Can a utility model patent and an invention patent be declared at the same time?

If a technical solution meets the application conditions for both invention patents and utility model patents, in order to obtain invention patents as much as possible and to retain a guaranteed utility model patent, one technology can apply for two patents at the same time. If the invention patent passes the substantive examination, the State Intellectual Property Office will issue a notice requiring the applicant to give up the utility model patent that has been obtained, and then grant the patent right of the invention patent; Inventions and utility models can be applied for at the same time, however, only one valid patent can exist at the same time. If the invention patent is finally granted, the utility model is a transition, but the invention patent is very risky, and what if it is not authorized.

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Both invention and utility model applications may be retained. Inventions and utility models can be applied for at the same time, however, only one valid patent can exist at the same time. If the invention patent is finally granted, the utility model is a transition.

When applying for a patent for invention or utility model, the applicant shall submit a request, a description and its abstract and claims.

The utility model is the last straw.

[Legal basis].

Article 26 of the Patent Law of the People's Republic of China.

Where an application is made for a patent for invention or utility model, a written request, a description and its abstract and claims shall be submitted.

The request shall state the name of the invention or utility model, the name of the inventor, the name and address of the applicant, and other matters.

The description shall give a clear and complete description of the invention or utility model, which shall be subject to the realization of it by a person skilled in the art to which it belongs; Where necessary, drawings should be available. The abstract shall briefly describe the technical points of the invention or utility model.

The claims shall be based on the description and clearly and concisely define the scope of the claimed patent protection.

For inventions and creations that rely on genetic resources, the applicant shall indicate in the patent application documents the direct and original nature of the genetic resources; If the applicant is unable to explain the original **, the reasons shall be stated.

01 Obtain patent authorization and patent certificate in a relatively short period of time.

A utility model patent application does not require substantive examination, and the time from application to authorization and issuance is usually about 6-12 months. For many applicants, products related to patent applications are often exhibited and placed on the market after the application. The application for utility model can be carried out in a timely manner through the obtained patent rights for rights protection, publicity and promotion, and qualification certification.

02 I'd rather make a mistake than miss a choice.

Paragraph 2 of Article 41 of the Detailed Rules for the Implementation of the Patent Law stipulates that if the same applicant applies for both a utility model patent and an invention patent for the same invention-creation on the same day (referring to the filing date), it shall separately indicate at the time of application that another patent has been applied for the same invention-creation; If no explanation is given, it shall be handled in accordance with the provisions of Paragraph 1 of Article 9 of the Patent Law that only one patent can be granted for the same invention-creation. According to this law, it is not a problem to check the box in the request form for a utility model and an invention filed on the same day, even if it is not the same invention-creation.

If the invention meets the conditions for grant, the invention can only be granted by amending the claims to further narrow the scope of protection so that the claims are different from the utility model.

03 The protection time of utility model and invention is seamlessly connected.

Paragraph 5 of Article 41 of the Detailed Rules for the Implementation of the Patent Law stipulates that the patent right for utility model shall terminate from the date of the announcement of the grant of the invention patent. That is to say, in the process of replying to the invention, the declaration of abandonment of the patent right of the utility model submitted in order to obtain the authorization of the invention is subject to the authorization of the invention, and if the examiner examines other problems in the invention and the invention cannot be granted, the declaration of abandonment of the patent right of the utility model will not take effect.

04 Expand the scope of patent protection.

An invention-creation that can be applied for both a utility model and an invention must be a structure-related innovation. If only a utility model is filed, it is not possible to protect the method innovation related to the structure. If you apply for an invention at the same time, you can protect the processing method, use method, installation method, control method and other aspects related to the structural innovation in the application documents of the invention.

