Domestic patent application process
To apply for a patent for utility model, the application documents shall include: the request for a patent for utility model, the specification, the appended drawings of the specification, the patent claim, the abstract and the appended drawings.
To apply for a patent for design, the application documents shall include: a request for a patent for design, pictures or photographs, a brief description of the design and other documents. Where color protection is needed, color pictures or photographs shall also be submitted. Orthographic views of the same product with the same design should adopt the same expression, that is, all views should be drawn, all views should be rendered or all views should be photos, and different expressions are not allowed to be mixed.
Patent system is a legal system to protect the intellectual property rights of inventions and creations under the conditions of market economy. Paragraph 2 of Article 9 of the Patent Law stipulates that "where two or more applicants apply for a patent for the same invention-creation, the patent right shall be granted to the first applicant who applies for a patent for invention or utility model, and the request, specification, patent claim, abstract of specification and necessary drawings shall be submitted. To apply for a patent for design, a request, a design picture or photograph, a brief description and other documents shall be submitted. Patent application documents can be written by the applicant himself or by a patent agent.
1, writing patent application documents;
2. Make application documents;
3. Submit a patent application and obtain a patent application number.
Application for a patent for invention: you can apply for a patent for invention for a new technical proposal or improvement of a product or method;
Application for patent for utility model: you can apply for a patent for utility model according to the shape and structure of the product or the new technical scheme suitable for practical use;
Apply for a patent for design: You can apply for a patent for design for a new design with aesthetic feeling and suitable for industrial application according to the shape, pattern or combination of products and the combination of colors, shapes and patterns.
China Patent Office will authorize or reject the examination conclusion according to the examination results. Generally, this process takes about 6 months for design, 2 months for utility model 10- 12 months, and 2-4 years for invention patent. With the improvement of the examination efficiency of the patent office, the examination and authorization time of design and utility model is about 4-6 months.
The application fee shall be paid within two months from the date of application. The fees paid at the same time as the application fee also include the publication and printing fee of the application for a patent for invention and the application surcharge. Where the priority is claimed, the priority claim fee shall be paid at the same time. If it is not paid or paid in full within the prescribed time limit, the patent application shall be deemed to have been withdrawn.
When the number of pages in the description (including drawings) exceeds 30 pages or the number of claims exceeds 10, an application surcharge shall be paid, and the amount shall be calculated according to the number of pages or items exceeded.
The amount of priority claim fee is calculated according to the number of items claiming priority. Failing to pay or pay in full within the prescribed time limit shall be deemed as not claiming priority.
(1) acceptance stage
After receiving the patent application, the Patent Office will examine it. If the conditions for acceptance are met, the Patent Office shall determine the date of application, give the application number, and after checking the list of documents, issue an acceptance notice to inform the applicant.
(2) Preliminary review stage
If the accepted patent application pays the application fee in accordance with the regulations, it will automatically enter the preliminary examination stage. Before the preliminary examination, the application for a patent for invention must be examined in confidentiality, and if confidentiality is required, it shall be handled in accordance with the confidentiality procedures.
In the preliminary examination, it is necessary to examine whether there are obvious defects in the application, mainly including whether the contents of the examination fall within the scope of the patent law that does not grant the patent right, whether the obvious lack of technical content does not constitute a technical scheme, whether it lacks singularity, whether the application documents are complete and whether the format meets the requirements. If it is a foreign applicant, it is necessary to conduct qualification examination and application formalities examination. If it is unqualified, the Patent Office will notify the applicant to make corrections or statements within the prescribed time limit. If no reply is made within the time limit, the application shall be deemed to be withdrawn. If the defect has not been eliminated after the reply, it shall be rejected. Where an application for a patent for invention has passed the preliminary examination, a notice of passing the preliminary examination shall be issued. In addition to the above examination, the application for a patent for utility model and design shall also be examined whether it is obviously the same as the existing patent, whether it is not a new technical scheme or a new design, and if no reason for rejection is found after preliminary examination, it shall directly enter the authorization order.
