According to the provisions of China's patent law, there are three kinds of inventions that can be protected by patents: inventions, utility models and designs, of which invention patents are the most important. Here we must first ask what is an invention? The patent laws of most countries do not define invention, and scholars have different opinions on the definition of invention. Through the understanding and analysis of the provisions of patent laws in various countries, it can be considered that invention is a technical solution put forward by inventors to specific problems by using natural laws. Therefore, it is pointed out in the detailed rules for the implementation of China's patent law that "the invention mentioned in the patent law refers to a new technical scheme proposed for a product, method or its improvement". The inventor can only succeed if he applies to the Patent Office for this technical scheme and passes a series of rigorous examinations, especially the examination of novelty, creativity and practicality. Grant a patent right to an application for a patent for invention that meets the requirements. The applicant should also go through the registration formalities on schedule and pay the annual fee for the current year, so that the application for a patent for invention can formally become an invention patent with various patent attributes.
It is worth pointing out that invention is different from discovery. Discovery is to reveal the natural laws and essence that already exist in nature, but have not been recognized by people. Invention is a technical scheme to solve specific problems by using the laws or essence of nature. Found it impossible to apply for a patent. Only inventions can be patented. It should also be pointed out that the invention referred to in the patent law is only a technical solution to a specific problem. Although the concept of this technical scheme has not been proved by practice that it can be directly used in industrial production and made into concrete articles when obtaining the patent right, it is an intangible intellectual property right. However, the conception of this technical scheme can not be compared with those who simply put forward the technical name and idea, or just express a wish, and there is no clear and specific implementation method, nor does it have the possibility of future implementation. Obviously, the latter cannot be called an invention in patent law.
Inventions mentioned in the patent law can be divided into product inventions (such as machines, instruments, equipment and appliances) and method inventions (manufacturing methods). Inventions in some technical fields are not patented, such as diagnosis and treatment of diseases and substances obtained by nuclear transformation. The invention of computer software depends on whether it belongs to simple computer software or special software that can be combined with hardware and treated differently. The latter can apply for patent protection. As for inventions involving microorganisms, you can also apply for invention patents. However, the certificate of microbial preservation shall be submitted on schedule.
What is a utility model patent?
The detailed rules for the implementation of the Patent Law stipulate: "The term" utility model "as mentioned in the Patent Law refers to a new technical scheme suitable for practical use for the shape, structure or combination of products". It can be seen that the utility model is also a technical scheme. This has something in common with the present invention, but there are important differences in other aspects. First, the utility model only protects the product, which should be an entity with a certain space manufactured by industrial methods. However, the manufacturing method, use and usage of this product do not belong to the protection scope of utility model patent. In practical application, if the applied patent name is a product, and all the technical features recorded in the independent claim in its claim are a method or a method in essence; Or has no features in shape and structure, and belongs to the same product manufactured by different technological methods. These are not the scope of protection of utility model patents. Second, the utility model must have a certain shape or structure, or a combination of the two. The shape of the product is a definite spatial shape that can be observed from the outside, and it can't be a plane. The structure of a product refers to the corresponding position of its components, the connection mode between them and the matching relationship between them. This structure can be mechanical or electronic circuit structure, that is, the determined connection relationship between the components that make up the product. Or both mechanical structure and electronic circuit structure, so as to form a complete technical scheme and achieve the required effect. This is the interpretation of the utility model patent.
What is a design patent?
Design refers to the design of industrial products, which is the style of industrial products. It is completely different from the invention or utility model, that is, the design is not a technical solution. ? Article 2 of the Detailed Rules for the Implementation of China's Patent Law stipulates: "Appearance design refers to a new design that is aesthetically pleasing and suitable for industrial application for the shape, pattern, color or combination of products." It can be seen that the design patent shall meet the following requirements.
? (1) Design refers to the design of shapes, patterns, colors or their combinations. The invention and utility model are based on the conceptual technical scheme itself, while the appearance design is based on the specific shape or shape of the appearance. Such as three-dimensional product modeling (TV, car appearance), two-dimensional graphic design patterns (bed sheets, carpet patterns); Color is an integral part of the pattern. In other words, the design can be three-dimensional modeling, plane patterns, supplemented by appropriate colors, and sometimes it can be an organic combination of the three.
(2) Design must be the design of product appearance. As the name implies, design is the design of a product. This product must have a certain shape and be free to move before it can be used as the carrier of design. For example, a painting or a pattern itself is not a design, but if it is printed on a product, the painting or pattern becomes a design.
(3) The design must be beautiful. According to the provisions of China's patent law, the design must have aesthetic feeling. Because it is the decorative style of the appearance of industrial products, this aesthetic feeling should be manifested in the patterns, colors or patterns on the surface of goods, or in the three-dimensional modeling of goods. The so-called aesthetic feeling should be based on the eyes of most consumers.
(4) The design must be suitable for industrial application. This means that the products using this design can be copied in large quantities through industrial production process, and naturally also through handicraft production methods.