Similar to apply for patents in US, there are also THREE ways to file patents in China under the Chinese legal framework. Specifically, ways to file Chinese patent applications are direct filing, by the Paris Convention and by the PCT route.
Three Ways to File Patents in China
- Direct Filing
A patent may be filed directly in China with the help of a patent agency or patent attorney.
- Under the Paris Convention
Filing a patent in a foreign country/region first and then filing a second application in China within 12 months for invention and utility model patents and 6 months for design patents. Thus, you’ll be able to claim the priority date of the first application. The foreign country/region must be a Member State of the Paris Convention.
An international patent application can be filed under the PCT, indicating China as one of the designated states. So, the application must be submitted to the patent office in China no later than 30 months from the priority date.
Other Important Points
We will explain import time limit of filing Chinese patent applications under the PCT and the Paris Convention. Also, three important points will be highlighted: foreign-filing license, appointment of pant agency/agent, and applicable language.
- Important Time limit
For CN applications filed under the PCT, the application must be submitted to the patent office in China no later than 30 months from the priority date. When the applicant exceeds the 30-month time limit, the right of priority will still be restored if the priority period is within the 32 months from the priority date. Besides, the applicant needs to state the reason for the failure to file the application within the priority period, preferably accompanied by any declaration or other evidence required.
As for CN applications filed under the Paris Convention, there is no grace period to restore the right of priority.
When an invention or utility model is developed in China, the applicant must request for a foreign-filing license in China before filing a patent application outside China. Similar to it, if an invention or utility model is developed in foreign countries, for example, in the USA, the applicant needs to file a request for foreign-filing license in the USA. As for specific requirements of foreign-filing license, they vary from country to country.
- Appointment of Patent Agency/Agent
Pursuant to Article 19 of the Chinese Patent Law, 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 legally incorporated patent agency to act as its or his agent.
- Applicable Language
Except for certificates or evidence materials provided by foreign government departments or created in foreign countries, the patent application documents and other documents shall be in Chinese. Application documents which are written in foreign language shall be translated into Chinese.
The Chinese text of the patent application submitted by the applicant shall be taken as the basis of examination. The foreign language text of the application submitted by the applicant at the time of filling the application shall have no legal effect.