Foreign enterprises should study China’s utility model patent regime

Q: What is a utility model patent? What are the application procedures and fees?

A: The Patent Law specifies three types of patents – invention, utility model and design – with utility model being defined as “any new technical solution relating to the shape, the structure, or their combination, of a product, which is fit for practical use”. The Patent Law specifies that a utility model patent, like an invention patent, is required to satisfy the requirements of novelty, inventiveness and industrial applicability, although the bar for inventiveness for a utility model patent is set lower. Correspondingly, the period of protection for a utility model patent is shorter than that for an invention patent, only 10 years.

Generally speaking, an application for a utility model patent may be filed for a product with a definite shape, and the subject matter has to be related to improvements to the form or structure of the product, or the organisation and linkage relationships among the internal component parts of the product. By contrast, subject matter concerning improvements to methods or materials themselves falls outside the scope of a utility model.

As compared to an invention patent, the prosecution period for a utility model patent is much shorter, generally between six and 12 months, and sometimes even less; furthermore, a utility model is not subject to a substantive examination, and the relevant fees are lower than those for an invention patent, rendering such applications a very attractive choice for applicants.

Cheng Bing is a partner and Wu Li is a senior consultant at AnJie Law Firm