China: Coming To Terms With China's Utility Model Patent Regime

Inventions, utility models and designs are the three major constituent parts of the China's patent regime. Among these, the number of filings for utility model patents has been increasing year on year, reaching 740,291 in 2012, accounting for about 90% of the total filings for the same type of patent around the world, occupying an absolute dominant position.

With the large increase in filings for utility models and their increasing role in market economic activities, China's utility model patent regime has drawn greater attention within China, as well as internationally. The author therefore wishes to give a brief introduction to these distinguishing features.

Term of protection

The Patent Law specifies that "the term 'utility model' means a new technical solution that is suitable for utilisation and that is put forward in respect of the form or structure of a product or a combination thereof". That is to say that a utility model patent only protects a physical product with a specific form and/or structure that was manufactured by an industrial method, and does not accord protection to improvements in the method or the materials themselves. Furthermore, improvements in computer software embedded in hardware are, in examination practice, usually treated as an improvement in method.

In practice, an applicant should pay strict attention to whether the invention or creation satisfies the requirements in respect of the protected subject matter of a utility model, and in respect of an application that may not qualify, should take an attitude of caution. That is because once such an issue has been pointed out by the examiner, the room for revision and argument is in general quite small.

The term of protection for a utility model patent is 10 years, shorter than the 20 years for an invention patent.

Preliminary examination

Not having to undergo a substantive examination, a patent is granted for a utility model once it passes the preliminary examination. Accordingly, a patent for a utility model can be secured much more quickly than one for an invention. The average time for approval of an application for a utility model in China in 2012 was only five months. Additionally, the absence of a substantive examination can also save the applicant the examination fee and the agency fees required during the examination.

On the other hand, as a utility model is not subject to a substantive review, if the applicant did not have a good understanding of the prior art before the filing, the soundness of the utility model patent may be somewhat shakier than that of an invention. Furthermore, with the continuing increase in the number of filings for utility models, the absence of a substantive examination may result in a significant number of filings that do not in fact satisfy the conditions for the granting of rights being granted utility model patents, and of these many clearly are not novel. In order to head off this situation, China's Patent Bureau recently issued revisions to the part of the examination guidelines on the examination of the clear novelty of utility models (Order No. 67), providing a solid basis for examiners to actively search and examine whether utility models clearly lack novelty.

Although the revisions began to be implemented from October 15, 2013, the Patent Bureau in fact strengthened the examination of the clear novelty of utility models from the end of 2012. Among the utility model filings dealt with by the Patent Bureau in the first half of 2013, clear novelty notices were issued in respect of 5% of them. It can be anticipated that with the issuance of the above mentioned revisions to the guidelines, that percentage will increase further.

Evaluation report system

The utility model patent evaluation report system is a supplement and improvement to the preliminary examination system in the post-grant procedures. More specifically, once the decision to grant a utility model patent has been gazetted, the patent holder or a materially interested party may request that the Patent Bureau issue a patent evaluation report. A patent evaluation report is not an administrative decision and does not have an effect on the patent itself, but can provide a point of reference for the patent holder to understand the soundness of the patent. Pursuant to the Patent Law, when a patent infringement dispute involves a utility model patent, the court may request that the patent holder or the materially interested party present a patent evaluation report to serve as evidence in trying the patent infringement dispute. The main purpose for the court to request the presentation of a patent evaluation report is to provide reference when the court is considering whether to suspend the legal action when the alleged infringer petitions to have the patent declared invalid.

It should be noted that a materially interested party as mentioned above principally means a patent licensee that has standing as a plaintiff in a legal action, and does not include the alleged infringer in the legal action. A request for the issuance of a patent evaluation report may be made only once.

Same day filings

The Patent Law specifies that only one patent may be granted for identical inventions or creations. However, as a special case of the above mentioned provision, if an applicant files for both a utility model patent and an invention patent for the same invention or creation on the same day and is first granted a utility model patent, if the applicant declares that he or she is relinquishing such utility model patent before its termination, the applicant may be granted an invention patent therefor ("same day filings"). That is to say, rights may be granted on two separate occasions for the same invention or creation.

If an applicant both wishes to secure an earlier grant of rights and secure a sounder right with a longer period of protection, he or she may make use of the exception that is same day filings. As the applicant only relinquishes the first secured utility model patent upon securing the invention patent, the utility model patent and the invention patent form a seamless continuation. Accordingly, exploitation of this exception can protect the applicant's interests to the greatest extent possible.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Chofn Intellectual Property
CCPIT Patent & Trademark Law Office
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Chofn Intellectual Property
CCPIT Patent & Trademark Law Office
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions