"Key Law"?
Article 5 No patent right shall be granted for inventions and creations that violate state laws, social ethics or harm public interests. ?
Article 22 An invention or utility model that has been granted a patent right shall be novel, creative and practical. ?
Novelty means that before the filing date, no identical invention or utility model was published in publications at home and abroad, used in China or known to the public in other ways, and no identical invention or utility model was applied to the patent administration department in the State Council by others and recorded in the patent application documents published after the filing date. ?
Creativity means that compared with the prior art before the filing date, 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. ?
Article 23. The design for which the patent right has been granted shall be different from or similar to the design that has been published in domestic and foreign publications or publicly used in China before the application date, and shall not conflict with the legal rights previously obtained by others. ?
Article 24 An invention-creation applying for a patent shall not lose its novelty in any of the following circumstances within six months before the date of filing:
(1) It was exhibited for the first time at an international exhibition sponsored or recognized by the China Municipal Government; ?
(2) It was first published at a specific academic conference or technical conference; ?
(3) Others disclose the contents of the application without the consent of the applicant. ?
Article 25 No patent right shall be granted to the following projects:
(1) scientific discoveries; ?
(2) rules and methods of intellectual activities; ?
(3) Methods of diagnosis and treatment of diseases; ?
(4) Species of animals and plants; ?
(5) substances obtained by nuclear transformation. ?
The production method of the products listed in Item (4) of the preceding paragraph may be granted a patent right in accordance with the provisions of this Law. ?
"Meaning decomposition"?
As for the conditions for granting patent right, invention, utility model and design are different, so we should pay attention to the differences and connections between them and not confuse them. ?
1? What are the conditions for invention and utility model?
(1) Novelty: Novelty is defined as meeting the following three conditions at the same time before the filing date:?
The same invention or utility model has not been published in domestic and foreign publications; ?
(two) has not been publicly used in China or otherwise known to the public; ?
(3) No identical invention or utility model has been applied to the State Patent Office by others and recorded in the patent application documents published after the date of application. ?
An invention (excluding utility model) shall not lose its novelty in any of the following circumstances within 6 months before the date of filing:
? First, it was exhibited for the first time at an international exhibition hosted or recognized by the China Municipal Government; ?
The second is to publish it for the first time at a designated academic conference or technical conference; ?
Third, others disclose their contents without the consent of the applicant. ?
(2) Creativity: Compared with the prior art before the application date:?
(1) invention-with "outstanding" substantive characteristics and "remarkable" progress; ?
(2) Utility model-with substantial features and progress. ?
(3) Practicality: it can be manufactured or used, and has a positive effect. ?
2? Design?
As long as there is freshness: that is:?
(1) is not the same as or similar to the design publicly published in domestic and foreign publications and publicly used in China before the filing date; ?
(2) Do not conflict with the legal rights obtained by others first.
Chapter III Patent Application
"Key Law"?
Article 9 Where two or more applicants apply for a patent for the same invention-creation, the patent right shall be granted to the first applicant.
? Article 19 If a foreigner, foreign enterprise or other foreign organization without a habitual residence or business office in China applies for a patent and handles other patent affairs in China, it shall entrust a patent agency designated by the patent administration department in the State Council to handle it. ?
China units or individuals may entrust patent agencies to apply for patents and handle other patent affairs in China. ?
Patent agencies shall abide by laws and administrative regulations, accept the entrustment of clients, and handle patent applications or other patent affairs; The contents of the client's invention and creation shall be kept confidential, except that the patent application has been published or announced. Specific measures for the administration of patent agencies shall be formulated by the State Council. ?
Article 20 Where a unit or individual in China applies for a patent for an invention-creation made in China to a foreign country, it shall first file an application with the patent administration department of the State Council, and entrust the patent agency designated by it to handle it, and abide by the provisions of Article 4 of this Law. ?
Units or individuals in China may file an international patent application in accordance with the relevant international treaties to which People's Republic of China (PRC) is a party. The applicant who files an international application for a patent shall abide by the provisions of the preceding paragraph. ?
