This article will talk about protectable subject matters of utility model patents (UMP) and invention patents in China, and their similarities and differences.
Protectable Subject Matters of Invention Patents in China
Article 2.2 of Chinese Patent Law stipulates that “An invention refer to a new technical solution proposed for a product, a method or an improvement thereof.”
In the sense of patents, technical solutions that can be granted patent rights for inventions are divided into two types: product technical solutions and method technical solutions. For more description regarding the product technical solutions, please refer to another article “Protectable Subject Matters of Utility Model Patents” below.
The subject matter protected by the invention patent in China includes the subject matter protected by the UMP. In other words, a technical solution that can apply for a UMP can also apply for an invention patent.
Protectable Subject Matters of Utility Model Patents in China
Article 2.3 of Patent Law stipulates that “A utility model refers to a new technical solution suitable for utility proposed for a product shape, a product configuration or any combination thereof.”
In the sense of patents, the technical solutions that can be granted patent rights for UM only include product technical solutions. About the product technical solutions:
- According to the provisions of Section 6.1, Chapter 2, Part 1 of Guidelines for Examination, “A product shall be an industrially-manufactured entity that has a definite shape, configuration and occupies a certain space. All methods and non-manufactured naturally-occurring articles do not belong to protectable subject matters of utility model patents,” which, of course, do not belong to protectable subject matters of an invention patents;
- According to the provisions of Section 6.3, Chapter 2, Part 1 of Guidelines for Examination, “A solution that has not adopted technical means to solve technical problems and has obtained technical effects that conform to the laws of nature does not belong to a protectable subject matter of a utility model patent,” which, of course, does not belong to a protectable subject matter of an invention patent.
Similarities and Differences
In summary, the similarities between protectable subject matters of inventions and that of UM are as follow.
- Protectable subject matters all include products.
- Products are manufactured by industrial methods instead of natural phenomena.
- It is the technical solution that is protected.
The differences between protectable subject matters of inventions and that of UM are as follow.
- UMP cannot protect methods.
- UMP define products, i.e., “shape, configuration, or any combination thereof,” which is not defined by inventions.
In combination with the provisions of Section 6.2.1, Chapter 2, Part 1 of Guidelines for Patent Examination in 2021, “The shape of a product is a definite spatial shape that the product has and can be observed from the outside.” According to the provisions of Section 6.2.2, Chapter 2, Part 1 of Guidelines for Patent Examination in 2021, “The configuration of a product refers to the arrangement, organization and interrelationship of the various components of a product.” It can be seen that if the product has a compliant shape and configuration, the product can be used as a protectable subject matter of UMP.