1. Formal legal principle. All procedures for applying for a patent shall be handled in written form or other forms stipulated by the China National Intellectual Property Administration Patent Office. All kinds of procedures for printing, typing or handwritten documents directly or indirectly by oral, telephone, physical and other non-written forms, or by telegraph, telex, fax, film and other means of communication are regarded as not submitted and have no legal effect.
2. The principle of oneness. This means that a patent application can only be limited to one invention. However, two or more inventions or utility models belonging to a general inventive concept may be filed as one application; Two or more designs of products sold or used in the same category in sets may be filed as one application.
3. Apply first. Where two or more applicants apply for a patent for the same invention-creation, the patent right shall be granted to the first applicant.
4. The principle of priority.
Patent priority refers to the patent applicant filing a patent application for his invention and creation in a country for the first time, and then filing a patent application for the same theme for his invention and creation within the statutory time limit. According to the relevant laws and regulations, the date of the first patent application is regarded as the filing date of his later application, and this right enjoyed by the patent applicant according to law is the priority. The purpose of patent priority is to exclude the possibility that anyone who plagiarizes this patent in other countries may first apply and get registered.
Patent priority can be divided into domestic priority and international priority.
1. Domestic priority
Domestic priority, also known as "domestic priority", means that the patent applicant applies for a patent for an invention or utility model with the same theme for the first time in China within 12 months, and can enjoy priority. In China's priority system, design patents are not included.
2. International priority
International priority, also known as "foreign priority", means that a patent applicant files a patent application in China within 12 months from the date of filing a patent application for the same invention or utility model for the first time in a foreign country, or within 6 months from the date of filing a patent application for the same design for the first time in a foreign country, and China takes the date of filing a patent application for the first time in a foreign country as the priority date. To apply for a patent for invention or utility model, a written request, a specification, an abstract thereof, a patent claim and other documents shall be submitted. The request shall specify the name of the invention or utility model, the name of the inventor or designer, the name and address of the applicant and other matters. The specification shall give a clear and complete description of the invention or utility model, which shall be subject to the realization of the technical personnel in the technical field; Attached drawings shall be attached when necessary. The technical points of the invention or utility model shall be briefly explained. The patent claim shall be based on the specification and indicate the scope of patent protection.
To apply for a patent for a design, the applicant shall submit a request, a picture or photograph of the design and other documents, and shall specify the product and its category in which the design is used. The date of patent application shall be the date when the Patent Office receives the patent application documents. If the application documents are mailed, the postmark date of mailing shall be the application date.
Where the applicant enjoys priority, the priority date shall be regarded as the filing date. Article 29 of the Patent Law stipulates international priority and domestic priority. International priority means that if an applicant files a patent application for the same subject in China within 12 months from the date when a foreign country first filed an application for a patent for invention or utility model, or within 6 months from the date when a foreign country first filed an application for a patent for design, he can enjoy the priority according to the agreement signed between the foreign country and China or the international treaties to which both countries are parties, or according to the principle of mutual recognition of priority. Domestic priority means that an applicant can enjoy priority if he files a patent application with the same theme with the Patent Office within 12 months from the date when he first filed an application for a patent for invention or utility model in China. Examination and approval of invention patent 1 Preliminary inspection. The patent administration organ shall find out whether the application meets the requirements of the patent law on the form of application.
2. Pre-publicity. After receiving an application for a patent for invention, the Patent Office, after preliminary examination, finds that it meets the requirements, and shall publish it 18 months after the date of application. The Patent Office may publish its application at an early date upon the request of the applicant.
3. Substantive review. An application for a patent for invention may, at the request of the applicant, be examined in substance at any time within 3 years from the date of filing; If the applicant fails to request substantive examination within the time limit without justifiable reasons, the application shall be deemed to have been withdrawn. When the Patent Office deems it necessary, it may examine the application for a patent for invention on its own.
4. Announcement of authorization registration. If the application for a patent for invention is not found rejected after substantive examination, the Patent Office shall make a decision to grant the patent right for invention, issue a patent certificate for invention, and register and announce it at the same time. The invention patent right shall take effect as of the date of announcement.
specific/concrete plan
1. After receiving an application for a patent for invention, the administrative department for patent in the State Council, after preliminary examination, finds that it conforms to the provisions of this Law, and shall publish it after 18 months from the date of application. The patent administration department of the State Council may publish its application at an early date upon the request of the applicant.
