Patent priority can be divided into domestic priority and international priority.
1. Domestic priority
Domestic priority, also known as "domestic priority", means that the patent applicant applies for a patent for an invention or utility model with the same theme for the first time in China within 12 months, and can enjoy priority. In China's priority system, design patents are not included.
2. International priority
International priority, also known as "foreign priority", means that a patent applicant files a patent application in China within 12 months from the date of filing a patent application for the same invention or utility model for the first time in a foreign country, or within 6 months from the date of filing a patent application for the same design for the first time in a foreign country, and China takes the date of filing a patent application for the first time in a foreign country as the priority date.
Second, how to use the patent priority system
1. foreign priority
The priority system originated from the Paris Convention for the Protection of Industrial Property. According to the provisions of Article 4 of the Paris Convention, anyone who formally files an application for patent, utility model registration, design registration or trademark registration in one country of the Union, or his/her right successor, may file another application for relevant contents in other countries within 12 months (application for invention patent and utility model) or 6 months (application for design) from the date of the first application.
In addition, according to the domestic law of any country in the Union, or according to bilateral or multilateral treaties concluded between countries in the Union, any application equivalent to a formal national application shall be regarded as giving rise to priority. The "formal national application" mentioned here refers to any application whose application date can be determined in the relevant countries, regardless of the outcome of the application, that is, whether it has been withdrawn, abandoned or rejected.
Therefore, any subsequent application filed in any other country of the Union before the expiration of the above-mentioned time limit shall not be invalidated due to any actions completed during this period, especially filing another application, publishing or using an invention, selling a copy of a design and using a trademark, which cannot give rise to the rights of any third party or any rights occupied by individuals. The rights acquired by a third party before the date of the first application as the basis of priority shall be preserved in accordance with the domestic laws of the countries of the Union.
It is worth noting that in practice, people often think that the priority date obtained by the applicant through this system becomes the filing date of the latter application, which is wrong and fails to understand the essence of the above priority. For example, for a patent application, the "priority date" is only the deadline for examining the novelty and creativity of the latter application, that is, only the documents that have been made public before the priority date are considered, and only these documents will affect the novelty and creativity of the technical content for which priority is claimed, while the documents made public during the period from the priority date to the application date of the latter application are not considered; However, the filing date of the latter patent application is still subject to its filing date and will not be advanced to the priority date. Because applicants have priority after the first application, they can have enough time to make improvements, consider which country to apply for again, choose agents to go through formalities in other countries or find potential partners and funds, which is precisely the purpose of setting up the priority system.
However, priority cannot be obtained automatically. Anyone who wants to enjoy the priority on the basis of the previous application needs to make a statement, stating the application number, application date and the country that accepted the application. These matters should be recorded in the publications of the competent authorities, especially in the relevant patent certificates and specifications. Accordingly, the first paragraph of Article 32 of the Detailed Rules for the Implementation of China's current Patent Law stipulates that if an applicant goes through the formalities for claiming priority, it shall specify the date of application, the application number and the country that accepted the application in a written statement; If the written statement does not specify the application date of the earlier application and the country that accepted the application, it shall be deemed that no statement has been made.
At the same time, countries can also require the person who made the declaration of priority to submit a copy of the previous application (instructions, drawings, etc.). ). After the copy is verified by the original accepting authority, it should not need any proof. For whatever reason, it can be submitted at any time within three months after the latter application is filed, and no fee is required. Countries may also require copies to be accompanied by certificates and translations issued by the above authorities indicating the date of application. Accordingly, Article 30 of China's Patent Law stipulates that the applicant claiming priority shall make a written statement at the time of application and submit a copy of the first patent application document within three months; Failing to submit a written statement or a copy of the patent application documents within the time limit shall be deemed as not claiming priority. At the same time, the second paragraph of Article 32 of the Implementing Rules of China's current Patent Law stipulates that if foreign priority is claimed, the copy of the earlier application documents submitted by the applicant shall be certified by the original accepting authority; If the name of the earlier applicant is inconsistent with the name of the later applicant in the submitted certification materials, the certification materials of priority transfer shall be submitted; Where domestic priority is claimed, a copy of the earlier application documents submitted by the applicant shall be made by the patent administration department of the State Council.
Article 4 of the Paris Convention stipulates that each country shall set a time limit for the declaration of priority. According to the general regulations, the time limit is 12 months from the priority date of the application for invention patent and utility model, and 6 months from the priority date of the application for design. If an application for design is filed in a country, the priority based on the previous actual new application is required, and the priority period shall be the same as that stipulated in the design, that is, 6 months from the priority date; Paris Convention also allows the application for utility model to be filed in one country on the basis of the earlier patent application, and the time limit is 12 months from the priority date, and vice versa. Accordingly, the first paragraph of Article 29 of China's current Patent Law stipulates that an applicant who files a patent application for the same subject in China within 12 months from the date when the invention or utility model is first filed in a foreign country, or within 6 months from the date when the design is first filed in a foreign country, may enjoy the priority according to the agreement signed between the foreign country and China or the international treaty to which both countries are parties, or according to the principle of mutual recognition of priority.
