subject of patent right
The subject of the patent right, that is, the patentee, refers to the person who enjoys the patent right and assumes the corresponding obligations according to law. The subject of patent right includes the following categories: 1. Inventor or refers to a person who has made creative contributions to the substantive characteristics of invention and creation. In the process of completing the invention and creation, people who are only responsible for organizing the work, who provide convenience for the use of material and technical conditions, or who are engaged in other auxiliary work, such as testers, draftsmen, mechanical processors, etc. Are not inventors or designers. Among them, the inventor refers to the inventor of the invention; Designer refers to the person who has completed the utility model or design. Inventors or designers can only be natural persons, not units, collectives or research groups. Invention is the result of intellectual labor. Invention is a factual act, not limited by the capacity for civil conduct. Therefore, no matter whether a person engaged in invention and creation has full capacity for civil conduct, as long as he has completed his own invention and creation, he should be recognized as an inventor or designer. Inventors or designers include inventors or designers of non-service inventions and creations and inventors or designers of service inventions and creations. Non-service invention-creation refers to an invention-creation that is not completed by the unit, nor is it mainly accomplished by using the material and technical conditions provided by the unit. For non-service inventions, the right to apply for a patent belongs to the inventor or designer. No unit or individual may suppress an inventor or designer's application for a patent for non-service invention-creation. After the application is approved, the inventor or designer shall be the patentee. Where a non-service invention-creation is jointly completed by two or more inventors and designers, the person who completed the invention-creation is called a * * * co-inventor or a * * * co-designer. * * * The right to apply for a patent for an invention-creation and the patent right obtained shall be owned by * * *. Two, the inventor or designer's unit for the service invention-creation, the subject of the patent right is the inventor or designer's unit. The invention-creation by taking advantage of one's position refers to the invention-creation accomplished by performing the tasks of one's own unit or mainly using the material and technical conditions of one's own unit. The "units" mentioned here include domestic enterprises of various ownership types and properties, Sino-foreign joint ventures, Sino-foreign cooperative enterprises and wholly foreign-owned enterprises; In terms of labor relations, it includes both fixed work units and temporary work units. There are two types of service inventions: 1. Inventions and creations accomplished by carrying out the tasks of the unit. Including three situations: (1) inventions made in the course of one's own work; (2) Inventions and creations made by completing tasks other than one's own work entrusted by the unit; (3) Inventions and creations made within 1 year after resignation, retirement or job transfer, which are related to the work undertaken by myself in the original unit or the tasks assigned by the original unit. In the third case, a service invention-creation can only be constituted if two conditions are met at the same time: first, the invention-creation must be made within 1 year after the inventor or designer resigns from the original unit or transfers his job; Two, the invention is related to the work undertaken by the inventor or designer in the original unit or the task assigned by the original unit. 2. Inventions and creations mainly make use of the material and technical conditions of the unit. "The material and technical conditions of the unit" refers to the funds, equipment, spare parts, raw materials or technical data that are not disclosed to the public. It is generally believed that if all or most of the company's funds, equipment, spare parts, raw materials and undisclosed technical data are used in the process of invention and creation, this utilization plays an indispensable and decisive role in the completion of invention and creation, which can be considered as mainly utilizing the company's material and technical conditions. If only a small amount of material and technical conditions of the unit are used, and the use of such material conditions has nothing to do with the completion of the invention, it cannot be regarded as a service invention. Where an invention-creation is made using the material and technical conditions of the entity, the entity has a contract with the inventor or designer to stipulate the right to apply for a patent and the ownership of the patent, such agreement shall prevail. The right to apply for a patent for a service invention-creation and the patent right obtained belong to the unit where the inventor or designer works. The inventor or designer enjoys the right of authorship and the right to receive bonuses and remuneration, that is, the inventor or designer has the right to declare himself as an inventor or designer in the patent application documents and related patent documents; The entity that has been granted the patent right shall, in accordance with the provisions, give a bonus to the inventor or designer of the service invention-creation; After the patent for invention-creation is implemented, the entity shall give the inventor or designer reasonable remuneration according to the scope of its popularization and application and the economic benefits obtained. The right of authorship of an inventor or designer may be waived by a written statement. Three, the