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I want to file utility model and patent application in China (and then globally via PCT). In China they do not have provisional patents so I'm still not allowed to use my invention openly even if I get a US provisional patent...

  1. Starting from which time point am I allowed to use my invention openly? Starting from filing date or from the date the patent was granted or utility model granted?

  2. In a case that a third party manages to steal my idea - can I use a US provisional patent in a Chinese court as a proof? Does a US provisional patent have any advantages over timestamped blockchain evidence as a proof that I'm the inventor and not the thief.

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How to file early, inexpensively?

Since China and most all other countries are on a first-to-file system, proving when you conceived or perfected an invention is not relevant - only the date you file. Forget any ideas about blockchain or mailing it to yourself.

China is part of the Paris Convention for the Protection of Intellectual Property so a filing in any Paris country establishes a filing date for China, assuming you actually follow through and file in China within a year. Almost every country is part of the Paris Convention.

You can file a U.S. provisional application and establish a filing date valid for priority to a later (1 year limit) filing in China. Other countries have low cost regular filings as an alternative. You might look at the U.K.

Another very important step is getting a Foreign Filing License from the CNIPA before filing elsewhere for an invention made in China, if it is before filing in China. You can read about this here.

PCT option

You can file for a PCT through the CNIPA as your first filing in China or, as you mention, file a China national application and then a PCT. Note that all applications relying on the priority application (U.S. provisional for example) need to be within that one year time period. This includes the PCT.

When can I expose to the public?

If your priority application is well drafted and complete you might decide to make it publicly available after filing. It is a judgement call on your part since anything left out of the application will not be able to be in your application in China.

Enforcement

Patents are territorial. A U.S. patent is not enforceable in China or visa versa. Also, as noted in EricS's answer, a U.S. provisional application does not lead to a "provisional patent" anyway.

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    I think the OP was thinking of using blockchain to prove he was the originator of the IP should he sue for theft. This only applies if the person being sued had access to the invention and that could be proven, perhaps via a signed NDA.
    – Eric S
    Jan 11, 2023 at 22:57
  • Thank you very much! You write: "You can file a U.S. provisional application and establish a filing date valid for priority to a later (1 year limit) filing in China." Does this mean that I can: (1) file a (cheap, self written) U.S. provisional application, (2) start openly selling my product, for less then a year even in China, (3) file a regular national patent application in China, U.S. and elsewhere? If my understanding is correct - could you, please, provide some links on material that supports this... Jan 20, 2023 at 10:09
  • I'm asking because I think I read somewhere that U.S. provisional application provides no remedy for a later filing in China and selling your product even after obtaining U.S. provisional application amounts to a disclosure thus making future filing in China impossible. I might be wrong, but that was my impression after reading some relevant materials several years ago. If I'm wrong and it IS possible to go this route (U.S. provisional application > sell the product verifying its commercial potential > regular national filings via PCT in China, U.S., Europe, etc.) - then its a GREAT SOLUTION! Jan 20, 2023 at 10:18
  • In that scenario your scope and quality of protection in China would be strictly limited to the content of the “cheap, self written” US provisional. Please ask this as a new question.
    – George White
    Jan 20, 2023 at 16:45
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First off, there is no such thing as a US provisional patent. Only provisional applications. To obtain a US patent, you need to file a non-provisional application and hope it gets granted as a patent. The provisional application just enables you to establish an earlier priority date.

As for your specific questions:

  1. Starting from which time point am I allowed to use my invention openly? Starting from filing date or from the date the patent was granted or utility model granted?

You can use your invention (assuming it is not infringing on an existing patent) any time you want. However, I think the best option is to wait until your patent application is filed. Any public disclosure (and selling the invention is probably disclosure) before filing will prohibit you from obtaining a patent.

  1. In a case that a third party manages to steal my idea - can I use a US provisional patent in a Chinese court as a proof? Does a US provisional patent have any advantages over timestamped blockchain evidence as a proof that I'm the inventor and not the thief.

I'm not sure what a US provisional application helps with in China. Patents, pretty much everywhere, goes to the first to file, not first to invent. You may be able to sue someone for intellectual property theft if you can show they had access to the IP and then utilized it. This is a legal question and not a patent question and better suited to the Law SE site. I would be very careful about disclosure before filing a patent application and only do so with a non-disclosure agreement agreed to and signed.

As always, I encourage you to use an actual patent attorney to draft and prosecute your patent. They will be able to provide answers to all your questions and the result will almost assuredly be a stronger and more useful patent. I also want to point out that I am not an attorney and this should not be considered legal advice.

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