Reply Searching Database for Hot Issues about Intellectual Property Rights
Can foreign patent rights be protected in China?
The foreign patent rights acquired from inventions and innovations by foreigners do not have legal effectiveness in China. In the event that a foreigner intends to effect his inventions and innovations protected in China, he shall apply for and obtain patent rights in China or from a place in China appointed for international patent application which has already passed the PCT. The qualifications of the main bodies applying for patents contain: ① those who have habitual residences or business offices in China; ②foreigners who have no habitual residences or business offices in China may present applications according to the agreements reached between or the international treaties jointly concluded by their own countries and China; ③ according to the reciprocal principles made between their own countries and China.
When does the patent protection come into effect? How long is the duration of protection?
As a kind of the terminable intangible property rights, the patent right, which is protected since the authorization and announcement, is terminated by laws at the expiration of the term. Meanwhile, more patent rights tend to be terminated prior to the expiration of the term because of the patentees no longer wish to maintain or voluntarily give up their own rights. After the patent right is terminated, the invention and innovation protected thereby will become a fortune of the whole society and used by everyone freely. The circumstances of terminating patent rights include: ① the termination at the expiration of the term, which is twenty (20) years after the application date for the invention patent rights and ten (10) years for the utility model or design patent rights; ② the termination caused by failure in paying annual fees according to the regulations. After the patent office issues a payment notice to the patentee for notifying retroactive paying of annual fees and fines for delayed payments, where the patentee fails to pay or pay enough annual fees and fines during the overdue period, the patent office will notify the patentee two (2) months prior to the expiration of the overdue period, not earlier than one (1) month, the notice for termination. Furthermore, where the patentee fails to start the restoration procedure or the restoration is not approved, he shall respectively register and proclaim his patent right in the Patent Register and the Patent Gazette, within four (4) months after the issuance of the notices for termination. The date for terminating a patent right shall be the same as the expiration date of the last year; ③ the patentee voluntarily gives up the patent rights The patentee may bring forward statements to voluntarily give up his patent right provided that he is willing to contribute his inventions and innovations to the whole society. Where the patentee voluntarily gives up the patent rights, he shall submit the written statements by using a form uniformly made by the patent office. Under the circumstances that a patent right to be given up has two (2) (or above) patentees, it shall be agreed by all the patentees, who are also required to sign and seal in the statement or other documents. For a patent right having two (2) (or above) patentees, where there is one (1) or some patentees who request(s) to give it up, the procedure for changing the descriptive item shall be handled, to change the patent(s). After the statement for giving up the patent right in accordance with regulations is approved, the patent office will register and announce all relevant matters in the Patent Register and the Patent Gazette. From then on, the statement will become effective.