However, if it is only a spare tire to remedy the innovation of independent rights, why do many application documents have to write so many rights? American patent applications, in particular, often have dozens or hundreds of rights. What's that for?
Some domestic patent agents often say that Americans write so many rights in patent applications, mainly because American patent agents want to earn more money from applicants through the right surcharge, or because American patent agents charge on time, so they are willing to spend more time on a case, so they can earn more agency fees on each case.
However, the author does not agree with this statement. First of all, whether in China or the United States, the customer is God. If the applicant doesn't want the agent to make more money, the agent certainly can't. It's simple. For example, when many domestic applicants don't want to pay more surcharges, they just need to ask their agents to control their rights within ten items.
But why do American applicants not only ask for the number of control items of agents, but also seem to hope that the more the better?
On the one hand, it may be that the official fee for patent application in the United States is too high, and the annual fee after authorization is not low. Moreover, for a large entity, if there is no fee reduction, the official fee of $65,438 +0.720 per piece is also quite a lot. In this case, of course, the applicant has no reason to write a patent that can be combined, but it should be combined. As long as it can meet the requirements of oneness, it will try to submit related applications in one application. In this case, it is natural for the application to have more permissions.
On the other hand, it is necessary to talk about another defensive function of subordination.
It is said that in the 1970s and 1980s, the Japanese pursued the leading technology patent applications of Americans at that time and blocked them in every way. What is the specific method of chasing? In fact, we can know the truth by splitting the claims in today's American patent application documents. To put it simply, the number of rights of Americans in a claim case at that time was not as much as it is today. If it is one-third of today's quantity, then the remaining two-thirds may be further improved and restricted based on exclusive rights, and Japanese may be allowed to apply in the future. This is probably what we often say about peripheral patents. Americans must have suffered a lot from Japan's peripheral patents before, so they will lay out many rights in their current claims, leaving no opportunity for Japanese or anyone else to apply for related peripheral patents.
Therefore, another defensive function of subordination is actually to prevent others from applying for some peripheral patents based on the applicant's core technical scheme, so as to use these peripheral patents as chips in subsequent licensing negotiations or litigation confrontation. On the contrary, when applying for a patent, the applicant hopes to include all the points that can be thought of and may be applied for a peripheral patent in his application. Moreover, it will inevitably increase the difficulty for others to invalidate the application documents, or the patent claim can retain other rights even if the invalid obligee invalidates some rights.
However, the above operation is more an application strategy formed to adapt to the American patent application environment. Judging from the current domestic patent application situation, most domestic applicants hope to obtain more patents. Moreover, because the official fees in China are low, the conditions for reduction and exemption are broader. Therefore, domestic applicants are naturally unwilling to put multiple cases together for joint application, or to lay out a large number of rights in one application.
However, according to the application needs of domestic applicants, in fact, a truly innovative application can actually apply for countless patentable patents.
For example, take an application in the United States with 65,438+000 subordinate rights as an example.
If its exclusive right can be established, the originality of the exclusive right will be guaranteed.
Then change the remaining 99 dependent claims into 99 independent claims and apply for a patent alone. The premise is that the application for core exclusive rights has not been made public before the submission date of the subsequent application.
Because there is no public application before the filing date of the latter application, it can not affect the creativity of the latter application, but only affect the novelty of the latter application, that is, it can only be used as a conflict application.
However, the evaluation of novelty is based on the technical scheme as the minimum unit, usually with a right as the minimum unit. Therefore, before and after publication, the patent applied for with exclusive rights may have an impact on the creativity of the patent applied for with independent rights, but it will never have an impact on novelty, because the number of technical features contained in each right is different, so how can it be the same technical scheme, and how can it be used to evaluate each other's novelty? On the other hand, because the latter application was submitted before the publication date of the earlier application, the earlier application cannot evaluate the creativity of the latter application. Therefore, in fact, the earlier application with core exclusive rights will not affect the creativity of the later application with subordinate rights as new exclusive rights.
So the final conclusion is that as long as the unique application can be authorized, every subordinate application of the exclusive right will be authorized as long as it is applied before the exclusive right is made public.
Although in the current environment, this practice can be said to be abnormal in China National Intellectual Property Administration. But this application operation that wants more applications is at least not restricted by the patent law, or at least legal operation under the framework of the patent law.
Of course, it is not necessary for the applicant to do that kind of mechanical segmentation just for the number of applications. The applicant can fully consider the patent layout, split the application containing more than 100 claims similar to those in the United States into more than 10 claim groups, and then apply for each group separately. In subsequent applications, as long as each application contains a new exclusive technical scheme with core exclusive rights, a series of subsequent applications will be authorized as long as the technical scheme with core exclusive rights can be authorized. Its logic is the same as that of splitting an application containing 100 claims into 100 applications.
For the agent, the examiner or the applicant himself, I am afraid that none of the claims submitted for application are established, that is, reliable and innovative. Once there is such a reliable innovation, the application document is only guaranteed in terms of authorization.
This strategy of applying for a large number of patents around a core point may be inefficient, but it is better than applying for an application with no substantive innovation and purely for the purpose of application.
On the other hand, patent application is actually a form of gambling, and the key to gambling or gambling is to grasp the key points and bet heavily, and the most taboo is flat betting, but few gambling or flat betting can finally benefit. Therefore, this strategy of applying for a bunch of patents around a core point, although not the best patent application strategy, is at least the least bad strategy.