Step 4 give priority
Law 29. 1
An applicant who filed a patent application for an invention or utility model with the same theme for the first time in a foreign country within 12 months and then filed an application in China may enjoy priority according to the agreement signed between that country and China or the international treaties to which * * * is a party, or according to the principle of mutual recognition of priority. This kind of priority is called foreign priority.
Law 29.2, rule 33
Applicants who file an application for a patent for invention or utility model for the first time in China with the same theme within 12 months, and file an application for a patent for invention or utility model with the Patent Office on the basis of an application for utility model, may enjoy priority. This priority is called domestic priority.
Law 29. 1
4. 1 foreign priority
4. 1. 1 Conditions for enjoying foreign priority
A patent application with foreign priority shall meet the following conditions:
(1) After the applicant filed a patent application for the invention-creation with the same theme for the first time in a foreign country, he filed a patent application in China (hereinafter referred to as the last application in China).
(2) As far as inventions and utility models are concerned, the date of the latter application in China shall not be later than 12 months from the date of the first application abroad.
(3) The country where the applicant applies for the first time should be a country that has signed an agreement with China or acceded to international treaties or mutually recognized the principle of priority.
The invention-creation with foreign priority has nothing to do with the final result of the examination and approval of the first foreign application, as long as
If the first application has obtained a clear filing date in the relevant country, it can be used as the basis for claiming foreign priority.
4. 1.2 Definition of inventions with the same theme
An invention or utility model with the same theme refers to an invention or utility model with the same technical field, the same technical problems to be solved and the same technical scheme, and the same expected effect. However, it should be noted that the so-called identity here does not mean that it is completely consistent in written records or narrative methods.
The examiner should pay attention to the theme of China's later application, that is, the technical scheme defined in the claim. As long as it has been recorded in the foreign earlier application, it can enjoy the priority of the earlier application, without requiring it to be included in the claim of the earlier application.
4. 1.3 Effect of foreign priority
An application for a patent for invention-creation filed by an applicant in a foreign country with the same theme within the priority period is deemed to have been filed on the filing date of the first application in that foreign country, and it will not lose its effectiveness because someone else filed an application with the same theme, or published or used the invention-creation within the priority period, that is, between the filing date of the first application and the filing date of the next application.
In addition, during the priority period, other applicants may file patent applications for inventions with the same theme. Due to the effectiveness of priority, patent applications for inventions and creations with the same theme filed by others cannot be granted patent rights. That is to say, due to the existence of the first foreign application as the priority basis, other people's patent applications for invention and creation with the same theme filed from the date of the first foreign application to the date of application after China cannot be granted a patent right because of its loss of novelty.
4. 1.4 foreign multiple priority and foreign partial priority
According to the first paragraph of Article 33 of the Detailed Rules for the Implementation of the Patent Law, the applicant may claim one or more priorities in a patent application; Where multiple priorities are claimed, the priority period of the application shall be calculated from the earliest priority date.
Provisions on foreign multiple priority and foreign partial priority are as follows.
(1) An application for a patent claiming multiple priorities shall comply with the provisions of Article 31 of the Patent Law and Article 35 of the Implementing Rules of the Patent Law on singleness.
(2) As the basis of multiple priorities, the first foreign application can be filed in different countries. For example, China's later application recorded two technical schemes, A and B. Among them, A was disclosed in the earlier application in France and B was disclosed in the earlier application in Germany. These two applications were filed in France and Germany respectively, both of which were filed within 12 months before the filing date of the latter application in China. In this case, China can enjoy multiple priorities when applying later, that is, A enjoys the French priority date and B enjoys the German priority date. If the above-mentioned A and B are two alternative technical schemes, and the applicant records A and B in an OR structure in a claim of China's later application, then China can also enjoy multiple priorities in his later application, namely.
There are different priority dates. However, if the technical scheme recorded in China's latter application consists of two or more different technical features disclosed in the first foreign application, it cannot enjoy priority. For example, a technical scheme disclosed in China's later application is a combination of feature C disclosed in one foreign initial application and feature D disclosed in another foreign initial application, but the technical scheme containing features C and D is not disclosed in the above two foreign initial applications, then China's later application cannot enjoy foreign priority based on these two foreign initial applications.
