1. Patent application acceptance stage. There are two ways for China units or individuals to apply for patents: direct system or agency system. Direct mail system means that the applicant directly mails or submits the application documents to the acceptance office or agency of China National Intellectual Property Administration Patent Office. To apply for an invention or utility model, the application documents such as the request, specification, abstract and claim shall be submitted in duplicate, and the utility model shall have attached drawings (structural schematic diagram); Apply for design and submit the request, pictures or photos of the design and a brief description. If color protection is required, color and black-and-white pictures or photographs shall also be submitted. The application documents or various procedures must use the forms uniformly formulated by the Patent Office, which can be purchased from the Municipal Intellectual Property Office. The agency system means that the applicant entrusts a patent agency to handle the application procedures. To apply for a patent abroad, you must first apply to the China National Intellectual Property Administration Patent Office, and with the consent of the relevant authorities in the State Council, entrust a patent agency designated by the State Council to handle it. From 1 99465438+1October1,China National Intellectual Property Administration Patent Office has become the acceptance bureau, designation bureau, selection bureau, international preliminary examination unit and international search unit of PCT patent cooperation treaty. Units or individuals in China can submit international patent applications to PCT Reception Office of China National Intellectual Property Administration Patent Office in Chinese. If an individual applies for a patent, he shall provide the non-service invention certificate issued by his unit and the certificate of requesting fee reduction, and may apply for fee reduction, annual fee 1 to 3 years, etc.
China's patent law protects three kinds of patents: invention, utility model and design, and implements the principle of prior application, that is, the same invention-creation can only be granted a patent right, and it is limited to the first applicant. Where two or more applicants apply for a patent for the same invention and creation on the same day, the applicants shall be determined through consultation on their own after receiving the notice from the Patent Office. If the applicant cannot be determined after negotiation, then no one will get the patent right. The approval procedures and protection period of inventions are different from those of utility models and designs. Inventions are authorized after preliminary examination and substantive examination, and utility models and designs are authorized immediately after preliminary examination. During the examination and approval period, it usually takes 4 to 5 years for inventions, 6 to 8 months for designs and 1 year for utility models; The protection period of the invention patent right is 20 years, and that of the utility model and design patent right is 10 years, counting from the date of application. Invention refers to a new technical scheme proposed for a product, method or its improvement; Utility model refers to a new practical technical scheme for the shape, structure or combination of products; Appearance design refers to a new design that is aesthetically pleasing to the shape, pattern, color or combination calendar of a product and suitable for industrial application. No patent right shall be granted to inventions, scientific discoveries, rules and methods of intellectual activities, methods of diagnosis and treatment of diseases, varieties of animals and plants and substances obtained through nuclear transformation that violate national laws, social morality or public interests. Inventions and utility models that have been granted patent rights should be novel, creative and practical, and designs that have been granted patent rights should be different from or similar to designs that have been published in domestic and foreign publications or publicly used in China before the filing date.
Before applying for a patent, the applicant shall evaluate the market prospect or commercial value of the invention and creation, if necessary, search for novelty or patentability of the technical subject to be applied for, and weigh the advantages and disadvantages of applying for a patent, whether the invention and creation can be protected by other means and the favorable opportunity to apply for a patent. In a word, patent application should follow the market, take profit as the premise and seize market opportunities as the goal. Whether to apply and the specific time depend on the progress of research and development, the type of patent application and technical characteristics.
2. Preliminary stage. If the patent application pays the application fee in accordance with the regulations, it will automatically enter the preliminary examination stage. An application for a patent for invention shall be examined for confidentiality before the preliminary examination, and if confidentiality is required, it shall be handled in accordance with the confidentiality procedures. Applications for patents for utility models and designs shall also be given three months before the preliminary examination to actively modify the applications. Preliminary examination refers to examining whether the patent application has the documents and other necessary documents stipulated in Article 26 or Article 27 of the Patent Law, and whether these documents conform to the prescribed format; And check the following:
(1) Whether the application for a patent for invention obviously belongs to the provisions of Articles 5 and 25 of the Patent Law, or does not conform to the provisions of Article 18 and Paragraph 1 of Article 19 of these Rules, or obviously does not conform to the provisions of Article 31, Paragraph 1, Article 33, Article 2, Paragraph 1, Article 18 and Article 20 of these Rules;
(2) Whether the application for a patent for utility model obviously belongs to the provisions of Articles 5 and 25 of the Patent Law, or does not conform to the provisions of Articles 18 and 19, paragraph 1, or obviously does not conform to the provisions of Articles 26, paragraphs 3 and 4, Article 31, paragraph 1, Article 33, Article 2, paragraph 2, Article 13, paragraph 1, Articles 18 to 23 and Article 43, paragraph 1 of the Patent Law,
(3) Whether the application for a patent for design obviously belongs to the provisions of Article 5 of the Patent Law, or does not conform to the provisions of Article 18 and Article 19, paragraph 1, or obviously does not conform to the provisions of Article 31, paragraph 2, Article 33, Article 2, paragraph 3, Article 13, paragraph 1 and Article 43 of these Detailed Rules, or the patent right cannot be obtained according to the provisions of Article 9 of the Patent Law.
The Patent Office will notify the applicant of the examination opinions and ask him to state his opinions or make corrections within a specified time limit; If the applicant fails to reply within the time limit, his application shall be deemed to have been withdrawn. If, after the applicant has stated his opinions or made corrections, the Patent Office still considers that it does not conform to the provisions of the preceding paragraph, the application will be rejected.
