16 December 2015

Companies with a significant intellectual property stake in China should put in place an effective protection and enforcement strategy against local and overseas competitors. The difficulties of patent enforcement in China are perennially in the news; many would say China has a checkered history when it comes to IP matters. The Chinese system is actually founded on different principles to the developed country system: civil law rather than common law.

Before a patent is officially granted in China, patent rights for that patent application do not exist. Therefore in the case of infringement, the applicant must wait until the patent is granted in China before they can take enforcement action against an infringing party. This is the case for all three types of patents.  

For invention patents, after the grant of a patent, the patent owner may request reasonable compensation from the infringer for any infringement that has occurred during the period from when the invention was initially published in the patent gazette, and the grant of the patent. Invention patents are published  in the patent gazette 18 months after the initial applications. However, there may be a significant time period before the invention patent is granted after substantive examination.

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