? After China National Intellectual Property Administration released "Several Opinions of China National Intellectual Property Administration on Further Improving the Quality of Patent Application" in February 20 13, he even wanted to treat all utility models as "junk patents", even to the point of shouting and killing everywhere. However, the utility model still has its advantages that cannot be ignored. The following are some simple summaries for everyone to have a comprehensive consideration when determining the type of patent application.
1. The utility model can be authorized more quickly.
Inventions usually take 1.5-3.5 years to get authorization, while utility models usually take 6- 10 months to get authorization, which has obvious advantages.
2. The utility model application fee and annual fee are more favorable.
The official cost of the invention application stage is 3450 yuan, while the utility model only needs 500 yuan; As far as the annual fee after authorization is concerned, the utility model is also lower than the invention.
3. The utility model is more easily authorized.
Because the utility model does not need to go through the substantive examination procedure, although the newly revised Patent Examination Guide requires to examine its novelty, it still does not examine its creativity, so it is easier for the utility model to be authorized, provided that the project meets other requirements for the authorization of utility models.
Where an invention and a utility model are applied for the same project at the same time, the utility model shall be authorized first, and the invention may be rejected due to lack of creativity; However, this does not mean that the authorized utility model can also be declared invalid. See the analysis below for details.
4. The patent right of utility model is more stable and not easy to be declared invalid.
The conventional view is that the patent right of utility model is unstable, because it is easily declared invalid without going through the substantive examination procedure and directly authorized through formal examination and simple novelty examination.
The instability of the utility model is actually only aimed at those projects that are not novel and creative. This kind of project should not be authorized from the beginning, which is similar to the "junk patent" that people often say, and it is easy to be declared invalid.
However, if a project does have its innovation, then the utility model will be more stable. This is because in the process of invalidation, inventions and utility models are different in creative judgment criteria: first, the field of existing technology is narrowly limited to utility models, and generally does not extend to similar or related fields; Secondly, the number of existing technologies. For inventions, many existing technologies can be cited, but for utility models, they are limited to one or two items. Generally, many existing technologies are not cited to evaluate their creativity.
In other words, if a project applies for an invention, it is more likely to be invalid after authorization, because the cited documents are wider and more numerous; If the application is a utility model, the scope of the comparison document is narrow and the number is small, and the possibility of being declared invalid after authorization is even smaller.
On the other hand, when the same project applies for invention and utility model at the same time, the invention application can be rejected by citing three or four comparative documents; For an authorized utility model, it can't be declared invalid because it can't usually quote three or four comparison documents. Here also embodies the more stable characteristics of the utility model.
5. The examination process of the utility model is confidential and not interfered by the third party.
Due to the preliminary examination and announcement procedure, the invention application can be searched and viewed by the general public before it is authorized; However, the review process of the utility model is confidential, and the public cannot retrieve and view it, but can only view it after the authorization announcement.
For an application for invention, after its preliminary examination and announcement, anyone who thinks it is not in conformity with the provisions of the Patent Law may submit his opinions to the Patent Office, that is, public opinions; In other words, if competitors see that a patent application may be unfavorable to them, they can conduct a comprehensive search in advance to find documents that can affect novelty or creativity and submit them to the Patent Office. In the subsequent review process, the examiner can directly refer to these documents and reject the patent.
For the utility model, because the examination process is confidential, there is no procedure for receiving public opinions. It also shows that the utility model is easier to obtain authorization.
The above summarizes some advantages of the utility model. Of course, compared with the present invention, the utility model has both advantages and disadvantages, such as:
1, short protection period.
The invention is valid for 20 years, while the utility model is only 10 years, and cannot be renewed after its expiration.
2. After the utility model is authorized, it is uncertain whether it is novel and creative.
It needs to be verified by the patent evaluation report.
3. The compensation for rights protection of utility models is usually lower than that of invention patents.
Once the infringement is discovered, the defendant needs to "stop the infringement", which is also true for inventions and utility models; However, if the principle of statutory compensation is applied to compensation, the amount of compensation for utility models is usually lower than that for invention patents, but the difference will not be too great.
Appendix: Relevant provisions of the Patent Examination Guide
The fourth part, Chapter 6-4, examines the creativity of utility model patents.
Prior art field
For invention patents, we should not only consider the technical field to which the invention patent belongs, but also consider its similar or related technical fields, as well as other technical fields in which the technical problems to be solved by the invention can prompt technicians in this field to find technical means.
For utility model patents, the technical field to which utility model patents belong is generally considered. However, if there are clear revelations in the prior art, such as clear records in the prior art, which urge the technicians in this field to find relevant technical means in similar or related technical fields, they can consider their similar or related technical fields.
(2) the number of existing technologies
For invention patents, one, two or more existing technologies can be cited to evaluate their creativity.
For utility model patents, one or two existing technologies can generally be cited to evaluate their creativity, and for utility model patents formed by "simple superposition" of existing technologies, multiple existing technologies can be cited to evaluate their creativity according to the situation.
The second part, Chapter 8-4.9 Handling of public opinions.
Anyone's opinions on an application for a patent for invention that does not conform to the provisions of the Patent Law shall be kept in the application documents for the examiner to consider when examining the substance. If it is the public opinion received after the examiner issues the notice of patent grant, it need not be considered. The handling of public opinions by the patent office does not need to inform the public who put forward opinions.
Hope to adopt.