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Assume I made an invention and I filed a provisional application for patent in Canada and US and follow up by filing a non-provisional application for patent within a few months.

If someone files a patent for basically the exact same thing in China, and there patent gets approved,

1) will I be able to do anything about it since I filed for a patent in US and Canada first?

2) Will I be able to still 'create / publish' my invention in China even though someone else has it patented in China?

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The basic idea of a patent is that the patentee can keep others from making, selling, importing and using their invention in that territory. Just taking "someone else has it patented in China" from your question and it is clear that you can't make, sell, import or use it in China. As long as someone else has a China patent. I'm not sure what create/publish means but if if it is one of those four things, then no.

If you had requested early publication in the U.S. non-provisional, a patent filed late in China should not have issued because your publication would have been prior art.

  • "a patent filed late in China should not have issued because your publication would have been prior art." so even if I filed a non-provisional patent in the US, then no one in China can patent the same idea in China regardless of if I only patented it in US? – user2719875 Oct 13 '14 at 3:58
  • Publishing and filing a patent application are two different things. The day after you publish your patent it isn't new anymore. Most countries only allow patenting of something that has absolute novelty as of the day of filing. But if the examiner doesn't see your prior art, then the other guy might get an allowance. In locations that have opposition/invalidation proceedings you could try to knock it out with evidence of prior publication. Your prior filing might or might not be considered prior art in China. If the countries were reversed, the answer was no in 20110 but yes now. – George White Oct 14 '14 at 0:58
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Regarding the first question - will I be able to do anything about it since I filed for a patent in US and Canada first? There is always scope for invalidating the patent granted in China. In order to invalidate the Chinese patent using your patent application, your application should have been published before the effective filing date of the Chinese patent. It shall be noted that only non provisional applications are published. Hence, the filing date of your provisional application may not have an impact over the validity of the Chinese patent, as opposed to the publication date of your non-provisional application, which may have an impact over the validity of the Chinese patent, if it was published before the effective filing date of the Chinese patent. Regarding the second question - Will I be able to still 'create / publish' my invention in China even though someone else has it patented in China? You can always publish your application without being liable for infringement. However, if you make, use, sell or offer for sale in China, any product or process covered by the granted Chinese patent, then you may be liable for infringement. You may refer to the link provided below for further details. http://www.invntree.com/blogs/my-product-infringing-others-patents

Regards, Subhasmita

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