Chinese Patent Law has an interesting provision that specifically prohibits patent protection on “illegal” or “immoral” inventions. What does this mean, exactly? According to Article 5.1 of the Chinese Patent Law, “no patent shall be granted for an invention that contravenes any law or social moral or that is detrimental to public interests.” On its face, this provision seems extremely broad, undefined, and potentially very subjective. Whose moral standard? And how do you define “detrimental”? Because details of litigations are not always publicly available in China, we only have limited examples by which we can understand how Chinese courts and examiners interpret and apply this language. Below we highlight one…
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What is the difference between an Invention Patent and a Utility Model Patent?
There are two types of patent protection in China. Invention patents (similar to a US utility patent) have a term of 20 years from the date of filing and may be granted for both methods and products. Utility model patents (similar to a petty patent) may be granted in China for technical solutions that relate to shapes or structures of a product, and have a term of 10 years from the date of filing. Utility model applications are subject to preliminary examination to check for compliance with formal requirements, novelty, unity of invention and patentable subject matter. Invention patent applications are subject to search and examination similar to those conducted…
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Can Post Filing Data Overcome Inventive Step in China?
Since 2010, the Patent Re-examination Board (PRB) has published the top 10 patent invalidation cases of the year in April of each year. The selection criteria are high social concern, significant impact on the related industry, or involve difficult legal issues and important examination criteria. Below is one of the top 10 cases that discusses post filing data in China patents. Post Filing Data in China Can post-filing data showing unexpected technical effect be used to overcome inventive step if the specification contains no data but asserts the unexpected technical effect? In short, the answer is no, post-filing data cannot be used to overcome inventive step even if the idea…