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Patent Protection in China 中国的专利保护
Introduction of Patent Protection in China
1. Definition of a Patent
Patent was/is…
an open Letter-"litterae patentes"
a contract between government and inventor
2. Why patent necessary?
• Patents provide incentives to individuals by offering them recognition for their creativity and material reward for their marketable inventions. These incentives encourage innovation, which assures that the quality of human life is continuously enhanced.
—— Comments from WIPO
• Patents Promote the Progress of Science Patentee are obligated to publicly disclose his idea in detail, thus enrich the total
body of technical knowledge in the world
• the purpose of Invention-creation
This Law is enacted to protect patent rights for invention-creations, to encourage invention-creation, to foster the spreading and application of inventions-creations, and to promote the development and innovation of science and technology, for meeting the needs of the construction of socialist modernization.
—— Article 1, Patent Law of P. R. China
3. What a Chinese patent protects and its duration?
• Types of patent
• In this Law, "inventions-creations" mean inventions, utility models and designs.
Article 2, PL, 2009
• Duration: depends on the types of patent
• The duration of patent right for inventions shall be twenty years, the duration of patent right for utility models and patent right for designs shall be ten years, counted from the date of filing.
Article 42. PL, 2009
counting from the date of filing the application: including those applications claiming priority.
4. How foreigners get a Patent in China?
• For directly filing application in China, appointing a patent agency is prerequisite.
Any foreigner, foreign enterprise or other foreign organization having no habitual residence or business office in China applies for a patent, or has other patent matters to attend to, in China, it or he shall appoint a patent agency designated by the Patent Administration Department Under the State Council to act as his or its agent.
Article 19 of the Chinese Patent Law See Regulations on Patent Commissioning for details
• Or filing a PCT application and designate China
The Patent Cooperation Treaty or PCT is an international agreement for filing patent applications having effect in up to 117 countries.
5. Who receive the filing and grant a patent in China?
• Normally, A patent is granted by a national patent office or by a regional office.
• In China, this duty is performed by a national patent office: SIPO
(Sino Intellectual Property Office, www.sipo.gov.cn )
• A regional office, such as the European Patent Office and the African Regional Intellectual Property Organization, might play the same role.
6. Laws and Rules governing patents in China
• Constitution of P.R. China ?
• Citizens of the People's Republic of China have the freedom to engage in scientific research, literary and artistic creation and other cultural pursuits. The state encourages and assists creative endeavours conducive to the interests of the people made by citizens engaged in education, science, technology, literature, art and other cultural work.
Article 47. CHAPTER II. THE FUNDAMENTAL RIGHTS AND DUTIES OF CITIZENS ，
Constitution Law of P.R. China
6. Laws and Rules governing patents in China
• Constitution of U.S. of America
The Congress shall have power... [t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.
Art.1, section 8, clause 8 of the U.S.Constitution
The words "progress of science," "inventors," and "discoveries" refer to patent law.
6. Laws and Rules governing patents in China
• Patent Law of the People's Republic of China Adopted on March 12,1984 1st amendment in 1992 2nd amendment in 2000 3rd amendment in 2008
TABLE OF CONTENTS
• Chapter I General Provisions Chapter II Requirements for Grant of Patent Right Chapter III Application for Patent Chapter IV Examination and Approval of Application for Patent Chapter V Duration, Cessation and Invalidation of Patent Right Chapter VI Compulsory License for Exploitation of Patent Chapter VII Protection of Patent Right Chapter VIII Supplementary Provisions
6. Laws and Rules governing patents in China
• Implementing Regulations of the Patent Law of the People's Republic of China
3rd amendment is processing
TABLE OF CONTENTS
Chapter I General ProvisionsChapter II Application for Patent Chapter III Examination and Approval of Application for Patent Chapter IV Reexamination of Patent Application and Invalidation of Patent Right Chapter V Compulsory License for Exploitation of Patent Chapter VI Reward and Remuneration of Inventors or Creators of Service Inventions-Creations Chapter VII Protection of Patent Right Chapter VIII Patent Registration and Patent Gazette
Chapter IX Fees Chapter X Special Provisions Concerning International Application Chapter X Supplementary Provisions
6. Laws and Rules governing patents in China
Regulations of SIPO (Sino Intellectual Property Office)
• Guidelines For Examination(2006) • Provisions Concerning the Implementation of the Patent
Cooperation Treaty in China• Notice Concerning Handling of Deposited Micro-
Organisms by the Chinese Patent Office • ……
6. Laws and Rules governing patents in China
• Other laws and rules, such as:
• PRC Criminal Law, enforced on 1997, applicable to IP related criminal activities
• PRC Contract Law, enforced on October 1, 1999, applicable to all contracts, including licensing contracts.
