The duration of the patent, the duration of the patent

How long is the validity period of a patent right?

Article 45 of the Patent Law stipulates that the term of a patent for invention is 20 years, and the term of a utility model patent and a design patent is 10 years, both of which are calculated from the date of application.

This provision makes it clear that patent rights are different from movable and immovable property. Ownership of both movable and immovable property is time-limited, but patent rights are only valid for a period of time prescribed by law. This characteristic of a patent is determined by its nature and purpose.

The patent system was established to encourage invention through the protection and use of inventions, and it had to strike a balance between the interests of inventors and the public interest. For example, the United States stipulates that the term of protection for drugs is 17 years from the date of approval, which can be extended for 5 years, and the European Community has also made a similar decision, and the term of protection for drugs is 20 years from the date of application, which can be extended for 5 years. The "Supplementary Treaty to the Paris Convention for the Protection of Industrial Property" and the "GATT Uruguay Round" and the "Agreement on Intellectual Property Rights Relating to Intellectual Property Rights" all clearly stipulate:

The term of protection of invention patents is at least 20 years from the date of application, and the Dun * text also stipulates that the term of protection of designs is at least 10 years from the date of application, in order to adapt to the trend of international harmonization of patent law, China's 1992 patent law amendment extended the protection period of three types of patents in China's 1984 patent law: invention, utility model and design.

According to China's patent law, the patent right "shall be calculated from the date of application." However, it does not mean that the patentee has the exclusive right to exploit from the date of application. According to Article 8 of the Patent Law, a patent application shall be subject to examination and approval, and shall be formally created only after the patent right has been granted by the Patent Office, and the patentee shall have the right to prohibit others from manufacturing, using, selling, or importing the patented product or using the patented process for the purpose of production or business operation without its permission.

As far as invention patents are concerned, since the contents of the invention have been published before the grant decision is made (18 months from the date of application), it is possible that the applicant's competitors have known the content of the patent application for protection, which poses a threat to the interests of the patentee, so Article 13 of the Patent Law stipulates that "after the publication of the application for a patent for invention, the applicant may require the unit or individual that implements the invention to pay appropriate fees." "Article 77 of the Detailed Rules for the Implementation of the Patent Law provides:

After the publication of the invention patent application and before the grant of the patent right, the authority may directly file a lawsuit with the people's court for the use of the invention without paying the appropriate fees. ”

According to China's 1984 Patent Law, the preliminary examination and opposition system is implemented for utility models and designs, and the 1992 amendment to the Patent Law abolished the opposition system for patent applications, and the date on which the Patent Office makes an examination decision is the date on which the patent is granted.

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

The starting point of the patent protection period is not the date of patent publication, the date of patent publication is the starting point for the patentee to obtain the patent right, and the application date of all kinds of patents is earlier than the date of publication, that is to say, the patent owner of the invention patent enjoys the patent protection period of less than 20 years, and the utility model patentee and the design patentee enjoy the patent protection period of less than 10 years.

2. The conditions that should be met for the grant of a patent right.

Inventions and utility models for which a patent is granted shall be novel, inventive and practical.

Novelty refers to the fact that the same invention or utility model has not been publicly published in domestic and foreign publications, publicly used in China or otherwise known to the public before the filing date, and there is no application for the same invention or utility model filed by others with the patent administration department and recorded in the patent application documents published after the filing date.

Inventive step refers to the fact that the invention has outstanding substantive features and significant progress compared with the art existing before the filing date, and the utility model has substantial features and progress.

Utility means that the invention or utility model can be manufactured or used and can produce positive effects.

The design for which a patent right is granted shall not be the same or similar to the design that has been publicly published in domestic or foreign publications or publicly used in China before the filing date, and shall not conflict with the prior legal rights of others.

3. Characteristics of invention patents.

2. Territoriality: The territorial characteristics of patent rights refer to the patent rights granted by a country in accordance with its own patent law, which are only valid within the scope of the laws of that country, and have no binding force on other countries, and foreign countries do not bear the obligation to protect their patents, and only obtain a patent right for an invention or creation in China, then the patentee only enjoys the patent right or exclusive right in China.

3. Duration: The patent laws of various countries have clear provisions, and the term of protection of invention patent rights generally ranges from 10 to 20 years from the filing date; For the term of utility model and design patents, most countries stipulate that it is 5-10 years, and the protection period of invention patents, utility model patents and design patents stipulated in China's current patent law is 20 years, 10 years and 10 years respectively from the filing date.

4. Intangibility: Patent rights are intangible, and many people often regard this feature of patent rights as the object of their protection - the technology protected by patent rights, but in fact, intangibility is the patent right itself. Otherwise, in the case of a trademark, the object is a pattern, which is obviously not intangible.

According to the relevant provisions of China's Patent Law, the term of invention patent in China is 20 years, and the term of utility model patent and design patent is 10 years, both of which are calculated from the filing date.

Different patents have different durations. The term of an invention patent is 20 years, and the term of a utility model patent and a design patent is 10 years, both of which are calculated from the filing date.

