Foreign Filing License in China

If an invention fully or partially made in China, you need a Foreign Filing License ("FFL") before filing abroad. If it is not satisfied, subsequent to grant, it will be invalidated as an inevitable outcome. Unlike the US, a retroactive FFL is not available. 

There are three possible approaches to get the FFL in China.

Approach one - PCT at Chinese Receiving Office

We file a PCT application in English or Chinese at the Chinese Receiving Office, which is deemed that we file a Request for FFL at the same time. 

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.

Fees

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. 

Note

To make the Chinese Receiving Office as an eligible Receiving Office, at least one applicant to any designated offices or elected offices has to be a Chinese resident/citizen/entity. For example, the inventor who is a resident in China can be named as an applicant or one of the applicants in one jurisdiction in which the client has no interest, say Kyrgyzstan.

Otherwise, the Chinese Receiving Office will just forward the PCT application to the International Bureau without rendering the CN FFL. 

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.

Time

It takes 2-4 weeks to get the decision of FFL after we file the request at the Chinese Patent Office.

Fees

There is no government fee. In addition, a translation fee from English into Chinese of the whole description is required, if the documents are in English

Approach three - Filing a CN Application with FFL Request

The application must be in Chinese language. 

Time

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.

Fees

There is no government fee for the FFL request.  But we need to pay the government fees for filing the application and additional claim fees.  Further, there is a translation fee from English into Chinese (USD20 per 100 English words), if the documents are in English.

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Since approaches two and three for obtaining a CN FFL require documents in Chinese language, very often obtaining a FFL from the USPTO through fax and filing a PCT in English at the Chinese Receiving Office to obtain the CN FFL is the most economical choice. However, if timing is important, approach three might be the best option.