I hope it is useful for your understanding.
What is a patent?
Patent is the most basic concept in patent law. There are generally three meanings in society: one refers to the patent right; Second, it refers to inventions protected by patent rights; The third refers to patent documents. For example: I have three patents, that is, I have three patents; The product contains three patents, that is, the product uses three inventions (patented technology or design) protected by patents; I'm going to look up patents, that is, patent literature. The patent mentioned in the patent law mainly refers to the patent right.
The so-called patent right is the exclusive right granted by China National Intellectual Property Administration to the applicant to exploit his invention and creation according to the patent law. After an invention is completed, it will often lead to various complicated social relations, the most important of which is who should own the invention, the scope of rights and how to use it. It is difficult to solve these problems with inventions that are not protected by patents, and anyone can use the contents of this invention after it is leaked. After an invention is granted a patent right, the patent law protects the patent right from infringement. Anyone who wants to exploit a patent must obtain the permission of the patentee and pay the royalties according to the agreement of both parties, otherwise it is infringement. The patentee has the right to ask the infringer to stop the infringement. If the patentee suffers economic losses due to infringement, he may also claim compensation from the infringer. if it is
If the party concerned refuses, the patentee has the right to request the administrative department for patent affairs to handle it or bring a lawsuit to the people's court.
Patent right is a kind of intellectual property right, which is different from tangible property right and has time and geographical restrictions. The patent right is only valid for a certain period of time. After the expiration, the patent right will cease to exist, and the inventions protected by it will become the common wealth of the whole society, and anyone can use them freely. The term of validity of the patent right is stipulated by the patent law. The geographical restriction of patent right refers to the patent right granted by one country, which is only valid within the legal jurisdiction of the granting country and has no legal binding force on other countries. Patents granted by countries are independent of each other.
Patents do not automatically arise with the completion of inventions. The applicant needs to apply to the China National Intellectual Property Administration Patent Office in accordance with the procedures and formalities stipulated in the Patent Law, and the patent can only be granted if it meets the requirements of the Patent Law after being examined by the China National Intellectual Property Administration Patent Office. If the applicant does not apply to the China National Intellectual Property Administration Patent Office, no matter how important the invention is, the patent right cannot be granted.
An invention-creation that has obtained a patent right must fully disclose the invention content in the patent claim, specification or pictures and photographs, because when intangible inventions are transformed into patent rights, the scope of protection must be defined by the patent claim or pictures and photographs, and these public contents are the only basis to support the existence of rights. Instructions, claims, pictures and photographs that record the contents of inventions and creations are the most important parts of patent documents.
Patents usually refer to invention patents internationally. In addition to invention patents, China's patent law also stipulates that there are utility model and design patents, and stipulates that the validity period of invention patents after approval is 20 years from the date of application, and the validity period of utility model and design patents is 10 year from the date of application.
What is intellectual property?
Intellectual property refers to the exclusive rights enjoyed by citizens, legal persons or other organizations in science and technology or culture and art for the intellectual achievements obtained by creative labor. This definition includes three meanings:
(1) The object of intellectual property is the intellectual achievement of human beings, which some people call spiritual (intellectual) output. This kind of output (intellectual achievement) also belongs to an intangible property or intangible property, but it is different from intangible property belonging to physical products (such as electricity) and intangible property belonging to rights (such as mortgage and trademark rights). It is the direct product of human intellectual activity (brain activity). This intellectual achievement is not only thought, but also the expression of thought. But it is different from the carrier of thought.
(2) The exclusive use of intellectual achievements by the right subject is similar to the ownership in real right, so it was classified as real right in the past.
(3) The benefits obtained by the obligee from intellectual property rights are both economic and non-economic. These two aspects are combined and inseparable. Therefore, intellectual property rights are different from neighboring rights (mainly non-economic interests) and property rights (mainly economic interests).
Intellectual property rights include: industrial property rights and copyright (called copyright in China).
■ Industrial property rights consisting of invention patents, trademarks and industrial designs. Industrial property rights include patents, trademarks, service marks, names of manufacturers, names of countries of origin and prevention of unfair competition. The following only points out some main types of industrial property rights:
△ Trademark right refers to the exclusive right granted by the national law to the trademark authority to protect the registered trademark of the trademark owner. A trademark is a commercial symbol used to distinguish goods and services from different sources. It consists of words, graphics, letters, numbers, three-dimensional symbols, color combinations or combinations of the above elements. The acquisition of trademark rights in China must fulfill the trademark registration procedure and implement the principle of first application. Trademark is an identification mark in industrial activities, so the function of trademark right mainly lies in maintaining order in industrial activities, which is different from that of patent right mainly in promoting industrial development.
△ Patent right and patent protection refer to filing a patent application with the State Patent Office, which, after being examined and approved according to law, grants the patent applicant the exclusive right to enjoy the invention and creation within a specified time. After an invention-creation is granted a patent right, the patentee enjoys exclusive rights to his invention-creation. No unit or individual may exploit its patent without the permission of the patentee, that is, it may not manufacture, use, promise to sell, sell or import its patented products for production and business purposes. Without the permission of the patentee, the implementation of his patent will infringe his patent right and cause disputes, which shall be settled by the parties through consultation; Unwilling to negotiate or if negotiation fails, the patentee or interested party may bring a lawsuit to the people's court or request the administrative department for patent affairs to handle it. Patent protection adopts the protection mode of "two-way parallel and judicial guarantee" between judicial and administrative law enforcement. The administrative protection in this area takes the form of patrol law enforcement and joint law enforcement, focusing on cracking down on group infringement, repeated infringement and other phenomena that seriously disturb the patent legal environment.
△ Trade name right. In other words, the manufacturer's name right is the right to use its registered trademark name (manufacturer's name, enterprise name) without interference from others. The business name right of an enterprise cannot be equated with the personal name right (a kind of personality right).
In addition, such as the name of origin, know-how and anti-unfair competition are also stipulated in the Paris Convention, but the name of origin is not an intellectual achievement, and know-how and unfair competition can only be protected by the anti-unfair competition law, generally not included in the scope of intellectual property rights.
■ Natural science, social science, literature, music, drama, painting, sculpture, photography and cinematography constitute copyright. Copyright refers to the right of a unit or individual to print, publish and sell a work according to law. Anyone who wants to copy, translate, adapt or perform needs permission from the copyright owner, otherwise it will infringe on the rights of others. The essence of intellectual property rights is to treat human intellectual achievements as property. Copyright is the creator and creator of literary, artistic and scientific works, and it is a civil right enjoyed by their works according to law.
△ All rights reserved. In China, copyright in a broad sense includes copyright (in a narrow sense), neighboring rights of works, computer software copyright and so on. , which belongs to the scope stipulated by the copyright law. This is the exclusive right of the copyright owner to use the crop (work). In a narrow sense, copyright is divided into the right of publication, the right of signature, the right of modification, the right to protect the integrity of a work, the right to use it and the right to receive remuneration (article 10 of the Copyright Law). It is inappropriate to divide copyright into personal rights and property rights of works. Copyright, patent right and trademark right sometimes overlap, which is a feature of intellectual property rights.