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Chinese Patent Protection: FAQs for SMEs Seeking to Safeguard their Innovations in China
Time: 2023-03-07

 Chinese Patent Protection: FAQs for SMEs Seeking to Safeguard their Innovations in China

Last week, we had the privilege of delivering a presentation on common questions regarding Chinese patents for a local small and medium-sized enterprise association. The presentation was a success, with attendees actively participating in the discussion and raising interesting questions.

Recognizing the relevance of the content for our overseas SMEs, we decided to compile and translate the information for wider dissemination. Our hope is that this effort will provide valuable insights to those seeking to navigate the intricacies of the patent landscape in China.

1. What types of patents are available in China?

There are 3 types of patents in China: Invention Patent, Utility Model Patent and Design Patent. In China, invention patent is granted for a new technical solution relating to a product, a process or an improvement thereof, while utility model patent is for a new technical solution relating to a product's shape, structure or a combination thereof. And design patent is for new design related to the external appearance of a product.

2. How to apply for a patent in China?

To apply for a patent in China, the applicant needs to submit an application before the CNIPA. The application must include a description of the invention, drawings, claims, and an abstract. It is recommended that SMEs hire a local patent agent to help with the application process.

3. How long does it take to get a patent in China?

The time frame for getting a patent in China varies depending on the type of patent and the complexity of the application. Typically, it takes about 2 to 3 years to get an invention patent, 9-12 months for utility model patent and 4-8 months for design patents.

4. How much does it cost to apply for a patent in China?

Generally speaking, the cost for filing a patent application in China is composed of two sections, one is official fees and the other one is legal fees. The official fee is subject to the fee schedule published on the official site of the China National Intellectual Property Administration (CNIPA), here is the link to that fee schedule.

For the legal fees, it depends on the cousel that you work with and the complexity of the application. It's recommended that SMEs speak directly with the local counsel to grab a quote for evaluation.

5. What is the duration of a patent in China?

An invention patent lasts for 20 years from the date of application, while a utility model patent lasts for 10 years from the date of application. The situation gets slightly complicated for design patent, for the application filed before Jun 1, 2021, lasts for 10 years from the date of application. For those filed after, lasts for 15 years.

6. How to maintain a patent in China?

After a patent is granted, an annual maintenance fee is required to be paid to ensure the validity of the patent. Different types of patents require different maintenance fees for different validity intervals during the patent lifecycle. The longer the year, the higher the maintenance fee. Take invention patent as an example, the official fee for the maintenance in 20th year is nearly 10 times bigger than the initial payment.

7. What are the benefits of having a patent in China?

Having a patent in China can provide SMEs with many benefits, including but not limited to protecting your innovation in the second largest market in the world, adding value to your brand, sharpening your competitive edge, and the ability to prevent the potential infringing products being exported from China...

8. What are the risks of not having a patent in China?

Similar to the last question, the risks of not having a patent are manifold. Without a patent in China, you will lose the ability to prevent others from copying your innovation, which will lead to a potential lose of your market share and revenue.

What's worse, you may lose the ability to defend yourself when you're getting involved with the patent infringement issue. Not to mention the ability lost for stopping the potentially infringing products being exported from the Chinese market.

9. Can I license my patent in China?

Yes, it is possible to license your patent in China. Licensing agreements can be tailored to meet the specific needs of the parties involved, and it is recommended to work with a local attorney to ensure the agreement is legally enforceable.

10. Is the patent enforceable in China?

The answer is YES.

It's true that there are some misconceptions or even biases regarding the patent enforcement in China held by a small group of people, which resulted from news reports decads ago. At that time, we could see counterfeited products quite often down the street.

Things have changed now! In recent years, China has taken significant steps to improve the legal framework and strengthen the enforcement of intellectual property rights, including but not limited to amendment the patent law to increase the statuory damage and introducing the punitive damage, establishing the IP courts and tribunals in many different cities in China....

Again, the patent is enforceable in China and it is very important for you to first have a patent registered here. More importantly, it is recommended working with the local cousel to ensure the best possible outcome for your potential patent lawsuits.

In conclusion, understanding the patent landscape in China is crucial for SMEs looking to expand into the Chinese market or do business with the Chinese companies. By taking necessary steps to protect your patent or other intellectual property rights, you can ensure that your inventions are safe and secure in the 2nd largest market in the world.

Overall, we're hoping that the information above will provide valuable insights for everyone who is interested in the Chinese market.

please leave your comments down below if you have any further questions.

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