The patent administration department of the State Council shall handle international patent applications in accordance with the relevant international treaties to which People's Republic of China (PRC) is a party, this Law and the relevant provisions of the State Council. ?
Article 28 The date when the patent administrative department in the State Council receives the patent application documents shall be the filing date. If the application documents are mailed, the postmark date of mailing shall be the application date. ?
Article 29 Where an applicant applies for a patent for invention or utility model for the first time in a foreign country within 12 months, or applies for a patent for design for the first time in a foreign country within 6 months, and applies for a patent on the same subject in China, he may enjoy the priority according to the agreement signed between that country and China or the international treaties to which both countries are parties, or according to the principle of mutual recognition of priority. ?
An applicant who files an application for a patent for invention or utility model with the administrative department for patent in the State Council within 12 months from the date when he first filed an application in China may enjoy priority. ?
Article 30 Where an applicant claims priority, he shall make a written statement at the time of application and submit a copy of the first patent application document within three months; Failing to submit a written statement or a copy of the patent application documents within the time limit shall be deemed as not claiming priority. ?
Article 32 An applicant may withdraw his patent application at any time before being granted the patent right. ?
Article 33 An applicant may modify the patent application documents, but the modification of the application documents for patents for inventions and utility models shall not exceed the scope recorded in the original specifications and claims, and the modification of the application documents for patents for designs shall not exceed the scope shown in the original pictures or photographs. ?
Articles 5 and 7 of the Detailed Rules for the Implementation of the Patent Law. ?
"Meaning decomposition"?
Regarding the patent application procedure, we should focus on mastering its substantive norms, and then understand its procedural norms. ?
1? Apply?
(1) Determination of application date: The date when the patent application documents are received by the Patent Office is the application date. In detail:?
(1) If the application documents are mailed, the date of mailing postmark shall be the application date (submission date); ?
(2) If the postmark date is unclear, unless the party concerned can prove it, the date of receipt by the Patent Office shall be the date of filing; ?
(3) Where the application documents are submitted directly, the date of receipt by the Patent Office shall be the date of application. ?
(2) Principle of first application: If two or more applicants apply for a patent for the same invention respectively, the patent right shall be granted to the first applicant. ?
Where an application is filed on the same day, the applicant shall be determined through consultation after receiving the notice from the Patent Office. ?
Only one patent can be granted for the same invention. ?
(3) Priority:?
(1) If the applicant files a patent application for inventions and utility models (excluding designs) in China within 12 months from the date when the foreign country first filed the patent application, or within 6 months of the design, he may claim priority according to the mutual agreement between the foreign country and China or the international treaties to which * * * is a party; ?
(2) Where the applicant files a patent application for the invention or utility model (excluding the design) with the Chinese Patent Office within 12 months from the date when he first filed a patent application in China, he may also claim priority; ?
(3) Priority refers to the filing date after the first filing date mentioned above; ?
(4) The priority claimant shall make a written statement at the time of application and submit a copy of the first patent application right within 3 months;
Otherwise, it is considered unclaimed. ?
2? Special provisions for foreign-related applications?
(1) If a foreign individual or unit (including Hong Kong, Macao and Taiwan) applies for a patent in China, it shall entrust a patent agency designated by the patent administration department of the State Council to handle it (i.e. compulsory agency system); However, units and individuals in China may entrust an agency to apply for a patent in China (Article 19 of the Patent Law). ?
(2) Units and individuals in China who apply for patents for inventions (excluding utility models and designs) completed in China abroad shall first apply to the China Patent Office and entrust a patent agency designated by the Patent Office to handle them, and abide by the provisions of the Secrecy Law (that is, compulsory agency shall be implemented at the same time to apply for China patents) (Article 20 of the Patent Law). ?
3? Withdrawal and modification of application?
(1) Before the patent is granted, the applicant can withdraw the patent at any time; ?
(2) It can also be modified at any time, but the scope of modification shall not exceed the scope recorded in the original specification and claims (inventions and utility models) or the scope represented by the original pictures and photographs (designs).