Legal analysis
The utility model patent is one of three kinds of patents (invention, utility model and design), and utility model refers to a new practical technical scheme for the shape, structure or combination of products. The patent law requires lower creativity and technical level of utility model than invention patent, but it has great practical value. In this sense, utility models are sometimes called small inventions or small patents. The application documents for utility model shall include: the request for the patent for utility model, the specification, the drawings of the specification, the claims, the abstract and the drawings of the abstract. An application for a patent for utility model must have a description and drawings. Where a patent agency is entrusted, a power of attorney shall be submitted. The application for a patent for utility model shall be subject to a preliminary examination system. In the process of preliminary examination, the examiner will issue a notice of correction for formal problems in the application documents and a notice of examination opinions for obvious substantive problems, and the applicant will reply to the notice. The utility model patent is only a preliminary examination, and there is no substantive examination like the invention patent application. Therefore, after passing the preliminary examination, the examiner will issue a notice of granting the patent right.
legal ground
patent law of the people's republic of china
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.
Article 11 After the patent right for invention and utility model is granted, except as otherwise provided in this Law, no unit or individual may exploit the patent without the permission of the patentee, that is, it may not manufacture, use, promise to sell, sell or import the patented product for production and business purposes, nor may it use the patented method and use, promise to sell, sell or import the product directly obtained according to the patented method. After the design patent is granted, no unit or individual may exploit its patent without the permission of the patentee, that is, it may not manufacture, promise to sell, sell or import its patented product for production and business purposes.