility model made in China, it or he shall first file an application with the patent administration department under the State Council for confidential examination.
The procedure and duration of the confidential examination shall be determined according to the provisions of the State Council. In particular, as for an invention or a utility model made in China,
(1) if an application for a patent intends to be filed in a foreign country directly, an request for confidential examination shall first be filed with the patent administration department under the State Council;
(2) if an application for a patent intends to be filed in a foreign country after being filed with the patent administration department under the State Council, a request for confidential examination in a foreign country shall be filed while or after the patent application is filed in China; and
(3) if an international application is filed with the patent administration department under the State Council, it shall be considered that a request for confidential examination in a foreign country is filed at the same time. The longest duration time of confidential examination is generally four to six months.
| | | | 10. How to assign the right to apply for a patent and the patent right in China? | | | | According to the provision of Article 10 of the Patent Law of the People's Republic of China, where the right to apply for a patent or the patent right is assigned, the parties shall conclude a written contract and register it with the patent administrative organ under the State Council. The patent administration department under the State Council shall announce the registration. The assignment of the right to apply for a patent or the patent right shall take effect from the date of registration.
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