Types of patents and Non-patentable subject matters in China

 

The Chinese Patent Law provides protection for three kinds of patents: invention, utility model, and design patents.

An invention patent is granted for “a new technical solution relating to a product, a process or improvement thereof.” It requires novelty, inventiveness, and practical applicability. An invention patent typically takes 3 to 5 years of preliminary and substantial examinations to be granted, and affords 20 years of protection from the date of filing.

A utility model patent is granted for “any new technical solution relating to the shape, the structure, or their combination, of a product, which is fit for practical use.” It also requires novelty, inventiveness, and practical applicability. A utility model patent only requires a preliminary examination and can usually be granted within one year, and affords 10 years of protection from the date of filing.

A design patent is granted for “any new design of the shape, the pattern or their combination, or the combination of the color with shape or pattern, of a product, which creates an aesthetic feeling and is fit for industrial application.” It requires novelty and distinctiveness. A design patent only requires a preliminary examination and can usually be granted within one year, and affords 10 years of protection from the filing date.

According the Chinese Patent Law, the following subject matters are non-patentable:

  • Scientific discoveries; 
  • Rules or methods for mental activities; 
  • Methods for the diagnosis or for the treatment of diseases; 
  • Animal and plant varieties; 
  • Substances obtained by means of atomic transformation; and 
  • Anything immoral or detrimental to the public interest.
  • Software itself cannot be patented, although software combined with a computer or technique intended to solve a technical problem may be.