Patent protection means that after the patent right is granted, the invention shall not be commercially manufactured, used, promised to be sold, sold or imported without the consent of the patentee. So what is the function of patent protection?
The role of the patent system mainly includes the following aspects:
First, the invention is effectively protected. When an inventor applies for a patent for his invention, the Patent Office shall disclose his invention to the public according to law, grant a patent right, give the inventor the exclusive right to his invention within a certain period of time, and protect his invention as a property right by law;
Second, it can motivate citizens and legal persons to engage in invention and creation, give full play to the intelligence of the whole nation, and promote the rapid development of national science and technology;
Third, it is conducive to the popularization and application of inventions, promoting the transformation of advanced science and technology into productive forces as soon as possible, and promoting the development of the national economy;
Fourth, promote the publicity and dissemination of inventions and technologies to the whole society, avoid repeated research and development of the same technology, and promote the continuous development of science and technology.
The object of patent protection refers to the object of patent protection, that is, inventions and creations that people can obtain exclusive rights according to the patent law. China law stipulates that the object of patent right is invention, utility model and design.
(1) Invention Article 2 of the Detailed Rules for the Implementation of China's Patent Law stipulates that "invention" as mentioned in the Patent Law refers to a new technical scheme proposed for a product, method or its improvement. An invention should meet two conditions:
1. Invention must be the result of using natural laws. "Natural law" refers to the physical and chemical principles or theorems existing in nature, rather than things produced by pure intellectual activities of human beings or things considered to be prescribed, such as password compilation methods, calculation methods, financial methods, accounting methods, game methods, etc. Moreover, the invention must be the result of using the laws of nature, and scientific discovery is a new understanding of the laws of nature itself, not the use.
2. The invention is a concrete technical scheme. It is a reasonable means to solve a problem and must produce certain technical effects. Therefore, the discovery of natural objects cannot be called invention. As can be seen from the above definition, invention is the inventor's technical idea, and it is a new technical scheme or technical idea that can solve specific problems in the technical field by using natural laws. Inventions can be divided into product inventions and method inventions, and their corresponding patents are usually called product invention patents and method invention patents respectively.
(2) The utility model is also a technical idea or technical scheme of people, commonly known as "gizmo". Refers to the new practical scheme for the shape, structure or combination of products. There is no essential difference with invention, but there are also the following differences with invention:
First, from the scope, the utility model does not include methods, nor does it include articles (such as powder and liquid products) that do not have a definite shape and three-dimensional structure. An invention made only for the shape, structure or combination of products, that is, it can only be a new design for machines, equipment, devices, appliances, daily necessities and other products. Therefore, the invention of process method cannot be protected by utility model patent;
Second, from the perspective of innovation level, the creativity of utility models is generally lower than that of inventions. Taking the provisions of China's patent law as an example, inventions should have outstanding substantive features and remarkable progress, and utility models should have substantive features and progress;
Thirdly, from the way of protecting utility models, the patent protection of utility models in China is essentially a way of registration. Although the patent law of our country stipulates the patentability conditions that a utility model should have, it also stipulates that the application for a patent for utility model is only subject to preliminary examination (formal examination), without patentability examination, and the utility model patent can be granted as long as it passes the formal examination. Whether they meet the patentability conditions is generally resolved in patent infringement disputes;