Understanding China's patent protection system

As China continues to expand its innovation ecosystem, patent protection has become an increasingly important consideration for businesses operating in the country.  Understanding the China's patent system can help Canadian companies safeguard their intellectual property (IP) and navigate potential challenges.

China's patent system is administered by the China National Intellectual Property Administration (CNIPA). Canadian companies can apply for Chinese patents through two channels:

1. Domestic application in China:  Ffile directly with CNIPA. 
2. Patent Cooperation Treaty (PCT): The PCT system allows inventors to seek patent protection in multiple countries simultaneously. 

China recognizes three types of patents:

• Invention patent: Protects new technical solutions for products or processes (valid for 20 years).
• Utility model patent: Covers new technical solutions related to the shape or structure of an object (valid for 10 years). A Utility Model Patent does not require detailed technical review (“substantive examination”) by CNIPA for the patent to be granted. This type of patent generally offers a lower level of protection than an invention patent, but can be obtained more quickly and at a lower cost.  
• Design patent: Protects new designs of product shapes, patterns, or colours (valid for 15 years). These are similar to “industrial designs” in Canada.

The general procedure for an invention patent application filed with CNIPA in China includes:

1. Filing – submitting the patent application to CNIPA.
2. Preliminary examination – takes roughly 30-45 days.
3. Publication of application – generally occurs 18 months after filing, unless early publication is requested.
4. Substantive examination – must take place within three years of filing.
5. Patent grant – the average time it took for a patent to be granted in China was 15.6 months (2024), though complex applications may take longer.

For PCT applications, companies must file an initial application – typically with their home country’s IP office. They mustlater seek patent protection in specific countries by fulfilling those other countries’ particular requirements. In China this must be done within 30 months (32 months in some circumstances) of the filing of the initial PCT application. 

Companies should monitor their applications closely and ensure timely responses to CNIPA questions or requests for further information to avoid unnecessary delays.

There is a period of time after an invention is publicly disclosed during which the inventor can still file a patent application without the disclosure counting against the novelty of the invention. China provides a 6-month ”grace period” for certain public disclosures before a patent application is filed, including when:

• the invention is first exhibited at an international exhibition sponsored or recognized by the Chinese government
• the invention is first presented at an academic or technological conference
• the invention is disclosed by others without the applicant’s consent

• Only patents granted in China are protected in China.
• Filing for an invention patent and utility model patent at the same time can allow for a certain level of protection to be obtained quickly while you wait for the more comprehensive protection of an invention patent. 
• Ownership of patents in joint-development projects depends on contractual agreements. Companies should ensure clear IP ownership clauses in contracts to avoid disputes.
• Companies should carefully develop an enforcement strategy that leverages China’s administrative, legal, and customs enforcement mechanisms. This helps to maximize impact and minimize costs.
• Working with experienced legal counsel familiar with China’s patent system and enforcement landscape is crucial. Their support during the application process will help to avoid common pitfalls. They can also offer strategic advice on:
  • structuring joint development agreements
  • navigating licensing arrangements
  • protecting your patent throughout its lifecycle