I. Benefits of simultaneous application of utility model patent and invention patent
First of all, utility model patents are easier to examine and approve than invention patents. Compared with the invention patent, the application for a patent for utility model stipulates a simplified examination and approval procedure, and the utility model only carries out preliminary examination, while the invention patent needs substantive examination in addition to preliminary examination. This substantive examination should also examine whether it has "outstanding substantive characteristics and remarkable progress", so that utility models can be approved more easily than invention patents.
Secondly, the review cycle of inventions and utility models is different. It takes about 6~8 months to get the certificate of utility model patent. The invention patent examination is successful, and it will take nearly one year at the earliest to get the patent certificate. Therefore, in real life, it is impossible for your technology to spend a year or so waiting for the invention patent authorization, and once it is infringed, it is not easy to define it. Therefore, we must apply for invention and utility model at the same time. If you can get the utility model patent first, you can also carry out related activities normally to ensure your legitimate rights and interests.
Second, the difference between invention patents and utility model patents
1. Different protection: the utility model patent only involves the shape and structure of the product, and the scope of protection is narrower than that of the invention patent. The term of protection of utility model patents is 10 years, and that of invention patents is 20 years, counting from the date of application.
2. Different progress: in the process of patent creativity examination, invention patents need to have "outstanding substantive characteristics and significant progress", while utility model patents only need to have "substantive characteristics and progress". The level of creativity of utility models is lower than that of inventions, so some people call utility model patents "small inventions" or "small patents".
3. Different examination and approval procedures: The Patent Law stipulates simplified examination and approval procedures for utility model patent applications, and utility models only undergo preliminary examination, while invention patents need substantive examination in addition to preliminary examination.
4. Different review periods: utility model patents can get patent certificates in about 6 months, and invention patents can get patent certificates in about 1 year and a half, because the technical fields of invention patents are wider, and the review periods in different technical fields are quite different, and some technical fields may take 2-3 years or even longer.
legal ground
patent law of the people's republic of china
Article 22 An invention or utility model that has been granted a patent right shall be novel, creative and practical.
Novelty means that the invention or utility model does not belong to the prior art; Before the filing date, no unit or individual filed an application for the same invention or utility model with the administrative department for patent in the State Council, and it was recorded in the patent application documents published or announced after the filing date.
Creativity means that compared with the prior art, the invention has outstanding substantive features and remarkable progress, and the utility model has substantive features and progress.
Practicality means that the invention or utility model can be manufactured or used and can produce positive effects.
The existing technology mentioned in this law refers to the technology known to the public at home and abroad before the date of application.