China s patent examination system, a brief description of China s patent examination system

Substantive review. It should be noted that if the invention is relatively mature, can be put on the market earlier, and is relatively easy to be copied by competitors, it should file a request for substantive examination as soon as possible, or even at the same time as filing the patent application, because the earlier the request for substantive examination is filed, the sooner the substantive examination procedure will be entered, so that the patent can be granted as soon as possible.

If the market prospect of the invention is not clear, or if the product of the invention is likely to appear on the market for a long period of time, a request for substantive examination may be filed at a later date so that there is sufficient time to investigate and study the market demand and the value of the invention, and then determine whether to file a request for substantive examination. Article 22 of the Patent Law of the People's Republic of China stipulates that inventions and utility models for which a patent right is granted shall be novel, inventive and practical. Novelty means that the invention or utility model does not belong to the prior art; Nor has any unit or individual filed an application for the same invention or utility model with the patent administration department before the filing date, and recorded in the patent application documents or published patent documents published after the application date.

Inventive step refers to the fact that the invention has outstanding substantive features and significant progress compared with the prior art, 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. For the purposes of this Law, the term "prior art" refers to technology that was known to the public at home and abroad before the filing date.

There is a hierarchical patent management system in enterprise patent management.

According to the provisions of China's Patent Law, the Detailed Rules for the Implementation of the Patent Law and the Patent Examination Guidelines, there are only types of patents, but there is no distinction between grades. That is, Chinese patents are divided into three types: invention patents, utility model patents, and design patents, but there is no absolute hierarchy between these three types, and the positioning of the three types of patents is different, the use is different, and the protection is different.

From the perspective of enterprises, in the practice of patent management within enterprises, there are indeed grades of patents. For example, in enterprises, a patent grading management system is generally implemented, and according to the corresponding patent grading evaluation standards, the enterprise patent management agency divides patents into different levels for scientific management. For example, patent hierarchical management can be carried out from one or more of the following dimensions:

Patents are graded from the technical dimension, and patents are graded according to technical difficulty and innovation height, which are divided into ordinary patents, basic core patents, peripheral patents, standard patents, international patents, etc.;

Patent classification is carried out from the application dimension, and the patents are graded and managed according to the actual application scope of the patent (such as whether it can be applied in the whole industry and the world), the economic benefits obtained by the application of the patent for the enterprise, and the cost saved by the application of the patent.

Patents are graded from the perspective of intangible assets, and patents are managed according to the appraised value of intangible assets of patent rights, the amount of mortgage or pledge loans that can be obtained by patents, and the level of patent license fees.

Patent classification from the legal dimension is carried out according to the role of the patent in the patent infringement lawsuit, the legal protection scope of the patent right, the stability of the patent right, and whether the patent right has defects, so as to classify the patents into offensive patents suitable for initiating patent litigation and defensive patents suitable for defense.

The patent examination system is a system in which the patent administrative department accepts and examines patent applications according to the process and standards, so as to decide whether to grant a patent right. The patent examination system is based on the Patent Law and the Detailed Rules for the Implementation of the Patent Law. China has formed a relatively complete patent examination system, and the department responsible for patent examination is the Patent Office of the State Intellectual Property Office, which publishes it.

There are three types of patent examination systems in various countries:

1. The registration system, also known as the formal examination system, the preliminary examination system, and the format examination system.

2. The examination system, also known as the substantive examination system, is not only for the preliminary examination, but also for the substantive examination, so it is called the complete examination system. Among them, there are two types of immediate review and delayed review.

3. Review system. It is divided into two categories: one is to implement a full examination system only in some industrial technology fields; The other type is censorship-only"Three sexes"novelty.

1) "Registration system", also known as "formal examination system" and "non-examination system". It mainly examines the application documents and related procedures, the format of the documents, the payment of the application fee and other formal conditions of the patent application, and after passing the examination, it will be registered and the patent right will be granted. The registration system does not examine the substantive conditions such as novelty, inventiveness, and practicability of a patent application.

The advantages of the registration system are that the examination and approval of patent applications is fast, the cost is low, and there is no need to set up a huge examination body and a large number of documents; Defects are that the value of the invention applied for is unclear, the quality of the granted patent cannot be guaranteed, the granted patent is unreliable, and disputes are likely to arise. It has been adopted by Belgium, Greece and other countries and the Member States of the African Intellectual Property Organization.

2) "Examination report system", also known as "literature report system". When conducting a formal examination of a patent application, a novelty search is conducted for the invention and an examination report is prepared. The examination report system is superior to the registration system in that it enables the patent applicant or interested parties to clearly understand whether the invention is novel, but it cannot effectively prevent the invention from being granted a patent right without inventive step.

3) "Censorship", also known as "full censorship". The Patent Reexamination Board conducts an examination of the patent application, not only the formal examination, but also the substantive examination of the technical content of the invention. This system can ensure the quality of the approved patents, is conducive to the popularization and utilization of inventions, and reduces patent disputes and litigation, but it takes a long time for the examination and approval of patent applications, which is easy to cause a backlog, and has higher requirements for the establishment of patent examination institutions and the quality of personnel.

The examination system is divided into two categories, one is the "immediate examination system", that is, all patent applications are substantively examined in turn; The other type is the "deferred examination system", also known as the "request examination system", that is, after the formal examination of the patent application, the substantive examination is carried out at the request of the applicant. China's patent law adopts a preliminary examination system for utility model and design patent applications, and a delayed examination system for invention patents.

Legal basis: Pants Yan Min

Patent Law of the People's Republic of China

Rule 60 The decision of the patent administration department to grant a compulsory license for exploitation shall be notified to the patentee in a timely manner, and shall be registered and announced.

The decision to grant a compulsory license shall stipulate the scope and time for implementation on the basis of the reasons for the compulsory license. When the grounds for compulsory license are eliminated and do not occur again, the patent administration department shall, upon the request of the patentee, make a decision to terminate the compulsory license after examination.