First of all, the performance of the invention is different from that of the utility model patent. Inventions and utility models granted patent rights should be novel, creative and practical. Novelty means that the invention or utility model does not belong to the prior art; No unit or individual filed an application for the same invention or utility model with the administrative department for patent in the State Council before the filing date, and it was recorded in the patent application documents published or announced after the filing date. Creativity means that compared with the prior art, the invention has outstanding substantive features and remarkable progress, and the utility model has substantive features and progress. Practicality means that the invention or utility model can be manufactured or used and can produce positive effects.
Second, the protection objects of invention and utility model patents are different. An invention patent protects an improved product, method or new technical scheme. Inventions are divided into product inventions and method inventions. Product inventions include all inventions made by people. Methods Inventions include all methods that make use of natural laws, which can be divided into manufacturing methods and operating methods, such as inventions made in processing methods, manufacturing methods, inspection methods or product use methods. An invention protected by the patent law can also be an improvement of an existing product or method. Most inventions are improvements on the existing technology, such as new combinations of certain technical features and new choices of certain technical features. As long as these combinations or choices produce new technical effects, they are inventions that can be protected by patents. The utility model patent only protects the shape and structure of the product, or a new technical scheme that is suitable for practical use. It cannot be a method, such as production method, test method, treatment method and application method, nor can it be a product without a fixed shape, such as drugs, chemicals and cement. Therefore, the protection scope of utility model patent is narrower than that of invention patent.
Third, the examination and approval procedures for invention and utility model patents are different. After receiving an application for a patent for invention, the administrative department for patent in the State Council, after preliminary examination, finds that it conforms to the provisions of this Law, and shall publish it immediately after 18 months from the date of application. Within three years from the date of filing, the administrative department for patent in the State Council may, at the request of the applicant, conduct substantive examination of the application at any time. If the application for a patent for invention is not found to be rejected after substantive examination, the administrative department for patent in the State Council 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. Therefore, the examination and approval procedure of an application for a patent for invention includes five stages: acceptance, preliminary examination, publication, actual examination and authorization. The Patent Office accepts and examines an application for a patent for utility model, and if no reason for rejection is found after preliminary examination, it makes a decision to grant the patent right for utility model, issues the corresponding patent certificate, and registers and announces it at the same time, that is, the application for a patent for utility model has only three stages of examination and approval, namely, acceptance, preliminary examination and authorization, mainly aiming at novelty and practicality. Therefore, the examination and retrieval of invention patents are more stringent. After preliminary examination, utility model patents that meet the requirements of the Patent Law can be announced and issued with utility model patent certificates without publication and substantive examination, so utility models are easier to authorize than inventions. The examination period of invention and utility model patents is different. Because the technical fields of invention patents are wider, the review period of different technical fields is quite different, and some technical fields may take 2-3 years or even longer. Although the Intellectual Property Office has optimized the patent examination in recent years, the examination time has been greatly shortened, but the average time for invention authorization is still about one and a half to two years. The utility model patent is examined afterwards and authorized first. Only when there is a patent dispute will the novelty, creativity and practicality of the patent be substantially examined, so the utility model patent can generally get the patent certificate in about 6 months.
In addition, the protection period of invention and utility model patents is different. Article 42 of the Patent Law stipulates that the term of the invention patent right is 20 years, and the term of the utility model patent right and the design patent right is 10 years, counting from the date of application. In contrast, the protection period of utility model patents is much shorter than that of invention patents, mainly because in general, the process of utility model is simpler and easier than that of invention and creation, and the time for bringing benefits into play is shorter, so the legal provisions on the protection period of utility model are correspondingly shorter.
Also, the application fees for invention patents and utility model patents are different. The application fee shall be paid within two months from the date of application or within 15 days from the date of receiving the acceptance notice. The fees paid at the same time as the application fee also include publication printing fee and application surcharge. Where the priority is claimed, the priority claim fee shall be paid at the same time. If it is not paid or paid in full within the prescribed time limit, the patent application shall be deemed to have been withdrawn. According to the latest charging standard of 20 19 issued by China National Intellectual Property Administration, it can be seen that the amount of fees paid for invention patents is less than that for utility model patents, such as: application fee: 900 yuan for invention patent and 500 yuan for utility model; Review fee: invention patent 1000 yuan, utility model 300 yuan; Annual fee: invention patent 1-3 years (annually) in 900 yuan, 4-6 years (annually) 1200 yuan, 7-9 years 2000 yuan,10/2 years (annually) 4000 yuan,/kloc-0. 1-3 years (year) 600 yuan, 4-5 years (year) 900 yuan, 6-8 years (year) 1200 yuan, 9- 10 years (year) 2000 yuan. In addition, due to different examination and approval procedures, invention patents still need to pay publishing and printing fees and actual examination fees, while utility model patents do not.
Secondly, the later patent protection of invention patents and utility model patents is different. Because the invention patent protection is stronger, and after substantive examination, it has great advantages in the later patent protection. However, because the utility model patent has not been examined in advance, the fatal wound of the quickly authorized utility model is that it cannot be modified once it is formed, which also leads to the possibility that the utility model patent will be invalid after being authorized. According to Article 61 of the Patent Law, if a patent infringement dispute involves a new product manufacturing method invention patent, the unit or individual that manufactures the same product shall provide proof that its product manufacturing method is different from the patented method. Where a patent infringement dispute involves a patent for utility model or a patent for design, the people's court or the administrative department for patent affairs may require the patentee or interested party to issue a patent evaluation report made by the patent administrative department of the State Council after searching, analyzing and evaluating the relevant utility model or design as evidence for hearing and handling the patent infringement dispute. Therefore, it is not necessary to provide a patent evaluation report for invention patent litigation, but a utility model must provide a right evaluation report. In the actual litigation process, the utility model is very weak in applying for pre-litigation injunction, and it is also easy to be terminated by litigation during the application process. Finally, by extension, according to Article 9 of the Patent Law, 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. That is to say, it involves the technology of shape, structure and their combination, that is, you can apply for both invention patents and utility model patents. Generally, when encountering this technology, the applicant can consider applying for the invention and utility model on the same day, and indicate the same content when applying, and apply for the utility model and invention patent at the same time. In this way, in the case that the invention patent is not authorized, the invention can be protected by the utility model patent first. If the invention patent is not authorized due to novelty and creativity, it can be guaranteed that the utility model patent protects the invention and creation. You can also extend the patent protection time as much as possible. If authorized first, you can get the protection period of 10 years. If the invention patent is also authorized, the applicant can give up the previous utility model patent and obtain the invention patent authorization. The protection period of the same invention is extended to 20 years. The invention patent after substantive examination can protect the invention achievement more effectively than the utility model patent.