Can a technical research result only apply for one type of patent?

Nulecon's intellectual property professional answers for you:

Some inventors believe that a technical achievement can only apply for one type of patent at a time, that is, it can only apply for a patent for invention or a utility model patent or a design patent.

From the perspective of the types of patents, there are three types of patents stipulated in China's patent law: invention patents, utility model patents and design patents.

Utility model patents are granted quickly, and corresponding protection can be obtained as soon as possible, which usually takes about 1 year; Invention patents usually take 2 to 5 years to be examined and approved. With the improvement of the country's degree of intellectual property rights, the time for patent examination and approval is also relatively shortened.

Judging from the examination in the past two years, new patents can usually be granted in about 10 months; It takes about one and a half years for an invention patent. Therefore, for some important product inventions, if the inventor only applies for an invention patent, and at this time, others apply for an invention patent and a utility model patent at the same time, then he will first obtain the utility model patent and own the patent right of the product. If the inventor uses the product, it constitutes infringement.

Specifically, according to the actual situation, the patent should be drafted first, and the actual product and needs should be combined to see whether it is suitable to apply for multiple patents.

If it meets the requirements of appearance, utility, and model, you can register three types, and this is certified according to your results. 1. The invention belongs to the technical field, but not to other non-technical fields such as literature and art; 2. Invention is a technical solution that solves technical problems; 3. The invention is a concrete and achievable technical solution, not an abstract and unrealizable idea; 4. Invention is the creation of the laws of nature, which produces things that do not exist in nature, not the discovery of existing things in nature by human beings, nor the artificial rules, regulations and methods produced by human beings relying on intellectual activities; 5. There are two basic forms of invention, namely products and methods, the former including machines, equipment, instruments, manufactured products, etc.; The latter includes methods for manufacturing products, measurement methods, communication methods, control methods, etc. Utility model patent 1 Utility model is a general term for some specific types of inventions, which generally only relate to products with a certain shape or structure, and are usually as opposed to inventions"Gizmos"。

In the Detailed Rules for the Implementation of the Patent Law of the People's Republic of China, the definition of utility model is:"The term "utility model" in the Patent Law refers to a new technical solution suitable for practical use of the shape, structure or combination thereof of a product"。The definition of a utility model in the Utility Model Law of Japan is:"Practical and novel technical solutions made with respect to the shape, structure or combination of industrial articles may be protected under this Law"。There are two main differences between utility model patents and invention patents: first, utility model patents have lower requirements for the height of invention, i.e., inventive step, than invention patents; Second, the protection period of utility model patents is shorter than that of invention patents.

Design patent: An industrial product whose appearance can visually bring beauty to people can be liked by consumers and make them willing to buy. This kind of design with decorative and aesthetic value on the appearance of the product reflects the fruits of human intellectual labor, can bring economic benefits to the designer, manufacturer and seller of the product, and should be protected by law. The object of design patent protection is precisely the result of such intellectual labor.

In the Detailed Rules for the Implementation of the Patent Law of the People's Republic of China, the definition of design is:"The term "design" in the Patent Law refers to a new design that is aesthetically pleasing and suitable for industrial application made of the shape, pattern, color or combination thereof of a product"。The definition of a design under the Japanese Design Law is:"A design is a design in which the shape, pattern or color of a product, or a combination thereof, is visually aesthetically pleasing"。Note: The application form can be amended after the application, but the amendment content cannot exceed the scope of the original application, so it is necessary to write as much as possible before submission.

It's notPatents are probably the most common intellectual property rights for scientific research projects, and many scientific research projects also include software copyrights, integrated circuit layout designs, and new plant varieties. If there are some special names or special patterns, you can also apply for trademark and copyright registration.

In addition, in fact, a scientific research project can apply for all the above types of intellectual property rights at once, for example, if your research project can produce an actual product, then when the product is ready to be put on the market, I believe that a brand will be generated, which is a trademark. The design of your product can apply for a patent, you can also apply for the copyright of art works, and finally if the technical points generated by this scientific research project are high enough, you can apply for an invention, and if they are not high enough, you can apply for a utility model.

Scientific research projects include longitudinal scientific research projects (topics) supported by national institutions at all levels, horizontal scientific research cooperation and development projects (topics) from enterprises and institutions, and self-funded scientific research projects (topics) of the college.

From the perspective of universities, scientific research projects can be divided into two categories: off-campus scientific research projects (project research funds come from outside the university) and intramural research projects (project research funds come from within the university). Off-campus scientific research projects can be divided into two types: vertical scientific research projects and horizontal scientific research projects.

For example, the longitudinal scientific research projects of Guangdong Province refer to: the Ministry of Science and Technology, the National Science and Technology Committee, the National Social Science Planning Office, the Ministry of Education, the Guangdong Provincial Department of Science and Technology, the Guangdong Provincial Social Science Planning Office, the Guangdong Provincial Department of Education, the Zhanjiang City (or other cities in Guangdong Province) Science and Technology Bureau and other scientific research departments approved all kinds of scientific research projects.

Horizontal scientific research projects refer to various topics entrusted by other ** departments (including national ministries and commissions, provincial and municipal departments), enterprises and institutions, companies, groups or individuals to conduct research or collaborative research by teaching and research units or teachers of our university, including international enterprise cooperation projects.