• the Regulations for Customs Protection of Intellectual Property Rights, applicable to Customs Protection
• Relevant Interpretations by the Supreme People's Court • ……
7. Creation of Patent in China
• Double digit growth rates for all types of patents and trademarks
• Designs and utility models increase exponential, re trademarks growth rate world leader since app. five years– Pronounced fear of “junk patents” – Schneider case
• Invention patents show the country’s capacity to exploit knowledge and translate it into potential economic gains. In this context, indicators based on patent statistics are widely used to assess the inventive performance of countries
Patent applications (accumulated)
T1. Statistics of Patent Applications in China by 2008
1,622,631
1,931,118
2,284,925
2,761,189
3,334,374
4,028,520
4,853,506
1,344,177
1,595,415
1,874,358
2,257,515
2,727,626
3,314,591
4,028,393
278,454 335,703 410,567503,674
606,748713,929
825,113
74,586 86,833 103,803 125,540 149,687 175,9580
250,000
500,000
750,000
1,000,000
1,250,000
1,500,000
1,750,000
2,000,000
2,250,000
2,500,000
2,750,000
3,000,000
3,250,000
3,500,000
3,750,000
4,000,000
4,250,000
4,500,000
4,750,000
5,000,000
5,250,000
until 2002 until 2003 until 2004 until 2005 until 2006 until 2007 until 2008 Year
Accumulated Number
Total
Domestic
Foreign (inc. EU)
EU
Patent grants (accumulated)T2. Statistics of Patent Granted in China by 2008
883,035
1,065,261
1,255,499
1,469,502
1,737,507
2,089,286
2,501,268
792,352
941,940
1,093,268
1,264,887
1,488,725
1,790,379
2,142,785
90,683 123,321 162,231 204,615 248,782298,907
358,483
24,269 32,643 42,118 52,587 62,708 74,2810
250,000
500,000
750,000
1,000,000
1,250,000
1,500,000
1,750,000
2,000,000
2,250,000
2,500,000
2,750,000
until 2002 until 2003 until 2004 until 2005 until 2006 until 2007 until 2008 Year
Accumulated Number
Total
Domestic
Foreign (inc. EU)
EU
Invention patent applications (per year)
T5. Statistics of Invention Patent Applications in China 2002-2008
80,232
105,318
130,133
173,327
210,490
245,161
289,838
39,806
56,76965,786
93,485
122,318
153,060
194,579
40,42648,549
64,347
79,84288,172 92,101 95,259
0
25,000
50,000
75,000
100,000
125,000
150,000
175,000
200,000
225,000
250,000
275,000
300,000
325,000
2002 2003 2004 2005 2006 2007 2008 Year
Number
Total
Domestic
Foreign
T6. Statistics of Invention Patent Granted in China 2002-2008
21,473
37,154
49,36053,305
57,786
67,948
93,706
5,868
11,404
18,24120,705
25,077
31,945
15,605
25,750
31,119 32,600 32,70936,003
46,590
47,116
0
10,000
20,000
30,000
40,000
50,000
60,000
70,000
80,000
90,000
100,000
2002 2003 2004 2005 2006 2007 2008 Year
Number
Total
Domestic
Foreign
Invention patent granted (per year)
Foreign patents applied (accumulated)
T3. Statistics of Foreign Patent Applications in China by 2008
278,454
335,703
410,567
503,674
713,929
825,113
74,586 86,833103,803
125,540149,687
175,958
71,451 83,67299,859
120,254
169,65694,791119,032
149,476
185,697
223,545
162,733
17,400 22,415 29,075 38,375 48,971 58,572
606,748
143,748
0
100,000
200,000
300,000
400,000
500,000
600,000
700,000
800,000
900,000
until 2002 until 2003 until 2004 until 2005 until 2006 until 2007 until 2008 Year
Accumulated Number
Total Foreign
EU
US
JP
Kor
Foreign patents granted (accumulated)
T4. Statistics of Foreign Patent Granted in China by 2008
90,683
123,321
162,231
204,615
248,782
299,000
358,483
24,26932,643
42,11852,587
62,70874,281
20,95127,786
35,61043,205
50,94460,65333,116
45,794
62,150
80,568
100,194
121,317
4,886 7,579 10,444 13,717 17,591 21,9640
50,000
100,000
150,000
200,000
250,000
300,000
350,000
400,000
until 2002 until 2003 until 2004 until 2005 until 2006 until 2007 until 2008 Year
Accumulated Number
Total Foreign
EU
US
JP
Kor
Utility models
• Almost not used at all by foreign applicants• Technical areas of filing different from invention
patents• High number of most likely invalid rights – “junk
patents”
Utility models applications (per year)
