2. The transfer of the patent right refers to the change of the subject of the patent right, which can be caused by the voluntary transfer of the patentee, such as purchase, sale, exchange or addition; This may also be due to legal reasons, such as the death or disappearance of the patentee. When the patentee is a natural person, once he dies, his patent right will be transferred to the person entitled to inherit according to the provisions of the inheritance law or according to his will. If the patentee is a unit or an enterprise as a legal person, once it is reorganized, merged or dissolved, its patent right will also be transferred to the unit or enterprise as a legal person that enjoys the right of inheritance according to law.
The following issues should be paid attention to in the transfer of patent rights:
(1) Transfer of ownership The transfer of patent right refers to the transfer of ownership. After the transfer, the original patentee loses the exclusive right and the assignee becomes the new patentee. This is different from the patentee allowing others to exploit his patent.
(2) The whole transfer of patent right can only be the whole transfer of right. Because patents involve inventions, the object of patents is monomer. It can not only transfer the patent right of a specific technical application of the invention in a certain area of the national territory, or only transfer the patent right of a specific technical application of the invention, but should transfer the patent right as a whole, which is different from patent licensing.
(3) The transfer of the patent right held by the unit shall be subject to the examination and approval of the patent right transfer, and it shall be free to the collectively owned units or individuals, and in principle, it may be decided by itself. However, because the patents held by units owned by the whole people belong to the whole people, the transfer of their patent rights must be approved by the higher authorities. Where a unit owned by the whole people transfers a patent right to a foreigner, it must also report to its superior unit and report to the State Council for approval.
(4) Patent transfer by contract, except for a few cases of free additions, is mostly realized through sales contracts. According to this contract, the owner (seller) assigns the patent right to the transferee (buyer), and the transferee pays the agreed price when accepting the patent right.
(V) Procedures for Patent Right Transfer The patent right transfer must go through certain procedures, and the transferor and transferee must conclude a written contract, which can only take effect after being registered and announced by the Patent Office.
3. Introduction of international application
China has joined the Patent Cooperation Treaty (PCT), and China applicants can apply for foreign patents from 1994 1 through PCT. It is undoubtedly good news for domestic individuals and units that want to obtain foreign patent protection.
(1) Under what circumstances is it appropriate to file an international application?
An application submitted in the manner specified in PCT is called an international application. Generally speaking, an international application is a patent application filed by a resident or national of a PCT Contracting State to protect several Contracting States.
Before China joined the PCT, according to the principles of the Paris Convention, applicants could only file patent applications with foreign countries. After China joined the PCT, the applicant can also use the PCT to file an international application. When the applicant wants an invention to be protected by more than five countries (generally more than five countries), it is appropriate to use the PCT approach. Because only one international application needs to be submitted to the Chinese Patent Office through PCT, the trouble of submitting national applications to each country is avoided.
It is worth pointing out that after China joined the PCT, individuals and units in China can still apply to foreign countries according to the principles of the Paris Convention. Especially when the applicant only needs to apply for a patent in one country or several countries, it is appropriate to use the Paris Convention.
(2) How to file an international application
1. First applied for a patent in China.
Under normal circumstances, an individual or unit in China may first file a national application with the Chinese Patent Office after making an invention. Then, an international application is filed within the priority period of 12 months, requesting priority. In this way, the applicant has 12 months to consider whether it is necessary to apply for a patent in a foreign country, how to apply, and make necessary preparations for filing an application.
According to relevant regulations, individuals or units in China may also directly file international applications after making inventions and creations. However, in the application, China must be designated as a foreign country.
2. Preparation of application fee
We know that applying for a patent abroad requires paying a considerable fee to foreign patent offices and patent agents, and it is settled in US dollars. According to the practice of patent agencies, it costs an average of $4,000 to $5,000 to apply for a patent in a country. If you calculate by five countries, you need to prepare about 20,000 to 25,000 US dollars.
