What is the scope of patent protection for inventions and utility models?

Article 2 of China's Patent Law stipulates: "Inventions and creations mentioned in this Law refer to inventions, utility models and designs." In other words, inventions include invention patents, utility model patents and design patents. Invention as mentioned in the patent law 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 with aesthetic feeling and suitable for industrial application based on the shape, pattern or combination of products and the combination of colors, shapes and patterns. In this way, the patent for invention and utility model protects the new technical scheme, while the patent for design protects the new design of the product. Therefore, it is difficult to copy patents between inventions, utility models and designs. Invention patents include both product inventions and method inventions, while utility model patents only protect product inventions. Because both of them are technical solutions to protect new technologies, there may be duplicate patents between inventions and utility models, which easily fall into the category of "the same invention-creation". Formal "same invention-creation" should include three situations, that is, applying for two or more invention patents, applying for two or more utility model patents or applying for both invention patents and utility model patents at the same time. After authorization, all three cases belong to "the same invention and creation" and have been granted patent rights many times. From the content point of view, "the same invention-creation" should mean that the technical content and technical scheme recorded in the claims of two or more patents for invention-creation are the same, not that the names or claims of two or more patents for invention-creation are exactly the same. Of course, the technical contents or technical solutions are the same, including the same written contents recorded in the claims, and also including the equivalence of technical solutions. Some people think that when the detailed rules for the implementation of the Patent Law stipulate that repeated authorization of the same invention and creation is not allowed, it only means that repeated authorization of different subjects is prohibited, and the same invention subject has the right to apply for more than two patents for the same invention and creation, and of course it can also be granted more than two patents. This understanding is one-sided. It should be said that the patent law and its implementing rules do not make such a division. Judging from the legislative intent, as long as it is the same invention-creation, no matter whether it applies for the same theme or not, if it is found that the technical content is duplicated, it should not be granted a patent right after the application. Another question involved here is: does repeated authorization only mean that there are more than two patents at the same time? One view is that neither the Patent Law nor its implementing rules prohibit the applicant from simultaneously or successively filing an invention application and a utility model application for the same invention-creation. Therefore, "only one patent can be granted to the same invention-creation" should be understood as "the same invention-creation cannot have more than two authorized patents in effective state at the same time", and only "the same invention-creation has more than two authorized patents in effective state at the same time" can constitute repeated authorization prohibited by law. "Repetition" means "the same thing appears again" or "do it again as before". It can be seen that "simultaneous appearance" is only one meaning of repetition, and another meaning of repetition is "reappearance". According to the provisions of the patent law, an invention-creation granted a patent right should have three characteristics, one of which is novelty. Article 22 of the Patent Law stipulates: "Novelty means that before the filing date, no identical invention or utility model was publicly published in domestic and foreign publications, publicly used in China or known to the public in other ways, and no identical invention or utility model was filed with the patent administration department of the State Council by others and recorded in the patent application documents published after the filing date." It can be seen that if the same invention is repeatedly granted a patent right, the latter patent right is definitely not in conformity with novelty. The patent law stipulates that based on the exclusiveness and exclusiveness of patent rights, repeated authorization is not allowed, and its purpose is to protect public interests while protecting patent rights. Once the same invention and creation are allowed to be granted more than two patents in different periods, or two identical inventions and creations can be granted patents successively, it will undoubtedly extend the protection period of the technical scheme, which not only violates the legal restrictions of patent rights, but also harms the public interests and is not conducive to the promotion and transformation of inventions and creations. Regarding the practice of patent application in China, the Patent Office allows the applicant to apply for a utility model patent and an invention patent for the same invention at the same time. It is not against the law that the applicant chooses to give up one of them when authorizing, because the law prohibits granting more than two patents for the same invention instead of applying for more than two patents. Patent right is a kind of private right. Considering the protection strategy, the applicant can apply for a utility model patent and an invention patent for the same invention and creation at the same time, but in the end, they cannot both be granted patent rights.