In Chinese Patent Litigation, Plaintiffs Succeed More Often with Utility Model Patents Than with Invention Patents
October 7, 2020
Three types of patents are available in China: invention patents, utility model patents, and design patents. The first two types represent the biggest departure from the US patent system, in that they effectively establish a two-tiered patenting system for technical inventions.
Invention patents are similar to US utility patents in scope (covering technical solutions concerning an apparatus or method), duration (20 years), and the requirement that they undergo substantive examination. On the other hand, utility model patents issue more quickly but offer more limited protection. Specifically, utility model patents are valid for only ten years, protect only technical solutions related to the shape and/or structure of a product, and do not undergo substantive examination—requiring plaintiffs to submit an evaluation report before they can be litigated.
Despite the more limited scope of utility model patents, RPX data show that plaintiffs succeed more often on the merits when asserting them in litigation. The plaintiff win rate for utility model patent cases is 68%, compared to 54% for cases asserting invention patents. Plaintiffs succeed most often, however, in cases over design patents, winning on the merits 71% of the time.