T7. Statistics of Utility Model Patent Applications in China 2002-2008
93,139
109,115112,825
139,566
161,366
181,324
225,586
92,166
107,842 111,578
138,085
159,997
179,999
223,945
973 1,273 1,247 1,481 1,369 1,325 1,641
0
10,000
20,000
30,000
40,000
50,000
60,000
70,000
80,000
90,000
100,000
110,000
120,000
130,000
140,000
150,000
160,000
170,000
180,000
190,000
200,000
210,000
220,000
230,000
2002 2003 2004 2005 2006 2007 2008 Year
Number
Total
Domestic
Foreign
Utility models granted (per year)
T8. Statistics of Utility Model Patent Granted in China 2002-2008
57,484
68,906 70,623
79,349
107,655
150,036
176,675
57,092
68,291 70,019
78,137
106,312
148,391
175,169
392 615 604 1,212 1,343 1,645 1,506
0
10,000
20,000
30,000
40,000
50,000
60,000
70,000
80,000
90,000
100,000
110,000
120,000
130,000
140,000
150,000
160,000
170,000
180,000
2002 2003 2004 2005 2006 2007 2008 Year
Number
Total
Domestic
Foreign
Designs
• Even stronger growth than utility models
• Weak use by foreign applicants
• Market entry barrier?
• High number of most likely invalid rights – “junk patents”?
Design applications (per year)
T9. Statistics of Design Patent Applications in China 2002-2008
79,260
94,054
110,849
163,371
201,322
267,668
312,904
73,572
86,627
101,579
151,587
188,027
253,439
298,620
5,688 7,427 9,270 11,784 13,295 13,993 14,284
0
30,000
60,000
90,000
120,000
150,000
180,000
210,000
240,000
270,000
300,000
2002 2003 2004 2005 2006 2007 2008 Year
Number
Total
Domestic
Foreign
Designs granted (per year)T10. Statistics of Design Patent Granted in China 2002-2008
53,442
76,166
70,255
81,349
102,561
133,798
141,601
49,143
69,893
63,068
72,777
92,471
121,296
130,647
4,299 6,273 7,187 8,572 10,09012,502 10,954
0
15,000
30,000
45,000
60,000
75,000
90,000
105,000
120,000
135,000
2002 2003 2004 2005 2006 2007 2008 Year
Number
Total
Domestic
Foreign
8. National IP Strategy
Key objectives
• Repeated objective: “Creation, utilization, protection and administration of IP to improve”
• Will act as binding work plan for all IP-related agencies – Implementation is supervised by SIPO, also at local
level• Two timelines:
– 2020: Creation, utilization, protection and administration has fully improved (6)
– By 2013 - within five years – a series of highly specific working targets, so-called “goals” (7)
Goals
1. More self-owned rights, including overseas (7)– Patents: Advanced country in terms of annual number of patents,
including strong increase of applications overseas
– Trademarks: A number of world brands emerged
– Copyright: Value of core copyright will increase
– China owns a number of PVPs and Topographic Designs
– Trade secrets, Geographical Indications, Genetic Resources, Traditional Knowledge, Folklore will be “effectively protected”
2. Economic value of IP increased for utilization– Creation of National IP Champions emerge with famous brands,
core IP and rich experience in utilizing the IP system
3. Piracy and counterfeiting significantly reduced
4. IP Culture
Different tasks, according to type of IPR
• Patents: Focus on obtaining rights, quality patents, access to technology in standards – no specific task on protection of patents!
• Trademarks: Focus on protection and anti-counterfeiting work, ownership of independent rights, quick registration procedures, quality of procedure and quality rights, including well-known trademarks
• Copyright: Focus strongly on growing a copyright-reliant industry and commercialization of copyright, fight against piracy only against “large-scale” infringements
Impact on cooperation
• Engagement by Chinese agencies on issues outside or contrary to the NIPS goals and tasks will be highly unlikely
• Strongly limited possibility to cooperate on issues more stressed by foreign partners (e.g. stronger enforcement of patents)
• New political line: Judiciary is to be kept more distanced from Western influences, yet is foreseen to play a key role for strengthening enforcement according to NIPS