2. Within three years from the date of application, the patent administration department of the State Council may, at the request of the applicant, conduct a substantive examination of the application at any time; If the applicant fails to request substantive examination within the time limit without justifiable reasons, the application shall be deemed to have been withdrawn.
The patent administrative department of the State Council may, when it deems it necessary, examine the application for a patent for invention on its own.
3. When requesting substantive examination, the applicant for a patent for invention shall submit the reference materials related to his invention before the filing date.
Where an application for a patent for invention is filed in a foreign country, the patent administration department of the State Council may require the applicant to submit the information retrieved during the examination of his application in that country or the information on the examination results within a specified time limit; If the application is not submitted within the time limit without justifiable reasons, the application shall be deemed to have been withdrawn.
4. After substantive examination of the application for a patent for invention, the administrative department for patent in the State Council considers that it does not conform to the provisions of this Law, it shall notify the applicant and ask him to state his opinions or amend his application within a specified time limit; If no reply is made within the time limit without justifiable reasons, the application shall be deemed to be withdrawn.
5. If an application for a patent for invention still does not conform to the provisions of this Law after the applicant has stated his opinions or made amendments, it shall be rejected.
6. If the application for a patent for invention is rejected after substantive examination, the administrative department for patent in the State Council shall make a decision to grant the patent right for invention, issue a patent certificate for invention to the applicant, and register and announce it at the same time. The invention patent right shall take effect as of the date of announcement.
7. The patent administrative department of the State Council shall set up the Patent Reexamination Board. If the patent applicant refuses to accept the decision of the patent administrative department of the State Council to reject the application, he may file a request for reexamination with the Patent Reexamination Board within three months from the date of receiving the notification. After reexamination, the Patent Reexamination Board shall make a decision and notify the patent applicant.
If the patent applicant refuses to accept the reexamination decision of the Patent Reexamination Board, he may bring a lawsuit to the people's court within three months from the date of receiving the notice. Examination and Approval of Patents for Utility Models and Designs If the application for a patent for utility models and designs is not found rejected after preliminary examination, the Patent Office shall make a decision to grant the patent right for utility models or designs, issue the corresponding patent certificate, and register and announce it at the same time. The patent right for utility model and the patent right for design shall take effect as of the date of announcement. China National Intellectual Property Administration established the Patent Reexamination Board. If the applicant for a patent refuses to accept the decision of the Patent Office to reject the application, he may, within 3 months from the date of receiving the notice, request the Patent Reexamination Board for reexamination. After reexamination, the Patent Reexamination Board shall make a decision and notify the patent applicant. If the patent applicant refuses to accept the reexamination decision of the Patent Reexamination Board, he may bring a lawsuit to the people's court within 3 months from the date of receiving the notice.
After the invention-creation is granted a patent right, any unit or individual may apply for invalidation of the patent right if it finds that it does not conform to the relevant provisions of the Patent Law from the date of patent authorization. To request invalidation of a patent, an application and relevant documents must be submitted to the Patent Reexamination Board in accordance with the law, and the reasons must be explained. If the Patent Reexamination Board considers that the request complies with the law, it shall make a decision to declare the patent invalid or maintain the patent right in accordance with legal procedures. If a party refuses to accept it, he may bring a lawsuit according to law.
After the patent right is declared invalid, the patent right shall be regarded as nonexistent from the beginning. The decision to declare the patent right invalid has no retrospective effect on the judgments and rulings of patent infringement made and executed by the people's court before the patent right is declared invalid, the decisions on handling patent infringement disputes that have been performed or executed, and the patent licensing and patent transfer contracts that have been performed. However, if the patentee's malice causes losses to others, it shall make compensation. If the patentee or patent assignor fails to return the patent royalty or patent assignment fee to the licensed patentee or patent assignee in accordance with the above provisions, which obviously violates the principle of fairness, the patentee or patent assignor shall return all or part of the patent royalty or patent assignment fee to the licensed patentee or patent assignee.