Specifically, whether there are obvious defects in the application should be examined in the preliminary examination procedure. It mainly includes examining whether the application content ① obviously violates national laws, social ethics or hinders public interests; (2) Whether it obviously belongs to the theme of not granting patent right; (3) Whether there is an obvious lack of technical content, which cannot constitute a technical scheme; (4) Whether there is obvious lack of oneness. The application for a patent for utility model and design also needs to be examined whether it is obviously the same as the approved patent and whether it is obviously not a new technical scheme or a new design.
In the preliminary examination, it is also necessary to examine whether the application documents are complete and whether the format meets the requirements, such as: ① whether all kinds of documents adopt the unified format formulated by the Patent Office, and whether the writing of the application, the filling of the form or the drawing of the appended drawings meet the requirements stipulated in the implementation rules and review guidelines; ② Whether the certificates or attachments to be submitted are complete and have legal effect; Whether the instructions, claims, drawings, design drawings or photos meet the publishing requirements. In addition, the qualifications and application procedures of foreign applicants should be reviewed. If it is unqualified, the Patent Office will notify the applicant to make corrections or statements within the prescribed time limit. Applications that are not answered within the time limit will be considered as withdrawn. If the defects are still not eliminated after the applicant answers, the application will be rejected. Where an application for a patent for invention has passed the preliminary examination, a notice of passing the preliminary examination shall be issued. If the application for a patent for utility model and design is rejected after preliminary examination, it will directly enter the authorization procedure. Because the invention has a follow-up procedure, the examination of the application content in the preliminary examination should be relatively loose.
3. The publication stage of the invention patent application. After the notice of preliminary examination was issued, the application for a patent for invention entered the stage of waiting for publication. If the applicant requests to publish in advance, the application will immediately enter the preparation procedure for publication. After format review, editing and proofreading, computer processing, typesetting and printing, the instructions were published in the Patent Gazette about three months later. The application that has not announced the request in advance will not enter the publication preparation procedure until 15 months after the application date; The priority application (including foreign priority and domestic priority) shall enter the publication preparation procedure within 15 months from the priority date. After the application enters the publication preparation procedure, if the applicant requests to withdraw the patent application, the application will still be published in the patent gazette.
After the publication of the application, the applicant has obtained the right of temporary protection, that is to say, from the date of publication of the application, the applicant can ask the unit or individual who implements the invention to pay the fee. After the application is released, the content recorded in the application becomes a part of the existing technology.
The applicant must note that the publication number when the application is published in the patent gazette and the application number of the patent application are two different series. Therefore, the applicant should use the application number instead of the publication number when going through various formalities with the Patent Office in the process of patent examination and approval, because all the application documents of the Patent Office are arranged and managed according to the application number, providing the application number is conducive to finding the application to be processed quickly, and at the same time, because the application number has a check bit, it is also convenient to find and process as soon as possible in case the number provided by the applicant is wrong. If the applicant provides the publication number, the patent office must look it up through the comparison table to find the application to be processed, especially when the publication number provided by the applicant is wrong, it is generally difficult to find out before the consequences.
4. The substantive examination stage of an application for a patent for invention. After the publication of an application for a patent for invention, if the applicant has completed the substantive examination request procedure (submitting the substantive examination request and paying the substantive examination fee of 2500 yuan), the application will enter the substantive examination procedure, and the Patent Office will issue a notice to the applicant to enter the substantive examination stage. If the applicant fails to go through the formalities for actually hearing the request, the Patent Office will wait for the applicant to go through the formalities for actually hearing the request; If, after three years from the date of application, the applicant fails to make a request for actual trial or the request for actual trial does not take effect, the application shall be deemed to have been withdrawn.
Applications that enter the actual trial procedure will wait for the actual trial in the order of entering the actual trial procedure. In the actual trial, the examiner will, on the basis of retrieval, conduct a comprehensive review of whether the patent application is novel, creative, practical and other substantive conditions stipulated in the patent law. Upon examination, if it is found that it does not meet the authorization conditions or there are various defects, it shall notify the applicant to state his opinions or make amendments within the specified time (the time limit for the first review of the reply notice is 4 months). If the applicant fails to reply within the specified time limit, the application shall be deemed to be withdrawn. After at least one reply or amendment, it still does not meet the requirements, and the application is rejected. Due to the complexity of the actual trial, the review period generally takes 1 year or longer.
If the application for a patent for invention finds no reason for rejection in the substantive examination, or the defects have been eliminated after the applicant modifies the statement, the examiner will issue a notice of authorization, and the application will enter the stage of authorization preparation as required.
5. Authorization stage. If the application for a patent for utility model and design has been preliminarily examined, but the application for a patent for invention has not found any reason for rejection after substantive examination, the examiner shall issue a notice of authorization and apply for authorization for registration preparation. After the examiner is authorized to check the legal effect and completeness of the authorized text, and proofread and modify the recorded items of the patent application, the Patent Office will issue a notice of authorization and a notice of registration.
After receiving the authorization notice and registration notice, the applicant shall go through the registration formalities in accordance with the requirements of the notice within 2 months. The applicant shall pay the patent registration fee, announcement printing fee, stamp duty and annual fee for the current year when going through the registration formalities. The applicant for invention shall pay the annual application maintenance fee together, unless it is authorized in that year. If the payment is not made at the expiration of the period, it shall be deemed as unregistered. If the registration formalities are overdue and the prescribed fees are paid, the Patent Office will grant the patent right, issue a patent certificate, record it in the patent register and announce it in the patent bulletin. The patent right shall take effect from the date of patent announcement. Failing to go through the registration formalities according to the provisions, or failing to do so within the time limit, shall be deemed as giving up the right to obtain the patent right.