It is particularly important to properly determine the application type at the application stage for applicants who are unable to determine whether the inventiveness of their own technical solutions is sufficient to meet the requirement for the authorization of an invention application. Especially for a Chinese patent application that claims foreign priority based on the Paris Convention or a patent application that enters the national phase of China based on a PCT application, since such application has claimed foreign priority or the priority period has expired, if the patent right for invention cannot be obtained due to insufficient inventiveness in the examination process, it will no longer have the opportunity to change the application type.  

    In view of this, generally, relatively conservative applicants may choose to an application strategy that filing an invention application and a utility model application on one same day at the application stage.  Such application strategy usually enables the applicants to first obtain the patent right of the utility model application, and then according to the results of the examination of the invention application, the applicants can choose to abandon the invention application and maintain the patent right of the utility model application (in the case that the invention application cannot be granted), or to obtain the patent right of invention application and abandon the patent right of the utility model application (in the case that the invention application can be granted).  Although such application strategy can generally ensure that the applicants can at least obtain the patent right of the utility model application, there are still some shortcomings, for example, the examination period of an invention application becoming longer, and specifically, the substantive examination of the invention application will be carried out after four years from the application date, which is very unfavorable in terms of timeliness for the applicants who expect to know whether the technical solutions can meet the requirements of authorization of the invention application as soon as possible.  In addition, such application strategy that filing an invention application and a utility model application on one same day is only applicable to the Chinese patent application that claims foreign priority based on the Paris Convention, while it is not applicable to the patent application that enters the national phase of China based on a PCT application.  The latter must determine the application type in an alternative way when filing the application.

    However, as to the patent application filed for the first time in China, there is another available application strategy to use the domestic priority system to change the application type, that is, first filing an invention application and then changing the application type into a utility model application by claiming priority as needed.  

    With the continuous prosperity of the Chinese market, many foreign clients are also increasingly conducting product research and development for the Chinese market.  Accordingly, more and more patent applications are also filed for the first time in China.  For such patent applications, they belong to the above mentioned situation that domestic priority system can be used.  Specifically, Article 29 of the Patent Law provisions that "Where the applicant, within twelve months from the date of filing his first application for invention or utility model of the same subject matter in China, files an application for invention or utility model on the basis of the first filed application for invention, or files an application for utility model or invention on the basis of the first filed application for utility model with the Patent Office, he may enjoy the right of priority. Such priority is called domestic priority" and Article 32 of the Rules for the Implementation of the Patent Law provisions that "Where an applicant claims the right of domestic priority, if the earlier application is one for a patent for invention, he or it may file an application for a patent for invention or utility model for the same subject matter; where the domestic priority is claimed, the earlier application shall be deemed to be withdrawn from the date on which the later application is filed".

    It can be seen that although the use of domestic priority is at the expense of the earlier application, it is different from the strategy of filing invention and utility model applications on one same day that this use of domestic priority provides a possibility of first filing an invention application and then changing the application type thereof for the applicants who expect to know as soon as possible whether the technical solutions can meet the requirements of authorization of the invention application.  In particular, especially when used in combination with priority examination, after the invention application is first filed, it is very likely to receive substantive examination opinions from the examiner within one year from the application date.  At this time, the applicant can finally determine a suitable application type based on the examiner's evaluation of the inventiveness of the technical solutions.  In other words, if the examination opinions on inventiveness are negative and the invention patent right cannot be obtained only due to the inventiveness level being not enough, the applicant can change the application type by filing a new utility model application based on the priority of the earlier invention application, such that it can be granted.

    In addition, for the case that the first filed invention application cannot obtain substantive examination opinions within one year due to the failure to combine priority examination, there is actually another situation that can change the application type, but this situation is still for the patent application filed for the first time in China.  For example, the applicant can first file an invention application, then file a PCT international application based on the priority of the invention application under the Paris Convention, and then enter the national stage of China based on the PCT international application.  This process provides sufficient time for the first filed Chinese invention application to be examined.  At this time, if the first filed Chinese invention application cannot be granted only due to the inventiveness level being not enough, the applicant can choose to enter the Chinese national phase with a utility model application when entering the Chinese national phase based on the PCT international application.  Due to the use of a PCT process, this situation has significantly extended the timeliness of changing the application type compared with the previous one, but both of these situations are actually aimed at the patent application filed for the first time in China, which reflects from one aspect that the domestic priority system encourages technology research and development in China.  Of course, the pre-judgment of inventiveness can also be carried out by means of patent pre-examination or other ways, and the applicant can choose an appropriate application strategy that is in line with practical interests according to actual needs.