The Chinese Patent System

The Chinese IP Office

The governmental agency in charge of handling intellectual property rights in China is the State Intellectual Property Office (SIPO) of the P.R.C. located in Beijing. This office is a part of the “IP5 Offices” group, which includes the SIPO, the EPO, the JPO, the KIPO and the USPTO, where combined total of approximately 80% of all patent applications worldwide are filed.

Filing Patents in China

An Chinese application must contain the name and address of the applicant and the inventor, as well as the citizenship of the inventor and the place of incorporation of the applicant, if applicable. The following are required in a Chinese application: title, abstract, specification, claims, and any drawings pertinent to the description. In addition, any portion of the specifications not in Chinese must be accompanied by a Chinese translation. A simple power of attorney is required by SIPO.

The patent term in China is 20 years, and the utility model and design terms are both 10 years from the filing date.

China is a member of the PCT and a member of the Paris Convention.

The PCT National Stage in China

When an application is filed as a PCT National Stage application in China, the national stage entry deadline is 30 months from the PCT application’s priority date, but 32 months with extension. Filing a power of attorney at this stage is mandatory, and the national stage application can sometimes be assigned. Filing more than 10 claims triggers excess claim surcharges, and translation extensions are not available.

Recent Intellectual Property Trends in China

In 2009, China assembled the Scheme on Promoting the Implementation of National Intellectual Property. The Scheme is founded on two milestones: the first one is strengthening IP legal protection, administrative capabilities and public awareness, and the second goal is responding to and counteracting effects of the world economic crisis. These objectives are divided into 240 specific measures from nine aspects: enhancing IP creation, encouraging its industrial application, facilitation of the establishment of IP legal system, better IP enforcement, assisting IP administration, provision of intermediary IP services, cultivating inventiveness, promotion of the IP culture, and strengthening international cooperation.

As a part of its enforcement effort, in January 2011, the Chinese government (the Supreme People’s Court (SPC), the Supreme People’s Procuratorate (SPP) and the Ministry of Public Security (MPS)) promulgated a document entitled Opinion on Several Issues Concerning the Application of the Law in Handling Criminal Cases of Intellectual Property Infringement, setting new ground rules regarding criminal IP cases.

Because IP litigation has substantially increased in recent years, the Supreme Court of China has designated 64 intermediate courts. According to Chinese patent lawyers, the IP expertise of these courts has steadily been growing. As some of the newly appointed judges have been trained abroad, some have received specialized IP legal training, and, in some cases, legal scholars and experienced IP legal professional have been consulted. Out of the small number of litigations in which one of the parties was foreign, such parties have prevailed more times than not.

One of the changes in the Chinese legal system implemented in 2010 was the removal of the requirement for law firms to have foreign filing licenses in order to file foreign patent applications. Chinese patent attorneys agree that this novelty increased competition for foreign filing on the Chinese legal market.