Examination of patent substance is a necessary stage before an application for a patent for invention is granted. The purpose of substantive examination of an application for a patent for invention is to determine whether the application for a patent for invention should be granted a patent right, especially whether it conforms to the provisions of the Patent Law on novelty, creativity and practicality. The substantive examination procedure is usually initiated by the applicant at his request. If the application for a patent for invention is not found to be rejected after substantive examination, the Patent Office will make a decision to grant the patent right for invention.
Substantive examination requires the applicant to submit a request for substantive examination to China National Intellectual Property Administration within three years from the date of patent application (priority date with priority).
Request procedure for actual trial: submit the application for actual trial within the above three years and pay the actual trial fee of 2,500 yuan (if the fee is reduced, the unit only needs 750 yuan and the individual only needs 375 yuan). )
In the process of substantive examination, the examiner will know the existing technology in the relevant fields of the application, and search in detail the existing technical documents published at home and abroad before the application date, so as to examine the substantive elements such as the "three characteristics" (novelty, creativity and practicality) of the application. When the examiner thinks that the application does not conform to the relevant provisions of the Patent Law and its detailed rules for implementation, a notice will be issued. The applicant needs to give a written reply to the questions raised in the notice within the reply period, which is what we often say. The replies of the examiner and the applicant can be repeated many times until the application is granted a patent right, rejected or deemed to have been withdrawn.
The applicant should pay attention to the following three points in the process of handling the defense:
(1) Don't exceed the time limit for reply, otherwise it will be regarded as withdrawal of the patent;
(2) If it is necessary to modify the claim, be careful not to modify the scope;
(3) Be careful not to shrink the scope of protection too small, which may lead to patent evasion. Because the invention patent adopts the substantive examination system, the examination period is longer, generally more than 2 years. The examination period of each application is directly proportional to the number of replies. The more defenses, the longer the examination period.
legal ground
patent law of the people's republic of china
Article 29 Where an applicant applies for a patent for invention or utility model for the first time in a foreign country within twelve months, or applies for a patent for design for the first time in a foreign country within six months, and applies for a patent on the same subject in China, he may enjoy the priority in accordance with the agreement signed between that country and China or the international treaties to which both countries are parties, or in accordance with the principle of mutual recognition of priority.
Applicants who file a patent application for invention or utility model for the first time in China within 12 months, or apply for a patent for design for the first time in China within 6 months may enjoy priority.