The term of the patent right shall be counted from the date of application. According to Article 45 of the Patent Law, the term of invention patent is 20 years, and the term of utility model patent and design patent is 10 years, all of which are counted from the date of filing. This article explains that patent right is different from movable property and immovable property.
The ownership of movable and immovable property has no time limit, but the patent right is only valid within the time limit prescribed by law. This feature of patent right is determined by its essence and purpose. The purpose of establishing a patent system is to encourage inventions through the protection and use of inventions, and it must seek a balance between the interests of inventors and the public. From the last decade, the protection period of invention patents, especially those inventions with large investment and long time consumption, such as medicines, has a tendency to be extended. For example, the United States stipulates that the protection period of drugs is 17 years from the date of approval, which can be extended by 5 years. The European Union has also made a similar decision, and the protection period of drugs is 20 years from the date of application, which can be extended by 5 years.
The Paris Convention for the Protection of Industrial Property, the Supplementary Treaty to the Uruguay Round of GATT and the Agreement on Trade-related Intellectual Property Rights clearly stipulate that the protection period of the invention patent shall be at least 20 years from the date of application, and the dunkel Text also stipulates that the protection period of the design shall be at least 10 year from the date of application. In order to adapt to the trend of international harmonization of patent law, China's 1.992 patent law amendment expanded China's 65438+.
According to the provisions of China's patent law, the patent right is "calculated from the date of filing". However, it does not mean that the patentee enjoys the exclusive right of implementation from the date of application. According to the provisions of Article 8 of the Patent Law, a patent application shall be examined and approved by the record, and it can only be formally produced after the patent office grants the patent right. The patentee has the right to prohibit others from manufacturing, using, selling or importing the patented product or using the patented method for production and business purposes without his permission. As far as the invention patent is concerned, because the invention content has been made public before the authorization decision is made (from the date of application 18 months), the competitor of the applicant may already know the content required to be protected in the patent application, which poses a threat to the interests of the patentee. Therefore, Article 13 of the Patent Law stipulates: "After the publication of an application for a patent for invention, the applicant may require the entity or individual who exploited the invention to pay an appropriate fee.
I. Provisions on the duration of patent protection for pharmaceutical inventions
At the end of 1992, the State Administration of Medicine promulgated the Regulations on the Administrative Protection of Drugs, giving retrospective administrative protection to drug inventions before 1993. The period of administrative protection of drugs is 7 years and 6 months. 1993, China revised the patent law to protect drugs and chemical substances, and extended the protection period of invention patents from 15 to 20 years. 1999 April 12, National Medical Products Administration
At the end of 1992, the State Administration of Medicine promulgated the Regulations on the Administrative Protection of Drugs, giving retrospective administrative protection to drug inventions before 1993. The period of administrative protection of drugs is 7 years and 6 months.
1993, China revised the patent law to protect drugs and chemical substances, and extended the protection period of invention patents from 15 to 20 years.
199 12 In April, the State Administration of Pharmaceutical Products issued the Regulations on the Protection of New Drugs and Technology Transfer, which made it clear that the protection period of various new drugs was: 12 years for the first class of new drugs; The second and third types of new drugs are 8 years; The fourth and fifth kinds of new drugs have been used for 6 years. If a new drug has a trial production period, its protection period includes the trial production period.
Since China officially joined the WTO on February 200 11/year 10, it has complied with the requirements of the Agreement on Trade-related Aspects of Intellectual Property Rights, providing effective protection for the unpublished data of drugs and agrochemical products with new chemical components that have applied for market permission. The protection period is 6 years after the drug supervision department approves the listing.
On April 20 12 18, China announced that "a data protection period of up to 6 years shall be set for innovative chemicals, and the same variety shall not be approved for listing during the protection period; For innovative drugs that apply for listing both at home and abroad, the patent protection period will be compensated for up to 5 years. " .
In May, China extended the patent protection period of drugs from the current 20 years to 25 years, keeping in line with developed countries. At the same time, the import tariffs on drugs such as anticancer drugs will be abolished. The purpose is to strengthen patent protection and cultivate the domestic new drug market.
Provisions on the duration of patent protection for pharmaceutical inventions
2. What is the application procedure for drug patents?
(1) Materials required for drug patent application:
1. To apply for a patent for invention, the application documents shall include: the request for a patent for invention, the abstract, the appended drawings of the abstract (if applicable), the specification, the claims and the appended drawings of the specification (if applicable) in duplicate.
