National Phase Patent Entry in China

With China emerging as a global tech giant in the world, it has become a favorite destination for the inventor to seek protection for their invention. At the latest EPO Index 2020, all countries show a small dip in the patent filing activity, China taking up the 4th spot has shown an increase in the filing for the said year in 2020 amid pandemic. These increases in the filing show the influx of major companies and foreign brands in China and the growing influence in the region. China has undoubtedly established itself as a place most suited for business. With such a major influx, it is important to understand the procedure for filing the trademark and the further procedure of getting it granted.

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Entering the National Phase in China

After getting along with the international procedures, the applicant will now enter the national phase in China. In China, the application is filed must be in the Chinese language and if it is in another language then a translation needs to be done. The applicant needs to file the fees as indicated in the schedules. The Office examines patent applications as to substance only upon a request for examination and the payment of an examination fee which must be effected within three years from the priority date.

Concerning an international application for a utility model, the applicant may file a request with the Office to amend the description, drawings, and claims within one month from the date of entry into the national phase. Concerning an international application for a patent of invention, the applicant may amend the application on his or her initiative at the time when a request for examination is made, and within three months after the receipt of the notification of the Office that the application has entered into the examination as to substance.

The time limit for entering the national phase entry in China is 30 months from the international filing date or the earliest priority date from when the priority is claimed. It can also be 32 months in case the applicant opts for the grace period. The translation must be submitted within the time limit for the national phase entry. The request for examination must be filed within three years from the national and international filing date or the earliest priority date. The time limit cannot be extended.

The applicant is presumed to have the right to file the international application and therefore no instrument of assignment is required if the international application is filed by an entity for an employee invention made by an inventor who is an employee of that entity. After the application is filed, an instrument of assignment is required for each change if there is any change in the person of the applicant.

Where a part of the international application was not subjected to international search or preliminary examination because the international application did not comply with the requirement of unity of invention and the applicant did not pay the additional search or preliminary examination fee to the International Searching or Preliminary Examination Authority, the Office will decide whether the said finding as regards the application translated into the Chinese language was correct. If this is found to be the case, the Office will invite the applicant to pay a special fee within the time limit fixed in the notification of this decision.

The requirements for the national phase are the same as for patents, except that for utility models a drawing must be furnished and no examination as to substance is carried out. An international application for a patent may not be converted into a utility model application, and vice versa. Where an international application is rejected in the national phase, the applicant may, within three months from the date of receipt of the notification, request reexamination by the Patent Reexamination Board and pay a reexamination fee.

The maintenance fees shall be paid from the beginning of the third year unless a patent is granted before that date, in which case maintenance fees shall be paid for all consecutive years following the international filing date at the time when the application goes through the formalities of registration of the grant of the patent right. The first annual fee must be paid within two months from the receipt of the notice from the Office of the grant of the patent. All subsequent annual fees must be paid in advance within the month before the anniversary of the international filing date. If the annual fee is not paid or not paid in full, the Office will invite the applicant to pay it within six months from the expiration of the time limit due, with a surcharge. Where the annual fee is not paid within the prescribed time limit, the patent shall be deemed lapsed from the expiration of the time limit within which the annual fee should have been paid.

 

 

Author: Saransh Chaturvedi an associate at Global Patent Filing,  in case of any queries please contact/write back us at support@globalpatentfiling.com.

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