Article 42 The term of patent right for invention is 20 years, and the term of patent right for utility model and patent right for design is 10 years, counting from the date of application.
Related knowledge: Article 45 of the Patent Law promulgated by 1984 stipulates that the term of the invention patent right is fifteen years; The term of patent right for utility model and design is five years, and can be extended three years before the expiration. 1992 When the Patent Law was first revised, in order to strengthen the protection of patent rights, and in line with the patent protection period generally adopted in the world, the term of three kinds of patent rights was extended.
Before the TRIPS Agreement came into effect, most countries stipulated that the term of invention patent right was 15 years or 20 years. In the fields of drugs and pesticides, applicants need to carry out a series of tests and go through many relevant procedures before they can obtain the approval of the competent authorities and sell them after examination and approval by the competent authorities. In addition, the research and development costs of many drugs, especially biological drugs, are quite high. If the term of patent right is 15 years, many patentees in these fields will not be able to recover their huge investment in the remaining time, and the result will inevitably affect their enthusiasm for invention and creation. In order to encourage the patentee's invention and creation, 1992 amended the patent law and extended the term of invention patent right to 20 years.
The first revision of the patent law extended the patent protection period and cancelled the renewal procedure of utility model and design patents. The original intention of the renewal procedure stipulated before the amendment is to let the patentee decide whether the patent right needs to be protected, but it objectively increases the patentee's procedural burden. In fact, the patentee can express this wish by paying an annual fee, and there is no need to go through additional procedures. Therefore, when the Patent Law was revised for the first time, the protection period of utility models and designs was extended to 10 year, and the renewal procedure was cancelled.
The TRIPS Agreement signed in 1994 stipulates that the protection period of invention patent and design shall be no less than 20 years and 10 years respectively from the date of application. The first revision of the patent law conforms to the international trend of strengthening patent protection and the development trend of patent field.
The above provisions of the TRIPS Agreement only give the lower limit of the protection period. For invention patents, the protection period stipulated by countries all over the world rarely exceeds 20 years; But for design, the protection period stipulated by many countries is longer than 10 year. For example, the Netherlands, Switzerland, Austria, Denmark, Italy, Russia, Japan and other countries stipulate that the longest protection period of design can be 15 years; Germany and Spain stipulate that the longest period can be 20 years; Britain, Portugal and Turkey stipulate that the longest period can be up to 25 years; France stipulates that the longest period can be 50 years. This is related to the nature of the design. The patent right of design protects the aesthetic appearance of products, which has the attribute of "art" and is similar to works in the sense of copyright. Unlike the science and technology of invention and utility model patent protection, it needs to be popularized and utilized as soon as possible from the public interest, so the patentee of design can enjoy long-term protection. Judging from China's current economic development, a style of products will not occupy the market for a long time, and the protection period of 10 year can meet the needs of design patentees.
Most countries stipulate that the patent protection period starts from the date of application, and only a few countries (such as the United States) start from the date of authorization. After the TRIPS agreement came into effect, in order to meet the requirements of the agreement, all countries stipulated that the patent period should be counted from the date of application. However, it should be pointed out that "counting from the date of application" only means the starting point of the calculation of the patent term, and does not mean that the effectiveness of the patent right is counted from the date of application. According to the provisions of Articles 39 and 40 of the Patent Law, all three kinds of patent rights shall take effect from the date of authorization announcement. For an application for a patent for invention, the applicant can obtain "temporary protection" during the period from the publication of the application in China National Intellectual Property Administration to the announcement of granting the patent right. However, temporary protection is different from real patent protection.
It should be pointed out that the "filing date" mentioned in this paper refers to the actual filing date of a patent application in China, not the priority date, which is the practice of various countries. Paragraph 3 of Article 45 of the Patent Law promulgated by 1984 stipulates that if the patentee enjoys priority, the term of the patent right shall be counted from the date of filing in China. 1992 this clause was cancelled in the first revision of the patent law, but this revision did not change the actual practice of taking the actual filing date as the starting point of the patent term.
According to the transitional provisions in the National People's Congress Standing Committee (NPCSC)'s decision to amend the Patent Law in 1992, the extension of the patent term only applies to patents granted after 1993 1 and inventions granted before 1992 1.