If the patent right cannot be automatically obtained, the patent application procedures stipulated in the Patent Law must be fulfilled, the necessary patent application documents must be submitted to the State Patent Administration Department, and whether or not to grant the patent right shall be finally examined and approved through legal examination and approval procedures.
The principles for applying for a patent are as follows:
(A) writing principles
Article 3 of China's Detailed Rules for the Implementation of the Patent Law stipulates: "All procedures stipulated in the Patent Law and these Detailed Rules shall be handled in writing." It can be seen that the principle of writing means that all legal procedures for applying for patent documents and handling patent applications must be handled in writing according to law, and written and filled in according to the prescribed format, including the format and requirements.
(2) the principle of first application
There are two principles to determine the application time in the world: one is the principle of invention priority, and the other is the principle of application priority. The principle of first invention is that several people apply for a patent for the same invention and creation, and the patent management department grants the patent right to the first inventor. China adopts the principle of applying first, that is, whoever applies for a patent first can be granted a patent right after approval.
Paragraph 1 of Article 9 of the Patent Law after the third revision stipulates that "only one patent right can be granted for the same invention-creation. However, if the same applicant applies for a patent for utility model and an invention patent at the same time for the same invention and creation on the same day, and the previously obtained patent right for utility model has not been terminated, the applicant may grant the patent right for invention. " The second paragraph stipulates that "where two or more applicants apply for a patent for the same invention-creation, the patent right shall be granted to the first applicant".
(3) Priority (day) principle
According to the provisions of the Paris Convention, when applying for industrial property rights such as patents or trademarks, each contracting state should recognize the priority of the nationals of the other country. Paragraph 1 of Article 29 of China's Patent Law stipulates: "Where an applicant applies for a patent for an invention or utility model for the first time in a foreign country within twelve months, or for a design for the first time in a foreign country within six months, and at the same time applies for a patent for the same subject in China, he may enjoy the priority in accordance with the agreement signed between the foreign country and China or the international treaties to which both countries are parties, or in accordance with the principle of mutual recognition of priority". The second paragraph stipulates that "if an applicant applies for a patent for invention or utility model for the first time in China within twelve months, he may enjoy priority if he files a patent application with the patent administration department of the State Council on the same subject".
At the same time, Article 30 of the Patent Law stipulates that "if an applicant claims priority, he shall make a written statement at the time of application and submit a copy of the first patent application document within three months; If a written statement is not submitted within the time limit or a copy of the patent application document is not submitted, it shall be deemed that priority has not been claimed. "
Principle of oneness
Article 31 of China's Patent Law stipulates that "an application for a patent for an invention or utility model shall be limited to one invention or utility model", that is to say, an invention or utility model can only apply for one patent, and more than two inventions or utility models cannot be put in one application for application, but should go through application procedures separately. An application for a patent for design allows "two or more similar designs of the same product, or two or more designs of products used in the same category and sold or used in sets, can be filed as one application".