assignee refers to the unit or individual who has obtained the patent right according to law through contract or inheritance. The right to apply for a patent and the patent right can be transferred. After the transfer of the patent application right, if the patent is obtained, then the assignee is the subject of the patent right; After the transfer of the patent right, the assignee becomes the new subject of the patent right. Where two or more units or individuals cooperate to complete an invention-creation, or one unit or individual accepts the entrustment of another unit or individual to complete an invention-creation, and both parties agree that the application for patent right for invention-creation belongs to the entrusting party, according to their agreement, after the application is approved, the unit or individual applying for the patent right shall be the patentee. If there is no agreement between units or individuals, which constitutes entrusted development, the patent application and the patent right obtained shall belong to the trustee, but the trustee may exploit the patented technology free of charge. The assignee shall not become an inventor or designer after obtaining the patent application right or patent right, and the inventor or designer of the invention-creation shall not lose his specific personal rights because of the transfer of the patent application right or patent right. From the perspective of patent utilization right, the assignee also protects the assignee of patent utilization right, that is, the legal person or individual who obtains the patent utilization right through contract, including exclusive licensor, exclusive licensor and general licensor. 4. Foreigners Foreigners include natural immigrants and legal persons with foreign nationality. Foreigners who have their habitual residence or business office in China enjoy the same patent application right and patent right as citizens or units in China. Foreigners, foreign enterprises or other foreign organizations that have no habitual residence or business office in China who apply for a patent in China may apply for a patent according to the agreement signed between their country and China, the international treaties to which they are party or the principle of reciprocity, but they shall entrust a patent agency designated by the patent administration department in the State Council to handle it. The newly revised patent law has changed. After the latest revised patent law is implemented, the newly revised patent law shall prevail.
Object of patent right
The object of patent right, also known as the object protected by patent law, refers to the invention-creation that should be granted patent right according to law. According to Article 2 of China's Patent Law, the objects of the patent law include inventions, utility models and designs. 1. Invention refers to a new technical scheme proposed for a product, method or its improvement. An invention must be a technical scheme, the result of the inventor's application and combination of natural laws in a specific technical field, not the natural laws themselves, so scientific discovery does not belong to the category of invention. At the same time, inventions are usually intellectual achievements in the natural sciences, and achievements in the fields of literature, art and social sciences cannot constitute inventions in the sense of patent law. According to the provisions of the patent examination system, inventions can be divided into product inventions and method inventions, which can be original inventions or improved inventions. Product invention is about the invention of new products or new substances. This kind of product or substance has never been seen in nature, and it is the result of people using natural laws to act on specific things. If an article is completely in a natural state and exists without anyone's processing or transformation, it is not a product invention as stipulated in China's patent law and cannot obtain a patent right. Method invention refers to the invention of methods and steps to solve specific technical problems. Patentable methods usually include manufacturing methods and operating methods. The former includes product manufacturing technology and processing methods, while the latter includes testing methods and product use methods. An improved invention is a technical scheme with substantial innovation on the existing product invention or method invention. For example, Edison invented the self-lighting lamp, incandescent lamp is an unprecedented new product, you can apply for product invention; The method of producing incandescent lamps can apply for a method patent; Incandescent lamps are filled with inert gas, and their quality and life are obviously improved. This is an improvement on the original basis, and you can apply for improvement. Two, utility model refers to the shape, structure or their combination of products, suitable for practical new technical solutions. The utility model patent only protects the product. Products should be manufactured by industrial methods and occupy a certain space. All related methods (including the use of products) and natural objects that have not been artificially manufactured are not protected by utility model patents. The above methods include manufacturing methods, using methods, communication methods, processing methods, computer programs and using products for specific purposes. For example, the manufacturing method of a gear, the dust removal method in the workshop, the data processing method, the naturally occurring rain flower stone and so on. Can't be protected by utility model patent. The shape of a product refers to the definite spatial shape that the product has and can be observed from the outside. The technical scheme proposed for product shape can be the