Patent is the exclusive right granted by the state to the inventor or designer to enjoy the results of his invention and design within a certain period of time. According to China's patent law, patents are divided into invention patents, utility model patents and design patents. According to Article 25 of the Patent Law, the rules and methods of scientific discovery and intellectual activities, methods of disease diagnosis and treatment, species of animals and plants, and substances obtained by nuclear transformation do not apply for patents, but the production methods of animals and plants can apply for patents.
2. What is the difference between novelty, priority and repeated authorization of a patent?
First of all, in the Patent Law, its implementing rules and patent examination guidelines, the wording used in these three questions is different. For the novelty problem, the wording used is "the same invention or utility model"; Regarding the issue of priority, the wording used is "inventions with the same theme"; For the problem of repeated authorization, the wording used is "the same invention-creation". These three words are clearly used separately in the patent examination guide, and their use strictly corresponds to their problems.
Second, there are obvious differences in judgment among these three questions. For novelty, in the substantive examination, when judging whether they are the same invention or utility model, the full text of the comparison document is compared with the claims of the application document. If the technical scheme in the comparison document is substantially the same as the technical scheme required by the claims of this application, it belongs to the same invention or utility model. Regarding the issue of priority, when judging whether the two (the earlier application and the later application) are inventions with the same theme, the full text of the earlier application is compared with the claims of the later application. If the technical scheme in the earlier application is the same as that in the later application, they are inventions with the same theme. For the problem of repeated authorization, when judging whether two applications or patents or an application and a patent belong to the same invention-creation, compare the claims of the two. If the scope of the two claims is exactly the same, they belong to the same invention.
Thirdly, the comparison documents used to judge these three problems are also different. For the novelty problem, in the process of judging whether it belongs to the same invention or utility model, the files that can be used can be patent files or non-patent files. However, on the issue of priority and repeated authorization, only patent documents can be used, and it is impossible to involve the use of non-patent documents.
Fourth, the legal basis of the three is different. The basis for novelty examination is Article 22 of the Patent Law, the basis for priority examination is Article 29 of the Patent Law, and the basis for preventing repeated authorization examination is Article 9 of the Patent Law and Article 13 of the Detailed Rules for the Implementation of the Patent Law.
Fifth, the results of these three problems are different. For novelty, if the applicant can't modify the claims of the application, or can't convince the examiner that they don't belong to the same invention or utility model, it will lead to the loss of novelty of the claims, which may lead to the rejection of the application. On the issue of priority, if the applicant can't modify the claim of the application or can't convince the examiner that the two inventions belong to the same subject, the application will not enjoy priority, nor will it directly lead to the rejection of the application. For the problem of repeated authorization, if the applicant can't modify the claims of the application or convince the examiner that they don't belong to the same invention-creation, and can't prevent the same invention-creation from having multiple valid patents at the same time by giving up or negotiating with the rights holders of different applicants, the application will be rejected.
Through the above five differences, we can find that although these three concepts are similar in judgment, they are treated differently according to different judgment methods, different situations and different legal provisions, and finally form three different problems with different consequences. The difference between these three concepts is obvious. If we pay attention to the differences in the above five aspects in our work, we can distinguish the judgments of novelty, priority and repeated authorization.