China's simultaneous filing or "dual-filing"system allows an applicant to file an invention patent application and a utility model application for the same invention-creation on the same day. Historically, this system was a useful strategy for a product requiring both a rapid and early protection by a utility model and a longer protection by a more thoroughly examined invention patent.

The system, however, was changed materially on 1 January 2026. Under the revised Patent Examination Guidelines, an applicant who has declared a dual filing can no longer preserve the utility model by amending the claims of the application for invention patent so that the claims of the application for invention patent have different scopes from those of the utility model. If the application for invention patent is otherwise allowable, the applicant must declare to abandon the granted utility model before the application for invention patent is granted.

This article explains the current rules, the treatment of differing claim scopes, and the practical consequences regarding the dual-filing system.

Statutory framework

Article 9 of the Patent Law of China establishes the basic prohibition against double patenting that:

Only one patent may be granted for the same invention-creation.

It then provides a limited exception that, if a same applicant files both an application for utility model and an application for invention patent for a same invention-creation on the same day, and the utility model obtained earlier remains in force, the invention patent may be granted if the applicant declares abandonment of the utility model.

Rule 47 of the Implementing Regulations adds a crucial procedural condition: the applicant must declare, separately in each application at the time of filing, that another application has been filed for the same invention-creation. If the declarations are omitted, the applications will be dealt with under the ordinary one-patent-only provision in Article 9 of the Patent Law of China.

The declaration is therefore not a formality that can be safely added later. It must be made for both the applications when they are filed. A priority date can not replace the filing-date requirement that the two Chinese applications must have the same actual filing date.

The Patent Examination Guidelines explain that “the same invention-creation” means that two or more applications (or patents) have claims with identical scopes of protection. The comparison is therefore claim-based. Two applications do not become the same invention-creation merely because their descriptions, drawings, or inventive concepts overlap each other.

The decisive 2026 variation of the Patent Examination Guidelines

Before 2026, the Patent Examination Guidelines provided the applicant with two possible approaches to deal with an allowable application for invention patent overlapping with an existing utility model, which include:

1. declaring to abandon the utility model; or 

2. amending the claims of the application for invention patent so that their scopes were no longer identical to those of the claims of the utility model. 

The second approach sometimes allowed both the patents to survive. For example, the applicant could retain a utility model with the claims thereof having relatively broad scopes and further obtain an invention patent with the claims thereof having narrower scopes.

The amended Section 6.2.2, Chapter 3, Part II of the Patent Examination Guidelines effective from January 1, 2026 removes approach 2. Where the applicant has made the declaration of dual filing for the same invention-creations and the application for invention patent

contains no remaining ground for rejection, the CNIPA shall inform the applicant to declare the abandonment of the utility model. If the applicant

• files the declaration of the abandonment, the application for invention patent is patented; 
• refuses to abandon the utility model, the application for invention patent is rejected; or
• fails to respond in time, the application for invention patent is deemed withdrawn. 

If the declaration of the abandonment has been made, the utility model will terminate on the date on which the grant of the invention patent is announced. The termination of the utility model and the grant of the invention patent are announced together, avoiding a time gap between the two patent rights.

The CNIPA explained that such amendment is intended to align the examination practice more closely with Article 9 and Rule 47 and reduce the simultaneous existence of invention patents and utility models related to each other. The amendment was promulgated officially by the CNIPA's Order No. 84 and took effect on 1 January 2026[1]. 

Why applicants use dual filing

An application for invention patent will undergo substantive examination. It may take several years for an application for invention patent to obtain a patent right, although accelerated routes may sometimes be available. In exchange for the long term of examination, an invention patent has a twenty-year protection term calculated from the filing date and generally carries a presumption of possessing stronger patentability because novelty and inventive step have been substantively examined.

A utility model is limited to the shape, structure, or combination of shape and structure of a product, but cannot protect a method, a chemical composition, or other subject matter outside the statutory definition. The term of a utility model is ten years from filing.

Applications for utility model can generally be allowed more quickly because they do not subject to the same full substantive examination of applications for invention patent, even though China’ s current preliminary examination of utility models is more demanding than a purely formal registration system and includes examination of certain apparent novelty and inventiveness issues.

Dual filing may combine the following attributes:

• the utility model may provide enforceable rights quickly; 
• the pending application for invention patent preserves the possibility of longer-term protection; 
• once the application for invention patent becomes allowable, the applicant may replace the utility model with the invention patent. 

The expression “replace” is particularly appropriate after the 2026 amendment of the Patent Examination Guidelines, which means that a utility model and an invention patent are now intended to operate sequentially, but not to remain together in a portfolio.

Must the claims of the applications for invention patent and utility model be completely identical under the dual-filing system?

It is unnecessary for the claims of the two applications to be identical completely. The dual-filing system is applicable to the applications for invention patent and utility model containing:

• one or more claims with the same scopes; and 
• optionally, additional claims with different scopes. 

For example, the application for utility model may contain product claims 1–6, while the application for invention patent may contain corresponding claims 1–6, additional dependent claims 7–10, and method claims 11–15. Methods are not the subject matters protected by the utility model, and thus the claims for methods shall not appear in the utility model. The presence of the additional claims 7-15 in the application for invention patent does not hinder the application of the dual-filing system.

Similarly, the application for invention patent may contain additional independent and dependent claims for product that are broader or narrower than the claims of the utility model in scope, and the application for utility model may contain additional independent and dependent claims not appearing in the application for invention patent.

