What are the advantages and disadvantages of applying for an invention patent and publishing it in advance?

For the applicant, the advantage of publishing the invention patent as soon as possible is that according to the patent law, after the publication of the application for the invention patent, the applicant can ask the unit or individual who implements the invention to pay an appropriate fee, that is, to obtain the so-called "temporary protection". If the application is published as soon as possible, the applicant can obtain temporary protection as stipulated in the patent law as soon as possible. In addition, early publication may help patents to enter and occupy the market in the future. The disadvantage is that if the application content is made public too early, others may use the application, which may harm the interests of the applicant. In addition, there is a great difference between published and unpublished patent applications. If the application content has not been made public, the technology can also be owned by the applicant as a technical secret, and a new patent application can be filed in the future; If the application content has been published, it means that the technology has entered the well-known technical field, and the applicant can no longer obtain patent protection for the same content. Applicants often hope that this disclosure will take place later, so as to have more time to finally decide whether to disclose their technology or prepare for it. From the public point of view, the early publication of invention patents is conducive to the spread of the latest technology; Avoid repeated research and reduce unnecessary waste of human, material and financial resources; Inspired by other people's inventions, develop and update more advanced technologies as soon as possible. How long after the invention patent application is published? If an application for early disclosure is made, it will be made public after formal review, and the time will exceed 3- 10 months. According to the relevant provisions of the Patent Law, the examination and approval procedure of an application for a patent for invention includes five stages: acceptance, preliminary examination, publication, actual examination and authorization. After receiving an application for a patent for invention, the administrative department for patent in the State Council, after preliminary examination, finds that it conforms to the provisions of this Law, and shall publish it immediately after 18 months from the date of application. The patent administration department of the State Council may publish its application at an early date upon the request of the applicant. If the application for a patent for invention is rejected after substantive examination, the administrative department for patent in the State Council shall make a decision to grant the patent right for invention, issue a patent certificate for invention, and register and announce it at the same time. The invention patent right shall take effect as of the date of announcement. The term of patent application is not fixed, depending on the specific situation. The Patent Office will inform you of any inspection results in writing. According to the provisions of China's Patent Law, if the Patent Office considers the application for a patent for invention to be in conformity with the provisions of this Law after preliminary examination, it shall publish the application 18 months after the date of filing. The so-called early disclosure means that the applicant can request the early disclosure of his patent application from the date of application and the priority date, and shall submit an early disclosure statement. After the early public statement has passed the preliminary examination of the Patent Office, it can immediately enter the public procedure. The pre-public statement is only applicable to the application for a patent for invention. The applicant's pre-public statement cannot be attached with any conditions. What's the use of making a statement in advance when requesting a patent for invention? 1, early disclosure can be used to evaluate the creativity of other people's patent applications, and to hinder others' patent application authorization closely related to their own technology as much as possible. 2. Publicity is a necessary procedure for the invention to enter the substantive examination, so the authorization period can be shortened. After the invention patent is published in Chinese, if someone uses your technology, you can ask others to pay you the royalties from the time you publish it, but if others don't pay, you can bring a lawsuit after authorization. China's temporary protection system and its legal effect The temporary protection system of an application for a patent for invention ① is an important institutional arrangement in the patent law, and the corresponding period is called temporary protection period. Temporary protection period is a period that must pass before an application for a patent for invention is granted a patent right, and it is also a special and extremely important period in patent law. During this period, the patent law protects the patent applicant to a certain extent, which is not only beneficial to the applicant's personal interests, encourages technological innovation and promotes social progress, but also related to the overall interests of the country. Based on this, the patent systems of all countries have paid some attention to the temporary protection period of invention patents, and formulated relevant legal measures to ensure the realization of the above objectives. China's patent law has also set up relevant provisions when it is formulated and revised, giving patent applicants and the public limited rights and interests. However, due to the influence of legal