technical scheme proposed for product three-dimensional shape, such as the improvement of cam shape and cutter shape; It can also be a technical scheme of two-dimensional shape of products, such as the improvement of sectional shape of profiles. Gaseous, liquid, powdery, granular substances or materials, which have no definite shape, cannot be used as the shape characteristics of utility model products. The structure of a product refers to the arrangement, organization and interrelation of various components of the product. It can be a mechanical structure or a circuit structure. Mechanical structure refers to the relative position relationship, connection relationship and necessary mechanical cooperation relationship between the parts that make up the product; Circuit structure refers to the determined connection relationship between components that make up a product. III. Appearance design, also known as industrial product design, refers to a new design that combines the shape, pattern or their combination of products, as well as the combination of color, shape and pattern, and is aesthetically pleasing and suitable for industrial application. The carrier of design must be the product. Product refers to any article produced by industrial methods. Handicrafts, agricultural products, livestock products and natural objects that cannot be produced repeatedly cannot be used as the carrier of design. Usually, the color of a product can't form a design independently unless the color change of the product itself has formed a pattern. The combinations that can constitute the design are: the shape of the product; The style of the product; The shape and pattern of the product; The shape and color of the product; Patterns and colors of products; The shape, pattern and color of the product. Shape refers to the design of product modeling, that is, the appearance outline presented by the movement, change and combination of points, lines and surfaces outside the product, that is, the result of designing and manufacturing the product structure and appearance at the same time; Pattern refers to the pattern formed on the product surface by any arrangement or combination of lines, characters, symbols and color blocks. Patterns can be made by drawing or other ways that can reflect the designer's pattern design ideas. The pattern of the product should be fixed and visible, and should not be accidental and visible under specific conditions; Color refers to the color or color combination used in the product, and the natural color of the material used to manufacture the product is not the design color. Four. Objects not protected by patent law 1. Inventions and creations that violate laws, social ethics or harm public interests. National laws refer to laws formulated and promulgated by the National People's Congress or the NPC Standing Committee in accordance with legislative procedures. Excluding administrative regulations and rules. If the purpose of the invention itself violates the laws of the state, the patent right cannot be granted. Such as equipment, machines or tools for gambling; Drug abuse equipment, etc. Can't be patented. The purpose of the invention itself does not violate national laws, but those that violate national laws due to abuse do not belong to this category. 2. Scientific discovery. It refers to the revelation of objective phenomena, changing processes, characteristics and laws in nature. Scientific theory is a summary of the understanding of nature and a broader discovery. All belong to the extension of people's understanding. These recognized substances, phenomena, processes, characteristics and laws are different from the technical scheme to transform the objective world, and do not belong to inventions in the sense of patent law, so patent rights cannot be granted. 3. Rules and methods of intellectual activities. Intellectual activity refers to human thinking movement, which originates from human thinking and produces abstract results through reasoning, analysis and judgment, or indirectly acts on nature through human thinking movement as a medium to produce results. It is only the rules and methods to guide people to think, identify, judge and remember information. Because no technical means or laws of nature are used, and no technical problems are solved and technical effects are produced, it does not constitute a technical scheme. Such as traffic rules, grammar of various languages, fast algorithm or oral decision-making, psychological test methods, rules and methods of various games and entertainment, music scores, recipes, chess manuals, computer programs themselves, etc. 4. Diagnosis and treatment of diseases. It is a process of identifying, determining or eliminating the cause and focus with living people or animals as the direct implementation object. The exclusion of the diagnosis and treatment of diseases from the scope of patent protection is due to humanitarian considerations and social and ethical reasons. Doctors should have the freedom to choose various methods and conditions in the process of diagnosis and treatment. In addition, this method directly takes the living human body or animal body as the implementation object, which is theoretically considered not to belong to the industry, can not be used in the industry, and does not belong to the invention in the sense of patent law. For example, pulse diagnosis, psychotherapy, massage, various immune methods to prevent diseases, cosmetic or weight loss treatment, etc. However, drugs or medical equipment can be patented. 5. Species of animals and plants. However, patents may be granted for the production methods of animal and plant varieties in accordance with this Law. 6. Substances obtained by nuclear transformation. 7. Patterns are mainly used to mark the patterns, colors or the combination of the two.
