After the patent application is published, it may not be authorized. After the patent is published, after the applicant's application is substantively reviewed and the authorization conditions are met, the invention patent right will be granted. Whether to authorize or not needs to be decided based on the results of substantive examination.
(1) Acceptance stage
After receiving the patent application, the Patent Office will review it.
Patent application procedures
If it meets the requirements, it will be accepted If the conditions are met, the Patent Office will determine the application date, give the application number, and after verifying the document list, issue an acceptance notice to notify the applicant. If the application documents are not typed, printed or illegible, or have been altered; or the drawings and pictures are not drawn with drawing tools and black ink, and the photos are blurred or altered; or the application documents are incomplete; or the request is missing If the name and address of the applicant are unknown; or if the patent application category is unclear or cannot be determined, and patent applications submitted directly by foreign entities and individuals without a foreign-related patent agency, they will not be accepted.
(2) Preliminary examination stage
If an accepted patent application pays the application fee in accordance with regulations, it will automatically enter the preliminary examination stage. Before the preliminary examination, the invention patent application must first undergo a confidentiality review. If confidentiality is required, it shall be handled according to confidentiality procedures.
During the preliminary examination, the application shall be examined for obvious defects, which mainly includes whether the examination content falls within the scope of the Patent Law that does not grant patent rights, whether there is an obvious lack of technical content that cannot constitute a technical solution, and whether there is a lack of Uniformity, whether the application documents are complete and the format meets the requirements. If you are a foreign applicant, you will also need to undergo a qualification review and application procedures review. If the application is unqualified, the Patent Office will notify the applicant to make corrections or state opinions within the prescribed time limit. If the applicant fails to respond within the time limit, the application will be deemed to have been withdrawn. If the defect has not been eliminated after the reply, it shall be rejected. If the application for an invention patent passes the preliminary examination, a notification of passing the preliminary examination will be issued. For utility model and design patent applications, in addition to the above review, it is also necessary to review whether they are obviously the same as existing patents and are not a new technical solution or new design. If no reason for rejection is found after the preliminary examination. Will go directly to the authorization order.
(3) Publication stage
The invention patent application enters the publication stage from the issuance of the preliminary examination qualification notice. If the applicant does not make a request for early disclosure, it must wait until 15 years have passed since the application date. It took months to enter the public preparation process. If the applicant requests early disclosure, the application will immediately enter the disclosure preparation process. After format review, editing and proofreading, computer processing, typesetting and printing, the summary of the specification will be published in the Patent Gazette and a single volume of the specification will be published in the Patent Gazette about three months later. After the application is published, the applicant obtains the right to temporary protection.
(4) Substantive examination stage
After the invention patent application is published, if the applicant has submitted a substantive examination request and it has taken effect, the applicant will enter the substantive examination procedure. If the applicant has not submitted a request for substantive examination within three years from the date of application, or the request for substantive examination has not taken effect, the application will be deemed to have been withdrawn.
During the actual examination, a comprehensive review will be conducted on whether the patent application has novelty, creativity, practicality and other substantive conditions stipulated in the patent law. If upon review it is determined that the authorization conditions are not met or there are various deficiencies, the applicant will be notified to state their opinions or make modifications within the specified time. If no reply is made within the time limit, the application will be deemed to have been withdrawn. The application still does not meet the requirements after multiple replies. , be dismissed. The actual review period is long. If authorization has not been granted within two years from the date of application, the application maintenance fee must be paid every year from the third year. If it is not paid within the time limit, the application will be deemed to have been withdrawn.
If no reason for rejection is found during the substantive examination, the authorization procedure will be entered in accordance with regulations.
(5) Authorization stage
After preliminary examination of utility model and design patent applications and substantive examination of invention patent applications, if no reason for rejection is found, the examiner shall issue an authorization notice and apply for After entering into preparations for authorization registration, after reviewing the legal validity and completeness of the authorization text, and proofreading and revising the bibliographic items of the patent application, the Patent Office issues an authorization notice and a registration formalities notice. After receiving the notice, the applicant shall If you complete the registration procedures and pay the prescribed fees in accordance with the requirements of the notice within 2 months, and complete the registration procedures on time, the Patent Office will grant the patent right, issue a patent certificate, record it in the patent register, and register it in the patent registration book after 2 months. It is announced in the Patent Gazette that failure to complete registration procedures as required will be deemed to have given up the right to obtain patent rights.
(6) Reexamination stage
The patent reexamination procedure is a relief channel given to the applicant when the patent application is rejected. According to the provisions of Article 41 of the Patent Law, the Patent Reexamination Board accepts and examines reexamination requests and makes decisions. Reexamination request cases include cases in which a person is dissatisfied with the decision to reject a patent application during the preliminary examination and substantive examination procedures and requests for patent reexamination. Only the patent applicant has the right to initiate the patent reexamination procedure, and must submit it to the Patent Reexamination Committee of the State Intellectual Property Office within 3 months of receiving the rejection notice.
(7) Patent invalidity
In the patent application and patent application of enterprises, patent invalidation is one of the patent regulations most used by enterprises and units (should be second only to patent application). Patent invalidation has become a necessary means and technique in patent litigation.
The legal consequence of invalidating a patent right is that the invalidated patent right is deemed to have ceased to exist from the beginning. Anyone who is dissatisfied with the decision of the Patent Reexamination Board to declare the patent right invalid or to maintain the patent right may file a lawsuit in the People's Court within three months from the date of receipt of the notice.
The decision to declare the patent right invalid, the judgment or ruling on patent infringement made by the people's court before the patent right was declared invalid and has been executed, the decision to resolve the patent infringement dispute that has been executed or enforced, and the executed decision The patent implementation license contract and the patent rights transfer contract do not have retroactive effect. However, compensation should be provided for losses caused to others due to the bad faith of the patentee.
If in accordance with the above provisions, the patentee or patent transferor does not return the patent royalties or patent transfer fees to the licensee or patent transferee, which is a clear violation of the principle of equity, the patentee or The patent assignor shall return all or part of the patent royalties or patent transfer fees to the licensee or patent assignee.
It can be seen from this that the legal consequences of declaring patent rights invalid are quite serious. For patent applicants, it is important to do the preliminary work for patent application, such as patent literature search, novelty search, market research, etc.