China: FAQs About Patent Procurement And Enforcement In China

Last Updated: 9 November 2016
Article by Bo Li

In China, there are three kinds of patent: invention, utility model and design. Only invention patents are subject to substantive examination.

The requirements for patentability requirements are as follows.

Patent eligibility

All patent applications must first pass the patent eligibility bar:

  • An invention patent application must be directed to a new product or process of a technical nature.
  • A utility model application must be limited to a product's shape or structure (or a combination thereof).
  • A design application must be directed to a new aesthetic industrial design of a product's shape or pattern (or a combination thereof), or a pattern or shape combined with a colour.

Protection for a process or unknown type of material should be sought under an invention patent rather than a utility model.

Practical utility

'Practical utility' means that the invention or utility model can be made or used and can produce beneficial effects.

Disclosure and enablement requirements

The disclosure and enablement requirements require that an invention or utility model be described in a manner that is sufficiently clear and complete so as to enable an ordinary person in the art to carry it out.


The absolute novelty bar applies in China. This means that an invention or utility model must not be part of any prior art in China or abroad, and must not have been described in any patent application previously filed in China (or Patent Cooperation Treaty (PCT) application valid in China).


'Inventiveness' implies that an invention or utility model must have prominent substantive features compared to the state of the art and must represent considerable progress. For a design patent, it must not be a prior design or conflict with any legal rights obtained by other parties before the filing date. Further, it must be significantly different from a prior design or a combination of prior design features.

Other requirements

For an invention or utility model, the claims must:

  • be supported by the description;
  • contain all essential technical features for solving the technical problem; and
  • be definite and concise.

What are the limits on patentability?

Some types of subject matter are legally excluded from patent protection, including:

  • inventions that are contrary to the laws of the state;
  • inventions that are contrary to social morality;
  • inventions that are detrimental to the public interest;
  • scientific discoveries;
  • rules and methods for mental activities;
  • computer programs;
  • methods for the diagnosis or treatment of diseases;
  • plant varieties and animal breeds;
  • substances obtained by means of nuclear transformation; and
  • designs for two-dimensional printing goods comprising pattern, colour or a combination thereof, and which serve mainly as indicators.

Further, subject matter that is not reproducible, is contrary to natural law, is created by unique natural conditions or relates to a surgical method that is not intended for treatment purposes will be filtered out for lack of practical utility.

Can inventions covering software be patented?

Software, programs, instructions, data, signals, logic and media carrying instructions are not patentable subject matter. Nevertheless, inventions that are implemented wholly or partially through software or software-related inventions can be patentable if they are intended to solve a technical problem, use technical means representing laws of nature rather than manmade rules and achieve technical effects – although hardware modifications or improvements are unnecessary. For example, inventions for use in controlling an industrial process or improving the performance or characteristics of a computer system are more likely to be allowed.

Attention should be paid to the product claim. The conventional method is to present a claim defining more than one functional component of the claimed product and, at the same time, provide a block diagram and detailed description showing the functions or actions of those components and indicate that each component may be implemented in hardware, software or a combination thereof. This approach may be unfavourable when it comes to litigation, because of the difficulty in identifying counterparts of the software components in the accused product.

Since last year, examiners have become more friendly to claims seeking to protect apparatus comprising a memory in which computer-executable instructions are stored and a processor configured to perform one or more actions upon the execution of the instructions. Such a form of claims used to be objected to by examiners on the ground that it is unclear or it lacks support from the description, but now it is a trend that examiners take an opener attitude towards such a form of drafting, and a decreased number of objections directed to the form of drafting has been observed.

Can inventions covering business methods be patented?

Inventions covering business methods are not legally excluded from patentable subject matter. Nonetheless, they must have a technical nature (ie, advancing the prior art in terms of the structure, performance or characteristics of a computer or network). The simple computerisation of business methods or a simple improvement to a method of doing business not patentable. Examiners tend to review this type of invention for inventiveness rather than patent eligibility.

Are there restrictions on any other kinds of invention?


Does your jurisdiction have a grace period? If so, how does it work?

Yes. An invention is not anticipated by:

  • disclosure of the invention in the six months preceding the filing or priority date by anyone without the applicant's consent;
  • disclosure of the invention in the six months preceding the filing or priority date at an academic or technological meeting organised by a competent department of the Chinese State Council or a Chinese academic or technological association, provided that the applicant makes a declaration concerning publication and provides a certificate issued by the meeting within two months of filing the application; or
  • disclosure of the invention in the six months preceding the filing or priority date at an international exhibition recognised by China, provided that the applicant makes a declaration concerning the publication and provides a certificate issued by the exhibition within two months of filing the application.

What types of patent opposition proceedings are available in your jurisdiction?

No opposition procedure is available in China.

Are there any other ways to challenge a patent outside the courts?

A third party may submit evidence and observations to the Patent Examination Division for consideration before an application is granted or may initiate invalidation proceedings with the Patent Re-examination Board at any time after grant. The submission of third-party observations is an ex parte procedure and no response will be received from the Examination Division. In contrast, invalidation proceedings involve inter partes review of the granted patent.

How can a patent office decision be appealed in your jurisdiction?

If a patent applicant is rejected, the applicant can ask the Patent Re-examination Board to overrule the rejection decision. Further, as stated above, in order to challenge a patent, the petitioner must initiate invalidation proceedings with the board. If the applicant or petitioner is not satisfied with the board's decision, it can appeal to the IP Court in Beijing and then to the Beijing High Court to review the first-instance judgment. The second-instance decision is final, although a retrial before the Supreme Court is available.

