The previous blog post explained the rules surrounding “non-use cancellation” of TM’s registered in China. In this post, I will be looking at the same question but applied to patents only, “can patents be cancelled for non-use in China”? If you’re thinking about registering your patent in China, or you fear your patent has been used by another party, then this blog is for you.
Introduction to Patents in China
Patents are an excellent way to protect your intellectual property in cases where you can prove your idea is innovative or distinctive in its function or design. A patent is one of the most secure forms of IP and gives the holder exclusive opportunity to make, use and sell for a span of time.
In other words, having a patent in China protects your unique ideas and concepts from being copied by an entity or individual. It restricts your competitors’ freedom to operate.
China admits three patent classifications:
1. Design Patent
Design patents protect new designs of any shapes, patterns or colors (or combination of all three) creating an aesthetic feeling, fit for industrial application. A successful design patent also provides ten years of protection.
2. Utility model
Utility model patents protect ideas providing technical solutions relating to the shape or structure (or combination of both) for practical use. A successful utility patent filing provides ten years of protection.
3. Invention Patent
Invention patents protect technical solutions relating to products, processes or improvements. The application process requires a thorough disclosure of the benefits and technical solutions offered by the product or process. A successful invention patent filing grants protection for twenty years.
Can Patents be Cancelled for Non-use in China?
While China TM can indeed be canceled for non-use, a China-registered Patent, however, is not subject to non-use cancellation. But a patent may be subject to “compulsory licensing” in certain situations.
Compulsory license means the government allows an entity or individual to produce a patented product without the consent of the patent owner.
Under any of the following circumstances below, the government may consider granting a compulsory license to exploit the patent for invention or utility model:
1. Where the patentee, after the expiration of three years from the date of the grant of the patent and the expiration of four years from the date of filing, does not exploit or does not sufficiently exploit the patent without any justified reason;
2.Where the exercising of the patent right by the patentee is legally determined as an act of monopoly, for the purposes of eliminating or reducing the adverse effects of the act on the competition.
3. Public interest, extraordinary circumstances, or national emergency require a compulsory license;
4. Public health interests require that a compulsory license on patented medicine is granted to export the medicine to underdeveloped countries when such countries conform to the provisions of relevant international treaties; or
5. Major technical improvements with significant economic impact are dependent on earlier patents.
Note that compulsory licenses for China patents are only applicable for invention and utility model patents, but not for design patents.
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