patent of invention
The definition of invention in the first paragraph of Article 2 of China's Patent Law is: "Invention refers to a new technical scheme proposed for a product, method or its improvement."
patent of invention
The so-called products refer to all kinds of new products that can be manufactured in industry, including solids, liquids and gases with certain shapes and structures. The so-called method refers to the method of processing raw materials and making various products. The invention patent does not seek the technical achievements that can be directly applied to industrial production through practice, but it can be a solution to technical problems or an idea with the possibility of industrial application. However, this technical scheme or idea cannot be confused with a simple topic or idea, because a simple topic or idea does not have the possibility of industrial application. Invention refers to a new technical scheme for a product, method or its improvement, which mainly embodies novelty, creativity and practicality. Patent inventions are divided into product inventions (such as machines, instruments and equipment, appliances) and method inventions (manufacturing methods).
Utility model patent
The definition of utility model in the second paragraph of Article 2 of China's Patent Law is: "Utility model refers to a new and practical technical scheme for the shape, structure or combination of products." Like the invention, the utility model protects a technical scheme. However, the protection scope of utility model patent is narrow, only protecting a certain shape.
New products with shapes or structures, unprotected methods and substances without fixed shapes. The technical scheme of the utility model pays more attention to practicality, and its technical level is lower than that of the invention. Most countries' utility model patents protect relatively simple and improved technological inventions, which can be called "small inventions". Utility model refers to a new practical technical scheme for the shape, structure or combination of products. The patent for utility model is granted without substantive examination, with simple procedures and low cost. Therefore, small inventions about tangible products such as daily necessities, machinery and electrical appliances are more suitable for applying for utility model patents.
design patent
The third paragraph of Article 2 of China's Patent Law defines appearance design as: "Appearance design refers to a new design that is aesthetically pleasing and suitable for industrial application based on the shape, pattern or combination of products and the combination of colors, shapes and patterns." And the conditions of its authorization are stipulated in Article 23 of the Patent Law. "The design that has been granted a patent right does not belong to the existing design; Before the filing date, no unit or individual has filed an application with the patent administration department of the State Council for the same design, and it is recorded in the patent documents published after the filing date. " Compared with the previous patent law, the newly revised patent law has higher requirements for design. Appearance design is obviously different from invention and utility model. Appearance design focuses on the designer's understanding of a project.
Artistic and aesthetic creation of product appearance, but this artistic creation is not a simple handicraft, it must be practical for industrial application. In essence, design patents protect artistic creativity, while invention patents and utility model patents protect technical creativity; Although the design and utility model are related to the shape of the product, they have different purposes. The former aims to make the appearance of products beautiful, while the latter aims to make products with appearance solve a technical problem. For example, if the shape, pattern and color of an umbrella are quite beautiful, it is necessary to apply for a design patent. If the umbrella handle, umbrella ribs and umbrella head are simple and reasonable in structural design, can save materials and have durable functions, you should apply for a patent for utility model. Appearance design refers to a new design with aesthetic feeling and suitable for industrial application based on the shape, pattern or combination of products and the combination of color and shape and pattern. The object of design patent protection is the decorative or artistic design of the product, which can be a plane pattern or a three-dimensional shape. More common is the combination of the two. The main condition for granting a design patent is novelty.
Patent characteristics
As a part of intellectual property, patent is an intangible property with characteristics different from other properties.
exclusiveness
That is exclusivity. It means that within a certain period of time (within the validity period of the patent right) and within a certain area (within the legal jurisdiction), no unit or individual may exploit its patent without the permission of the patentee, that is, it shall not manufacture, use, promise to sell, sell or import its patented products for the purpose of production and operation, or use its patented methods and manufacture, use, promise to sell, sell or import its patented products, otherwise it will be an infringement.
regional
Regionality means that the patent right is a right with geographical restrictions and is only valid within the legal jurisdiction. Except in some cases, according to the international convention for the protection of intellectual property rights, if an individual country recognizes the validity of the patent right approved by another country, the technological invention will be granted the patent right applied for by that country, and it is only valid within the scope of the patent-granting country, but it is not legally binding on other countries, and other countries do not undertake any protection obligations. However, the same invention can be patented in two or more countries at the same time, and its invention can be protected by law in all the applicant countries after it is approved.
in time
Timeliness means that a patent is only valid within the time limit prescribed by law. After the expiration of the effective protection period of the patent right, the patent right enjoyed by the patentee will be automatically lost and generally cannot be renewed. With the end of the protection period, the invention becomes the public wealth of the society, and others can freely use the invention to create products. The term of patent protection prescribed by law shall be stipulated by the patent law of the relevant countries or relevant international conventions. At present, the patent laws of all countries in the world have different provisions on the duration of patent protection. Article 33 (Intellectual Property Agreement) stipulates that "the term of protection shall not be less than the end of the twentieth year from the date of filing the application".
Three principles of patent application
Formal statutory principle
All procedures for applying for a patent shall be handled in written form or other forms stipulated by the China National Intellectual Property Administration Patent Office. All kinds of procedures for printing, typing or handwritten documents directly or indirectly by oral, telephone, physical and other non-written forms, or by telegraph, telex, fax, film and other means of communication are regarded as not submitted and have no legal effect.
Principle of oneness
This means that a patent application can only be limited to one invention. However, two or more inventions or utility models belonging to a general inventive concept may be filed as one application; Two or more designs of products sold or used in the same category in sets may be filed as one application.
Principle of first application
Where two or more applicants apply for a patent for the same invention-creation, the patent right shall be granted to the first applicant.