(1) If a foreign priority is claimed, the foreign country that accepts the applicant’s first application must have participated in an international treaty stipulated by priority with our country, or signed a mutual recognition agreement with our country. bilateral agreement on priority, or pursuant to a document recognizing mutual priority.
(2) If a foreign priority is claimed, the first application must be made through a foreign patent office and the purpose of the application is formally filed; if a domestic priority is claimed, the first application must be made through a Chinese patent office. The agency accepted and retained the formal application for the purpose of application.
(3) The time interval between the latter application and the previous application complies with legal requirements.
(4) The latter application must have the same subject as the first application.
Priority means that after the applicant files an application for the first time in a contracting country, he can apply for protection in other contracting countries on the same subject within a certain period. His subsequent applications are regarded as being in some respects. filed on the filing date of the first application.
Article 29 of the New Patent Law If another patent application is filed in China on the same subject matter within six months from the date of application, the foreign country may enjoy priority in accordance with the agreement signed by the foreign country with China or an international treaty to which China is a party, or in accordance with the principle of mutual recognition of priority. right.
If the applicant files another patent application for the same subject with the Patent Administration Department of the State Council within twelve months from the date of first filing a patent application for an invention or utility model in China, the applicant may enjoy priority.
Explanation: This article stipulates foreign priority and domestic priority.
1. Overview
In the Patent Law enacted in 1984, this article contains two paragraphs. The first paragraph stipulates the foreign priority of invention, utility model and design patent applications, and the second paragraph stipulates the foreign priority of invention, utility model and design patent applications. Paragraph 2 stipulates that if an applicant claims priority and one of the circumstances listed in Article 24 of the Patent Law occurs, the period of priority shall be calculated from the date of the occurrence of the circumstance. When the Patent Law was revised for the first time in 1992, the word "foreign" in the word "foreign applicant" at the beginning of the original first paragraph was deleted so that domestic people could also apply this article to claim foreign priority. At the same time, the word "foreign" in the original first paragraph was deleted. At the end of the paragraph, the sentence "the date when the application is first filed in a foreign country shall be regarded as the filing date" has been made. In addition, the text has also been modified. In addition, the second paragraph of this article of the Patent Law enacted in 1984 stipulates: "If the applicant claims priority and falls under any of the circumstances listed in Article 24 of this Law, the period of priority shall be calculated from the date of the occurrence of the circumstances." Article 24 of the Patent Law stipulates that within six months before the application date, the invention-creation for which a patent is applied for is exhibited for the first time at an international exhibition, published for the first time at an academic conference, or disclosed contrary to the applicant's original intention. , without losing novelty. Since this provision is about the grace period without loss of novelty and is different from the effect of priority, the above situation should not be used as the starting point of the priority period. The provisions of the original second paragraph not only shortened the time limit for applicants to claim priority, but also caused confusion in the calculation of other time periods stipulated in the Patent Law, and were inconsistent with international practice. Therefore, the original second paragraph was deleted when the Patent Law was revised for the first time in 1992.
The second paragraph of this article was added when the Patent Law was revised for the first time, and provides provisions on domestic priority matters.
In the second revision of the Patent Law, this provision has not been changed.