To further regulate the handling of situations in which the same applicant, on the same day (meaning the filing date), files both a utility model patent application and an invention patent application for the same invention-creation (hereinafter “same-day dual filing”), and to make examination practice better align with China’s current innovation development needs and the legislative purpose of the Patent Law, the China National Intellectual Property Administration (CNIPA), in the newly amended Guidelines for Patent Examination that took effect on 1 January 2026, adjusted how corresponding invention patent applications are handled in substantive examination where “same-day dual filing” applies and the earlier-granted utility model patent right has not yet terminated. China Intellectual Property News specially invited industry experts to discuss the “same-day dual filing” system in light of the latest amendments to the Guidelines.

Author: Bin Yuecheng

Author’s affiliation: Intellectual Property Court of the Supreme People’s Court

The “same-day dual filing” system, which has operated in China for nearly thirty years, has undergone a major adjustment in the newly amended Guidelines for Patent Examination. On the surface, this appears to be only a procedural technical change. Viewed against China’s overall patent-system transition from “quantity expansion” to “quality first,” however, the amendment sends a clear institutional signal: patent examination is returning to the legislative intent, room for institutional arbitrage is being further compressed, and innovators need to reassess their patent-layout strategies.

Institutional origins: the long evolution of a “temporary measure”

“Same-day dual filing” was not part of the original design of China’s patent system; it was a transitional arrangement with a distinctive era imprint. Invention and utility model are two patent types with distinctive features: invention patents require substantive examination, have longer examination cycles but more stable effect and a longer term of protection (20 years); utility models are granted quickly without substantive examination but have a shorter term (10 years). From the 1990s to the early 2000s, invention patent filings in China grew continuously while examination resources were severely insufficient, and the path from filing to grant for inventions could take six or seven years. The contradiction between overly long invention examination cycles and innovators’ need for rapid patent grant became increasingly acute. Against this background, examination practice opened a “fast track”: the same applicant, on the same day, filed both an invention and a utility model for the same invention-creation, using the respective advantages of the two types to obtain a utility model grant quickly and, after the invention passed substantive examination, to surrender the utility model in exchange for an invention patent with a longer term and stronger stability. In everyday terms, it is like someone who, during Spring Festival travel when tickets are scarce, first buys a seat ticket (akin to a utility model) for a train while also waiting for a sleeper ticket (akin to an invention), and must give up the seat ticket upon obtaining a sleeper berth. The overall principle is to prohibit the same person from occupying two seats on the same train at once (embodying the prohibition of double patenting), so that social resources are not occupied ineffectively.

This examination path was ultimately written into legislation through the first paragraph of Article 9 of the Patent Law of the People’s Republic of China as amended in 2008, and concrete operating procedures were added in the Implementing Regulations of the Patent Law as revised in 2010. It must be stressed that the institutional design always intended a “choose one of two” under the premise of the same person, same day and same invention-creation—either keep the utility model, or surrender it to obtain an invention grant; both cannot be held together. In later examination practice, however, a third fork gradually emerged: the applicant could amend the invention claims so that their scope differed from the granted utility model, thereby keeping the utility model while also obtaining an invention grant—equivalent to occupying both a seat and a sleeper on the same train. Although this met applicants’ practical needs, it substantively departed from the legislative purpose of prohibiting double patenting.

Essence of the new rules: from “flexible coexistence” to “rigid choice”

The amendment to the “same-day dual filing” examination rules in the newly revised Guidelines focuses on reshaping rules at two levels.

First, prohibit double patenting and return to a “rigid choice.” Before this amendment, the focus of “same-day dual filing” had tended to shift from “technological innovation” to “institutional arbitrage,” becoming a flexible policy for applicants who could “advance or retreat”: they could surrender the utility model to obtain an invention grant, or amend the invention application to achieve “coexistence of both rights.” Under the new rules, when an invention application meets the conditions for grant after substantive examination, the examiner will notify the applicant to choose: either surrender the already obtained utility model right to obtain the invention grant, or refuse to surrender, in which case the invention application will be rejected. The third path of “coexistence of both rights” under the old rules no longer has institutional space; “same-day dual filing” has become a rigid “either-or” choice.

Second, emphasise the declaration obligation and improve procedural linkage. The premise of “same-day dual filing” is the same person, same day and same invention-creation; therefore applicants should themselves judge at filing whether the invention-creation is the same and bear the legal consequences. The new rules make clear that applicants must separately state at filing that they have already applied for another patent for the same invention-creation, and that they cannot obtain a grant by later amending the invention application so that it differs from the utility model’s scope of protection. Once a declaration is made, the applicant cannot later retract or change it.