The key points of the dual-filing system lie in the eligibility for dual filing and the consequence of electing the dual-filing route. A partial overlap among the claims of the two applications is sufficient to make the dual-filing declaration applicable, because even one claim common to the two applications may trigger the Article 9 issue regardless of whether the remainder of the claim sets differ or not.

Once the dual-filing declaration has been made, however, applicants should no longer assume that eliminating all identical claims during the prosecution of the application for invention patent may permit both the invention patent and the utility model to be retained. The revised administrative approach uses the applicant’ s declaration of dual filing to identify the applications as a dual-filing pair, and requires surrender of the utility model as a precondition for finally patenting the allowable application for invention patent.

Accordingly, the safer practical reading is that a declared dual filing constitutes an election of sequential protections. Divergent claims may still be included for legitimate substantive reasons, particularly because the application for invention patent can protect methods and other subject matters unavailable to a utility model, but should not be treated as a mechanism for preserving both patents after 2026.

What happens if no declaration of dual filing is made?

Failure to declare does not prevent both the applications from being examined. Each application may proceed under its own examination framework. The problem arises if the application for invention patent contains a same claim of the utility model.

The special statutory exception provided in Article 9 of the Patent Law of China is then unavailable. Later abandonment of the utility model does not retroactively cure the missing of making the declaration at filing. Article 9 is applied under the ordinary double-patenting rule.

Depending on the claims and the procedural circumstances, applicants may still argue that the scopes of the claims in the application for invention patent are not identical to those in the utility model. Anyway, the applicant cannot request the benefit of the special exception of “abandoning the utility model and then obtaining the invention patent” . A CNIPA public response[2] in June of 2026 reiterates that the applications without the declaration of dual filing are handled directly under one-patent-only rule provided in Article 9. 

This makes a claim comparison at filing stage essential. Applicants should not omit the declaration merely because the claims of the two applications look different in a literal way. Under Chinese practice, identity of claim scopes depends on the technical features and the resulting protected subject matter, not simply on wording.

Hypothetical case studies

Case 1: Identical core claims for apparatus plus claims only for invention patent with dual-filing declaration

An applicant developed a gripper. On June 30, 2023, the applicant filed:

• an application for utility model containing apparatus claims 1–8; and 
• an application for invention patent containing the same apparatus claims 1–8, apparatus claims 9–12 depending from the independent claim 1 which are directed to sensor arrangements, and method claims 13–20 involved in calibration and control. 

The two applications are eligible for the dual-filing system due to the same claims 1-8, and the declarations of dual filing were separately made for the two applications at filing.

The utility model was granted on January 15, 2024 and can be used against an imitator early.

On the other hand, the application for invention patent subjected to substantive examination and, after making response to the office action of February 2, 2026 without any amendments of the claims, the claims of the application for invention patent have been in the condition of allowance. In this case, the applicant cannot retain the utility model by, for example, deleting claims 1–8 and keeping the sensor and method claims under the amended Patent Examination Guidelines effective from January 1, 2026. To obtain grant of the invention patent, the applicant must make the declaration of the abandonment of the utility model, regardless of whether the utility model application and the invention patent application were filed before or on or after January 1, 2026.

Case 2: Broader claims of utility model and narrower claims of invention patent with dual-filing declaration Both the applications for utility model and for invention patent are involved in foldable mobile phone. The claims in the application for utility model require housings A and B and a hinge C. The claims in the application for invention patent initially contain the same elements but are later narrowed by adding a 
temperature-responsive locking mechanism D.

Under the practice prior to 2026, such narrowing might support an argument that the claims in the application for invention patent are no longer identical to any one of the claims in the utility model, allowing both patents to remain in force. However, under the revised rule, this argument is no longer a feasible option where the two applications have been declared as a dual-filing pair. If the application for invention patent is allowable and needs to be patented, the utility model must be declared to be abandoned before the grant of the application for invention patent.

The applicant should therefore compare commercial values of the utility model and the potential invention patent rather than claim languages alone. For example, the following questions may be considered:

• Does the utility model cover more competitor products?
• How much of the ten-year term of the utility model remains?
• Are the narrower claims in the potential invention patent more defensible? 
• Is the additional ten-year term of an invention patent commercially important?

After the comparison, the applicant may select retaining the utility model or obtaining the invention patent by abandoning the utility model.

Practical recommendations

Applicants should decide before filing applications whether they want sequential dual protections or two genuinely distinct patents.

For a dual filing, the same applicant shall file both applications for utility model and for invention patent on the same calendar date, make the required declaration in each request, and ensure that the application for utility model contains only eligible product-shape or structural subject matters. The specifications of the two applications may be the same but should be drafted thorough enough to support various claims such as product, system, and method claims, future narrowing amendments, and commercially meaningful fallback 
positions.

Applicants should also docket the utility model carefully. If the utility model lapses or expires before the CNIPA is ready to grant the invention patent, the statutory condition that the previously obtained utility model “has not terminated” may not be satisfied, creating serious risk that the application for invention patent cannot be granted. Voluntary abandonment should be submitted only through the prescribed response process so that the termination of the utility model coincides with the announcement of granting the invention patent.

Most importantly, portfolio planning must reflect the amendments of the Patent Examination Guidelines in 2026. Filing extra or divergent invention claims remains permissible, but it no longer provides a feasible route to keep both members of a declared dual-filing pair. The modern Chinese patent system offers speed first and longer protection later, instead of two enduring patents for variations of the same declared invention-creation.

 

Notes:

[1] CNIPA Order No. 84

[2] CNIPA’ s June 2026 response