A: Article 9 Only one patent right can be granted for the same invention-creation. However, if the same applicant applies for a patent for utility model and a patent for invention at the same time on the same day, and the patent for utility model obtained earlier has not been terminated, and the applicant abandons the patent for utility model, the patent for invention may be granted.
Where two or more applicants apply for a patent for the same invention-creation, the patent right shall be granted to the first applicant.
Note: "Only one patent right can be granted to the same invention-creation" comes from Article 13 1 of the Detailed Rules for the Implementation of the Patent Law, which is abbreviated as "one invention and one patent principle". If more than two applicants apply for a patent for the same invention-creation, the patent right will be granted to the first applicant, which is called the "first application principle".
The principle of "one invention and one patent" and the principle of "application first" belong to two basic principles in patent law, and the scope of the former is larger than the latter. If there is an invention, Party A applies in February 1 and Party B applies in March 1. According to the principle of first application, the patent right shall be granted to Party A. However, if Party A applies for a patent for invention in February of 1 year and a patent for utility model in March of 1 year respectively, since there is only one applicant, it does not belong to "more than two applicants", and the provisions of Article 9 of the original Patent Law are not applicable.
The original patent law only stipulated the principle of applying first, but did not stipulate that the same person filed a patent application for the same invention one after another, so there were legal loopholes. In order to make up for the loopholes, the detailed rules for the implementation of the patent law have added the provision of "one invention and one patent". However, as the detailed rules for the implementation of the lower-level law, it can only be an expedient measure to make provisions wider than the upper-level law. It is proper to promote the above principles to patent law.
In practice, applicants often file applications for invention patents and utility model patents for the same invention at the same time. Because there is no substantive examination of the utility model application, the inventor can quickly obtain patent protection. When the invention patent enters the authorization procedure, the applicant can obtain the invention patent protection with a longer protection period by giving up the utility model. Therefore, the patent law clearly stipulates this kind of behavior.
19: if the same applicant applies for the same invention-creation package on the same day, it should be declared separately at the time of application. Otherwise, the provisions of the first paragraph shall not apply. When the patent administrative department of the State Council announces the utility model, it will also announce the application and declare the application number of the corresponding invention patent application.
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