Patents: The Great Wall of China

By: Andrew McConnell

Patent protection in China can be obtained under the familiar invention patent system or what is known as a utility model system. Invention patent applications are subject to a full examination and have a term of 20 years from filing while utility model applications receive limited examination and have a term of 10 years from filing. China is a member of both the Paris Convention and the Patent Cooperation Treaty (PCT), meaning that a Chinese patent application can be filed directly from a corresponding US application within the allotted 12 month period, or from a PCT application at the time of national phase entry. Since China is what is called an “absolute novelty” country, a patent application must be filed somewhere (such as in the US) before publication, public use or disclosure of an invention anywhere in the world.

You should consider filing for patent protection in China if: 1) you see significant market potential for your product in China; 2) your product is being produced by a Chinese vendor – especially if the vendor is using your tooling; or 3) there is a likelihood that competition for your product will come from Chinese companies or others who will use Chinese companies for production.

Historically, patent enforcement in China has been problematic and biased. However, there have been signals in recent years that China will more vigorously and equitably enforce patent rights. At the very least, obtaining patent protection in China can be valuable in preserving a company’s right to stop or at least threaten an infringer at the source.

Boyle Fredrickson has extensive experience in obtaining, maintaining and enforcing patents in China, and can provide guidance and assistance that will help you make intelligent, effective use of the Chinese patent system.

Read more about patent protection in China.