First, the starting point of patent life calculation
In the patent law, the calculation of patent life is not based on the date of filing, but on the date of announcement of patent authorization. This is because, from the date of application to the date of authorization announcement, patents need to go through many links such as examination, revision and announcement, which takes a certain amount of time. Therefore, calculating the patent life from the date of authorization announcement can more accurately reflect the actual effective period of the patent.
Second, the legal provisions of the patent term.
According to Article 42 of the Patent Law of People's Republic of China (PRC), the term of invention patent is 20 years, and the term of utility model patent and design patent is 10 years, counting from the date of filing. However, the term "counting from the date of application" here refers to the protection period of the patent right, not the term of the patent right. The actual calculation of patent life is still subject to the date of authorization announcement.
Third, the difference between patent life and protection period.
It is worth noting that patent term and patent protection term are two different concepts. The term of patent protection is calculated from the date of application, which determines the time range for the patentee to enjoy patent protection. The patent life is calculated from the date of authorization announcement, which determines the length of time that the patentee actually enjoys the patent rights and interests. Therefore, when we understand and apply these two concepts, we need to distinguish them.
Four. Matters needing attention in actual operation
In practice, the applicant should pay attention to the fact that the announcement date of patent authorization may be later than the filing date, so the announcement date of patent authorization shall prevail when calculating the patent life. At the same time, the applicant should also pay attention to the protection period of the patent, so as to ensure the full exercise of the patent right during the protection period and avoid damage to the rights and interests.
To sum up:
The patent term is calculated from the date of authorization announcement, not the date of application. When calculating the patent life, the relevant provisions of the Patent Law of People's Republic of China (PRC) shall be taken as the basis, and the date of authorization announcement shall prevail. At the same time, the applicant also needs to distinguish between the patent term and the protection term to ensure that he can fully exercise and protect his rights and interests while enjoying the patent right.
Legal basis:
patent law of the people's republic of china
Article 42 provides that:
The term of the invention patent right is 20 years, and the term of the utility model patent right and the design patent right is 10 years, both counting from the date of application.
Detailed Rules for the Implementation of People's Republic of China (PRC) Patent Law
Article 43 provides that:
The patent right shall take effect as of the date of announcement.