There is a time span from the date when an application for patent for invention is filed to the time of its approval. The Chinese Patent Law stipulates that where an application for patent for invention has not been granted a patent two years after its date of filing, the applicant shall begin to pay the maintenance fee from the third year onwards to maintain said application for patent to be in force at the Patent Office. Where the applicant fails to pay the maintenance fee, the Patent Office shall deem that the applicant has withdrawn its application on its own initiative, said application for patent shall no longer be in force.
The maintenance fees for applications for patent for invention are calculated annually. Rule 6 of the Implementing Regulations of the Chinese Patent Law stipulates: "The first day of any time limit prescribed in the Patent Law and these Implementing Regulations shall not be counted. Where a time limit is counted by year or by month, it shall expire on the corresponding day of the last month: if there is no corresponding day in that month, the time limit shall expire on the last day of that month." Therefore, the year to pay the maintenance fee is to be calculated from the date of filing to the same day of the next year, that is, a full year has passed. Where so many full years have passed, so many maintenance fees shall be paid.
The way to pay the maintenance fees for applications for patent for invention is provided as: For an application for patent for invention, maintenance fee shall be paid starting from the third year as counted from the date of filing. The first payment is called the maintenance fee for the third year, the time limit for paying which is the first month of the third year; the time limit for the second payment (the maintenance fee for the 4th year) is the last month of the third year. The following maintenance fees shall be paid in this order.
Where the applicant fails to pay the maintenance fee within the time limit, the Chinese Patent Law has provided a grace period of 6 months, within which the applicant can still effect the payment, but with a 25% surcharge. Where the applicant fails to pay maintenance fee after the grace period has expired, said applicant for patent shall be deemed to have ceased and shall not be recovered.
