Chapter 3: Patent Search and Risk Assessment

3.1 Patentability Search

A patentability search is conducted prior to filing to assess whether an invention meets the statutory requirements of novelty, inventiveness, and practical applicability. The search scope includes Chinese patent documents, foreign patent documents, and non-patent literature (NPL). For invention patents, the inventiveness standard requires that the invention possesses prominent substantive features and represents a notable progress compared to existing technology.

3.2 Freedom-to-Operate (FTO) Search

An FTO search determines whether the commercialization of a specific technology or product would infringe any valid patent rights in China. The FTO analysis process includes: technology decomposition, searching valid patents, claim-to-product comparison, infringement risk assessment, and design-around recommendations. Given that China has over 4.7 million valid invention patents, FTO analysis is essential before product launch.

3.3 Invalidity Search

An invalidity search aims to identify prior art that can be used to challenge the validity of an granted patent. Invalidity searches must be exhaustive, covering obscure publications, early patent documents, expired patents, non-Chinese literature, web archives, and physical products. In China, any entity or individual may request invalidation of a patent after its grant.

With a clear understanding of the patent landscape through comprehensive searches, applicants can proceed with confidence to draft application documents that meet CNIPA's stringent requirements, which we examine in the next chapter.

Chapter 4: Application Requirements and Drafting Standards

4.1 Invention Patent Application Documents

Under the Patent Law and its Implementing Regulations, an invention patent application must include: a request form, a specification (description), claims, abstract, and drawings (if applicable). The specification must describe the invention in a manner sufficiently clear and complete for a person skilled in the art to carry it out.

4.1.1 Claims (Quanli Yaqiu Shu)

The claims define the scope of patent protection and are the most critical component of the application. Claims must be supported by the specification and clearly define the technical features. Independent claims must recite all essential technical features necessary to solve the technical problem. Dependent claims further define the invention by adding additional technical features.

4.1.2 Specification Requirements

The specification must include: technical field, background art, summary of the invention, detailed description of embodiments, and drawings description. The 2025 Patent Examination Guidelines revision introduced updated standards for AI-related inventions, requiring that algorithm-based inventions clearly describe the technical problem, technical solution, and technical effects.

4.2 Utility Model Application Documents

Utility model applications require a request form, specification, claims, abstract, and drawings. Drawings are mandatory for utility models. The specification must clearly describe the shape, structure, or their combination of the product.

4.3 Design Patent Application Documents

Design patent applications require a request form, drawings or photographs (typically six views: front, back, left, right, top, and bottom), a brief description of the design, and a priority document (if claiming priority). The 2020 Amendment introduced partial design protection, allowing protection of specific portions of a product's design.

4.4 Filing Methods

Electronic filing through the CPEA system is strongly recommended. It offers faster processing, real-time status tracking, and automatic fee calculation. Paper filings are still accepted but may experience longer processing times.

Once a well-drafted application is submitted, the applicant must navigate the examination process, which frequently involves responding to examination opinions from CNIPA examiners. The strategies for handling these communications are crucial to securing patent protection.

China Patent Research Report - Part 2