Article 24 of the Patent Law stipulates: "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) It was exhibited for the first time at an international exhibition sponsored or recognized by the China Municipal Government; (2) It was first published at a specific academic conference or technical conference; (3) {Without the consent of the applicant, others disclose the contents. "
( 1)? {Give a certain novelty grace period to the publicity of inventions and creations exhibited for the first time in international exhibitions, which is limited to "international exhibitions sponsored or recognized by the China government". International exhibitions hosted by China government include those hosted by the State Council and ministries, and those sponsored by other organs or local governments with the approval of the State Council. International exhibitions recognized by China government include international exhibitions of a certain level held by foreign countries. The so-called international exhibition means that besides the exhibits of the host country, there must also be foreign products. The exhibition at the exhibition can only be a simple exhibition, excluding sales activities, and this exhibition must be the first time. If there is a second exhibition within six months before the application date, although it is also an international exhibition sponsored or recognized by the China Municipal Government, it does not meet the provisions of this article and will no longer enjoy the grace period for novelty.
According to Article 22 of the Patent Law on novelty, after the applicant exhibits his invention in an international exhibition held in a foreign country, China does not need to take advantage of the grace period to obtain protection, because the patent law does not regard the contents exhibited in a foreign country as part of the existing technology.
Where a publication introducing the exhibits is distributed at the same time as the exhibits are displayed at an exhibition, the invention-creation disclosed in the publication introducing the exhibits may also enjoy the novelty grace period as stipulated in this article. It should be noted, however, that this kind of publication that does not destroy novelty during the grace period is limited to the publications related to exhibits issued at international exhibitions recognized by the China government. Publications issued outside the exhibition during the exhibition, or publications unrelated to the exhibits issued within the exhibition, will constitute the existing technology that can destroy novelty. This conclusion also applies to publications distributed in international exhibitions sponsored or recognized by the government of China.
(2) The public publication without loss of novelty as stipulated in this article is limited to "first publication at a designated academic conference or technical conference", and the academic conference or technical conference has certain requirements. As for publishing scientific and technological achievements in academic journals, you cannot enjoy the protection of this grace period. "Designated academic conference or technical conference" refers to the academic conference or technical conference organized by the relevant competent departments of the State Council or national academic organizations. Publications here should include oral reports and written papers.
The term "academic conference or technical conference" as mentioned in this article refers to a conference held in public, that is, a conference in which participants have no obligation of confidentiality. Confidential academic or technical meetings, the contents of which are not "known to the public" as stipulated in the second paragraph of Article 22 of the Patent Law, do not constitute existing technology and do not affect novelty, so there is no need to consider the grace period of novelty.
(3) Without the consent of the applicant, the disclosing party may know that the method of invention-creation may or may not be legal. As long as its disclosure goes against the wishes of the applicant, the patent law will give the applicant a certain grace period for novelty.
It should be noted that: first, the published inventions and creations must come directly or indirectly from the applicant. Where another entity or individual independently completes the same invention-creation, the applicant cannot enjoy the grace period stipulated in this article; Second, the leaker can not be the applicant himself, but the staff of the applicant's unit, including the inventor and designer, or any third person, including the person who directly or indirectly obtained the invention and creation content from the applicant. In any case, the disclosure of inventions and creations must go against the express or implied wishes of the applicant.
Second, the effectiveness of novelty grace period
The effect of grace period without losing novelty is different from that of priority, and the grace period cannot trace the application date of an application back to the application date, publication date or publication date of an invention-creation. Grace period is only a kind of relief given by patent law when the invention is inevitable or unconsciously disclosed, and its protection is limited. Within the grace period, if the applicant makes it public again, or if others independently make the same invention-creation and apply for a patent, the patent right shall not be obtained. In addition, the protection of patent law is regional, and the grace period of novelty in China's patent law is limited to applying for a patent in China, which has no effect on applying for a patent in other countries or regions.
Thirdly, the procedure of obtaining the grace period of novelty.
The grace period for novelty must go through certain procedures: Paragraph 2 and Paragraph 3 of Article 31 of the Detailed Rules for the Implementation of the Patent Law respectively stipulate: "Where an invention-creation applying for a patent is under any of the circumstances listed in Paragraph 1 or Paragraph 2 of Article 24 of the Patent Law, the applicant shall declare it when filing the patent application, and submit the certification documents issued by relevant international exhibitions, academic conferences or technical conferences within two months from the date of filing and the date of exhibition or publication." Where an invention-creation applying for a patent is under any of the circumstances listed in Item 3 of Article 24 of the Patent Law, the the State Council Patent Administration Department may, when it deems it necessary, require the applicant to submit supporting documents. Paragraph 4 stipulates: "If the applicant fails to make a declaration and submit supporting documents in accordance with the provisions of Paragraph 2 of this Article, or fails to submit supporting documents within the specified time limit in accordance with the provisions of Paragraph 3 of this Article, the provisions of Article 24 of the Patent Law shall not apply to his application."
Therefore, if the applicant wishes to enjoy the novelty grace period stipulated in Item (1) and Item (2) of Article 24 of the Patent Law, the applicant must make a statement when submitting the application, otherwise he will not be able to enjoy the novelty grace period.