CHINA Law and Practice Contributed by: Hans She, Muran Sun, Yichen Zhou and Herman Zhang, Fangda Partners
1. Intellectual Property Rights and Granting Procedure 1.1 Types of Intellectual Property Rights Inventions in China, if narrowly interpreted, are protected through two means, including inven- tion patents, and utility models. If a broad mean- ing is adopted for inventions – ie, work prod- ucts, achievements, or results of R&D activities in general – technical secrets are also a form of proprietary intellectual property rights protected under Chinese law. Invention patents and util- ity models are proprietary rights which can only be generated through prosecution. Technical secrets, treated as undisclosed inventions, are protectable if they remain confidential. In addi- tion to the above-mentioned types of intellectual property rights, China also grants patent rights for industrial designs which relate more to aes- thetic appearances rather than inventions. As a civil law jurisdiction, China mandates spe- cific legal provisions for the protection of intel- lectual property rights. These laws encompass the Civil Code of the People’s Republic of Chi- na (“Civil Code”), Patent Law of the People’s Republic of China (“Patent Law”), and Anti- Unfair Competition Law of the People’s Republic of China (“Anti-Unfair Competition Law”), among others. Meanwhile, the Supreme People’s Court of the People’s Republic of China (“Supreme People’s Court”) annually releases landmark cases focusing on the protection of patents and trade secrets, serving as crucial guidance and reference for practical application. 1.2 Grant Procedure Patent rights in inventions and utility models arise only upon successful prosecution. Inven- tion patents have to pass both preliminary examination and substantive examination for the eventual granting. For the utility model, only
a preliminary examination is required. Patent applications submitted for prosecution, wheth- er for invention patents or utility models, should include a request form, a specification along with its abstract, and a claims document. The application must explicitly detail the name of the invention or the utility model, the name(s) of the inventor(s), the applicant’s name and address, and other pertinent information. The specifica- tion must comprehensively describe the inven- tion or utility model to enable a person skilled in the relevant technological field to implement it effectively. The abstract should succinctly out- line the primary technical aspects of the inven- tion or utility model. The claims must distinctly and succinctly outline the sought-after scope of patent protection in line with the specifications. Concerning trade secrets, no specific applica- tion is required. If the information in question qualifies as technical, operational, or other com- mercial information not known to the public and holds commercial value, and if the right-holder has implemented corresponding confidentiality measures, it can be protected under the law. 1.3 Timeline for Grant Procedure Currently, there are no specified time limits for the patent authorisation process. In practice, the preliminary examination period for utility mod- els and industrial designs typically takes around four to 12 months, after which rights-holders can obtain authorisation upon preliminary approval. For invention patents, there’s usually an initial examination period of two to four months, fol- lowed by the possibility to request a substantive examination within three years from the appli- cation date. Presently, the average duration for substantive examination of invention patents is approximately 16 months. The specific examina- tion timeline depends on the complexity of the invention’s technology, the quality of the patent
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