(1) An invention-creation that is granted a patent right must be an invention, utility model and design that conforms to the provisions of Article 2 of the Patent Law. Where the subject matter of the application is not an invention, utility model or design as stipulated in the Patent Law, no patent right may be granted;
(2) The theme of the patent right must be within the scope of the theme that can be granted a patent right, that is, it cannot be within the scope of not granting a patent right as stipulated in Article 25 of the Patent Law;
(3) The theme of granting a patent right must be that it cannot violate national laws, social ethics or harm public interests, that is, it cannot be excluded by Article 5 of the Patent Law;
(4) The theme of the patent right must conform to the provisions of Articles 22 and 23 of the Patent Law, that is, the invention or utility model that is granted a patent right should be novel, creative and practical. The design to which the patent right is granted shall be different from or similar to the existing design, and shall not conflict with the legal rights previously obtained by others.
Second, the scope of the patent right cannot be granted.
1. No patent right shall be granted for inventions that violate laws, social ethics or harm public interests.
No patent right shall be granted to inventions and creations obtained or utilized in violation of laws and administrative regulations and completed by relying on genetic resources. Such as equipment, machines or tools for gambling; Drug abuse equipment, etc. Can't be patented. The purpose of the invention itself does not violate national laws, but those that violate national laws due to abuse do not belong to this category.
2. Scientific discovery
It reveals the objective phenomena, changing process, characteristics and laws of nature. Scientific theory is a summary of the understanding of nature and a broader discovery. All belong to the extension of people's understanding. These recognized substances, phenomena, processes, characteristics and laws are different from the technical scheme to transform the objective world, and do not belong to inventions in the sense of patent law, so patent rights cannot be granted.
3. Rules and methods of intellectual activities
Intellectual activity is human thinking movement, which originates from human thinking, produces abstract results through reasoning, analysis and judgment, and can also indirectly act on nature through human thinking movement as a medium. It is only the rules and methods to guide people to think, identify, judge and remember information. Because no technical means or natural laws are used, technical problems are not solved and technical effects are produced, it does not constitute a technical scheme. Such as traffic rules, grammar of various languages, speed algorithm or formula, psychological test methods, rules and methods of various games and entertainment, music scores, recipes, chess manuals, computer programs themselves, etc.
4. Diagnosis and treatment of diseases
It is a process of identifying, determining or eliminating the cause and focus with living people or animals as the direct implementation object. The exclusion of the diagnosis and treatment of diseases from the scope of patent protection is due to humanitarian considerations and social and ethical reasons. Doctors should have the freedom to choose various methods and conditions in the process of diagnosis and treatment. In addition, this method directly takes the living human body or animal body as the implementation object, which is theoretically considered not to belong to the industry, can not be used in the industry, and does not belong to the invention in the sense of patent law. For example, pulse diagnosis, psychotherapy, massage, various immune methods to prevent diseases, cosmetic or weight loss treatment, etc. However, drugs or medical equipment can be patented.
5. Species of animals and plants. However, for the production methods of animal and plant varieties, patent rights may be granted in accordance with the provisions of the Patent Law.
6. Substances obtained by nuclear transformation.
7. The design of pattern, color or combination of the two for plane printed matter.
Except for special items that are restricted from applying for patents, as long as they are inventions, utility models or designs obtained after ordering scientific research results, they can apply for patents according to the urging. Once the application is approved, the patent owner will get the patent right for 20 years, and the right will be valid for 20 years. In the meantime, if someone steals a patent, he can sue.
Legal basis:
People's Republic of China (PRC) Patent Law Article 2 Invention-creation as mentioned in this Law refers to inventions, utility models and designs. Invention refers to a new technical scheme proposed for a product, method or its improvement. Utility model refers to a new practical technical scheme for the shape, structure or combination of products. Appearance design refers to a new design that is aesthetically pleasing and suitable for industrial application, which is made on the shape, pattern or their combination of products and all or part of the combination of colors, shapes and patterns.