Requirements for granting patent rights
In order to obtain the patent right, the invention must meet the substantive and formal conditions. Substantive conditions refer to the attribute requirements that an invention-creation applying for a patent must have, while formal conditions refer to the requirements of an invention-creation applying for a patent in terms of application documents and procedures. The conditions for granting a patent right mentioned here only refer to the substantive conditions for granting a patent right. (1) Novelty and novelty mean that no identical invention or utility model has been publicly published in domestic and foreign publications, publicly used in China or known to the public in other ways before the filing date. The same invention or utility model has not been applied to the Patent Office by others, and it is recorded in the patent application documents published after the application date. The invention or utility model for which a patent is applied must meet the standards of novelty, must be different from the existing technology, and there shall be no conflicting applications. 1. prior art. The existing technology is the technology that has been published before the filing date. There are three ways of technology disclosure: (1) publication disclosure, that is, technical information is publicly disclosed at home and abroad through publications. Its regional standards are international. The publication here refers to an independent tangible communication carrier with technical or design content, which can be printed matter, printed matter or handwritten matter, or made by other means such as electricity, light, magnetism and photography. Its carrier is not limited to paper, but also includes various other types of carriers, such as microfilm, film, magnetic tape, optical disk, photographic film and so on. The public disclosure of technical information refers to the disclosure of technical content by unspecified relevant public who does not undertake confidentiality obligations. The degree of disclosure shall be subject to the implementation of ordinary technicians in the field. (2) The use of publicity, that is, through the use or implementation of public technical content in China. Its geographical standard is in China. (3) Other publicity methods, that is, publications and publicity by other means, mainly refer to oral publicity, such as oral talks, lectures, reports, discussion speeches, and broadcasting on radio or TV stations. , so that the public can understand the relevant technical content. Its regional standard is in China. 2. Conflict with the application. Conflict application refers to the invention or utility model for which a patent is applied. Before the filing date, the same invention or utility model has been filed with the Patent Office by others and recorded in the patent application documents published after the filing date of the invention or utility model. Apply first and then apply. Contradictions with the application will destroy novelty and prevent patent duplication. It is not considered as the loss of novelty. The invention, utility model and design for which a patent application is filed shall not lose its novelty in any of the following circumstances within 6 months before the filing date: (1) It was exhibited for the first time at an international exhibition sponsored or recognized by the China Municipal Government; (2) It was first published at an academic conference or technical conference organized by relevant competent departments and national academic organizations in the State Council; (three) without the consent of the applicant, others disclose its contents. (2) Creativity means that compared with the prior art before the filing date, the invention has outstanding substantive features and remarkable progress, and the utility model has substantive features and progress. The invention or utility model for which a patent is applied must be substantially different from the existing technology before the filing date in the composition of the technical scheme, and must be the result of creative thinking activities, rather than the result that the existing technology can naturally obtain through simple analysis, induction and reasoning. Invention is more creative than utility model. Creative judgment is based on the knowledge and judgment ability of ordinary technicians in their respective fields. (3) Practicality Practicality means that the invention or utility model can be manufactured or used and can produce positive effects. It has two meanings: first, the technology can be manufactured or used in industry. Industry includes industry, agriculture, forestry, aquaculture, animal husbandry, transportation and service industry. Industrial manufacturing and utilization refers to feasibility and reproducibility. Second, it must be able to produce positive effects, that is, compared with the existing technology, the invention or utility model for which a patent is applied can produce better economic or social benefits, such as increasing the number of products, improving the quality of products, increasing the functions of products, saving energy or resources, preventing and controlling environmental pollution, etc. (four) other conditions, such as the specification needs to fully disclose the technology for which the patent is applied. Please refer to the latest patent law and implementation rules for details. (1) The design for which a patent for design has been granted shall be different from or not similar to the design that has been published in domestic and foreign publications or publicly used in China before the date of application. Design must be attached to specific products, so "difference" not only refers to the difference of design itself in shape, pattern, color or their combination, but also includes the difference of products adopting the design scheme. "Inconsistency" requires that the patented design cannot be a simple imitation or slight change of the shape, pattern, color or their combination of the existing design. Approximate design includes the following situations: the shape, pattern and color are similar, and the products are the same; The shapes, patterns and colors are the same, and the products are similar; The shape, pattern and color are similar, and the products are similar. (2) Practicality The patented design must be suitable for industrial application. This requires that the design itself and the product as a carrier can be replicated repeatedly in an industrialized way, that is, it can be mass-produced in industry. (3) The patented design must have aesthetic feeling. Aesthetic feeling refers to the pleasant feeling of design from visual perception, which is not necessarily related to the advanced functions of products. Aesthetic design plays an important role in expanding product sales. (4) It shall not conflict with the legal rights previously obtained by others. The prior rights here include trademark right, copyright, enterprise name right, portrait right and the right to use the unique packaging and decoration of well-known goods. "Prior acquisition" refers to the acquisition before the application date or priority date of the design. (5) Other conditions. Please refer to the latest patent law and implementation rules for details.
