According to the provisions of the patent law, the following two requirements are met as conflicting applications:
1. Before others file a patent application with the Patent Office.
Two, recorded in the patent application documents published after the date of patent application.
The purpose of conflicting applications is to prevent different subjects from repeatedly granting patent rights after filing patent applications for the same invention and creation, so that the granted patents are not unique. At the same time, it also embodies the principle of patent priority in China's patent system, ensuring that the patent is awarded to the first applicant.
In reality, after filing a patent application, some inventors may request to withdraw their patent application at the application examination stage for various reasons. The law allows the applicant to withdraw the patent application at any time before being granted the patent right. The withdrawal of a patent application can take the form of action or omission. When the applicant makes a statement to the Patent Office in written form and voluntarily requests to withdraw the patent application, the withdrawal will inevitably terminate the examination procedure of the Patent Office, thus not producing the result of authorizing and disclosing the contents of his invention and creation.
If the application is withdrawn before publication, it shall be deemed that the application did not exist from the beginning. If the latter application exists, the latter application becomes the only application, and the patent right can be obtained if other conditions are met. This shows that the withdrawal of the earlier application before its publication does not constitute a conflict with the later application. Without the requirement of "post-publication", conflicting applications cannot be formed, so the novelty of post-application will not be lost.
Where the applicant withdraws his application due to omission, it occurs in the examination procedure of invention patent. The examination and approval of an application for a patent for invention is carried out by the Patent Office after the preliminary examination, which is also called early disclosure, and then the substantive examination is carried out at the request of the applicant. If the applicant for a patent for invention fails to request substantive examination within three years from the date of application without justifiable reasons, the application shall be deemed to have been withdrawn. Withdrawing a patent application by omission is also a legal choice of the applicant, which is also universal in real life. But at this time, the application has been made public. For the latter application that occurred before publication, according to the provisions of the current patent law, the earlier application has constituted a conflict with the latter application, because the two necessary elements of the conflicting application have been met, so the latter application loses its novelty and cannot obtain a patent right. Therefore, the two applicants, for different reasons, did not obtain the patent right. The author thinks that the current regulations are not reasonable and worth discussing.
The examination and approval procedures for invention patents are different from those for utility models. The disclosure of invention patent application precedes authorization, while the disclosure of utility model patent application is synchronized with the grant of patent right. Therefore, for the utility model, it is reasonable to take "earlier application" and "later disclosure" as the constitutive requirements of conflicting applications, which can avoid repeated authorization. As for the invention patent, even if the application is open, it has not been authorized, and the earlier application has been withdrawn at this stage. At this point, the subsequent application that existed before the application was published has become the only application, and the patent authorization is also unique if other conditions are met. However, according to the current law, it is unfair and unreasonable to deprive the following applicants of their rights because of the formation of conflicting applications. The purpose of excluding conflicting applications is to ensure the exclusivity of granting patents. However, when the premise of repeated authorization no longer exists, it is still regarded as a conflict, and the result is contrary to the original legislative intention of establishing the application of conflict.
Four elements of conflict application:
1. Applicant: any unit or individual, including the applicant himself;
2. Date of filing: file an application with the Patent Office before the patent application under review is the first application;
3. Date of publication: The Patent Office shall publish it according to law on or after the date of application;
4. Identity of inventions: the application documents record the same invention or utility model as the latter application.
The influence of application conflict on novelty and creativity and how to avoid application conflict;
If the filing date of the conflicting application is before the publication date, it will damage the novelty of the application for a patent for invention or utility model, but it will not damage the creativity of the application for a patent for invention or utility model. In order to avoid application conflicts, you can consult relevant departments before applying and find a professional patent agency to apply for comparative insurance.