There are two types of patent protection in China: Invention patents, which are similar to utility patents in the US; and utility model patents (similar to petty or minor patents), which may be granted for technical solutions that relate to shapes or structures of a product.
Under Chinese patent law, when the same applicant files both an invention patent application and a utility model application for the same invention on the same day (i.e., same filing date), it is considered a same-day dual filing. Whether these applications relate to the same invention is determined based on a declaration made in the request form.
To obtain a patent for the invention, the applicant must waive the corresponding utility model right. The previous practice of amending the invention application to distinguish it from the utility model is no longer permitted under the revised rules.
Background (Previous Practice):
Previously, if the utility model right was still valid and a declaration was submitted at the time of filing, applicants had two options:
- Modify the invention application to differentiate it from the utility model, or
- Waive the utility model right.
Current Practice (Amended Rules):
Now, only the second option—waiving the utility model right—is allowed. This amendment is intended to streamline examination procedures and reduce the burden on both applicants and the patent office.
Implications for Applicants:
At the time of filing in China, applicants should carefully assess:
- Whether dual filing (for both invention and utility model) is necessary—especially if the scopes of protection are the same.
- If the scopes are identical, whether to pursue protection via a utility model or an invention patent.