tradition, the temporary protection system in China has some unique characteristics, which is not conducive to protecting the legitimate rights and interests of patent applicants. I. System Design of Temporary Protection It is an inevitable requirement to adopt the system of early publicity and deferred examination to give temporary protection to the application for a patent for invention. The patent laws of many countries in the world have similar provisions. Influenced by legislative techniques and legal traditions, the provisions of different countries are different. The most detailed is the Japanese Patent Law, which not only stipulates the temporary protection during the application of the invention patent right, but also specifies the amount of compensation (equivalent to the usual implementation cost), the exercise conditions (warning), the time to seek relief (after the patent right is granted) and the relief procedures in detail. The patent law of the United States also stipulates the temporary protection system (3), which makes it clear that the patent applicant's claim during the temporary protection period is a legal right. Accordingly, once someone implements the technical scheme disclosed in the published patent application, he has the legal obligation to pay the patent fee, otherwise he will bear the legal consequences that are unfavorable to himself. There are about four clauses in China's current patent law on the application for temporary protection of invention patents, and there are about two related judicial interpretations, which respectively stipulate that during the temporary protection period, the patent applicant may request the entity or individual who exploits his invention to pay him an appropriate technical exploitation fee, the limitation period for requesting the exploitation fee, the supervision right of other public during the temporary protection period, the accepting organs (including China National Intellectual Property Administration, local patent administration departments and people's courts) and the acceptance situation. However, it should be noted that the patent application is not actually authorized at this time, and the law can only provide a certain degree of protection for it, but can not provide strong patent protection. According to Article 39 of the Patent Law, the invention patent right shall come into effect as of the date of China National Intellectual Property Administration's announcement. When the patent application passes the subsequent substantive examination procedure and obtains the patent right, the patent applicant becomes the patentee, and the patent applicant transitions from the unstable temporary protection period to the patent protection period. According to the patent system, the patentee has obtained the legal monopoly right of the technical scheme within the scope of his authorization, and can resist any unit or individual from commercial implementation, manufacture, use, promise to sell, sell and import the products directly obtained according to the patented method. To some extent, the patent system is a contract between the inventor and the country or society. One party to the contract is the patentee, and the other party is the society. The price paid by the inventor for obtaining the patent monopoly right of his invention is to disclose his invention content to the society, and the price paid by the society for obtaining the invention content originally belonging to technical secrets is to grant the inventor exclusive rights and give the inventor legal protection for his invention. During the performance of this contract, temporary protection period and temporary protection system inevitably appeared. With the publication of the application documents, on the one hand, the state or society has the right to disclose the contents of the patent application that passed the preliminary examination to the society as a party to the contract, that is, in the name of the government; On the other hand, the patent applicant lost the interest of monopolizing the content of his invention and creation without anyone knowing, and obtained temporary protection. The legitimacy of the temporary protection system lies in that it embodies the rights and obligations of both parties to the contract, and the rationality lies in whether the design of this system truly embodies the basic principle of consistency of rights and obligations, that is, the standard to measure the rationality of a country's temporary protection system should be whether the design of the temporary protection system balances the interests of the patent applicant and the public, and whether the loss of the patent applicant's technological achievements can be equal to the gain of temporary protection granted by law. Second, the legal effect of the temporary protection system The legal disclosure of the patent applicant's application documents is the only sign that the application for a patent for invention has entered the temporary protection period, and it is also an important legal fact of the application for a patent for invention in the patent law, which has certain influence on the patent applicant, the post-applicant who intends to apply for the same invention and creation during the temporary protection period, the public and the state administrative organs. The temporary protection system of invention patent is a systematic coordination mechanism to balance the rights and interests of the above parties. Firstly, its coordination function shows that it has different legal effects on patent applicants, the public and the government. This paper mainly studies the effect of temporary protection system on people, which is embodied in four aspects: (1) Temporary protection causes the applicant's (hereinafter referred to as the first