Utility model refers to a new technical scheme suitable for practical use for the shape, structure or combination of products.
The difference between invention and utility model is as follows:
1. Different definitions.
As can be seen from the definition, the utility model patent is included in the protection scope of the object of the invention patent. You can apply for a utility model or invention to improve the shape and structure of a product, but you should apply for an invention patent for a method or software scheme, because the method or software scheme cannot reflect the change of shape or structure.
2. The protection period is different.
The protection period of invention patent is 20 years from the date of filing, and that of utility model is 10 year from the date of filing. It should be noted that this is only the protection period stipulated by law, but the practical and meaningful protection period basically starts from the patent grant date, and then others can be sued for infringement or license or transfer.
They have different requirements for creativity.
The invention patent requires outstanding substantive features and significant progress compared with the existing technology, while the utility model only requires substantive and progress compared with the existing technology. In other words, utility model patents need less creativity than invention patents. To judge the creativity of an invention in an invalid procedure, we should not only consider the technical field to which the invention belongs, but also consider its similar or related technical fields; Judging the creativity of utility model generally focuses on the technical field to which the utility model patent belongs.
4. The review authorization procedures of the two are different.
After publication, an application for a patent for invention needs to go through a substantive examination procedure, and a patent right can only be granted if no defects that do not conform to patent laws and regulations are found. However, the application for a patent for utility model is only subject to preliminary examination, not substantive examination. That is to say, in the stage of examination and authorization, the requirements of utility models are lower than that of invention patents, and it is easier to obtain patent certificates.
5. The time of obtaining patent authorization is different.
It can be seen from the examination procedure in the fourth point that the authorization time of utility model patents is much faster than that of invention patents because there are fewer substantive examination procedures than invention patents. Generally speaking, an application for a patent for utility model can be authorized in about 8 months from the date of application, while an application for a patent for invention often takes 2-3 years or even longer to obtain a patent authorization.
6. Unauthorized disclosure is different.
If the application for a patent for invention is not granted the patent right because of the failure of substantive examination, the application documents for a patent for invention will also be made public, and the disclosed technology will become the existing technology. However, the application for a patent for utility model will not be made public until it is authorized, and the application for a patent for utility model will not be made public without authorization.
7. The procedures for safeguarding rights are different.
The main difference is that the patent for utility model authorization needs to submit a patent evaluation report before litigation, that is, requesting the patent office to examine whether the grant of utility model patent right conforms to the provisions of patent laws and regulations and issue a conclusion, which is equivalent to the substantive examination of the application for a patent for invention. The invention patent does not need this procedure.
Based on the above differences, patent applicants need to consider comprehensively when choosing the type of patent they apply for. At present, the common practice of "good batch of utility model patents, I am sure to apply for utility models" and "high level of invention patents, I am sure to apply for invention patents" is debatable. Advantages and disadvantages often coexist, and it is not appropriate to focus only on the favorable aspects and ignore the unfavorable ones. For example, for a technology with a life cycle of more than 20 years, if you choose to apply for an invention patent only after seeing the protection period of 20 years, it is easy to be rejected because of the delay of the actual protection period and the lack of invention creativity, resulting in unnecessary losses.