(3) The application for claiming foreign priority may include one or more new technical solutions in addition to the technical solutions disclosed in the application that is the basis of foreign priority. For example, in later applications, China not only recorded the technical scheme of the first foreign application, but also recorded the new technical scheme, so as to further improve or perfect the technical scheme, such as adding dependent claims reflecting new realization or examples in the specification, or adding independent claims that conform to oneness. In this case, the examiner shall not take the reason that the technical scheme added in China's subsequent application was not recorded in the first foreign application. Reject the right of priority, or reject it, but priority should be given to the invention-creation with the same theme as the first foreign application as required by China in the later application. The effective date is the filing date of the first foreign application, that is, the priority date, and the rest is the filing date of China in the latter application.
In the later application, some technical schemes in China enjoyed foreign priority, so they were called foreign partial priority.
Law 29.2
4.2 Domestic priority
4.2. 1 national priority conditions
A patent application with domestic priority shall meet the following conditions:
(1) is only applicable to the application for a patent for invention or utility model.
(2) The applicant filed a patent application for the invention or utility model with the same theme in China for the first time (hereinafter referred to as the first application in China) and then filed a patent application with the Patent Office (hereinafter referred to as the last application in China).
(3) The date of China's later application shall not be later than 12 months from the date of China's first application.
Rule 33.2
Where the subject matter of China's earlier application for priority is under any of the following circumstances, it shall not be used as the basis for claiming domestic priority:
(1) claiming foreign priority or domestic priority;
(2) It has been approved to grant a patent right;
(3) It is a divisional application filed in accordance with the provisions of Article 42 of the Detailed Rules for the Implementation of the Patent Law;
It should be noted that when the applicant claims the domestic priority, the first application of China, which is the basis of the domestic priority, is deemed to have been withdrawn from the date when China filed the latter application.
4.2.2 Definition of invention or utility model with the same theme
The provisions of section 4. 1.2 of this chapter (definition of inventions with the same theme) shall apply.
4.2.3 Effectiveness of domestic priority
The provisions of Section 4. 1.3 (Effectiveness of Foreign Priority) of this Chapter shall apply.
4.2.4 Multiple domestic priorities and partial domestic priorities
Paragraph 1 of Article 33 of the Detailed Rules for the Implementation of the Patent Law applies not only to many foreign priorities, but also to many domestic priorities. Provisions on multiple domestic priorities and partial domestic priorities are as follows:
(1) An application for a patent claiming multiple priorities shall comply with the provisions of Article 31 of the Patent Law and Article 35 of the Implementing Rules of the Patent Law on singleness.
(2) A piece of porcelain records several technical schemes in the later application. For example, three schemes, A, B and C, are recorded and disclosed in three initial applications in China, so China can claim multiple priorities in subsequent applications, that is, A, B and C respectively take the filing date of their first application in China as the priority date.
(3) A technical scheme that China requested to protect in the latter application is A, including examples a 1, a2 and a3. Only a 1 was disclosed in the previous application of China, so China can enjoy domestic priority in the latter application, but others can't.
(4) A piece of porcelain records the technical scheme A and examples a 1 a2 in the later application. Scheme a and examples
A 1 has been published in the first domestic application, so in future applications, Scheme A and Embodiment a 1 can enjoy domestic priority, while Embodiment a2 cannot.
It should be pointed out that in this case, when the protection scope required by technical scheme A is not enough to be supported only by embodiment a 1, the applicant can supplement embodiment a2 to support scheme A. However, if a2 was already a known technology when China filed the latter application, a2 should be deleted and A should be limited to the scope supported by a 1.
(5) Following China's initial application and subsequent application, the applicant submitted a second subsequent application. In the first application, China only recorded the technical scheme A1; The first one records the technical schemes A 1 and A2 in the later application, in which A 1 has claimed the priority of China's earlier application; The second application records the technical schemes A 1, A2 and A3. For the latter second application, Scheme A2 may require the priority of the latter first application; As for the scheme A 1, since the first one has claimed the priority in the later application, it can no longer claim the priority of the first one, but it can also claim the priority of the first application in China. Because the latter two applications need the priority of the first application in China, which leads to repeated authorization, it is not.
In accordance with the provisions of the first paragraph of Article 13 of the Detailed Rules for the Implementation of the Patent Law, it shall be handled in accordance with the provisions of Section 6.2 of this chapter.
================================
If there is still something you don't understand, you can consult in the following ways;
China National Intellectual Property Administration Tel: 0 10 62083879, 0 10 62083966, 0 10 62083457.
Working hours (working days):
8: 30 am-165438+0: 30 pm: 65438+0: 30 pm: 4: 30 pm.
China National Intellectual Property Administration information desk:/sipo//SIPO /sipo/zxt/default.htm
Working hours: working days