China’s SIPO Issues FAQs Relating to Patent Law: Part II

September 17, 2013 Posted by China Briefing Reading Time: 3 minutes

Sept. 17 – With the view to facilitate a better understanding of the country’s Patent Law, China’s State Intellectual Property Office (SIPO) has issued a set of frequently asked questions regarding various patent issues in the country. The answers provided are based on existing regulations. Detailed information can be found below.

Q: Can computer software be patented in China?

A: Computer programs as such cannot be patented in China, but may be protected under the “Regulations on Computer Software Protection.” An invention involving a computer program may be patentable if the combination of software and hardware as a whole can improve prior art, bring about technical results, and constitute a complete technical solution.

Q: When are annual fees due in China?

A: The patentee shall pay annual fees commencing from the year in which the patent right is granted, and the annual fee of the year in which the patent right is granted shall be paid upon registration.

Q: Are patents for inventions and patents for utility models subject to substantive examination?

A: Patents for inventions are substantively examined in China, especially in the following three areas:

Novelty;
Invention steps; and
Industrial applicability.

However, patents for utility models only need to undergo a preliminary examination.

Q: What is the priority principle?

A: The priority principle is when two or more applicants file for the same patent for an invention – the patent right will be granted to the first applicant regardless of who develops the invention first.

Q: What does the priority right mean?

A: The priority right originates from the Paris Convention for Protection of Industrial Property, which allows the claimant to file a subsequent application in another country for the same invention, design, or trademark effective as of the date of filing the first-time application.

According to China’s Patent Law, an applicant who has made a first-time patent application for an invention, a utility model, or a design in a foreign country is entitled to the priority right in accordance with the agreements concluded between the said foreign country and China, or in accordance with the international treaties to which both countries have acceded, or on the basis of the principle of mutual recognition of priority right under the following situations:

The applicant has submitted a patent application for the same subject in China within 12 months from the date of the first-time patent application for the invention or utility model; or
The applicant has submitted a patent application for the same subject in China within 6 months from the date of the first-time patent application for the design.

Q: How should an applicant apply for the priority right?

A: China’s Patent Law regulates that any applicant who claims priority rights shall make a written declaration when filing the application and submit the copies of documents for the first-time patent application within three months. The applicant who fails to make the written declaration or fails to submit the patent application documents within the specified timeframe shall be deemed to have waived the priority right.

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