Patents can protect technological innovation, and inventors can apply for patents if they create innovative and practical processes, machines and products or improve them. After obtaining a patent in a country, the patentee enjoys the exclusive right to his invention and creation in that country, that is, the monopoly right to produce, manufacture, use, sell and import. Visible; The patentee is in a favorable position in the market competition.
Patent right is the exclusive right granted to patent applicants by patent offices or patent authorities in various countries according to law. China's patent right is granted by the patent administration department of the State Council, and can be donated, transferred or inherited within the validity period of patent protection. Therefore, the patentee can be changed. According to article 10 of the patent law of People's Republic of China (PRC), "the patent application right and patent right can be transferred."
Where a unit or individual in China transfers the patent application right or patent right to a foreigner, it must be approved by the relevant competent department in the State Council.
To transfer the right to apply for a patent or the patent right, the parties concerned must conclude a written contract and register it with the patent administration department of the State Council, and the patent administration department of the State Council shall make an announcement. The transfer of the right to apply for a patent or the patent right shall take effect from the date of registration. "
According to the relevant provisions of the Patent Law of People's Republic of China (PRC), there are three kinds of patents granted by the the State Council Patent Office: (1) invention patents; According to the first paragraph of Article 2 of the Detailed Rules for the Implementation of the Patent Law of People's Republic of China (PRC): "Invention as mentioned in the Patent Law refers to a new technical scheme proposed for a product, method or its improvement." The regulation points out that invention patents include "product invention" and "method invention", as well as patents obtained by improving existing products or methods.
(2) Patent for utility model; According to the second paragraph of Article 2 of the Detailed Rules for the Implementation of the Patent Law of People's Republic of China (PRC): "The term" utility model "as mentioned in the Patent Law refers to a new technical scheme suitable for practical use for the shape, structure or combination of products." The article stipulates that utility model refers to a patent obtained by a product or design scheme with a certain shape and structure.
(3) design patent; According to the third paragraph of Article 2 of the Detailed Rules for the Implementation of the Patent Law of People's Republic of China (PRC), "the design mentioned in the Patent Law refers to a new design that is aesthetically pleasing and suitable for industrial application based on the shape, pattern or combination of products and the combination of colors, shapes and patterns." According to this regulation, the design patent has the following characteristics: 1. It is a design combined with products; 2. It can be applied to industrial design; 3. Design that can give people beautiful enjoyment.
The patent thus obtained belongs to the design patent.
Two. Characteristics of patent right The patentee enjoys the exclusive right to use, sell and import his invention and creation. Without authorization or permission, no other unit or individual may manufacture, use, promise to sell, sell or import its patented products or use its patented methods or use, promise to sell, sell or import products directly obtained according to its patented methods for production and business purposes. The patent right granted by a country according to its own patent law is only valid within its jurisdiction and is not binding on other countries. Foreign countries do not undertake the obligation to protect patent rights. If someone's invention has been patented in China, he only enjoys the patent right in China. If others use the invention in China without the authorization or permission of the patentee, it is infringement. If others manufacture, use or sell the invention and creation in other countries, it does not constitute infringement. The invention-creation patent right granted by law to the patentee is only valid within the time limit prescribed by law. After the expiration of the time limit, the patentee does not enjoy exclusive rights, that is, any unit or individual can use it free of charge. Article 42 of the Patent Law of People's Republic of China (PRC) stipulates: "The term of invention patent is 20 years, and the term of utility model patent and design patent is 10 year." This shows that; Patent right has the characteristics of exclusiveness, regionality and timeliness.
1. Exclusivity: Exclusivity is also called exclusivity, and this right has monopoly exclusivity; If a non-patentee wants to use the patented technology of others, he must obtain the consent or permission of the patentee in accordance with the law before using it. Otherwise, it constitutes infringement.
2. Regionality: It means that the patent office or patent authority of a country grants the patent right according to the patent law of that country, so the patentee only enjoys the exclusive right or exclusive right within the legal jurisdiction of that country.