2. To apply for a patent for utility model, the application documents shall include: the request for a patent for utility model, the abstract, the appended drawings of the abstract (if applicable), the specification, the claims and the appended drawings of the specification in duplicate.
3. To apply for a patent for design, the application documents shall include a request for a patent for design, pictures or photographs (color pictures or photographs shall be submitted if color protection is required) and a brief description of the design in duplicate. If pictures are submitted, two copies shall be pictures; If photos are submitted, two copies are photos, and pictures or photos shall not be mixed.
(two) the process of drug patent application:
1. Confirm the type of patent application.
2, search the same type of patent, you can search independently, you can also entrust an agency to conduct a more comprehensive search.
3. Prepare the application documents and submit them to the application step.
4. get the admission notice.
(3) drug preliminary examination. (In the case of an application for a patent for invention, the application for a patent for invention must be examined in a confidential manner before preliminary examination. If confidentiality is required, it shall be handled in accordance with the confidentiality procedures. In the preliminary examination, it is necessary to examine whether there are obvious defects in the application, mainly including whether the contents of the examination fall within the scope of the patent law that does not grant the patent right, whether the obvious lack of technical content does not constitute a technical scheme, whether it lacks singularity, whether the application documents are complete and whether the format meets the requirements. If it is a foreign applicant, it is necessary to conduct qualification examination and application formalities examination. If it is unqualified, the Patent Office will notify the applicant to make corrections or statements within the prescribed time limit. If no reply is made within the time limit, the application shall be deemed to be withdrawn. If the defect has not been eliminated after the reply, it shall be rejected. Where an application for a patent for invention has passed the preliminary examination, a notice of passing the preliminary examination shall be issued. In addition to the above examination, the application for a patent for utility model and design shall also be examined whether it is obviously the same as the existing patent, not a new technical scheme or a new design, and no reason for rejection has been found after preliminary examination. Will directly enter the authorization instruction. )
(4) the publication stage (especially the invention patent application stage). The application for a patent for invention has entered the publication stage since the issuance of the notice of preliminary examination. If the applicant does not make a request for early publication, it will not enter the public preparation procedure until 15 months after the application date. If the applicant requests to be made public in advance, the application will immediately enter the public preparation procedure. After format review, editing and proofreading, computer processing, typesetting and printing, about three months later, the abstract of its instructions was published in the Patent Gazette, and a brochure was published. After the application is published, the applicant has the right to temporary protection. Obtain patent authorization.
(5) substantive examination (especially invention patents). To conduct a comprehensive review of whether the patent application is novel, creative, practical and other substantive conditions stipulated in the patent law. After examination, if it is found that the application does not meet the authorization conditions or there are various defects, the applicant will be notified to state his opinions or make amendments within the specified time. If no reply is made within the time limit, the application shall be deemed to have been withdrawn. If the application still fails to meet the requirements after repeated replies, the application shall be rejected. The actual probation period is very long. If it is not authorized within two years from the date of application, the application maintenance fee shall be paid every year from the third year. Failing to pay within the time limit shall be deemed to have withdrawn the application.
If the substantive examination finds no reason for rejection, it shall enter the authorization procedure as required.
(6) authorization stage. After the utility model and design pass the fifth step of examination, they can directly enter the authorization stage.
Legal basis:
Article 45 of the Patent Law of People's Republic of China (PRC) Since the date when the patent administrative department of the State Council announced the grant of the patent right, any unit or individual may request the Patent Reexamination Board to declare the patent right invalid if it considers that the grant of the patent right is not in conformity with the relevant provisions of this Law.
Rule 77 of the Detailed Rules for the Implementation of the Patent Law. Where there is no agreement between the entity granted the patent right and the inventor or designer, and the rules and regulations formulated according to law do not stipulate the reward method and amount stipulated in Article 16 of the Patent Law, it shall give the inventor or designer a bonus within 3 months from the date of announcement of the patent right. The bonus for an invention patent is at least 3,000 yuan; The minimum bonus for utility model patent or design patent shall not be less than 1000 yuan.
Where an invention-creation is completed because the suggestion of the inventor or designer is adopted by the entity, the entity that has been granted the patent right shall give a bonus from the superior entity.