According to the provisions of China's patent law, after an invention patent and a utility model patent are authorized, the scope of rights protected by law shall be subject to the claims in the claims submitted by the patent applicant to the National Patent Office of China, and the claims can be explained by the specification and attached drawings. In other words, the claim is the direct basis for determining the scope of patent protection for invention or utility model, and it is in a dominant position. Instructions and drawings are secondary. If a technical feature in the claim is not clear, it can be understood through the specification and drawings, and can be modified according to the contents disclosed in the specification and drawings when necessary. However, what is not recorded in the claims cannot be protected by law, and the description itself cannot determine the scope of protection.
According to the different nature of the invention, the scope of protection is different, or the effectiveness of the patent right is different. As far as product invention is concerned, the effect of patent right involves products with the same characteristics, the same structure and the same performance, regardless of the method used to manufacture the products. The protection of products should not be limited to the methods described in the manual, and any identical product manufactured by other methods is also an infringement. The utility model belongs to a product patent. For method inventions, the scope of patent protection is to use the method and to use, promise to sell, sell or import products directly obtained by the method.
2. What's the difference between invention patent and utility model patent?
(1) The invention is a new technical scheme.
(2) Inventions are divided into product inventions and method inventions: product inventions include all inventions made by articles created by people. Methods Inventions include all methods that make use of natural laws, which can be divided into manufacturing methods and operating methods, such as inventions made in processing methods, manufacturing methods, inspection methods or product use methods.
(3) The utility model is similar to the invention, and it must be a technical scheme, not an abstract concept or theoretical expression. The difference between utility model and invention lies in: first, utility model is only limited to products with a certain shape, and cannot be a method; Second, the utility model is not too creative, but it is very practical.
(4) The utility model is related to its shape, and its protection range is narrow.
(5) The invention has the conditions of "outstanding substantive features and remarkable progress", while the utility model only needs the conditions of "substantive features and remarkable progress". The level of creativity of utility model is lower than that of invention. In terms of fees, the fees payable for applying for utility model patents are lower than those for applying for invention patents, and the protection period of utility model patents is shorter than that of invention patents.
Three, invention patents and utility model patents
(1) Novelty means that the invention or utility model does not belong to the prior art; Before the filing date, no unit or individual filed an application for the same invention or utility model with the administrative department for patent in the State Council, and it was recorded in the patent application documents published or announced after the filing date. In some special cases, although the invention or utility model for which a patent is applied has been made public before the filing date or priority date, it is still novel if a patent application is filed within a certain period of time. China's patent law stipulates that an invention-creation applying for a patent shall not lose its novelty in any of the following circumstances within six months before the date of filing:
1, which was exhibited for the first time in an international exhibition sponsored or recognized by China municipal government;
2. First published at the designated academic or technical conference;
3. Others disclose their contents without the consent of the applicant.
(2) Compared with creativity and technology, the invention has outstanding substantive features and remarkable progress, and the utility model has substantive features and progress. For example, patented inventions solve technical problems that people are eager to solve but have not solved; Patent invention overcomes technical prejudice; The patented invention has achieved unexpected technical effects; This patented invention is a commercial success. Whether the invention patent is creative depends on whether the invention is novel.
(3) Practicality means that the invention or utility model can be manufactured or used and can produce positive effects. The invention or utility model for which a patent is applied lacks technical means, the technical scheme for which a patent is applied violates the laws of nature, or the technical scheme completed by using unique natural conditions is not practical.
2. Legal basis: According to Article 59 of the Patent Law of People's Republic of China (PRC), the scope of protection of the patent right for invention or utility model is subject to the content of the claim, which can be explained by the specification and attached drawings.
The protection scope of the patent right of design shall be subject to the design of the product shown in the picture or photograph, and the brief description can be used to explain the design of the product shown in the picture or photograph.