applicant) temporary claim. Therefore, according to the provisions of Article 13 of the Patent Law, the temporary protection obtained by the applicant is not a right but only an interest. Therefore, the applicant has no right to prevent other commercial activities, and the third party's implementation of its technological achievements does not constitute patent infringement. The strength of this claim can't be compared with the strength of national patent protection. At this point, the patent applicant obtains a temporary and unstable claim. According to the provisions of the Patent Law (5), even if the patent applicant knows that someone is implementing his patent before the patent is granted, the applicant can't immediately exercise his right to claim, and can only wait for the authorization of the state. If there are some unexpected circumstances (such as the patent application is withdrawn, rejected or deemed withdrawn, etc.). ) In the process of substantive examination of patent application, the patent applicant's right to claim will be destroyed, and the applicant can only swallow the content of his invention and become a well-known technology in society without any compensation from the implementer. It is extremely unfavorable to patent applicants whose technological achievements are commercially utilized by others, which is obviously a defect of China's patent law. Fortunately, the judicial interpretation issued by the Supreme People's Court made up for this kind of problem to some extent, and clearly regarded the invention and creation of the patent applicant during the temporary protection period as the technological achievement equivalent to the patent. An applicant for a patent may, on the basis of the technological achievements contained in the published application documents, sign a technical contract with a unit or individual who wishes to implement its technological achievements, and a legally established technical contract shall be protected by law. Nevertheless, this judicial interpretation failed to play its due role in judicial trial due to the lack of corresponding system connection in other departmental laws, especially patent law. It is worth noting that, unlike the patent system adopted by other countries in the world, the right of claim granted by the temporary protection system in China is not only a natural right, but also a right of expectation, which is in an unstable state. The starting point of the applicant's request for temporary protection is after the application is published according to law. In other words, an application for a patent for invention can only request temporary protection after it is published according to law. The Patent Law does not give temporary protection to the application for a patent for invention from the date of filing to the date of publication and the application for a patent for utility model and design before the patent right is granted. In addition, the patent applicant's request authority is in a passive state, and the content of the request is very limited, which is limited to asking others to implement its technical scheme to pay a certain amount of technology use fee. According to the temporary protection system, the applicant can't ask others to lose other benefits caused by the commercial implementation of his technology, such as the loss of market share, the loss of competitive opportunities and the reduction of expected profits. The court only refers to the general situation of the technology use contract to determine the amount of the use fee, but does not support other claims, which will inevitably lead to the imbalance between the rights and interests of patent applicants and the public, and dampen the enthusiasm of patent applicants for invention-creation and application for invention patents. Furthermore, not all the implementers who use the technical content contained in the patent application documents have to bear the responsibility of paying the royalties to the patent applicants, and only those commercial implementers who belong to the technical characteristics described in the final patent authorization text need to bear the payment obligation. Therefore, the temporary protection system is far weaker than the patent right in terms of the content, conditions, time limit and protection content of the right. Based on the above reasons, the applicant for a patent for invention must be cautious in every link of the process of examining the application with China National Intellectual Property Administration after the publication of the patent application, and closely and actively cooperate with the examination work in Patent examiners to ensure that the patent application successfully passes the temporary protection period, so as to obtain strong patent protection. (2) For the latter applicant who wants to file an application with the same invention-creation, the temporary protection system makes the earlier application constitute the existing technology for the latter applicant, and according to the principle that repeated authorization is prohibited in the patent law, the latter applicant for a patent for invention will not be able to obtain the patent right. The purpose of making the patent application documents public in advance is to let the society know about the invention and creation content of the patent application, promote technical exchange and avoid repeated waste of resources. With the publication of the earlier application documents, the technical content of the earlier patent application is in a state that the public can know at any time, and anyone can read the specific technical scheme of the patent applicant's invention and creation as long as he is willing. Therefore, the disclosure of the application documents embodying the invention-creation of the earlier application