In China, Utility Model (UM) is subject to formality examination only. Any UM patent application that has met all formality requirements shall be granted a patent right. The patent right for a UM shall take effect as of the date of the announcement. Since UM patent applications are subject to formality examination only, Patent applicants may consider the filing of an invention as well as a UM patent application directed to a common inventive concept because, without substantive examination, a UM patent might be registered/issued in a much more expeditious manner, namely within 8 months from the filing date. Under the China Patent Law and the practice adopted by the SIPO, the filing of an invention as well as a UM patent application directed to a common inventive concept is permissible. However, the invention patent right and the UM patent right for the same invention should not co-exist simultaneously.

For most instances, the invention patent application will not be examined for the substance until the application for the substantive examination is filed within three (3) years from the filing date. Thus, if the invention and UM patent applications are filed on an even date, the UM patent will be issued first because it is only subject to the formality examination. Once the invention patent application is subject to substantive examination, according to the Patent Examination Guidelines formulated by the SIPO, when the examiners finds no bases for rejecting the invention application other than the co-existence of the UM patent, the examiner should notify the applicant to elect one between the invention patent application and UM patent for further prosecution within a prescribed period. Failure to make such an election, the invention patent application shall be deemed withdrawn. If the applicant opts for withdrawing the UM patent, the applicant should submit a statement renouncing the UM patent in response to the notification. Accordingly, the renouncement of the UM patent will become effective on the date that the invention patent application is granted an invention patent.

It should be noted that, the precondition examiner notifies the applicant to elect one between the invention patent application and UM patent is that he or it shall state respectively upon filing the application that another patent applicant for the identical invention-creation has been filed by him or it. If the applicant fails to do so, the issue shall be handled according to the provisions of Article 9, paragraph one of the Patent Law, only one patent right shall be granted for any identical invention-creation. In another word, the applicant will only reserve the UM patent and can’t select the invention if he or it didn’t state when filing the invention and UM patent simultaneously.