The following answers are provided by You Minjian, managing partner of Shanghai Co-effort Law Firm
Q1: Can an expired patent be applied again?
A: An expired patented product can no longer be protected. Since an expired patent product has obtained patent rights and has been made public, re-submitted patent application does not possess novelty. However, if the new product is an improved invention on the basis of the original patent and meets the requirements for an invention patent, it may be granted with a new patent after application.
Q2: Can foreigners apply for patents in China?
A: Foreigners, foreign enterprises and other foreign organizations that have regular residence or business sites in China can enjoy national treatment for patent protection, that is, they have the right to apply for patents and obtain patent protection as Chinese nationals.
According to the Patent Law, if a foreigner, foreign enterprise or other foreign organizations without a regular residence or business site in China intend to apply for a patent in China, one of the following conditions must be met: (1) The applicant's home country has signed a bilateral agreement with China on patent protection for each other's nationals; (2) The applicant's home country and China are both parties to an international treaty which gives each other's nationals patent protection; (3) If the applicant's home country and China have neither signed an bilateral agreement nor joined any international treaty but the home country has given China’s nationals patent protection according to its patent law or in practice, it can enjoy patent protection in China in accordance with the principle of reciprocity.
Q3: How can Chinese nationals apply for patents in foreign countries? How can Chinese nationals entrust patent agents?
A: Any Chinese unit or individual can file an international application in the following two ways: (1) The applicant can file a patent application with the State Intellectual Property Office and claim priority for international application within one year (If China has reached a priority agreement with the country). (2) The applicant can file a PCT application directly with the State Intellectual Property Office. With regard to patent agents, according to Article 18 of the Patent Law, where a foreigner, foreign enterprise or other foreign organizations without a regular residence or business site in China apply for a patent in China, the application shall be handled in accordance with the agreements concluded between the country where the applicant is a national and China or the international treaties to which both the countries have acceded or in accordance with this Law on the principle of reciprocity.
According to Article 19 of the Patent Law, if a foreigner, foreign enterprise, or other foreign organizations without a regular residence or business site in China intend to apply for a patent or handle other patent-related matters in China, the applicant shall entrust a legally established patent agency with the application and such matters. If a Chinese unit or individual intends to apply for a patent or handle other patent-related matters in China, the applicant may entrust a legally established patent agency with the application and such matters. A patent agency shall abide by laws and administrative regulations and handle patent applications or other patent-related matters as entrusted by its principals. It shall also be obligated to keep confidential the contents of the inventions of its principals, unless the patent applications have been published or announced. The specific measures for administration of the patent agencies shall be formulated by the State Council.
