Article 9 of China's patent law stipulates that 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.
Thus, if the provisions of Article 9 are met, the two applications must be filed on the same day. If the invention application is late, the same date as the utility model (earlier application date) becomes the priority date, and the later application date is different from the utility model. Does not comply with article 9 of the law.
Unless, the subject gives up the patent right of utility model obtained before, claims the invention priority, and resubmits the invention patent application (there is also a premise that the priority period does not exceed 12 months).