CHINA Law and Practice Contributed by: Hans She, Muran Sun, Yichen Zhou and Herman Zhang, Fangda Partners
application documents, the examiner’s under- standing of the invention, the examiner’s work schedule, and the back-and-forth correspond- ence time between the examiner and the patent agent. For Chinese enterprises, they are not required to engage a specific agency for patent appli- cations. However, foreign individuals, foreign enterprises, or other foreign organisations with- out habitual residence or business offices in Chi- na need to entrust a legally established patent agency to handle patent applications and other patent-related matters in China. The application fee for an invention patent is CNY900, while it is CNY500 for utility models and industrial design patents. Additional appli- cation surcharges apply if the claims exceed 11 or the specification surpasses 31 pages. Addi- tionally, the China National Intellectual Property Administration (CNIPA) charges a publication printing fee of CNY50 and CNY80 for each claim for priority. The substantive examination applica- tion fee for invention patents is CNY2,500. 1.4 Term of Each Intellectual Property Right The term of invention patents is 20 years from the application date in China. China provides exclusive rights protection for utility models for ten years. For design patents, China amended the Patent Law in 2020, extending the protection duration to 15 years. That is, for design applica- tions submitted on or before 31 May 2021, China grants a maximum of ten years of patent rights protection. For applications submitted after that date, China offers exclusive rights protection for 15 years from the application date. In cases of unreasonable delays during the authorisation process for pharmaceutical pat-
ents and invention patents, patent holders can apply for compensation for the patent term, not exceeding five years. The total effective patent term after the approval of new drugs for market- ing does not exceed 14 years. 1.5 Rights and Obligations of Owners of Intellectual Property Rights After patent authorisation, the patent holder possesses the exclusive right to utilise their patent and any unauthorised implementation by others is prohibited, preventing them from mak- ing, using, offering for sale, selling, or importing the patented product without permission. This also extends to using the patented process and utilising, offering for sale, selling, or importing a product directly derived from the patented pro- cess for production or commercial purposes. Furthermore, the patent holder reserves the right to license others to implement their patent in exchange for licensing fees, as well as the authority to transfer or waive their patent rights. The patentee is also entitled to affix the patent label on the patented product or its packag- ing. Additionally, when the patentee’s rights are infringed, they have the right to seek protection from administrative authorities or the courts. There is an obligation to pay patent annuities as stipulated. Moreover, the patent applications and the exercise of patent rights should adhere to the principle of good faith. Patent rights must not be abused to the detriment of the public interest or the lawful rights and interests of any other person. 1.6 Further Protection After Lapse of the Maximum Term In China, there are currently two situations where a patent holder can obtain extended protection after the expiration of their patent term.
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