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Intellectual Property Frequently Asked Questions
1. Can I file straight a patent application by myself or a
national agent with the China Patent Office, since I have
known all the patent provisions in China?
No, you did not. According to the relative regulations in
China, all the overseas applications must be filed by a Chinese
agent processing patent law, and must by one of 60 designated
intellectual property law offices; Wang & Associates is in
the list.
2. What do the patent rights cover in China?
In China the patent rights cover the rights for invention,
utility model and design.
3. What are the requirements for the patentability of invention
and utility model?
Any invention or utility model for which patent right may
be granted must possess novelty, inventiveness and practical
applicability.
Novelty means that, before the date of filing, no identical
invention or utility model has been publicly disclosed in
publications in the country or abroad or has been publicly
used or made known to the public by any other means in the
country, nor has any other person filed previously with the
Patent Office an application which described the identical
invention or utility model and was published after the said
date of filing.
Inventiveness means that, as compared with the technology
existing before the date of filing, the invention has prominent
substantive features and represents a notable progress and
that the utility model has substantive features and represents
progress.
Practical applicability means that the invention or utility
model can be made or used and can produce effective results.
4. What are the requirements for the patentability of design?
Any design for which patent right may be granted must not
be identical with and similar to any design which, before
the date of filing, has been publicly disclosed in publications
in the country or abroad or has been publicly used in the
country, and must not be in conflict with any prior right
of any other person, mainly the registered trademark.
5. How long does it take to obtain the patent right after
I apply?
To obtain the patent right in China approximately requires
3 years for an invention, 6-18 months for a utility model
and design. Although some patent applications remain pending
for a decade, these instances get less and less along with
the reinforcement in examination.
6. How long does the Chinese patent right remain?
In China, 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.
7. If two people invent the same thing independently, does
the first person to file a patent application with the Chinese
Patent Office receive the patent?
Yes. In China the patent right is granted to the first person
filing the patent application.
8. If I find out that someone is infringing my patent, how
can I stop this infringement?
In China, there are two ways to prevent this action. First,
you can institute legal proceedings in the people's court;
second, you can request the administrative authority for patent
affairs to handle the matter.
9. If I was indicted for infringing patent right during my
production or other activities, how can I to deal with this
problem?
Where your products differ the patent one in large-scale,
you can defense through the lawsuit. If many similarities
exist in the two compared products, the better way is to request
the invalidation of the patent right; of course you must reply
the lawsuit at the same time.
10. Whether all the three patent applications need substantive
examination procedure in China, or not?
No. Only the invention application requires substantive examination,
rather than all the three kinds applications. In other words,
the utility model and design would be granted only meeting
the requirements of preliminary examination, not after searching.
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