There are three kinds of patents in China, i.e. invention patent, utility model patent and design patent. There are various differences among them.
1. Different subjects to be protected
Invention means new technical solution relating to a product, a process or improvement thereof.
Utility model only includes new technical solution relating to the shape, the structure, or
their combination, of a product and process can not be protected by utility model patent.
Design means new design of shape, the pattern or their combination, or the combination of
the color with shape or pattern, of a product, which creates an aesthetic feeling and is fit for
industrial application.
2. Different requirements for patentability
Patent for invention or utility model must possess novelty, inventiveness and practical applicability.
Novelty means that, before the patent application's filing date, 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 nay other person filed previously with the Chinese Patent Office an application which described the identical invention or utility model an was published after the said filing date.
Practical applicability means that the invention or utility model can be made or used and can produce effective results.
However, the inventiveness requirement for invention and utility model is different. An invention patent must has prominent substantial features and represents a notable progress. The inventiveness requirement for utility model patent is lower than the invention patent.
With regard to a design patent, it must not be identical with and similar to any design which, before the filing date, has been publicly disclosed in the publication in China or abroad or has been publicly used in China, and must not be in conflict with any prior right of any other person.
3. Different examination procedures
The examination procedures for an application for invention patent is rather complex and the examination period is rather longer. The application for invention patent will be published first after the expiration of eighteen months from the filing date. Then it will take longer time to conduct substantial examination. However, applications for utility model patent or design patent are not subject to substantial examination. Only if the application meet formal requirements, are patent rights granted directly. But the protection period for invention patent is twenty years, while the one for utility model patent or design patent is only ten years, both counting from the filing date.
In practice, since the PRC Patent Law came into force from April 1, 1985, foreign applicants have filed more applications for invention patents in China than utility model patents, and the applications filed by domestic applicants in China are exactly different. This reflects that the inventive level of domestic creations is lower than the foreign one. The original intention of the utility model system is to encourage promotion of products with lower technical levels and shorter market life.
By
Jiang Qinfeng (PRC attorney at law, patent agent & trademark agent, LLB, BS of Beijing University)
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