Beijing, China
May 10, 2007
USDA/FAS GAIN Report Number: CH7030
Registration Procedures for Plant Product
There are three methods to protect
the intellectual property of plant products in China:
1)
trademark,
2) method patent, and
3) new plant variety right.
Registering a common trademark
for a plant product in China
The
procedures for registering a common trademark for a plant
product are consistent with common trademark registration in
general. Instructions can be found in the FAS/Beijing IPR
Registration Manual. They are:
- Design and Select a
Mark,
- Locate and Select a
Registration Agency,
- Complete and Submit
Required Documents,
A Chinese
trademark agency or IPR law firm can help prepare the required
documents. Required documents include
- Trademark Registration
Application,
- Power of Attorney,
- Copy of an Identity
Card or passport, and
- Six copies of Trademark
Sample.
The official
fees for filing one trademark application for registration in
one international class are RMB￥1000 (US$ 128.90) covering 10
goods/service items. For each good/service item exceeding 10 in
one application, additional official fee RMB￥100 (US$ 12.90)
would occur.
The
additional agent’s service fees for filing one trademark in one
class would be about US$ 300-350. These fees do not include
costs for conducting trademark search, reporting publication and
registration, and dealing with any official action in the
process of getting a registration, like litigating an opposition
challenge.
Applying
for a patent in China
Any person or
entity is qualified to apply for a patent in China. There are
three patent types under Chinese Patent Law:
1)
utility patent,
2) design patent, and
3) an invention patent.
Registering a
utility model or design patent requires the application go
through three stages:
1) File
Application,
2) Preliminary Examination, and
3) Grant of Patent.
Registering
an invention patent requires the application goes through five
stages:
1) File
Application,
2) Preliminary Examination,
3) Publication,
4) Substantial Examination, and
5) Grant of patent.
The procedure
for obtaining a patent goes as follows:
1) File
Application - A
Chinese patent agency or IPR law firm will help prepare and
submit the following required documents: (i) patent application
form, (ii) patent specification, (iii) drawing attachments of
patent specification, (iv) abstract of patent specification, and
(v) patent request.
2) Preliminary
Examination – The State
Patent Office will examine the application documents.
3) Publication
- After the
preliminary examination of the documents, if the application
satisfies the requirements provided in Patent Law, it will be
published in the Patent Gazette 18 months after the initial
filing date.
4) Substantial
Examination –
Substantial Examination requires a separate application after
the preliminary examination is published in the Patent Gazette.
The State Patent Office will complete the substantial
examination within 3 years. The application will be deemed
withdrawn if the applicant does not apply for substantial
examination.
5) Grant
of Patent – If the
State Patent Office deems the patent valid, it will grant the
patent, issue patent letter, register, and publish the patent in
the Patent Gazette. Invention patents are valid for 20 years
while utility model and design patents are valid for 10 years
from the filing date. Patents cannot be renewed.
The official
fees for a patent invention include a filing fee of RMB 950 and
an examination fee of RMB 2500. The official fee for a utility
model or design patent is a filing fee of RMB 500.
The agent’s
service fee for the invention patent are between $800 and $1200;
for utility model patents the range is $700-1000; for the design
patent the cost is approximately $600. These fees do not include
costs for translation or any action within the patent process.
Non-Chinese
individuals or entities must appoint a Chinese patent agency or
IPR law firm to represent the applicant. There is a list of
patent agencies available on the State Intellectual Property
Office website at:
http://www.sipo.gov.cn/sipo/zwgs/gg/200604/t20060411_80088.htm.
Applying
for a new plant variety in China
New plant
varieties cannot be patented but can be protected under the new
plant variety protection law. Any person or entity can apply for
a new plant variety right in China.
The
procedures of new plant variety rights include: 1) Locating and
Selecting a Plant Variety Right Agency, 2) Completing and
Submitting the Required Documents, 3) Acceptance of the
Application by the Agricultural Office, 4) Preliminary
Examination, and (6) Substantial Examination and Issuing the
Certificate. The procedure to obtain a patent goes as follows:
1)
Locate and Select a Plant Variety
Right Agency
- A foreign applicant must be represented by a Chinese agency
authorized by the Ministry of Agriculture.
2)
Complete Required Documents -
The agent
will assist the applicant to complete the application form and
submit them to the Ministry of Agriculture, including
identifying new plant variety specifications. The application
requires new plant variety photos.
3)
Agricultural Office Acceptance –
The
office will provide the application a Notice of Acceptance of
the applicant’s application within one month of submission.
4)
Preliminary Examination -
The examination
department will notify the applicant of its acceptance, will
publish it in the Gazette, and request a payment of the
substantial examination fees within 3 months from Agricultural
Office Notice of Acceptance.
5)
Substantial Examination and
Issuance of the Certificate -
If the
application passes the substantial examination, the examining
department will issue a new plant variety right certificate and
publish it in the Gazette. New plant variety rights for liana,
forest tree, fruit tree and ornamental tree are valid for 20
years; all other plant varieties are protected for 15 years.
Plant variety rights cannot be renewed.
The fees
include an application fee of RMB 1800, examination fee of RMB
4600, and an estimated attorney fee of $1800.
This report in PDF:
http://www.fas.usda.gov/gainfiles/200705/146281012.pdf
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