The examination of patent substance refers to the examination system in which the patent office examines the novelty, creativity and practicality of an invention to determine whether the invention has the conditions for patent right.
The premise of substantive examination is that the applicant requests a long-term examination. Within three years from the date of filing, the applicant may, at any time within three years from the priority date, request the Patent Office to conduct substantive examination of his application for a patent for invention. If the applicant fails to make a request for substantive examination within the above time limit, the application shall be deemed to have been withdrawn.
What are the circumstances in which the examination of patent substance is rejected?
When examining the application for a patent for invention in substance, the Patent Office finds that the application is under any of the following circumstances, and the application will be rejected.
(1) The subject of the application is not an invention;
(2) The applicant violates national laws, social ethics or damages public interests; The application subject belongs to the technical field that has not been granted patent right;
(3) The theme of the application is not novel, creative and practical;
(4) the subject matter of the application does not conform to the provisions that only one patent can be granted for the same invention-creation;
(5) The applicant is not the first applicant for the invention patent;
(6) The description of the application does not give a clear and complete description of the invention and creation; The patent claim applied for is not based on the specification, indicating the scope of patent protection;
(7) the theme of the application does not meet the requirements of the singularity of the application for a patent for invention;
(8) The modification of the application documents or divisional application is beyond the scope recorded in the original specification or claims.
What is the content of patent substantive examination?
(1) Whether it complies with the provisions of Article 5 of the Patent Law, that is, whether the subject matter of the patent application violates national laws, social morality or harms public interests;
(2) whether it conforms to the provisions of Article 25 of the Patent Law, that is, whether the subject matter of the patent application belongs to the scope where the patent right cannot be granted;
(3) Whether it meets the provisions of Article 33 of the Patent Law, that is, whether the patent application meets the requirements of oneness;
(4) Whether it complies with the provisions of Article 31 of the Patent Law, that is, whether the applicant has gone beyond the scope recorded in the original specification (including the appended drawings) and the claims when amending the application or filing a divisional application;
(5) Whether it conforms to the definition of invention stipulated in the Patent Law and its detailed rules for implementation, that is, the new technical scheme proposed for the product, method or its improvement.
(6) Whether it complies with the provisions of Article 18 of the Detailed Rules for the Implementation of the Patent Law, that is, whether the writing of the invention for which the patent application is applied meets the specified requirements, and making a clear and complete description of the invention to be protected, so that technicians in their technical fields can realize it;
(7) Whether it complies with the provisions of Article 20 of the Detailed Rules for the Implementation of the Patent Law, that is, whether the claim clearly and concisely states the scope of protection, whether the claim is based on the specification, and whether the independent claim contains all the necessary technical features to solve the technical problems to be solved by the invention.
(eight) whether the application meets the requirements of priority, if it is found that others filed another patent application on the same subject between the priority date and the application date, or found that relevant documents were made public during this period through search, the priority requirements will be examined; At the same time, judge the patentability of the invention patent application according to the retrieved comparison file.
Legal basis:
Article 5 of the Patent Law of People's Republic of China (PRC)
It is amended as: Article 5 No patent right shall be granted to inventions and creations that violate laws, social ethics or infringe upon public interests.
No patent right shall be granted to inventions and creations obtained or utilized in violation of laws and administrative regulations and completed by relying on genetic resources.