3. Timeliness: It means that the exclusive right of the patentee to his invention and creation is only valid within the time stipulated by law. After the expiration of the time limit, the patentee no longer enjoys the exclusive right to manufacture, use, sell and import his invention and creation. There is a time limit for the legal protection of patent rights. The term of invention patent right is 20 years, and the term of utility model patent right and design patent right is 10 years, counting from the date of application. At this point, the inventions originally protected by law have become social public wealth, and any unit or individual can use them for free.
Three. Ownership of Patent Right According to the relevant provisions of the Patent Law of People's Republic of China (PRC) and its detailed rules for implementation, the right to apply for a patent and the patent right belong to the following persons: (1) The right to apply for a patent for a service invention-creation belongs to the unit; (two) the right to apply for a patent for non-service inventions and creations and the patent right are owned by individuals; (3) The right to apply for a patent and the patent right for an invention-creation completed by making use of the material and technical conditions of the entity shall be determined in accordance with the contract; (4) For an invention-creation jointly completed by two or more units or individuals, unless otherwise agreed by the parties in the agreement, the right to apply for a patent and the patent right shall be owned by the completing unit or individual or jointly completed; (5) Unless otherwise stipulated in the power of attorney, the right to apply for a patent and the patent right belong to the entity or individual that completed or jointly completed the invention-creation entrusted to other entities or individuals; (6) Where two or more applicants respectively apply for a patent for the same invention-creation, the patent right shall be granted to the person who applied first. Where two or more applicants apply for a patent for the same invention-creation at the same time, the applicants shall be determined through consultation after receiving the notice from the patent administration department of the State Council.
In short; The ownership of patent right is basically the same as that of patent application right. In capitalist countries, the patent application right and patent right for service inventions belong to employers; In socialist countries, the right to apply for a patent for service invention belongs to the inventor's unit. In all countries of the world, the patent application right and patent right of non-service inventions belong to inventors.
4. Restrictions on the patentee The patent right is essentially an exclusive right. However, the patent laws of various countries have made some restrictive provisions on the rights of patentees from their own interests and social interests in order to prevent patentees from abusing their patents. China's patent law has also made some restrictive provisions on this. There are two main types; (a) the implementation of a patent that is not regarded as infringement, according to the provisions of Article 63 of the Patent Law of People's Republic of China (PRC), is not regarded as patent infringement under any of the following circumstances; 1. The patentee uses, promises to sell or sells the patented products manufactured or imported by him or the products directly obtained by the patented method after sales; 2. Having manufactured the same product, used the same method or made necessary preparations for manufacture and use before the patent application date, and continuing to manufacture and use it only within the original scope; 3. According to the agreement signed between the country and China or the international conventions to which they are both parties, or according to the principle of reciprocity, temporarily use the relevant patented technologies in its devices and equipment for their own purposes through foreign means of transport in China's territory, territorial sea and airspace; 4. Dedicated relevant patents to scientific research and experiments.
If the use or sale of a patented product that is not known to be manufactured or sold without the permission of the patentee or a product directly obtained by a patented method is used for production and business purposes, it shall not be liable for compensation if it can prove the legal source of the product.
(2) Compulsory licensing or instruction licensing of patent 1. Implementing compulsory licensing of relevant patents according to law; Compulsory license refers to a compulsory measure that the patent office directly allows a third party to exploit related patents without the voluntary consent of the patentee according to the provisions of the patent law. According to Articles 5 1, 52 and 53 of the Patent Law of People's Republic of China (PRC), specific provisions are made on compulsory license; Article 54 of the Patent Law of People's Republic of China (PRC) also stipulates that a unit or individual that has obtained a compulsory license shall pay a reasonable royalty to the patentee.
