Invention Patent

An invention patent is for a new technical solution for a product, a new method of producing or doing something, or an improvement on a product or method. Invention patents are most appropriate for inventions and product with a long life cycle, as an invention patent can last for up to 20 years if renewal fees are paid. It can take from three to five years from filing the application for the patent to be granted. The process includes an in-depth official substantive examination of the invention.

1. Advantage

· Longest period of protection

· Easier to enforce compared to other forms of protection since it will have passed through substantive examination

1. Disadvantage

· Long period to be granted

· Higher official application fees compared to utility model or design patents; the basic official application fee is RMB 950 and you must also pay the substantive examination fee of RMB 2,500

Given the length of time it takes to be granted an invention patent, one strategy to protect your invention during the substantive examination period is to apply for a utility model patent at the same time, as a utility model patent is typically granted within one year. Once your invention patent is going to be granted, however, you must drop your utility model patent.

KEY CRITERIA

1. Novelty requirement: To obtain an invention patent, the invention must not have been previously disclosed in a publication or known to the public anywhere in the world. As a general rule, if you sell products incorporating the invention before applying for a patent, the novelty of the patent will be destroyed.

2. Level of inventiveness: This requirement refers to the level of innovation for the invention. Invention patents require a relatively higher level of inventiveness.

Utility Model Patent

A utility model patent is granted for new practical, technical solutions relating to the shape, structure, or their combination, of a product that is practical. Utility models are generally suitable for inventions that do not reach the same level of inventiveness as invention patents. It takes about one year to be granted and the maximum term of protection is ten years if renewal fees are paid.

Advantages

1. Only takes approximately one year to be granted

2. Lower application fee of RMB 500 compared to the invention patent

Disadvantages

1. Lack of a substantive examination, which makes it easier for an alleged infringer to file an invalidation request against your patent

KEY CRITERIA

1. Practical solution: Inventions eligible for a utility model patent are more closely related to how practical it is and to improving the functionality of an existing product rather than a brand new solution.

2. Lower level of inventiveness: If your invention has a lower level of inventiveness or have a relatively shorter life span, one strategy may be to apply for a utility model patent rather than an invention patent.

Design Patent

A design patent protects the design of a product, for example, the shape or pattern of the product, or the combination of shape, colour or pattern. The design must have an aesthetic value and industrial use. It takes about one year to be granted and the term of protection is ten years if renewal fees are paid. The protection is not for the functionality of the product.

The colour of a product alone is not patentable unless the change of colour can be regarded as a pattern. The colour criterion does not include the natural colour of the raw material of the product. It is recommended that your design includes a combination of colours, shape and/or pattern to hinder the design patent from being easily invalidated after it is granted.

Advantage

1. Only takes approximately a year to be granted

2. Lower application fee of RMB 500 compared to the invention patent

Disadvantage

1. Lack of substantive examination, which can make it easy for imitators to apply for their own design patent based on your design

KEY CRITERIA

1. Overall look: The protection of a design patent strictly covers the distinguishing overall look of the product. It is unrelated to technical, functional or inventive aspects of the product.

2. Inventiveness: The design of a design patent should be obviously distinguished from any prior design or combination of the features of the prior designs.

3. Conflict of prior rights: A design patent must not conflict with prior rights such as copyright or trademark right obtained by a third party.

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