After the publication of the application, the patent applicant withdraws or abandons the system of "early disclosure and delayed examination" in China's patent law. After preliminary examination, China National Intellectual Property Administration thinks that the application for a patent for this invention conforms to the provisions of the Patent Law. After 65,438+08 months from the date of filing, the applicant's invention was published immediately, and the application content (abstract) was published through the Bulletin of Invention Patent, and the application for invention patent was also published. After the publication of a patent application, it will not immediately enter the substantive examination procedure, but the applicant will decide whether to request substantive examination within the statutory time limit. During this period, if the applicant does not request substantive examination, the application will be regarded as withdrawn or abandoned and become an invalid patent. This is because the application for a patent for invention has passed the preliminary examination, but it does not mean that the application will eventually be authorized. It just means that the content and form of the application meet the requirements of the patent application, but it does not mean that the content of the application meets the requirements of authorization. This kind of invalid patent has certain development value, but if it is not taken seriously, it will easily lead to intellectual property disputes. Therefore, when developing and utilizing, we must first check the novelty and then consider it after confirmation.
Where the applicant refuses to submit the foreign application materials without justifiable reasons and regards the application as a withdrawal of the invention patent and has applied in a foreign country, when the applicant requests substantive examination, it shall submit the information retrieved by the examining country of the application or the information of the examination result. This mainly refers to the principle of "priority" enjoyed by members of the Paris Convention when they apply for patent protection again in China. The so-called "priority" means that the nationals of the member countries of the Paris Convention can apply for patent protection to all other contracting parties within a certain period of time after applying for a patent for invention and creation for the first time to one contracting party, with the date of the first application as the date of the subsequent application. If the applicant refuses to submit the foreign application materials without justifiable reasons, the application shall be deemed to have been withdrawn and the patent application shall be invalid for China. Because some of these applications may have been authorized abroad and have high technical content, China's patent law does not protect such foreign patents, and citizens can boldly use them without worrying about causing intellectual property disputes.
If the patent applicant fails to handle it within the time limit without justifiable reasons, it shall be deemed to have withdrawn the application for a patent for invention. Within three years from the date of filing, China National Intellectual Property Administration may, according to the request made by the applicant at any time or the circumstances deemed necessary by the Intellectual Property Office, conduct substantive examination on the application for a patent for invention, with the purpose of determining whether the application for a patent for invention conforms to the provisions of the Patent Law and its detailed rules for implementation, especially the provisions on novelty, creativity and practicality. The focus of the review is whether the description discloses the subject of the application for protection; Whether the claim clearly and concisely expresses the scope of the requested protection; Whether the independent right expresses the complete technical scheme to realize the purpose of the invention; And whether the technical scheme is patentable. If China National Intellectual Property Administration considers that the invention patent does not conform to the provisions of the Patent Law after substantive examination, it shall notify the applicant and ask him to state his opinions or amend his 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 and become an invalid patent. This kind of patent application has passed the preliminary examination, but the problems found in the substantive examination are overdue by the applicant without justifiable reasons, so the patentability of the application is in doubt, so it should be used with caution to prevent disputes.
The rejected application for a patent for invention does not conform to the provisions of the patent law. According to the requirements of the Intellectual Property Office, the applicant for a patent for invention stated his opinions on his application within a specified time limit and made amendments according to the provisions of the Patent Law. However, the Intellectual Property Office still believes that the applicant's statements and amendments still do not conform to the provisions of the Patent Law, so it rejected the application. This situation generally refers to the loss of authorization due to violation of application procedures, the technology itself does not meet the authorization conditions, and the writing of application documents does not meet the requirements. We must really find out why this invalid patent can't be granted, and then make a choice. Patent applications that violate the application procedures, the technology itself does not meet the authorization conditions, and fail to pass the substantive examination are not used as much as possible, while patent applications that lose their patent rights due to technical problems in writing application documents have high technical content and application value, and should be developed and utilized more.
The revocation and invalidation of the patent right refers to the activities of China National Intellectual Property Administration to revoke the patent right according to law at the request of the applicant within a certain period after the patent right is granted. Article 4 1 of the patent law stipulates: "within six months from the date of the announcement of the grant of the patent right, any unit or individual may request the revocation of the patent right if it thinks that the grant of the patent right is not in conformity with the relevant provisions of this law." Article 55 of the Detailed Rules for the Implementation of the Patent Law stipulates that the reasons for revocation are: the invention or utility model granted a patent right does not meet the requirements of "three characteristics" (novelty, creativity and practicality) of the patent; The patented design does not meet the conditions for the authorization of the design patent stipulated in the patent law and becomes an invalid patent. Invalid patent right refers to the act that the granted patent right is declared by the Patent Reexamination Board as not legally binding and positive because it does not conform to the provisions of the patent law. Article 48 of the Patent Law stipulates: "After six months from the date of the grant of the patent right, if any unit or individual thinks that the grant of the patent right does not conform to the relevant provisions of this Law, it may request the Patent Reexamination Board to declare the patent right invalid." The reasons for requesting invalidation of the patent right are: the invention and utility model do not meet the requirements of "three natures"; The design does not meet the statutory requirements; The specification is not fully disclosed, and the claim is not supported by the specification; The modification of the application documents is beyond the scope or pictures recorded in the original specification and claims; The scope indicated in the photo does not conform to the principle of first application, so it becomes an invalid patent.
It can be seen that the above-mentioned revoked and declared invalid patents are mainly due to their own lack of authorization conditions, and the conditions that cannot be authorized are omitted in the process of substantive examination of the application for a patent for invention, and the substantive examination of the application for a patent for utility model fails and eventually becomes invalid patents. This kind of patent has certain development and utilization value, but it is easy to have intellectual property disputes with some effective patents.