Invention patent New utility patent application

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.

Note]."Only one patent can be granted for the same invention-creation"**In Article 13, Paragraph 1 of the Implementing Rules of the Patent Law, referred to as:"One invention, one patent principle"。"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. "This is called"First-to-file principle"。

One invention, one patent principle"with"First-to-file principle"It is two basic principles of patent law, and the scope of the former is greater than that of the latter. If there is an invention and A files an application on February 1 and B files an application on March 1, the patent should be granted to A according to the first-to-file principle. However, if A files an invention patent application on February 1 and a utility model patent application on March 1, it does not belong because the applicant is only A"More than two applicants"Article 9 of the original Patent Law shall not apply.

The original Patent Law only provided for the first-to-file principle, and did not stipulate that the same person filed a patent application for the same invention successively, which was a legal loophole. In order to close the loopholes, the Patent Law Implementation Rules have been added"One invention and one patent"provisions. However, it can only be an expedient measure to make provisions that are lenient in the implementation rules of the lower law than those of the higher law.

It is only right to elevate the above principles to patent law.

In practice, the applicant often files an invention patent application and a utility model patent application for the same invention at the same time. Because there is no substantive examination of a utility model application, the inventor can obtain patent protection relatively quickly. When an invention patent enters the grant procedure, the applicant can obtain the protection of the invention patent with a longer term of protection by giving up the utility model.

For this reason, the Patent Law clearly regulates such acts.

19: The same applicant shall make separate declarations on the same day for the same invention-creation application**. Otherwise, the provisions of paragraph 1 shall not apply.

When the patent administration department announces a utility model, it will also publish the application and declare the application number of the corresponding invention patent application.

The application method is a more commonly used patent application method, which is generally a patent application method that will be adopted when the enterprise attaches more importance to the patented technology or does not have a good grasp of the invention patent for the technology, that is, the same technical content is submitted at the same time for utility model patent and invention patent application.

There are many benefits to this method of patent application, such as:

1. The authorization of utility model patents is much faster than that of inventions, and the patent rights can be determined after the grant of utility model patents to provide support for rights protection;

2. The examination of invention patents is strict, the authorization rate is also low, and even if the invention patent is not passed and rejected, there are already utility model patents to obtain utility patent protection for technical achievements, and there will be no gain.

In addition, after the invention patent is notified of authorization, the applicant must apply for giving up the utility model patent right that has been obtained before he can obtain the patent right of the invention patent.

The application documents for a utility model shall include: a patent application for a utility model, a description, drawings to the description, claims, an abstract and drawings attached to the abstract. A utility model patent application must have drawings to the specification.

If a patent ** institution is entrusted, a power of attorney shall be submitted. If you apply for fee reduction, you should submit a request for fee reduction and the corresponding supporting documents. A utility model patent application is divided into an application stage, an examination stage, and an authorization stage, which generally takes about six months, and the term of protection of a utility model patent is ten years.

Article 40 of the Patent Law of the People's Republic of China.

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

Utility model inventions can be applied for a patent procedure.

Both utility model patents and invention patents need to be drafted with a patent specification and submitted to the State Patent Office together with the application for the patent. Since the Patent Law stipulates that an invention patent is subject to substantive examination only after the publication of the patent specification of the application, the purpose of submitting an advance disclosure statement is to enter the substantive examination as soon as possible, so as to shorten the period of patent application. Therefore, invention patents also need to submit two documents: the "Statement of Request for Advance Disclosure" and the "Request for Substantive Examination".

Article 42 of the Patent Law of the People's Republic of China stipulates that the term of an invention patent right shall be 20 years, the term of a utility model patent right shall be 10 years, and the term of a design patent right shall be 15 years, all of which shall be calculated from the filing date.

If the patent right is granted after four years from the date of application for the invention patent and three years after the date of the request for substantive examination, the patent administration department shall, at the request of the patentee, compensate the patent right for the unreasonable delay in the process of granting 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.

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.

Legal analysis: A utility model patent is one of three types of patents (invention, utility model and design), and utility model refers to a new technical solution suitable for practical use proposed for the shape, structure or combination thereof of a product. In the patent law, the inventiveness and technical level requirements for utility models are lower than those for invention patents, but the practical value is large.

An invention patent is a type of patent that is protected by patent law. The Chinese Patent Law stipulates that there are three types of inventions that can be protected by patents, including inventions, utility models and designs.

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.

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 shape and pattern.