Those foreign people who have fixed residences or business sites, or foreign enterprises or organizations located in China, enjoy same the privilege of Chinese people in the respect of patent right protection, i.e. they have the rights either to apply for patents as same as Chinese people do, or to enjoy protection from the Chinese Patent Law.
Any foreigner, foreign enterprise or other foreign organization having no fixed residence or business site in China files an application for a patent in China, the application shall be treated under this Patent Law in accordance with any agreement concluded between the country to which the applicant belongs and China, or in accordance with any international treaty to which both countries are member countries, or on the basis of the principle of reciprocity.
When the applicant for patent is not satisfied with the decision of the Patent Reexamination Board, he or it may, within three months from the date of receipt of the notification, institute legal proceedings in the people’s court.
Based on article 41 of the Patent Law, an applicant for patent has different ideas with the decision of the said department, the applicant may, within three months from the date of receipt of the notification, request the Patent Reexamination Board to make a reexamination. The Patent Reexamination Board shall, after reexamination, make a decision and notify the applicant for patent.
For applying for a patent of invention or utility model, an application shall be filed first, a request, a description and its abstract, and claims shall be submitted.
For applying for a patent for design, an application shall be filed first, a request, drawings or photographs of the design shall be submitted, and the product incorporating the design and the class to which that product belongs shall be indicated.
Earlier publication is one of China’s examination systems to the patent application. According to a research to some countries with sophisticated patent system, a big amount of inventions have little commercial prospects, some inventions are not yet mature while some applications are submitted for the priority right. A research indicates that, generally speaking, one invention will be of little practical or commercial prospect if it has not been commercialized within two years since its filing date. Because of this, some countries always think it is not necessary to spend so much man-power, time and money to do substantial examination to those inventions, and leave a reasonably long time to the inventors to see the value of their inventions and thus to decide whether to apply substantial examination or not. Netherlands is the first country to adopt this method, and now most of countries having patent system adopt the method either. This system is not only good to patent administration, because it can save a lot of time and man-power, but also good to applicants because they can either apply earlier or have the time to evaluate the practical value and prospect to the invention before they spend time and money to apply for further substantial examination.
According to article 34 of China’s Patent Law, after receiving an application for a patent for invention, the Patent Administration Department under the State Council, upon preliminary examination, finds the application to be in conformity with the requirements of Law of Patent, it shall publish the application promptly after the expiration of eighteen months from the date of filing.
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