Can I waive some of the claims if I apply for an invention and a utility model at the same time?

Do you mean the same invention, you want to apply for both the invention and the utility model?

Our country's system allows you to apply for invention and utility model for the same invention at the same time, because utility models do not need substantive examination, so you can grant first, if the invention does not make rights adjustment in the substantive examination, then before the grant, you only need to declare that you give up the first granted utility model, you can re-grant the invention patent; If the patent for invention has been adjusted in the substantive examination, and in essence the utility model constitutes two inventions, then there is no need to give up the utility model and grant the invention patent at the same time.

Generally, this is also the way it is operated in practice, and it is rare that you think like this, the same invention subject, write 2 sets of claims, and then apply for invention and utility model separately, of course, you can also do this, so as to ensure that you have 2 patents in the future; Moreover, since you have different claims, you can even apply for invention patents at the same time, and then apply for general utility models for the same content, so that you have 4 patent application numbers.

If the utility model has been authorized, it cannot be modified, only the invention patent application document can be modified.

If the utility model has not been granted, some of its claims may be waived.

Summary. Legal basis: Article 11 of the Patent Law stipulates that after the patent right for invention and utility model is granted, except as otherwise provided in this Law, no unit or individual may exploit the patent without the permission of the patentee, that is, it shall not manufacture, use, offer to sell, sell or import its patented products for production and business purposes, or use its patented process and use, offer to sell, sell or import products directly obtained in accordance with the patented process.

If you give up a utility model patent, you will definitely be able to obtain an invention patent.

Hello, giving up a utility model patent does not necessarily mean that you can obtain an invention patent, because the examination standards for utility model patents and invention patents are different. A utility model patent is an application for a product or a solution designed with a rough structure, which requires "novelty" and "practicality", while an invention patent requires further innovation on this basis and "inventive step".

Legal basis: Article 11 of the Patent Law stipulates that after the patent right for invention and utility model is granted, except as otherwise provided in this Law, no unit or individual may exploit the patent without the permission of the patentee, that is, it shall not manufacture, use, offer to sell, sell or import its patented products for the purpose of production and operation, or use its patented process and use, offer to sell, sell or import products directly obtained in accordance with the patented process.

Summary. Legal basis: The declaration of renunciation of patent right in paragraph 1 of Article 13 of the Detailed Rules for the Implementation of the Patent Law shall declare that the patent right has been waived as of the filing date.

After receiving the declaration of abandonment of the patent right, the patent office shall register and announce it by the corresponding process management department, and the effective date of the renunciation of the patent right shall be the filing date of the abandoned patent.

If you give up a utility model patent, you will definitely be able to obtain an invention patent.

Hello <>

I'm glad to answer for you. According to the analysis of your problem, if not, the consequence is that the applicant cannot obtain an invention patent by giving up the utility model patent right.

Legal basis: The declaration of waiver of the right of exclusive right of lens, paragraph 1 of Article 13 of the Detailed Rules for the Implementation of the Patent Law shall declare that the patent right shall be waived as of the date of filing. After receiving the declaration of abandonment of patent rights, the patent office shall register and announce it by the corresponding process management department, and the effective date of the renunciation of the patent right shall be the date of application for the abandoned patent.

It depends on what you need to achieve. If you just want to apply for a patent for fame and fortune and don't want to spend too much money, you can apply for a utility patent. If you want to protect the invention and the longer the protection, the better, then I recommend applying for a utility model patent at the same time as the invention patent.

The reason is that the time from the application to the authorization of an invention patent is too long, generally it takes more than 3 years, and the time from the application to the authorization of the utility model patent is relatively short, generally about a year, if both patents are applied, the early authorization of the utility model can make the invention and creation get legal protection as soon as possible. Once a patent for invention is granted, the utility model patent right can be waived.

In this way, the invention can be protected by law in the shortest possible time, and others can be prevented from taking advantage of the loopholes of the law to affect your production, operation and market sales. There is a case that can be proved: unit A only applied for an invention patent A, and unit B saw that unit A did not apply for a utility model patent, so unit B applied for a utility model patent B for the same invention and creation, because the invention patent takes a long time to be authorized, therefore, unit B first obtained the patent right and greatly publicized it to all customers, as a result, all customers in the market went to unit B, so that A lost the market and caused huge losses.

Although the patent of Company A was applied for first, it was seriously affected by the lack of authorization. Even if the patent B of Company B is useless due to the authorization of patent A in the future, but Company B has obtained all the customers in the market, which is quite unfavorable to Company A.

It is sufficient to submit a declaration of renunciation of patent rights to the patent office.

Utility model patent application.

1. Approval process for utility model patent application.

Patent application - acceptance - preliminary examination - announcement - authorization.

2. Documents to be submitted to apply for a utility model patent.

2) Description: including the name of the utility model patent, the technical field to which it belongs, the background art, the content of the invention, the description of the drawings and the specific embodiment.

The content of the specification shall be written in detail, and the technical content shall be subject to the fact that a person skilled in the art of the art can realize it after reading.

4) Drawings of the specification: The utility model patent must have a description of the drawings.

5) Specification abstract: clearly reflect the technical problem to be solved by the invention, the main points of the technical solution to solve the problem, and the main use.

Legal formalities.

1. A copy of the company's business license shall be stamped with the official seal.

2. A copy of the ** certificate of the enterprise organization.

3. Inventor.

4. Patent ** power of attorney 5. Confidentiality contract.

It is sufficient to file a declaration of renunciation with the Patent Office.

Article 9 of the Patent Law stipulates that only one patent can 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.

The purpose of applying for both an invention and a utility model is to be able to achieve the effect of 1+1 2. This is because although invention patents have higher gold content, utility model patents are easy to apply for and easy to authorize.

According to China's Patent Law, both inventions and utility models for which a patent is granted shall be novel, inventive and practical. However, the Patent Law stipulates a simplified examination and approval procedure for patent applications for utility models than for invention patents, and only preliminary examination is conducted for utility models, while substantive examination is required for invention patents in addition to preliminary examination. In addition, in the process of inventive step examination of patents, invention patents need to have "outstanding substantive features and significant progress", while utility model patents only need to have "substantive features and progress".

Therefore, utility models are easier to authorize than inventions.

1. First of all, the priority period, if the earlier invention was filed in October 2011, the priority period of 12 months has passed so far, and the priority cannot be claimed.

2. There are two situations in which a new patent is applied for within the priority period of 12 months for the same application (both the invention and the utility model will be applied for on the same date).

1. If the content of the "claims" of the new patent and the "claims" of the authorized utility model patent are the same, the two belong to the same invention-creation, and the new patent cannot be authorized.

2. If the content of the "specification" of the new patent is the same as that of the authorized utility model patent, the "claims" of the two are different, although the priority of the earlier invention can be claimed.

However, the prior invention may destroy the novelty and inventive step of the new patent, resulting in the new patent not being granted.

No. The priority period is only 12 months, which is past the priority period.