Preliminary examination of utility model patent application_Similar to the preliminary examination of invention patent application, it can also be divided into two aspects.
(1) Formal review
The first is to review whether the application documents are complete and whether the document form meets legal requirements. It should be noted that, unlike the preliminary examination of invention patent applications, the formal examination requirements for utility model patent application documents are not reflected in Article 20 of the Implementing Rules of the Patent Law. Instead, the examination of this article is classified as an obvious substantive defect. review. Therefore, the formal examination of the request, specification, claims, and abstract is not limited to “obvious” issues.
The second is the review of necessary procedures. This is the same as the preliminary examination of an invention patent application.
(2) Examination of Obvious Substantive Defects
Similar to the examination of obvious substantive deficiencies in the preliminary examination of invention patent applications, some matters that are subject to substantive examination must be reviewed during the preliminary examination of utility models. Conduct a preliminary review of obvious deficiencies. Including whether the utility model patent application obviously falls under the circumstances specified in Article 5 and Article 25 of the Patent Law; whether it obviously does not comply with Article 2, paragraph 3, Article 22, paragraph 2, and Article 22 of the Patent Law. Paragraph 4, Paragraph 3 and Paragraph 4 of Article 26, Paragraph 1 of Article 31, Article 33, Article 20 and Paragraph 1 of Article 43 of the Implementing Regulations of the Patent Law stipulations; whether the patent right cannot be obtained in accordance with Article 9 of the Patent Law.
Obviously, the scope of obvious substantive defects during the preliminary examination of a utility model patent application is greater than that of an invention patent application. In addition to the issues of protected object, unity, and application document modification beyond the scope, there are also issues such as novelty and practicality, whether the description is clear and complete, whether the claims are clear and based on the description, etc. In addition, there are also issues such as whether the description is clear and complete. The issue of multiple patent rights being granted for the same invention.
In terms of the scope of obvious substantive defects, compared with the preliminary examination of invention patent applications, the only reduction in the preliminary examination of utility model patent applications is based on Article 26, 5 of the Patent Law. This is because the protected object of a utility model patent will not include genetic resources applications, so there is no need to review such issues.
What needs to be understood in the preliminary examination of utility models is that the main difference between the preliminary examination of utility model examinations on patent application documents and the preliminary examination of invention patents is that the former is an examination of obvious substantive defects in the patent application documents. , the latter is an examination of formal defects in patent application documents; the difference between the examination of utility model patent protection objects and invention patent protection objects is that the former only protects technical solutions proposed for product shape, structure and improvement. The preliminary examination of a utility model includes examination of the obvious lack of novelty.
Legal basis:
Article 26 of the "Patent Law" When applying for a patent for invention or utility model, a request, description, abstract, claims and other documents shall be submitted. The request shall state the name of the invention or utility model, the name of the inventor, the name and address of the applicant, and other matters. The description shall provide a clear and complete description of the invention or utility model, which shall be subject to the ability of a person skilled in the technical field to realize it; when necessary, there shall be accompanying drawings. The abstract should briefly describe the technical key points of the invention or utility model. The claims should be based on the description and clearly and briefly define the scope of patent protection requested. For inventions and creations that rely on genetic resources, the applicant shall state the direct source and original source of the genetic resource in the patent application document; if the applicant cannot explain the original source, the applicant shall state the reasons.