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China Invention Patent and Utility Model Comparison

Updated:2018-2-1 14:39:06    Source:www.tannet-group.comViews:268

China invention patent and utility patent have some differences. Invention patents have a term of 20 years and may be granted for both methods and products. Utility model patents (similar to a petty patent) may be granted for technical solutions that relate to shapes or structures, and have a term of 10 years from the date of filing.

Utility model (UM) applications are subjected only to novelty assessment and formality examination, while invention patent applications are subjected to search and examination similar to those conducted in other major patent offices in the world and it will take approximately 3 to 5 years to complete prosecution.

Utility model patent has the following features:
1. The prosecution period of utility model patent is 4-8 months, which is significantly shorter than the prosecution period of invention patent which usually last for 2.5 to 4 years; thus, the utility model patent can be used to enforce against infringer in 4-8 months after granting;

2. While novelty requirement of these two types of patent is the same, requirement of inventive level of invention patent is higher than utility model patent; according to Article 22 of Patent Law of P. R. China, it is required that the invention possesses “prominent substantive features and indicates remarkable advancements”, and the utility model possesses “substantive features and indicates advancements”. It turns out that it is harder to invalidate a utility model than an invention patent. Thus, in certain circumstances, utility model patent is an ideal way of protection for technological improvement of products with relatively shorter life cycle;

3. Utility model patent proves to be an effective weapon if the purpose of the litigation is obtaining injunction from the court.

The features of invention patent as compared to utility model patent are:
1. The term of invention is 20 years, which is twice longer than utility model patent with 10 year’s terms;

2. The invention patent will be examined before granted while utility model patent only undergoes preliminary examination; it results in that: i) invention patent can be used to enforced against infringer after granted while for utility models, in many cases, the Patent Evaluation Report is required; ii) there are less uncertainties for invention patent in litigation due to the fact of it being examined before granted;

3. The invention patent protects products with shape and structure, composition of matters, liquid, gas and process while utility model patent protects product with shape and structure only;

4. Invention patent is deemed as having higher value than utility model patent; therefore, in the patent infringement litigation, damages awarded to invention patentee are generally higher than utility model patentee if other conditions are the same.

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