(3) Publishing stage
The application for a patent for invention has entered the publication stage since the issuance of the notice of preliminary examination. If the applicant does not make a request for early publication, it shall be published within 18 months from the date of application. Where the applicant requests to publish in advance, the Patent Office may publish its application as soon as possible according to the applicant's request. After the application is published, the applicant has the right to temporary protection.
The publication stage before the application for patent for utility model and design is authorized.
(4) substantive examination stage
After the publication of the application for a patent for invention, if the applicant makes a request for substantive examination and it has taken effect, the applicant will enter the actual trial procedure. If the applicant fails to make a request for real trial within 3 years from the date of application, or the request for real trial does not take effect, the application shall be deemed to have been withdrawn.
In the actual trial process, whether the patent application is novel, creative and practical will be comprehensively examined. After examination, if it is found that the application does not meet the authorization conditions or there are various defects, the applicant will be notified to state his opinions or make amendments within the specified time. If no reply is made within the time limit, the application shall be deemed to have been withdrawn. If the application still fails to meet the requirements after repeated replies, the application shall be rejected. If the substantive examination finds no reason for rejection, it shall enter the authorization procedure as required.
There is no substantive examination stage for applications for patents for utility models and designs.
(5) authorization stage
If the application for a patent for utility model or design is not found to be rejected after preliminary examination, and the application for a patent for invention has been substantially examined, the examiner will make a notice of authorization and apply for authorization to register. The Patent Office examines the legal effect and completeness of the authorized text, proofreads and modifies the description items of the patent application, and then issues a notice of authorization and a notice of registration. After receiving the notice, the applicant shall go through the registration formalities in accordance with the requirements of the notice and pay the prescribed fees within 2 months. If the registration formalities are completed on schedule, the Patent Office shall grant the patent right, issue a patent certificate, record it in the patent register and make an announcement in the patent bulletin. Failure to go through the registration formalities in accordance with the provisions shall be regarded as giving up the right to obtain the patent right.
(6) Review stage
Patent reexamination procedure is a kind of remedy for the applicant when the patent application is rejected. According to Article 41 of the Patent Law, the Patent Reexamination Board accepts and examines the request for reexamination and makes a decision. Cases requesting re-examination include cases requesting patent re-examination because they refuse to accept the decision to reject the patent application in the preliminary examination and substantive examination procedures. Only the patent applicant has the right to start the patent reexamination procedure, and must submit it to the Patent Reexamination Board of the State Intellectual Property Office within 3 months after receiving the notice of rejection.
(7) the patent is invalid
According to the provisions of Article 45 of the Patent Law, any unit or individual may request the Patent Reexamination Board to declare the patent right invalid if it thinks that the grant of the patent right is not in conformity with the relevant provisions of this Law from the date when the patent administrative department of the State Council announces the grant of the patent right.
Patent invalidation is one of the most widely used patent laws and regulations in enterprises and units (it should be second only to patent application). Patent invalidation has become a necessary means and skill in patent litigation.
The legal consequence of invalid patent right is that the invalid patent right is regarded as nonexistent from the beginning. Anyone who refuses to accept the decision of the Patent Reexamination Board to declare the patent right invalid or maintain the patent right may bring a lawsuit to the people's court within three months from the date of receiving the notice.
The decision to declare the patent right invalid has no retrospective effect on the judgments and rulings of patent infringement made and executed by the people's court before the patent right is declared invalid, the decisions on handling patent infringement disputes that have been performed or executed, and the patent licensing contracts and patent transfer contracts that have been performed. However, if the patentee's malice causes losses to others, it shall make compensation.
In accordance with the above provisions, if the patentee or the patentee's transferor fails to return the patent royalty or patent transfer fee to the licensee or the patentee, which obviously violates the principle of fairness, the patentee or the patentee's transferor shall return all or part of the patent royalty or patent transfer fee to the licensee or the patentee's transferee.
It can be seen that the legal consequences of declaring a patent invalid are quite serious. For patent applicants, it is necessary to do a good job in the preliminary work of patent application, such as patent literature inquiry, novelty retrieval, market research and so on.