2. According to Article 14 of the Patent Law of People's Republic of China (PRC): "If the invention patents of state-owned enterprises and institutions are of great significance to national interests or public interests, the relevant competent departments of the State Council and the people's governments of provinces, autonomous regions and municipalities directly under the Central Government may decide to popularize and apply them within the approved scope, allowing designated units to implement them, and the implementing units shall pay the fees to the patentee in accordance with state regulations.
Invention patents of collectively-owned units and individuals in China are of great significance to national interests or public interests, and need to be popularized and applied, with reference to the provisions of the preceding paragraph. "Visible; The state has granted mandatory or planned permission for this, but it only applies to the patentee in China.
Verb (abbreviation of verb) Rights and obligations of the patentee The patentee is the owner and holder of the patent right. That is, when the patent application is approved, the patent applicant is granted the patent right. The patentee can be a unit or an individual.
After the patent application is granted the patent right, the patentee enjoys the exclusive patent right. Unless otherwise stipulated in the Patent Law, no unit or individual may exploit its patent without the permission of the patentee. The patentee may independently exploit his invention and creation according to his own wishes, or transfer the right to exploit the patent to others. By concluding a licensing contract, the licensee obtains the right to exploit the patent and charges the patentee the fee for using the technology patent. The licensee has no right to allow any unit or individual other than those stipulated in the contract to exploit the patent. After the publication of an application for a patent for invention, the applicant may require the entity or individual who exploits the invention to pay an appropriate fee. The unit that has been granted the patent right shall reward the inventor or designer of the service invention-creation; After the patent for invention-creation is implemented, the inventor or designer shall be given reasonable remuneration according to the scope of its popularization and application and the economic benefits obtained. An inventor or designer has the right to declare himself as an inventor or designer in the patent document.
The rights of the patentee include: 1. Exclusive right; The patentee has the exclusive right to his patent. Without the permission of the patentee, no one may exploit his patent, that is, he may not manufacture, use or sell his patented product or use his patented method for production and business purposes.
2. License enforcement right; The patentee has the right to license anyone to exploit his patent, and this license must be obtained by concluding a license contract and paying royalties to the patentee; However, the licensee has no right to allow anyone other than those stipulated in the contract to exploit the patent.
3. Right of transfer; The patentee has the right to transfer his patent right; The transfer of patent rights must conclude a written contract, which will take effect after being registered and announced by the Patent Office.
4. the right to mark; China National Intellectual Property Administration stipulates that from July 1 day, 2003, the patent mark and patent number shall indicate the patent category, such as China invention patent, China utility model patent and China design patent, and indicate the authorized patent number. The patentee has the right to indicate the patent mark and patent number on his patented product or the packaging of the product.
5. Right to abstain; The patentee has the right to give up his patent right by submitting a written application to the Patent Office or not paying the annual fee; After the patent right is abandoned, its patented technology becomes the wealth of the whole society, and anyone can use it for free.
6. Right to request protection; When the patentee uses his patented technology without the permission of the patentee, the patentee has the right to request the patent management authority to handle it or bring a lawsuit directly to the people's court to obtain legal protection, and the patentee has the right to request the infringer to stop the infringement and compensate the economic losses.
Patent inventors have the right to obtain the right of authorship and the right to receive awards and remuneration. State-owned enterprises and institutions that have been granted patent rights shall give inventors bonuses within three months from the date of announcement of patent rights. The minimum patent for invention is not less than 2,000 yuan, and the patent for utility model and design is not less than that of 500 yuan. After the patent is implemented, 2% and 0.2% of the profits will also be awarded to inventors of inventions, utility models and designs.
The patentee has the obligation to pay the annual fee. According to Article 43 of the Patent Law of People's Republic of China (PRC), "the patentee shall pay the annual fee from the year when the patent right is granted." Visible; If the annual fee is not paid as required, the patent will be invalid. Therefore, the patentee must pay the annual fee in accordance with the regulations to safeguard his legal rights, otherwise it will be regarded as automatic patent fee.