Applicants who file international applications also need to pay the above fees (but the payment time can be delayed by 8 months to 18 months). In addition, the fees for the international phase of PCT should be paid, including the transmission fee, retrieval fee and international preliminary examination fee of about 265,438+000 yuan charged by China Patent Office and the basic fee, designation fee and handling fee of about 65,438+065,438+050 yuan charged by the International Bureau. If it is an international application filed by an individual from China; The fees charged by the International Bureau can be reduced by 75%.
3. Entrust a patent agency
The applicant must entrust a designated patent agency to file an international application. Patent agencies will help applicants fill in various forms and modify the application documents. The agencies will submit the application documents to the China Patent Office, pay the fees and go through various formalities.
To find foreign-related agencies, please click: list of foreign-related agencies.
(3) Selection of protection type in international application
At present, the number of PCT members has reached 1 14. These countries include the United States, Japan, Canada, Russia and other industrialized countries, all parties to the European Patent Convention, and developing countries such as South Korea and Brazil, covering almost all the important countries in the world that have implemented the patent system. When applying for an international application through the PCT channel, China applicants can choose one, several or even all member countries as designated countries and request them to grant patent rights.
PCT member countries give other forms of protection to national applications except invention patents, and also to international applications, such as some national utility models, small patents in Australia, and continued or partial applications in the United States. Therefore, applicants for international applications can choose different forms of protection in different designated countries according to their needs.
(4) Procedures for examination and approval of international applications
The examination and approval procedures for international applications include two stages: the international stage and the national stage.
1. International stage
The international stage is the first stage of the international application examination and approval procedure. It includes the necessary procedures of international application acceptance, formal examination, international retrieval and international publication, as well as optional international preliminary examination procedures.
In the international stage, the international application filed by individuals or units in China to the China Patent Office is handled by the International Bureau of the World Intellectual Property Organization, and all other procedures are carried out in the China Patent Office.
International retrieval means that the Chinese Patent Office searches the theme of international application according to the provisions of the treaty, finds out relevant documents and indicates their relevance. Usually, the Chinese Patent Office makes an international search report within 4 months from the date of international application.
International preliminary examination means that the Chinese Patent Office examines the international application at the request of the applicant and puts forward preliminary and non-binding opinions on whether the invention requested for protection is novel, creative and industrial. Under normal circumstances, China Patent Office will make an international preliminary examination report within 9 months from the date of receiving the international preliminary examination request.
2. National stage
The national stage is the second stage of the international application approval process. The national phase is held in the patent office of the country where the applicant wishes to obtain the patent right (called the designated bureau or the selected bureau). Including the procedures for entering the national phase and the examination and approval procedures at each designated bureau or selected bureau.
In the international stage, if the international application fails to request international preliminary examination within 0/9 months from the priority date, the time limit for entering the national stage (designated bureau) is 20 months from the priority date; For international applications that request international preliminary examination within 19 months from the priority date, the time limit for them to enter the national phase (selected bureau) is 30 months from the priority date.
The main procedure for an international application to enter the national phase is to submit the translation of the international application documents and pay the prescribed national fees according to the regulations of various countries.
After the international application enters the national stage, the patent offices of various countries will examine it according to the provisions of their own patent laws and regulations and decide whether to grant the patent right.
(5) What benefits can China applicants get from the PCT program?
China applicants can obtain the following main benefits through the PCT program:
1. Applicants can apply in Chinese;
2. The applicant may file an application with the Chinese Patent Office to request foreign countries to grant patent protection;
3. The applicant only needs to submit a set of Chinese (or English) application documents to the Chinese Patent Office to determine the application date of the application, which is regarded as an application filed in each designated country on the same day;
4. Before entering the national phase of each country, the applicant has obtained the international search report and the international preliminary examination report. Through these two reports, the applicant can preliminarily judge the prospect of the application being granted a patent right in patent offices in various countries, so as to decide whether it is necessary to continue the national phase;
5. Delay the entry into the national phase, so that the applicant can decide whether it is necessary to enter the scheduled designated country according to the market prospect and technological progress. Delaying the entry into the national phase generally does not affect the time for granting the patent right.
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