my country’s patent law also adopts the principle of negotiation on this issue. Although it is not expressly stated in the legal provisions that no patent will be granted if negotiation fails, this method is also used in actual work to promote agreement among applicants. .
Adopting the first-to-file system can overcome many disadvantages of the first-to-invent system, that is, it avoids the cumbersome evidentiary investigation to determine who is the first inventor. It greatly simplifies the conflict procedure; at the same time, it encourages inventors to apply for patents for their inventions as soon as possible, thereby achieving the goal of making advanced technologies available to the public as soon as possible. Because of this, some countries that originally adopted the first-to-invent system mostly changed to a first-to-file system at the beginning of this century. my country’s patent system has adopted a first-to-file system since its implementation in 1985. Article 9 of the Patent Law stipulates: “If two or more applicants apply for patents for the same invention and creation, the patent right shall be granted to the person who applied first. "It can also be seen from this provision that the key to adopting the first-to-application system is to determine the order of application time.
Theoretically, the order of application time can be determined accurately to minutes, seconds, or even smaller time units. However, in actual actual work, it is impossible to achieve such accuracy due to limitations of transportation, communication and other objective factors. There are currently two internationally accepted standards for judging application time: one is based on time and the other is based on days. In Germany, France and other places, the order of applications is judged based on time. Although this approach is very precise, it increases the workload of the patent office's examination work. Especially when application documents are submitted by mail, it is very difficult to prove the specific time of application. Therefore, most countries use days as a unit to judge the priority of applications. From the beginning, my country's patent system has used the filing date as the time standard for judging the priority of applications. This is in line with my country's current communication technology, patent office review and management levels. At the same time, this is also very convenient for coordinating priority dates in international applications.
When judging the order of applications based on time, it is generally not possible to apply for patents for the same invention at the same time. If we use the filing date as the unit, we may encounter different people applying for patents on the same technical solution on the same day. For example, one hour after Bell filed a patent application for a telephone, someone else also applied for a telephone invention patent (of course, the United States implements a first-to-invent system and does not decide whether to grant authorization based on the order of application). If the application date is used as the time standard, those who apply for a patent on the same day will be deemed to have applied simultaneously. So how to resolve this conflict caused by simultaneous applications?
The simplest way to resolve this conflict is to draw lots. However, behind the appearance of fairness, this method often leads to more serious unfairness and undermines the seriousness of the patent system. It was unanimously opposed. Another method is to implement mandatory patent protection for each application. That is, if the law stipulates that any application for a patent for the same invention-creation at the same time will be treated as an identical invention. This kind of compulsory legal system seems to be slightly better than drawing lots, but it is still too rigid in operation. In reality, the same inventions and creations that are applied for patents at the same time, although the general inventive concept is the same, are definitely different in terms of specific technical level, due to the different number and level of embodiments, different writing levels of application documents, etc. , these all directly affect the actual value of the application. In this case, it is difficult to force all parties to share the same rights or to determine whether the parties have their share of the rights. No matter how the Patent Office handles the matter, there may be one party who is dissatisfied, so compulsory licensing is not the best solution. At present, the common practice is the consultation system, that is, when two or more applicants file applications for the same invention on the same day, the applicants should negotiate and resolve the matter on their own after receiving notification from the Patent Office. Through negotiation, or it is determined that each party has the right share to apply for a patent for the invention as a shared invention; or one party gives up the application after receiving corresponding remuneration, and the other party applies separately. ． However, if the opinions of both parties remain inconsistent and an agreement cannot be reached, the Patent Office will reject the applications of all parties. This approach of rejecting the applications of all parties may seem unreasonable at first glance, but it is this approach that will ultimately force all parties to reach a consensus, because failure to negotiate will not benefit either applicant. In other words, failure to negotiate is the worst outcome for all parties involved.
Article 39, paragraph 2, of the Japanese Patent Law clearly stipulates: “When two or more patent applications for the same invention are filed on the same day, the patent applicants shall negotiate to determine the applicant, and only one person may obtain the patent for the invention. Through negotiation. If negotiations fail or cannot be carried out, no patent will be granted to anyone. “The same situation applies to conflicts between utility models or between inventions and utility models. Our country’s patent law also adopts the principle of negotiation on this issue. Although the legal provisions do not expressly state that no patent will be granted if negotiation fails, this method is also used in actual work to promote agreement among applicants. This can be seen from Article 13 of the "Patent Law Implementing Rules"
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