Patents are filed in China for international protection of inventions under PCT route after domestic patent filing.
The first patent application is filed in home country to secure a patent priority date. Thereafter, within 12 months of the priority date, a PCT international phase application is filed with the WIPO. The PCT international patent application provides a time period of almost 30 to 31 months from the priority date to file the same patent application in multiple countries, including, India, China, Singapore, and the like.
Patent Law in China
China and India amended their patent laws to fulfill the obligation of TRIPS agreement. India in 2005 and China in 2008 made their Patent Acts TRIPS compliant. The current governing law for Patents in China is Patent Law of the PRC, 1984; as amended in 1992, 2000 and 2008 read with Implementing Regulations of the Patent Law of the PRC, 2001; as amended in 2002 and 2010.
Patent Eligibility in China
From the perspective of patentable subject matter and criteria of patentability, the patent law in China defines inventions as a new technical solution or improvement to a product/ process. Inventions for which patent is to be granted shall be novel, involve inventive step and having practical applicability (Article 22 of Patent Law of the People’s Republic of China: Conditions for Granting Patent Rights).
- Novelty: The claimed invention shall be a new technology. It must neither be known to the public (published or used/ made) both within the country and abroad before the date of filing of the patent application, nor shall be disclosed in any earlier filed patent application at the SIPO.
- Inventive step: Inventive step means, as compared to the existing technologies, the claimed invention shall possess prominent substantive features and represents notable progress. For assessing the prominent substantive features, it shall be determined that with reference to the closest prior art and the technical problem solved, whether the claimed invention is obvious to a person skilled in the art. Presence of a notable progress is assessed by determining that as compared with the prior art whether the invention has produced advantageous technical effects.
- Practical applicability: Practical applicability means, the invention must be capable of being made or used in an industry and can produce effective results. There are three types of patents recognized under the Chinese law viz. Invention Patents, Utility Model Patents and Design Patents (Article 2 of Patent Law of the People’s Republic of China, 1984).
Patent Filing in China
To felicitate patent filing, China has established representative offices of SIPO at all state capitals and district headquarters, where a Chinese citizen can file his/ her patent application. Application can also be filed through China Patent Electronic Application System (Article 26 of Patent Law of the People’s Republic of China, 1984: Patent Application).
However, a foreign applicant who does not have a regular residence or business site in China shall appoint a legally established patent agency for filing the patent application. Application can be filed in Chinese or English. If filed in English, the Chinese translation of the application shall be submitted within 30 months of the priority date.
To encourage patent filing by the domestic applicants, Chinese government provide subsidy in the patent filing/ examination fee to them. This has been proved to be highly successful in china. All the countries provide option of e-filing and filing of patent application in print copy at the appropriate patent office or its branches. In China, there is no option to file for a provisional application. The applicant is bound to file the complete application at once.
Patent Cost in China
For filing a patent application in China, the costs to be incurred include cost for patent search, drafting and filing the first application to secure patent priority date, followed by patent filing in China under PCT National Phase Entry or Paris Convention filing. The overall cost including official fee and charges of a patent lawyer / law firm in China can be in the range of $15000 – $20000.
Patent Filing Trends
Various new technologies are being protected in China by way of numerous patent filings. Artificial Intelligence (AI) is one of the technology sectors to experience immense growth in terms of patent filings. As per a latest report, Chinese companies have more patents as compared to patent filing companies in U.S. for artificial intelligence patents over the past three years, expanding their presence in the world’s most prominent high-tech battleground.
As per WIPO Technology Trends 2019, Artificial intelligence patents represent a new digital frontier that have resulted in a dynamic shift in the patent filings. Artificial Intelligence Patents, or, AI Patents are getting filed at an exponential rate covering crucial inventions across multiple applications, such as for example, autonomous vehicles, medical diagnosis, advanced manufacturing, and the like.
Rahul Dev, patent attorney, works closely with clients worldwide to assist them in determining if an idea or an invention is patentable is of critical importance. The process to determine patent eligibility of an invention includes conducting a thorough patent search to establish novelty, inventive step and utility of an invention.
Law Office of Patent Attorney Rahul Dev offers high value software patent drafting and patent due diligence services to clients by using proprietary and efficiently proven process along with a fixed fee costs, for performing comprehensive patent investigations and providing clients with strong patent reports for decision making.
We provide comprehensive Patent and Trademark legal services via our global network to create valuable patent portfolios and resolve complex patent disputes by providing patent litigation support services.
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Advocate Rahul Dev is a Patent Attorney & International Business Lawyer practicing Technology, Intellectual Property & Corporate Laws. He is reachable at rd (at) patentbusinesslawyer (dot) com & @rdpatentlawyer on Twitter.
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