CNIPA Publishes the Guidelines for Determining Eligibility of Subject Matter for Utility Model Patent Protection

On 2 November 2023, the China National Intellectual Property Administration (CNIPA) published the Guidelines for Determining Eligibility of Subject Matter for Utility Model Patent Protection (“the Guidelines”) for the reference of relevant innovation entities.

The Guidelines delve into the provisions relating to subject matter of utility model patent protection and provide concrete examples to enable innovation entities to properly understand the boundary of protection for utility model patent in China.

To start with, the Guidelines cite Article 2.3 of the Chinese Patent Law, which defines that a utility model refers to a new practically applicable technical solution developed for the shape, structure, or the combination thereof of a product, and accordingly establish that the subject matter to be protected by a utility model patent needs to possess three elements, namely, product, shape and/or structure, and technical solution.

On this basis, the Guidelines, by reference to the stipulations in the Patent Law and the Guidelines for Patent Examination relating to the said three elements, elaborate on some common situations where the subject matter relates to product, to shape and/or structure, and to technical solution respectively with explaination of whether the subject matters concerned qualify for utility model patent protection. In addition, the Guidelines also point out the matters to note in responding to examination opinions and making amendments in utility model patent application where eligibility of subject matter for protection is concerned.