undermines the novelty of the later application, resulting in the later application not being able to obtain the patent right. (3) The Patent Law implicitly gives the units and individuals who wish to implement the published inventions and creations of others the opportunity to implement the inventions and creations of others. Since the published patent application has not been authorized by the state at this time, the implementation by the implementer during the temporary protection period does not constitute patent infringement in the patent law; It is not the legal obligation of the implementer that the units and individuals who exploit the technological achievements of the patent applicant pay appropriate fees to the applicant. If the implementer voluntarily pays the patent applicant a royalty for the use of his technological achievements, the law shall not prohibit it. Therefore, during the temporary protection period, the units and individuals who implement the technological achievements contained in other people's patent application documents get an opportunity to use their own technological achievements for commercial implementation, especially when the application is not protected by the patent right in the end. The reason why the Patent Law makes this arrangement is because the prospect of patent application authorization is not clear, and it is possible that the application will not be authorized in the end. (d) For the public, an objection period has been formed. According to Article 48 of the Detailed Rules for the Implementation of the Patent Law, "from the date of publication of an application for a patent for invention to the date of announcement of the grant of a patent right, anyone may make comments to the patent administration department of the State Council and explain the reasons." The above provisions have given the public the right to participate in the review from the beginning. According to the patent examination rules, Patent examiners Patent Office needs to evaluate the patentability of an application for a patent for invention when conducting substantive examination. One of its main tasks is retrieval, and the other is to judge the patentability of the application according to the application text and retrieval results. Public opinion can exert influence in these two aspects. In Patent examiners, retrieval is the main process of patent examination, but no matter how big the database is, it can't be perfect. So there is the possibility of missed detection. Furthermore, as far as the well-known utility of novelty is concerned, the advantages of the relevant public are self-evident. Therefore, as the public, especially enterprises or researchers in the same technical field as patent applications, the law gives them a powerful weapon-the right to raise objections. The length of the objection period is the same as that of the temporary protection period. When the patent application filed by others may hinder the development of enterprises, or it is found that the patent application has huge economic benefits, but the application has obvious loopholes and may not be able to obtain patent protection, enterprises and individuals can make full use of this provision to block the patent application as far as possible from the door of patent protection. Unfortunately, this provision has not attracted enough attention from enterprises and individuals in China, and some enterprises have suffered heavy losses because they did not use this weapon. Three. Conclusion As a transitional arrangement connecting the rights and interests of the parties during the patent application and patent acquisition, the temporary protection system is different from other countries in the design of specific terms, which is not conducive to protecting the legitimate interests of the applicant for a patent for invention. It is necessary for the law to supplement this deficiency properly and learn from the legislative experience of other countries when necessary, so as to ensure the legal system that promotes scientific and technological innovation and social progress and realize the legislative purpose of the patent law. As an applicant for a patent for invention, he should be fully aware of all possible situations during the temporary protection period, which does not mean patent protection. During this period, the patent applicant may not only face the possibility that his invention may be used by others at any time, but also face the social supervision of the public on patent examination. In addition, compared with the powerful patent right, the patent applicant's right to claim the invention and creation being implemented by others is very limited and the exercise conditions are very strict. Therefore, patent applicants should fully understand the characteristics of the temporary protection system, take active measures, actively cooperate with the smooth progress of patent examination, and obtain stable patent rights as soon as possible. The author's personal opinion Because the time from application to patent authorization is relatively long, ranging from three years to ten years, the author of this article Wang believes that if you apply for a patent in your personal capacity, you should apply for publishing your invention patent as soon as possible, purely for the purpose of transferring the patent to obtain economic benefits. After the invention patent is published in Chinese, if someone uses your technology, you can ask others to pay you the royalties from the time you publish it, but if others don't pay, you can bring a lawsuit after authorization. How much is this royalty appropriate? It's up to you. In fact, this royalty is your patent transfer fee, and the patent law is not clear. After all, you haven't patented it yet. How else can I explain it to you?