China's Two Patent Model Types
There are two types of patent protection in China: invention and utility model patents. Invention patents are similar to the US utility patents. Whereas, utility model patents are granted for technical solutions relating to shapes or structures of a product.
Same Day Dual Filing
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 older practice of amending the invention application to distinguish it from the utility model is no longer permitted.
Now You Must Choose One
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.
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.
Implication for Applicants
At the time of filing in China, applicants should carefully assess:
- Whether 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.
Other articles on Chinese Patent Policy: Update on the Chinese Foreign Filing License Requirement