A research project may give rise to copyrights, patents, or both; It is also possible that there will be nothing.

What you want to ask is which of the following basic conditions is required for a scientific research achievement to apply for a patent? It is not illegal and complies with the relevant provisions of the Patent Law and its implementation.

1. Not illegal. That is, the patent applied for must be a product within the scope of national legal protection.

2. Comply with the relevant provisions of the Patent Law and its implementation rules, such as meeting the provisions of novelty, inventiveness and practicability, and do not belong to the items that are expressly not granted patents under the Patent Law.

Patents, literally, refer to the exclusive rights and interests of File Rock. "Patent" means a public letter or public document, which was used by medieval monarchs to promulgate some kind of privilege, and later referred to a certificate of exclusive rights signed by the King of England himself.

The differences between scientific research results and patents are as follows:

1. The coverage is different

Scientific research results are an important basis for patent applications. The scientific research results have the technical elements of the patent application, and as long as the technology has the necessary conditions for the authorized patent, such as novelty, inventiveness and practicability, it can apply for patent protection.

However, scientific research results are not equal to patents, and scientific research results can be patented, but not all scientific research results can be applied for patents. Although scientific research results and patents involve various fields of technology, they do not completely overlap.

2. Different degrees of openness:

Scientific research results can be kept confidential, and there is no mandatory disclosure. However, patents are mandated to be disclosed. Scientific research results may be stolen and misappropriated, but the patented technology is public, and the use of the patent requires the permission of the patentee, and the patent right is protected by law.

3. The degree of commodification is different:

Obtaining a patent in accordance with the law will realize the monopoly and supervision of the market, which is conducive to transfer and can accelerate the industrialization of achievements. However, scientific and technological achievements are only the creation and application of intellectual resources, and there is no possession, and any unit or individual can apply scientific and technological achievements free of charge and become a competitor of the owner or legal implementer of scientific and technological achievements.

1. Technical field:

The technical fields involved in scientific and technological achievements are wider than those involved in patents.

Patent protection includes various technical fields, but for the national security interests and major economic interests, countries need to be protected by special laws and regulations, such as animal and plant varieties, can not apply for patents, but can only be protected through the "Regulations on the Protection of New Plant Varieties" or "Regulations on the Protection of New Animal Varieties".

2. The scale of technology:

Scientific and technological achievements are generally issued by the national, provincial (or ministry) and municipal departments to tackle key scientific and technological problems, which are undertaken by scientific research units, colleges and universities, and enterprises, or scientific research units and enterprises formulate scientific research plans, product research plans or product transformation projects according to market needs, which are completed by themselves or in cooperation or entrusted to others, and the products involved are generally complete machine products or parts of traps.

Patented technology can be not only the production method, process method project, product research project, product transformation, technological innovation project completed by the unit, but also the small invention and creation completed by the individual. In addition, all parts and components that have certain functions and functions and can be sold independently can apply for patent protection separately.

3. Maturity of technology:

Compared with patented technology, the technical maturity of scientific and technological achievements is relatively high, because scientific and technological achievements have generally gone through the small test stage of the laboratory, and some have also carried out pilot tests, so the technology is more mature, the risk of implementation is relatively small, and it is easy to promote.

The maturity of the patented technology is relatively low, because the law only stipulates that the invention for which the patent is applied is a technical solution, but does not stipulate the technological maturity achieved by such a technical solution. Therefore, this technical solution can be a technical idea, or it can be a relatively mature technology that has undergone scientific experiments.

4. The level of technology:

Scientific and technological achievements are appraisal levels, a scientific and technological achievement, if it is identified by the administrative department representing the state or the department authorized by the state, it is a national science and technology project, if a scientific and technological achievement is organized and identified by the provincial and ministerial administrative departments, it is a provincial and ministerial science and technology project, and so on.

The State Intellectual Property Office accepts and examines patent applications on behalf of the state, and grants exclusive rights to patent applications that meet the conditions for grant. The substantive conditions for granting an invention or utility model patent are novelty, inventiveness and practicability.

5. Legal protection of technology:

Scientific and technological achievements are intellectual resources that have not been protected by law, and their owners do not have the exclusive right to implement them, so they have no right to prevent others from implementing them. It can be said that the day when scientific and technological achievements are made public is the time when they are dedicated to the world free of charge.

A patent is a technology that has obtained legal protection, and the patentee can monopolize the technology for a certain period of time, carry out exclusive implementation, or license or transfer others to implement it. It can not only effectively stop the imitation behavior of competitors, but also prevent competitors from using, promising to sell, selling, and importing.

Legal Analysis: Belongs. Scientific and technological achievements, as the name suggests, refer to the achievements of intellectual activities in all fields of science and technology. Patents, discoveries, inventions, etc. are all scientific and technological achievements.

Legal basis: Patent Law of the People's Republic of China Article 42 The term of the invention patent right shall be 20 years, and the term of the utility model patent right and the design patent right shall be 10 years, both of which shall be calculated from the filing date.

Belong. Scientific and technological achievements, as the name suggests, refer to the results of human intellectual activities produced in the field of all science and technology. Patents, discoveries, inventions, etc. are all scientific and technological achievements.

Legal basis: Patent Law of the People's Republic of China 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 date of application for the draft of Shenling.