Article 4 of the Paris Convention stipulates that any country in the Union shall not refuse to grant priority or reject a patent application because the applicant claims multiple priorities (even if these priorities are generated in different countries), or because one or several factors in the application claiming one or more priorities are not included in the application based on priority, as long as there is the singularity of the invention stipulated by the laws of that country in both cases. For the content not included in the application as the basis of priority, the subsequent application shall give priority according to the usual situation. Accordingly, the first paragraph of Article 33 of the Implementing Rules of China's current Patent Law stipulates that an applicant may claim one or more priorities in a patent application; Where multiple priorities are claimed, the priority period of the application shall be calculated from the earliest priority date. Article 4 of the Paris Convention stipulates that the patents applied for by nationals of all countries in the Union for the same invention are independent of each other. That is to say, patents applied for within the priority period are independent of each other in different countries in terms of the reasons for their invalidity and loss of rights and their normal term, and should not affect each other.
Article 4 of the Paris Convention stipulates that in all countries of the Union, the period of validity of a patent obtained by enjoying priority is the same as that of a patent applied for or granted on the assumption that there is no priority. For example, whether an application for a patent for invention enjoys priority or not, the protection period after authorization is 20 years from the date of application, and the protection period cannot be shortened from the priority date just because it enjoys priority.
The priority system of the Paris Convention is applicable to the case that the earlier application and the later application are filed in different member countries of the Paris Convention, but it is not applicable to the case that nationals claim the priority of the earlier patent application filed in their own country for the latter patent application filed in their own country. Therefore, the priority system of Paris Convention is also called "foreign priority" system. With the development of the patent system, many countries have formulated the "domestic priority" system with reference to the priority system of the Paris Convention, and the principle of priority has been further extended to domestic applicants, that is, applicants who file an earlier patent application in their own country and file another application for the same subject in their own country within the prescribed time limit can also enjoy the priority based on the earlier application, which is called "domestic priority".
2. Domestic priority
Referring to the provisions of the Paris Convention on priority, China added its own priority system when it revised the patent law in 1992. Paragraph 2 of Article 29 of the current Patent Law stipulates that an applicant who files a patent application for the same subject with the patent administration department of the State Council within 12 months from the date when he first filed an application for a patent for invention or utility model in China may enjoy priority. Paragraph 2 of Article 33 of the Detailed Rules for the Implementation of the Patent Law stipulates that the applicant claims domestic priority, and if the earlier application is an application for a patent for invention, he may file an application for a patent for invention or utility model on the same subject; Where the earlier application is an application for a patent for utility model, an application for a patent for utility model or invention may be filed on the same subject. However, when the latter application is filed, if the subject matter of the former application is under any of the following circumstances, it shall not be used as the basis for claiming domestic priority:
(1) claiming foreign priority or domestic priority;
(2) The patent right has been granted;
(3) It is a divisional application filed in accordance with regulations.
Where the applicant claims domestic priority, the earlier application shall be deemed to have been withdrawn from the date of filing the later application.
In practice, due to the limitation of literature retrieval means, language, funds and time, applicants are often not sure about the novelty and creativity of their inventions, and they don't know whether to apply for exclusive benefits, fearing that they will not be authorized and their technology will be made public. Using the above domestic priority system, you can first submit a preliminary application and obtain the application date, so that the publicity of others will not affect the novelty and creativity of your own achievements, and then improve the technology to further improve its novelty and creativity. If conditions permit, you can submit an application again, claiming the priority of the earlier application; If the novelty and creativity cannot be improved within 12 months due to various reasons and the requirements of patentability cannot be met, the earlier application can be withdrawn to avoid the disclosure of its technology. It can be said that this is the biggest advantage of the domestic priority system.
In addition, because China's utility model patent application has the characteristics of "easy and fast authorization, but unstable after authorization", and the invention patent application has the characteristics of "difficult and time-consuming authorization, but stable after authorization", when the applicant is not very sure about the novelty and creativity of his technology, he can submit the utility model patent application first, and then submit the invention patent application after improving the technical scheme, and demand the priority of the prior utility model patent application. In this way, if the applicant thinks that its technical scheme meets the requirements for invention patent authorization, he should submit an application for invention patent first, but considering the short market life of the product and other factors, he can submit another application for a patent for utility model to claim the priority of the previous application for a patent for invention, so as to convert the invention patent into a patent for utility model and shorten the protection period. It can be seen that the priority system not only fully protects the interests of the applicant, but also promotes the inventor's enthusiasm for improving his technical scheme, thus promoting the technological progress of the whole society.