Many foreign applicants tend to overlook the utility model, though it can serve as a strategic tool to enhance product protection in China. An invention patent offers key benefits: it lasts 20 years from the filing date and provides a more secure right due to substantive examination. However, the review process is lengthy, with the average grant time ranging from 2–4 years after filing.
By contrast, a utility model is valid for only 10 years from the date of application and is regarded as less inventive than an invention patent. Yet, since it does not undergo substantive examination, it can be obtained much faster—often within a year. This makes it particularly advantageous in fast-moving commercial fields.
In enforceability, the invention patent carries greater weight because it has been rigorously reviewed and can lead to higher damages in litigation. Still, the utility model’s speed and simplicity make it a strong option for applicants who require earlier protection in China. For this reason, it is advisable to pursue both an invention patent and a utility model for the applicant’s main products. With this dual strategy, early protection is secured through the utility model, typically granted within a year, while stronger and longer-lasting protection follows with the invention patent. This approach ensures the applicant does not have to wait for the invention patent before initiating action against infringers. Another benefit is that if the invention patent is ultimately rejected after substantive review, the utility model may still remain valid, since it requires a lower inventive threshold.
According to Chinese Patent Law, applicants must file both the invention and the utility model on the same day. To avoid double patenting, one right—usually the utility model—should be abandoned if both are granted. Since international applicants typically first file in their home jurisdiction and then extend protection to China under the Paris Convention or the PCT, the pathway differs. Under the Paris Convention, applicants may file both applications in China on the same date within the priority period, claiming priority from the original application. Under the PCT, however, the option of filing both at once is currently unavailable once the application enters the national phase in China.
It is also important to note that a utility model patent applies only to products with a defined shape or structure. This makes it generally suitable for mechanical inventions but not for chemical or process-related patents.
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