There are usually some irrationalities in the invention examination opinions issued, one is that the examiner's understanding of the technical solution is incorrect; The second is that the examiner will think with hindsight and think that there is no creativity. If the utility model is not filed at the same time, the applicant will reply by agreeing to the office action, making concessions in a timely manner, and amending the claims because he hopes to obtain an early grant. In this case, you will lose a lot of opportunities to argue with the examiner, and you will lose a lot of the scope of patent protection that you would have had the opportunity to obtain.

Legal Analysis: It is possible to apply at the same time. However, only a few patents can be granted per year.

Legal basis: Patent Law of the People's Republic of China

Article 7 No unit or individual may suppress an inventor's or designer's application for a patent for non-service invention-creation.

Article 8 Unless otherwise agreed, the right to apply for a patent shall belong to the unit or individual that has completed or jointly completed an invention-creation jointly by two or more units or individuals, or an invention-creation completed by one unit or individual entrusted by another unit or individual. After the application is approved, the applicant is the patentee.

Article 9 Only one patent may be granted for the same invention-creation. However, if the same applicant applies for both a utility model patent and an invention patent for the same invention on the same day, and the utility model patent right obtained first has not been terminated, and the applicant declares that he has abandoned the utility model patent right, the invention patent right may be granted.

If two or more applicants apply for a patent for the same invention-creation, the patent right shall be granted to the person who filed the first invention.

Q: I have completed an invention and want to obtain a longer term of protection, do I apply for an invention patent and a utility model patent at the same time?

A: The same invention, invention patent and utility model patent can be applied for at the same time, but it must be the same person, and the application for utility model and invention patent must be filed before the utility model patent is published, or the application for the utility model and invention patent can be filed at the same time. It should be noted that the application for an invention patent must be filed before the utility model patent is published, and the utility model patent must be abandoned during the examination of the invention patent, otherwise the invention patent cannot be granted.

There are two advantages of applying for a utility model patent and an invention patent at the same time: one is that when the invention patent is not authorized, you can rely on the utility model patent protection, and then give up the utility model patent when the invention patent is approved; Second, when applying for an invention patent, a method invention can also be added. I often help some enterprises and institutions to apply for utility model patents and invention patents at the same time.

1. How to apply for a patent for catering.

1. Invention patent.

An invention refers to a new technical solution proposed for a product, a process or an improvement thereof, which mainly reflects novelty, inventiveness and practicability. If the material formula, production method or process flow of the dish meets the requirements, it can apply for an invention patent.

2. Utility model patents.

Commonly known as "small invention", it refers to the new technical solution suitable for practical use proposed for the shape, structure or combination of products, and the granting of utility model patents does not need to go through substantive examination, and the procedures are relatively simple and the cost is low; Improvements and small innovations of the original equipment can be applied for utility model patents, such as the previously mentioned "roast duck stove" and steam cooker, which are all applied for utility model patent protection, which can also play a role in preventing infringement by others.

3. Design patents.

A design is a new design that is aesthetically pleasing and suitable for industrial application of the shape, pattern or combination thereof, as well as the combination of color and shape and pattern of a product. For example, the design and color of tableware with unique shapes, seats with unique designs, utensils, etc., can be protected by applying for a design patent.

2. What is the time of patent grant?

The time of patent grant refers to the time when the patent administration department grants the applicant the patent right, and the time of patent grant directly affects the time when the patent right takes effect.

Legal basis: Patent Law of the People's Republic of China

Article 39 If no reason for rejection is found in the substantive examination of an application for a patent for invention, the patent administration department shall make a decision to grant a patent for invention, issue a certificate of invention patent, and register and announce it at the same time. The invention patent right shall take effect from the date of publication.

Article 40 Where no reason for rejection is found in an application for a patent for utility model or design after preliminary examination, the patent administration department shall make a decision to grant a patent for utility model or a design patent, issue a corresponding patent certificate, and register and publish it at the same time. The utility model patent right and the design patent right shall take effect from the date of publication.

Article 42 The term of an invention patent right shall be 20 years, and the term of a utility model patent right and a design patent right shall be 10 years, both of which shall be calculated from the filing date.