Patent Protection in the People’s Republic of China
A patent is an exclusive right granted for a product or a process that provides a new way of doing something, or offers a new technical solution to a problem. The patented invention cannot be commercially made, used, distributed or sold without the owner’s consent. In order to obtain patent protection in China, the owner of the invention has to file a Chinese patent application. The Chinese State Intellectual Property Office (SIPO) is the government authority that examines and grants patent applications. There are three types of patents: (1) invention patents, (2) utility model patents, and (3) design patents. Invention patents are examined, while utility model patents are subject to a formal examination. A European registered patent has no legal effect in China
Steps to apply for patent protection in China
1. Provisional Patent Application
The first step is to file a South African provisional patent application for your invention. This is done to obtain the earliest possible date from which to claim rights to your invention for 12 months. Filing a South African provisional patent application that adequately describes the invention will establish priority and satisfies the need to act swiftly under first to file rules. Ultimately you will need to file a Complete patent application in order to obtain a patent in China.
South African residents can file a PCT application within the 12-month period from the filing date of their provisional patent application. The PCT procedure is valid for 18 months and maintains your priority date in all 145 contracting states (including China). National Phase: At the end of the PCT procedure (usually at 30 months from the earliest filing date) you can file a complete patent application with the State Intellectual Property Office of China (or any other PCT member countries in which you want to obtain protection).
3. Complete Patent Application
File a complete patent application in China, and/or in each country where you wish to obtain patent protection. The complete patent application will claim a first (or “priority”) date from your provisional patent application. In order to obtain a utility patent, a non-provisional application must be filed (because a provisional application will never mature into a patent)
Types of Patents
Patent rights commence from the date of publication of the grant in the Patent Gazette. The duration of the application procedure and term vary depending on the type of patent:
Granted within 3 to 5 years and valid for 20 years from the date of filing (or the priority date if priority is claimed) subject to the payment of annuity fees.
Granted within one year and valid for 10 years from the date of filing (or the priority date if priority is claimed) subject to the payment of annuity fees.
Granted within one year and valid for 10 years from the date of filing (or the priority date if priority is claimed) subject to the payment of annuity fees (see table below for details).
An invention patent must not have been previously published overseas or in China, and must not have been used in China prior to the patent application. When compared to existing products, the invention must have an advantage. If an identical invention has been published before the application date, this will destroy the novelty of the patent.
- There are specific disclosure requirements (on sufficiency, support, and clarity).
- Industrial applicability.
Patent applications are processed in Chinese. If the patent documents are drafted in a foreign language, a precise Chinese translation of the documents is of the utmost importance.
The Patent Law provides that the following works will not be afforded patent protection: Animal and plant varieties. Anything immoral or detrimental to the public interest. Methods for the diagnosis or for the treatment of diseases. Rules or methods for mental activities. Scientific discoveries. Substances obtained by means of atomic transformation. Software itself cannot be patented, although software combined with a computer or technique intended to solve a technical problem may be. Process inventions can be patented in China.
Information Required for Application
We need a full, detailed technical description of the invention in order to draft a patent specification. If you have a prototype or drawings of your invention, this would also suffice, together with a description of the functions it performs and the distinguishing features of your invention. It is of critical importance that we include as much detail in the patent specification as possible, to ensure that all embodiments and features of the invention are protected in the patent application. As you are the expert when it comes to your invention, we will draft the patent specification, forward it to you for approval and comment, and only file the patent application once we have received such approval.
Details of the inventors
In terms of the South African Patents Act, we need the full names and residential address of the inventor or inventors that contributed inventively to the invention.
Details of the Patent applicant / Patentee
Patents can be filed in the name of a person, such as the inventor, or a legal entity, such as a company. As such, we need the full names of the patent applicant, or patent applicants and their residential address(es), or if the patent applicant is a legal entity, we need the name of the entity and its registered address.
Details of our client
In terms of the Financial Intelligence Centre Act, we need to identify who our client is. Therefore, you need to supply us with your full contact details. In this regard, the information needed should comply to the requirements of the Financial Intelligence Centre Act.