Entering the Chinese National Phase of a PCT Application: 30 or 32 Months, Translation and Key Choices

Most foreign inventions reach China through the Patent Cooperation Treaty: one international application, then entry into the Chinese national phase before the deadline. Miss that deadline and the application's effect in China ends, with no second chance. This guide sets out the deadlines and requirements in Chapter 10 of the Implementing Regulations of China's Patent Law (the special provisions on international applications, in force since 20 January 2024) and the choices you have to make on entry. It is general information; a specific case needs professional advice.

The deadline: 30 months, or 32 with a surcharge

Under Rule 120, you must enter the Chinese national phase within 30 months of the priority date. If you miss that, you can still enter within 32 months by paying a late-entry surcharge (the "grace fee"). There is no further extension: under Rule 122, the international application loses its effect in China if you have not completed entry within 32 months.

China's 30 months is shorter than the 31 months some offices allow, so do not assume your European timetable applies.

What you must file to enter

Rule 121 sets out the requirements. Three decide whether you get an entry date at all:

• a written statement in Chinese giving the international application number and the type of patent you want (invention or utility model);
• the filing fee and the publication and printing fee, plus the surcharge if you are using the 32-month window;
• if the application was filed in another language, a Chinese translation of the original description and claims.

The others can be corrected later if CNIPA asks: the title, applicant and inventor details matching WIPO's records, a Chinese translation of the abstract, copies of drawings with any text replaced by Chinese, and proof of entitlement if the applicant changed during the international phase. If the first three are still missing when 32 months expire, the application's effect in China ends (Rule 122).

A foreign applicant with no habitual residence or business establishment in China must act through a Chinese patent agency (Patent Law, Article 18).

Decisions to make on entry

• Invention or utility model: you choose the type in the entry statement. A utility model is examined only for formalities and can be granted much faster, but covers products only and lasts 10 years instead of 20.
• Which text to prosecute: if you amended the application in the international phase and want examination on the amended text, file a Chinese translation of the amendments within two months of the entry date, or CNIPA will ignore them (Rule 123).
• Translation quality: the Chinese translation is what gets examined and enforced. Errors can be corrected against the original international text, but only before CNIPA prepares publication, or within three months of the notice that the application has entered substantive examination, and a fee is due (Rule 131).
• Early processing: if you want CNIPA to start before 30 months, you must enter the national phase and also file an express request under PCT Article 23(2) (Rule 129).

Other deadlines that run from the entry date

• Priority claim fee: pay within two months of the entry date, or the priority claim is treated as not made (Rule 127).
• Restoring a missed priority: if the receiving office did not restore priority in the international phase and you have a legitimate reason, you can ask CNIPA within two months of entry (Rule 128).
• Grace period disclosures: if you declared an exhibition or similar disclosure when filing, say so in the entry statement and file the supporting documents within two months (Rule 124).
• Biological material: point to the deposit details in the entry statement; otherwise correct it within four months (Rule 125).
• Genetic resources: if the invention relies on genetic resources, say so in the entry statement and complete CNIPA's form (Rule 126).
• Utility model amendments: for a utility model you can make voluntary amendments within two months of entry (Rule 130).

After entry

An invention application still needs a request for substantive examination, within three years of the priority date. If CNIPA raises a unity objection, divisional applications are available; see Divisional Patent Applications in China: Deadlines, Dates Kept and Fees. Whether you need a Chinese patent at all is covered in I Have a US Patent. Do I Also Need a Chinese Patent?

Frequently asked questions

We missed 30 months. Is it too late? Not if you are still within 32 months: you can enter by paying the surcharge. After 32 months the application's effect in China has ended.

Can we enter with an English text and file the translation later? No. For an application filed in another language, the Chinese translation of the description and claims is one of the three things needed to get an entry date.

Can we enter China as both an invention and a utility model? The entry statement asks for one type. Choose based on how fast you need protection and what you need to protect.

J&C Intellectual Property Agency, founded in 2008, is a CNIPA-recorded trademark agency and a member of the China Trademark Association. We help foreign businesses protect their brands and IP in China.