[Edit this paragraph] Procedure for granting patent right
I. Patent Application (1) Principle of patent application 1. Principle of legal form. All procedures for applying for a patent shall be handled in written form or other forms stipulated by the China National Intellectual Property Administration Patent Office. All kinds of procedures for printing, typing or handwritten documents directly or indirectly by oral, telephone, physical and other non-written forms, or by telegraph, telex, fax, film and other means of communication are regarded as not submitted and have no legal effect. 2. The principle of oneness. This means that a patent application can only be limited to one invention. However, two or more inventions or utility models belonging to a general inventive concept may be filed as one application; Two or more designs of products sold or used in the same category in sets may be filed as one application. 3. Apply first. Where two or more applicants apply for a patent for the same invention-creation, the patent right shall be granted to the first applicant. (2) Patent Application Documents To apply for a patent for invention or utility model, a request, specification, abstract, patent claim and other documents shall be submitted. The request shall specify the name of the invention or utility model, the name of the inventor or designer, the name and address of the applicant and other matters. The specification shall give a clear and complete description of the invention or utility model, which shall be subject to the realization of the technical personnel in the technical field; Attached drawings shall be attached when necessary. The technical points of the invention or utility model shall be briefly explained. The patent claim shall be based on the specification and indicate the scope of patent protection. To apply for a patent for a design, the applicant shall submit a request, a picture or photograph of the design and other documents, and shall specify the product and its category in which the design is used. (3) The date of patent application is the date when the Patent Office receives the patent application documents. If the application documents are mailed, the postmark date of mailing shall be the application date. Where the applicant enjoys priority, the priority date shall be regarded as the filing date. Article 29 of the Patent Law stipulates international priority and domestic priority. International priority means that if an applicant files a patent application for the same subject in China within 12 months from the date when a foreign country first filed an application for a patent for invention or utility model, or within 6 months from the date when a foreign country first filed an application for a patent for design, he can enjoy the priority according to the agreement signed between the foreign country and China or the international treaties to which both countries are parties, or according to the principle of mutual recognition of priority. Domestic priority means that an applicant can enjoy priority if he files a patent application with the same theme with the Patent Office within 12 months from the date when he first filed an application for a patent for invention or utility model in China. Examination and approval of patent application (1) Examination and approval of invention patent 1. Preliminary inspection. The patent administration organ shall find out whether the application meets the requirements of the patent law on the form of application. 2. Pre-publicity. After receiving an application for a patent for invention, the Patent Office, after preliminary examination, finds that it meets the requirements, and shall publish it 18 months after the date of application. The Patent Office may publish its application at an early date upon the request of the applicant. 3. Substantive review. An application for a patent for invention may, at the request of the applicant, be examined in substance at any time within 3 years from the date of filing; If the applicant fails to request substantive examination within the time limit without justifiable reasons, the application shall be deemed to have been withdrawn. When the Patent Office deems it necessary, it may examine the application for a patent for invention on its own. 4. Announcement of authorization registration. If the application for a patent for invention is not found rejected after substantive examination, the Patent Office shall make a decision to grant the patent right for invention, issue a patent certificate for invention, and register and announce it at the same time. The invention patent right shall take effect as of the date of announcement. (II) Examination and Approval of Patents for Utility Models and Designs Where an application for a patent for utility models and designs has not been rejected after preliminary examination, the Patent Office shall make a decision to grant the patent right for utility models or designs, issue the corresponding patent certificate, and register and announce it at the same time. The patent right for utility model and the patent right for design shall take effect as of the date of announcement. Three. Patent Re-examination and invalidation China National Intellectual Property Administration established the Patent Re-examination Board. If the applicant for a patent refuses to accept the decision of the Patent Office to reject the application, he may, within 3 months from the date of receiving the notice, request the Patent Reexamination Board for reexamination. After reexamination, the Patent Reexamination Board shall make a decision and notify the patent applicant. If the patent applicant refuses to accept the reexamination decision of the Patent Reexamination Board, he may bring a lawsuit to the people's court within 3 months from the date of receiving the notice. After the invention-creation is granted a patent right, any unit or individual may apply for invalidation of the patent right if it finds that it does not conform to the relevant provisions of the Patent Law from the date of patent authorization. To request invalidation of a patent, an application and relevant documents must be submitted to the Patent Reexamination Board in accordance with the law, and the reasons must be explained. If the Patent Reexamination Board considers that the request complies with the law, it shall make a decision to declare the patent invalid or maintain the patent right in accordance with legal procedures. If a party refuses to accept it, he may bring a lawsuit according to law. After the patent right is declared invalid, the patent right shall be regarded as nonexistent from the beginning. The decision to declare the patent right invalid has no retrospective effect on the judgments and rulings of patent infringement made and executed by the people's court before the patent right is declared invalid, the decisions on handling patent infringement disputes that have been performed or executed, and the patent licensing and patent transfer contracts that have been performed. However, if the patentee's malice causes losses to others, it shall make compensation. If the patentee or patent assignor fails to return the patent royalty or patent assignment fee to the licensed patentee or patent assignee in accordance with the above provisions, which obviously violates the principle of fairness, the patentee or patent assignor shall return all or part of the patent royalty or patent assignment fee to the licensed patentee or patent assignee.