1. Provisions on the term of the patent:

According to Article 42 of the Patent Law of the People's Republic of China, the term of a patent for invention is 20 years, and the term of a utility model patent and a design patent is 10 years, both of which are calculated from the filing date.

II. Provisions on the Payment of Annual Fees by Patentees:

According to Article 43 of the Patent Law of the People's Republic of China, the patentee shall pay the annual fee from the year in which the patent right is granted.

3. Provisions on the circumstances under which a patent right may be terminated before the expiration of the term of the patent right:

According to Article 44 of the Patent Law of the People's Republic of China, the patent right shall be terminated before the expiration of the term under any of the following circumstances:

1) Failure to pay annual fees in accordance with regulations;

2) The patentee renounces its patent right by a written statement.

If the patent right is terminated before the expiration of the term of the patent right, it shall be registered and announced by the patent administration department.

4. Provisions on the invalidation of patent rights.

According to Article 45 of the Patent Law of the People's Republic of China, if any unit or individual believes that the grant of the patent right does not comply with the relevant provisions of this Law, it may request the Patent Reexamination Board to declare the patent right invalid from the date of the announcement of the grant of the patent right by the patent administration department.

There are 3 types of patents, which are invention patents, utility model patents, and design patents, and the validity period of different types of patents is also different.

Validity period of invention patent: 20 yearsUtility model patent validity: 10 yearsValidity period of design patent: 10 years

Legal Analysis:1The term of the invention patent right is 20 years, and the term of the utility model patent right and the design patent right is 10 years, both of which are calculated from the filing date of Naxian.

2.The term of the patent right refers to the time when the legal term of the patent right expires and terminates.

3.From the date of the announcement of the grant of the patent right, if the patent right is terminated for no other reason, the patent right shall be terminated until the expiration of the term of the patent right.

Legal basis: Patent Law of the People's Republic of China Article 2 The term "invention-creation" as used in this Law refers to inventions, utility models and designs.

An invention refers to a new technical solution proposed for a product, a process or an improvement thereof.

Utility model refers to a new technical solution suitable for practical use proposed for the shape, structure or combination thereof of a product.

Appearance design refers to a new design that is aesthetically pleasing and suitable for industrial application based on the overall or partial shape, pattern or combination thereof, as well as the combination of color and Lee's beat, nucleus, and pattern.

The invention patent is valid for 20 years.

A utility model patent is valid for 10 years.

The design patent has a good barrier and the validity period is 15 years.

The term of validity of the patent right is: the term of the patent right for invention is 20 years; The term of utility model patent and design patent right is ten years; are counted from the filing date. However, in essence, the effective period of the patent right is calculated from the date of issuance of the patent certificate, so the term of legal protection of the patent right should be shorter than the prescribed 20 years and 10 years.

Legal analysisAccording to the provisions of the relevant laws, the statute of limitations for patent infringement is two years, which is calculated from the date on which the patentee or interested party knows or should have known of the infringement. If the patent owner fails to pay appropriate royalties for the use of the invention after the publication of the application for a patent for invention but before the grant of the patent right, the statute of limitations for the patentee to demand payment of the royalties shall be two years, which shall be calculated from the date on which the patentee learns or should have known that others are using the invention, but if the patentee has known or should have known about it before the date of grant of the patent right, it shall be calculated from the date of grant of the patent right. According to the relevant laws and regulations and the detailed rules for the implementation of the Patent Law, the legal consequences to be borne by the perpetrator of patent infringement include administrative, civil and criminal liability.

It is important to note here that there is a content about mediation. According to the provisions of the relevant laws and regulations, the department in charge of patent work may conduct mediation at the request of the parties. The content of the mediation consists of two points:

Mediation can be conducted on the amount of compensation for patent infringement; Some patent disputes can be mediated, including: disputes over the right to apply for a patent and the ownership of patent rights; Disputes over the qualifications of inventors and designers; Disputes over rewards and remuneration for inventors and designers of service inventions and creations; Disputes over the use of an invention after the publication of an application for a patent for invention and before the grant of the patent right without payment of appropriate fees; Other patent disputes.

Legal basisDecision of the Standing Committee of the National People's Congress on Amending the Patent Law of the People's Republic of China》 12. Article 42 is amended to read: "The term of a patent right for a patent for invention shall be 20 years, the term of a patent for utility model shall be 10 years, and the term of a patent right for a design right shall be 15 years, all of which shall be calculated from the date of application for the banquet. "If the patent right is granted after four years from the date of application for a patent for invention and three years after the date of the request for substantive examination, the patent administration department shall, at the request of the patentee, compensate for the unreasonable delay in the granting process of the invention patent, except for the unreasonable delay caused by the applicant.

In order to compensate for the time occupied by the review and approval of new drugs, the patent administration department shall compensate the patent right term at the request of the patentee for invention patents related to new drugs that have obtained marketing authorization in China. The compensation period shall not exceed five years, and the total effective patent term after the approval of the new drug shall not exceed 14 years. ”