How long should an applicant expect to wait before being granted a patent and what level of cost should it budget for?

On average, it takes 22 months from the start of the substantive examination for an invention patent application to be granted. Thus, the applicant may expect to obtain an invention patent approximately three years after filing if the request for substantive examination is filed in a timely manner. It may take approximately four months and three months from filing for grant of a utility model application and a design application, respectively.

In term of cost, if an invention patent application is around 5,000 words long in English, the total cost will be around $6,000 from filing to grant, including official and attorneys' fees. A utility model or design application will cost between $1,000 and $1,500.

What are the most effective ways for a patent owner to enforce its rights in your jurisdiction?

A court action is the most effective way for a patent owner to enforce its rights. By filing suit before the relevant court, the patent owner may obtain the remedies of preliminary injunction, permanent injunction and damages. Further, an administrative action is available, as the administrative authority for patent affairs may also handle a patent infringement dispute. The patent owner may obtain a permanent injunction through the administrative authority, but it cannot award damages. However, at the parties' request, it may mediate in regard to the compensation due.

What are the stages in the litigation process leading up to a full trial?

Once the patent owner has filed suit, the defendant has 15 days to respond or 30 days if it is a foreign party. The parties then may be given 30 days to file evidence and a court hearing follows. After the court hearing, the court issues its decision. The first-instance decision may be appealed to a higher court, and the second-instance decision is final.

What scope is there for forum shopping?

There are more than 80 intermediate people's courts and three IP courts with the power to handle patent infringement cases. Jurisdiction is typically determined by two factors:

  • the location of the defendant; and
  • the place where the infringing activity took place.

As a strategy, the plaintiff may select a court away from where the defendant is located to avoid any influence by the defendant.

How easy is it for defendants to delay proceedings and how can plaintiffs prevent them from doing so?

A defendant may delay proceedings for one to two months by filing a jurisdiction opposition petition. The plaintiff can do nothing to prevent this filing. The defendant may also request the court to stay the proceedings by filing an invalidation petition with the Patent Re-examination Board within the response term of a lawsuit. The court will generally stay the proceedings in cases involving a utility model or design patent. The plaintiff may provide evidence to the court to prove the validity of the patent at issue.

What level of expertise can a patent owner expect from the courts?

The courts in larger cities have more experience of patent cases. In Beijing, Shanghai and Guangzhou, patent-related cases are tried by IP courts. The judges in those courts usually have a high level of expertise.

Are cases decided by one judge, a panel of judges or a jury?

Patent cases are usually decided by a panel of three judges, although a panel of five judges may sit in important cases. There is no jury system in China.

What role do expert witnesses play in the proceedings?

An expert witness may provide an affidavit to the court as evidence of the parties. The expert must be present in court to undergo cross-examination in order for his or her evidence to be considered by the court, unless there are extenuating circumstances. In some cases the court may request the parties to call certain experts to explain the technology at issue.

Does your jurisdiction apply the doctrine of equivalents and if so, how?

China applies the doctrine of equivalents. If a feature is not the same as a feature in the patented invention, but is implemented in substantially the same way and realises substantially the same function and effect, without requiring creative labour from a person skilled in the art, the feature will be regarded as an equivalent feature.

Are preliminary injunctions available? If so, under what circumstances?

It is possible to obtain a preliminary injunction if:

  • it is highly likely that the act being conducted or to be conducted will infringe IP rights;
  • such act will likely cause irreparable harm to the petitioner's legitimate rights;
  • the petitioner has paid the necessary deposit; and
  • the grant of a provisional or preliminary injunction will not harm the public interest.

How are issues around infringement and validity treated in your jurisdiction?

Infringement issues are handled by the courts and validity issues are handled by the Patent Re-examination Board. A patent is presumed valid unless it is pronounced invalid by the board. The board's decision as to whether a patent is valid may be appealed to the Beijing IP Court, whose decision may in turn be appealed to the Beijing High Court. The decision of the Beijing High Court is final.

What are the typical remedies granted to a successful plaintiff?

In China, the court may grant a preliminary injunction, a permanent injunction and damages to the successful plaintiff.

How are damages awards calculated? Are punitive damages available?

A damages award may be calculated based on:

  • the profits lost by the patentee due to the infringement;
  • the illegal profits made by the infringer due to the infringement; or
  • multiples of the licence fee for the patent.

If the damages cannot be calculated easily, the court may award statutory damages of up to Rmb1 million ($147,000). At present, punitive damages are not available.

How common is it for courts to grant permanent injunctions to successful plaintiffs and under what circumstances will they do this?

In most cases the courts will grant permanent injunctions to successful plaintiffs. The court will grant a permanent injunction if:

  • the plaintiff so requests;
  • the court finds that infringement has occurred; and
  • the grant of a permanent injunction will not affect the public interest.

How long does it take to obtain a decision at first instance and can this process be expedited?

It takes six to nine months to obtain a decision at first instance if the parties are all Chinese companies or individuals. It is not possible to expedite this process.

Under what circumstances will the losing party at first instance be granted the right to appeal? How long does an appeal typically take?

The losing party in a first-instance case is always entitled to appeal. An appeal typically takes three to six months.

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
CCPIT Patent & Trademark Law Office
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”

Practice Guides
by Mondaq Advice Centres
Relevancy Powered by MondaqAI
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
CCPIT Patent & Trademark Law Office
CCPIT Patent & Trademark Law Office
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please 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