Foreign Filing License in China
Only innovations fully or partially made in China requires a Foreign Filing License from the Chinese Patent Office before filing outside China regardless the citizenship or residency of inventors.
Unlike the US, the Chinese Foreign Filing License requirements do not apply to design patent applications.
As an overview, there are three possible approaches to get Foreign Filing License ("FFL") in China for innovations made in China.
Approach one - PCT
We file a PCT application in English or Chinese at the Chinese Receiving Office, which is deemed that we file a Request for Foreign Filing License “FFL” at the same time.
It takes 2-4 weeks to get the result of FFL after we file the PCT application. If we pass the FFL, the Chinese Receiving Office will transmit the PCT to the International Bureau, which can be learned from form PCT/RO/105.
If we do not want this PCT application to go forward, we do not need to pay any government fees. However, we can still claim the priority of this PCT in a later application.
If we do want to keep this application, we need to pay all the fees associated with filing a PCT.
Approach two – just a request for FFL
A description of the technical solution in Chinese is required to apply for FFL through this approach before the Chinese Patent Office.
It takes 2-4 weeks to get the decision of FFL after we file the request at the Chinese Patent Office.
There is no government fee. In addition, a translation fee from English into Chinese of the whole description is required, if the specification is in English rather than Chinese.
To be safe, we recommend submitting a technical specification which is identical to the patent application to be filed later.
Approach three - Filing a CN Application with FFL Request
The application must be in Chinese language.
It takes 0-2 weeks to get the decision of FFL after we file the patent application at the Chinese Patent Office. Sometimes we got the decision on the same day we filed the request.
There is no government fee for the FFL request. But we need to pay the government fees for filing the application.
Further, in addition to fees for filing a Chinese patent, a translation fee from English into Chinese might also be needed, if a specification is in English rather than Chinese.
Expedited FFL available before the USPTO is not available in China.