Deeper logic: rebalancing procedural efficiency and substantive fairness

Understanding the deeper logic of this amendment requires placing it in the overall trajectory of China’s patent-system development.

First, invention examination cycles have been greatly shortened, and the rapid-grant function of “same-day dual filing” has weakened. As CNIPA’s examination efficiency has continued to improve, invention examination cycles have been substantially reduced to among the fastest under comparable examination systems internationally. In some fields, priority examination, rapid pre-examination and the Patent Prosecution Highway (PPH) can compress grant cycles to a few months. Against this background, the need for applicants to “occupy a slot early” through a utility model via “same-day dual filing” has greatly diminished. The real-world soil on which the system depended has fundamentally changed; retaining the core system while adaptively adjusting the rules is timely and justified.

Second, the old rule’s “flexible coexistence” achieved by amending the invention application did more harm than good. As noted, “same-day dual filing” begins from the same invention-creation; its original design was to use the respective advantages of utility models and inventions to achieve sequential, not concurrent, protection under the prohibition of double patenting. Amending invention claims so they differ from the utility model’s scope and achieving “coexistence of both rights” clearly departed from that purpose. Moreover, under the old rules, substantive examination of whether inventions were the same in “same-day dual filing” cases generated many disputes, and patent grant and validity judicial practice has no shortage of such cases. Especially in the “same-day dual filing” context, allowing two patents with different scopes to coexist blurs the boundary of the same invention-creation, increases the risk of conflicting rights, and raises examination and adjudication costs. From an institutional-economics perspective, the social costs of this “flexible coexistence” appear gradually to have exceeded the convenience gains for some applicants.

Third, this amendment forms a linked force with recent series of governance actions in the patent field. From cracking down on abnormal patent filings, to conducting obvious inventiveness examination for utility models, to raising the statutory damages ceiling for patent infringement, China’s patent system is undergoing a deep shift from “encouraging filings” to “optimising structure.” “Same-day dual filing” had to some extent been distorted in practice into a tool for pursuing patent quantity; by cancelling the “flexible coexistence” path and clarifying procedural rules, the new rules retain some institutional convenience while substantively compressing policy arbitrage space, guiding filing behaviour back to protecting innovation.

Adapting to the new rules: adjust and establish rational patent strategies

For innovators and practitioners, it is necessary not only to reassess the applicability of “same-day dual filing” rules, but also to clarify the governance philosophy behind the new rules, change mindsets in time, and lay out rationally on the foundation of reason and professionalism.

First, make precise assessments before filing. If the invention-grant outlook for a technical solution is relatively clear and there is a genuine urgent need for short-term patent protection, “same-day dual filing” still has institutional value. Note, however, that after “same-day dual filing,” the invention application generally will not receive priority examination; if the goal is to obtain an invention grant quickly through priority examination or similar channels, “same-day dual filing” is not advisable. If the main purpose is only a “safety net” or “trial” for the invention, one must weigh whether separately maintaining the utility model is necessary if the invention cannot be granted. In particular, where an invention is rejected for lacking novelty or for lacking inventiveness based on only two prior-art documents, a court may refuse to support infringement claims based on the same-day utility model. If the applicant truly needs multi-layer protection for the same technical subject matter, it must be recognised that “same-day dual filing” can no longer achieve that purpose, and claim separation should be designed at the filing stage.

Second, legal risks at the declaration stage cannot be ignored. Once a “same-day dual filing” declaration is made, it has legal effect. Omitting or incorrectly making a declaration may cause adverse effects in later procedures, and may even mean the applicant not only fails to obtain a patent grant but also that the technical solution may enter the public domain.

Conclusion

Just as social governance always moves from coarse to fine, this amendment to the “same-day dual filing” system is a concrete expression of administration according to law in patent examination policy, and an important marker of the system moving toward greater rationality and scientific design. Of course, the Guidelines’ amendment to “same-day dual filing” is a limited adjustment within the framework of the current Patent Law and its Implementing Regulations; more fundamental institutional reform remains for the future. In the long run, a patent system with clear rights boundaries and clear public expectations is the institutional environment truly needed to continuously stimulate technological innovation. When the policy-arbitrage space of “flexible coexistence” is compressed, innovators will focus more on the value of the technology itself rather than stacking patent counts. That is precisely the direction China’s patent system should pursue—and is pursuing.

Source：Intellectual Property Court of the Supreme People’s Court；2026-10-01；https://ipc.court.gov.cn/zh-cn/news/view-6134.html