(a) the application and examination and approval procedures for invention patents
1. Prepare for the exam
After receiving an application for a patent for invention, the Intellectual Property Office entered the preliminary examination stage. The so-called preliminary examination is to examine whether the patent application meets the formal requirements and obvious substantive defects stipulated in the Patent Law and its detailed rules for implementation.
(1) Formal review
Mainly to review whether all kinds of application documents are complete, whether the prescribed format is used, and whether the document writing uses the prescribed format. This part of the review does not involve technical content, and the review contents mainly include:
(1) Whether the patent request uses the prescribed format and meets the requirements;
(2) Whether the writing of the specification, its abstract and the claims conform to the prescribed formal requirements, and whether the appended drawings conform to the requirements of the appended drawings;
③ If the applicant entrusts a patent agency to apply for a patent, whether there is a power of attorney;
(4) Whether a foreigner who has no habitual residence or business office in China complies with the provisions of the Patent Law when applying for a patent, and whether he is qualified to apply for a patent in China;
⑤ Whether the foreign applicant entrusts a prescribed foreign-related patent agency to handle its patent application or other patent affairs;
6. Whether the application fee has been paid, etc.
(2) Examination of obvious substantive defects
It mainly examines whether the contents of the patent application obviously do not conform to the legal provisions. This part of the examination actually involves the substantive content of the patent application, but unlike the substantive examination, it does not evaluate the novelty, creativity and practicality of the patent. This part is rich in content:
⑦ Whether the invention obviously violates national laws and harms social morality and public interests;
Whether the theme of shenqing's patent today is obviously not within the scope of patent protection;
Pet-name ruby whether this patent application meets the requirements of oneness;
Attending whether the applicant's modification of the application documents is obviously beyond the scope recorded in the original specification and claims.
After preliminary examination, if the patent application does not meet the requirements in form or has obvious substantive defects, the Intellectual Property Office shall notify the applicant of its opinions, and the applicant shall make corrections within the prescribed or designated time limit. If no reply is made within the time limit, the application shall be deemed to have been withdrawn, and an application for reexamination shall be filed with the Patent Reexamination Board within the prescribed time limit.
After the preliminary examination procedure of an application for a patent for invention is completed, if the preliminary examination conforms to the provisions of the Patent Law, the application shall be published at the expiration of 18 months from the date of application, and the Intellectual Property Office may also publish it in advance according to the requirements of the applicant.
2. Substantive inspection
China's patent law stipulates that within three years from the date of filing, the Intellectual Property Office may conduct substantive examination of the application for a patent for invention at any time; If the applicant fails to request substantive examination within the time limit without justifiable reasons, the application shall be deemed to have been withdrawn; In some cases, the patent examination organ may also conduct substantive examination of the patent application on its own according to the actual situation. The substantive examination is mainly to examine whether the patent application meets the substantive conditions for granting the patent right, mainly including the following aspects:
(1) Whether the invention for which the patent is applied belongs to the invention referred to in the Patent Law;
(2) Whether the invention for which the patent is applied violates the laws of the state and harms social morality or public interests;
(3) Whether the invention for which the patent is applied belongs to the field where the patent right is not granted;
(4) Whether it is novel, creative and practical;
(5) Whether the same invention can only be granted a patent;
(6) Whether it belongs to the first applicant according to the patent law;
(7) Whether the patent application meets the requirements of oneness, etc.
If the patent examination organ considers that it is not in conformity with the above-mentioned patent law after substantive examination, it shall notify the parties in writing and ask them to state their opinions or amend the application within a specified time limit. If the applicant fails to reply within the time limit without justifiable reasons, the application shall be deemed to be withdrawn. After the patent application has been amended or stated, if the patent examination organ still considers that it does not meet the requirements, it may reject the application. If the applicant refuses to accept the decision to reject the application, he may request a reexamination from the Patent Reexamination Board.
3. Grant of patent right
In accordance with the provisions of the Patent Law, if the application for invention is not found to be rejected after substantive examination, a decision shall be made to grant the patent right, and a notice of granting the patent right shall be issued to the applicant, and the description of the invention patent shall be published at the same time. After going through the corresponding formalities, the applicant shall issue a patent certificate and make an announcement.
(2) Procedures for examination and approval of patents for utility models and designs
China's patent law adopts a different examination system from that of invention patent for utility model and design, and only makes a preliminary examination of utility model and design patent application without substantive examination. Article 40 of the Patent Law stipulates that if the application for a patent for utility model and design is rejected after preliminary examination, the State Patent Administration Department shall make a decision to grant the patent for utility model and design, issue the corresponding patent certificate, and register and announce it. The patent right for utility model and the patent right for design shall take effect as of the date of announcement.
Legal basis:
Article 40 in the Patent Law of People's Republic of China (PRC), if the application for a patent for utility model or design is not found rejected after preliminary examination, the patent administration department of the State Council shall make a decision to grant the patent right for utility model or design, issue the corresponding patent certificate, and register and announce it at the same time. The patent right for utility model and the patent right for design shall take effect as of the date of announcement.