Paragraph 1 of Article 9 of the Patent Law stipulates that only one patent right can be granted for the same invention-creation. However, if the same applicant applies for a patent for utility model and a patent for invention at the same time on the same day, and the patent for utility model obtained earlier has not been terminated, and the applicant abandons the patent for utility model, the patent for invention may be granted.
According to the above regulations, the same invention can apply for a utility model patent and an invention patent at the same time on the same day. What are the advantages of doing so?
First, ensure that the applicant obtains the patent authorization and patent certificate as soon as possible.
We know that the application for a patent for utility model does not need substantive examination, so it is generally earlier than the application for a patent for invention. When an applicant applies for a utility model and an invention patent at the same time, the utility model is generally new.
Class B applications will get the patent authorization earlier, which can ensure the applicant to get the patent certificate as soon as possible and shorten the time to get the patent right as much as possible, so that the applicant can handle related project transactions, publicity and promotion, qualification certification, infringement and rights protection, etc.
And other matters.
Two, as far as possible to extend the applicant's patent protection time, improve the stability and authority of the patent.
As we know, the protection period of utility model patent right is 10 year, and the protection period of invention patent right is 20 years. If the utility model patent is authorized first, the applicant has obtained 10.
The protection period is 20 years. If the invention patent is also authorized, the applicant can give up the previous utility model patent and obtain the invention patent authorization. In this way, the protection period of the same invention is extended to 20 years.
Moreover, because the invention patent has undergone substantial examination, its stability and authority have been greatly improved compared with the utility model patent, which can effectively protect the applicant's invention achievements.
Three, can achieve the purpose of separate application for utility model and invention patent at the same time, and can make up for the defects of separate application.
The advantages of applying for a patent for utility model alone are that there is no need for substantive examination, the examination period is short, and authorization will be obtained earlier or easier, which is conducive to cooperating with some arrangements for certification, trading and publicity of the applicant. The disadvantage is that the utility model patent has not been substantially examined, and its stability is poor, and it is easy to be invalidated and its protection period is short.
The advantages of applying for an invention patent alone are that once authorized, the patent is stable and the protection period is long. The defect is that the application for a patent for invention needs to go through substantive examination and strict examination. The risk of not obtaining patent authorization is much greater than that of applying for a patent for utility model. The application period is long and there are many uncertainties, which is not conducive to enterprises to arrange patent utilization.
It is better for the applicant to apply for utility model and invention patent at the same time.