2022-07-06

The official reference answer is A, but the author's answer is B, because the patent protection period is calculated from the date of filing, which refers to the "filing date of China Patent Office", and is not affected by the patentee's request for foreign priority, because the calculation of patent protection period has nothing to do with the priority system. Even if the patent applicant enjoys domestic priority. Since the earlier application that is the basis of priority is deemed to be withdrawn after the latter application is filed, the patent right is granted according to the latter application, and the application date of which of course refers to the application date of the latter application. The following rules also prove that the answer to this question should be item B.

Article 28 of the Patent Law stipulates that the date when the patent administrative department of the State Council receives the patent application documents shall be the filing date. If the application documents are mailed, the postmark date of mailing shall be the application date.

Paragraph 1 of Article 42 of the Patent Law stipulates that the term of an invention patent is 20 years, that of a utility model patent is 10 year, and that of a design patent is 15 year, all of which are counted from the date of filing.

Therefore, the protection period of a patent should be calculated from the actual application date, not from the priority date. In this topic, the patent of an American company is an invention patent and the protection period should be 20 years; The actual filing date of China is May 9, 2005, so the protection period should be counted from that date. The author's answer to this question is item B.