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Everyone always wants to know if is it worth it to file a patent in China with the Chinese Patent Office (CNIPA), since, in a lot of cases, it is hard to pursue litigation if a company is using your patent. It is worth noting that in the past five years, China has gone from 2nd to 1st place for the total amount of applications filed per year, overcoming the US for the number one spot and more than tripling them. Since more applications have been filed recently, it indicates that companies are now finding it worth it to proceed there. Also, it is worth noting that the laws in China are very specific to its jurisdiction, and thus, an allowed set of European or US claims does not hold the same kind of weight that it would in other countries, like for example Canada. In China, it is not uncommon to have 2 to 3 office actions for an application even with an allowed set of US or European claims.
The national phase deadline in China is 30 months, however, the deadline may be extended to 32 months even when a request for late entry is filed after the 30 month deadline.
A signed POA must be submitted within a term fixed in the notification, typically two months from the regional phase entry in China.
Amendments cannot be made during the initial filing to reduce payment of the excess claims fee in China. To not lose any subject matter, when filing National Phase Entry into China, the application should be the same as the originally filed PCT version, and the voluntary amendment can be filed when filing a request for examination.
Please also note that the claims for national entry filing in China cannot exceed and shall be supported by the specification of originally filed PCT applications. If you put different sets of claims from different applications under one application, there might be an issue with an excess of scope. If the issue of excess of scope is addressed by the examiner, you will have to delete the excess claims to keep the application alive and cannot file a divisional application with respect to the deleted claims.
When requesting PPH in China, the following documents are required:
- All notifications of U.S application(e.g., office actions, notice of allowance...)
- References cited in the U.S. office actions
The request for substantive examination must be filed within three years of the priority date if claiming priority in China, or from the international filing date if not.
China does not have a continuation application or continuation-in-part application system. The applicant can only file the divisional applications from the parent application. The divisional claims cannot exceed the scope of the originally filed specification of the parent application. If a divisional application is desired, then it must be filed before or at the time of paying the grant fee.
In China there is no grant fee and the first annuity is due at the time of registration.
Official Filing fee (up to 10 claims and 30 pages): $130 (USD)
Official Filing fee (each claim in excess of 10): $22 (USD)
Official Filing fee (each page 31-300): $8 (USD)
Official Filing fee (each page in excess of 300): $15 (USD)
Official Claiming Priority fee: $12 (USD)
Official Late National Phase fee: $145 (USD)
Official Examination fee: $360 (USD)
Official Extension fee (each month): $43 (USD)
Official Extension fee (each month 2nd time): $290 (USD)
Official Restoration fee: $145 (USD)
Official Registration fee: $30 (USD)
Official Annual fee (years 1-3): $130 (USD)
Official Annual fee (4-6 each year): $172 (USD)
Official Annual fee (7-9 each year): $290 (USD)
Official Annual fee (10-12 each year): $580 (USD)
Official Annual fee (13-15 each year): $860 (USD)
Official Annual fee (16-20 each year): $1,150 (USD)