According to the provisions of Article 35 of the Patent Law, "within three years from the date of filing, the patent administrative department of the State Council may examine the application according to the request made by the applicant at any time; If the applicant fails to request substantive examination within the time limit without justifiable reasons, the application shall be deemed to have been withdrawn. " Therefore, the time limit for filing substantive examination is any time from the date of patent application to three years.
After the request for examination of patent substance comes into effect, Patent examiners will formally examine the patent application, with the contents of novelty, creativity and practicality. In the process of review, the examiner will generally issue a notice of review opinions, and the applicant will reply to the notice issued by the examiner. The reply period of the first notice of review opinions is 4 months, and the reply time of the subsequent notice of review opinions is 2 months. For an application for a patent for invention, it is normal for the applicant to receive 2-3 notices of examination opinions. For applications with high difficulty in authorization, it is possible to receive more than 5 notices of review opinions. Therefore, the time limit for replying to the notice of examination opinions is related to the number of the notice of examination opinions and the speed of replying to the notice of examination opinions.
According to the above analysis, the period of responding to the review opinions should be about 4 months to 8 months.
In addition, if the applicant cannot reply to the notice of examination opinions within the specified time, he may also apply for an extension before the time limit specified in the notice of examination opinions. He can apply for an extension of two months at a time, with a maximum of two extensions. If you apply for an extension, the time for replying to the review opinions can be very long.
The applicant for a patent for invention may amend the application for a patent for invention within three months from the date of filing a request for substantive examination and receiving the notice from the Patent Office that the application for a patent for invention has entered the substantive examination stage.
According to the Patent Law, the examination and approval procedure of an application for a patent for invention includes five stages: acceptance, preliminary examination, publication, actual examination and authorization. The application for a patent for utility model or design does not undergo early publication and substantive examination in the examination and approval, and there are only three stages: acceptance, preliminary examination and authorization.
What are the contents of substantive examination of invention patents?
(1) Whether it complies with the provisions of Article 5 of the Patent Law, that is, whether the subject matter of the patent application violates national laws, social morality or harms public interests;
(2) whether it conforms to the provisions of Article 25 of the Patent Law, that is, whether the subject matter of the patent application belongs to the scope where the patent right cannot be granted;
(3) Whether it meets the provisions of Article 33 of the Patent Law, that is, whether the patent application meets the requirements of oneness;
(4) Whether it complies with the provisions of Article 31 of the Patent Law, that is, whether the applicant has gone beyond the scope recorded in the original specification (including the appended drawings) and the claims when amending the application or filing a divisional application;
(5) Whether it conforms to the definition of invention stipulated in the Patent Law and its detailed rules for implementation, that is, the new technical scheme proposed for the product, method or its improvement.
(6) Whether it complies with the provisions of Article 18 of the Detailed Rules for the Implementation of the Patent Law, that is, whether the writing of the invention for which the patent application is applied meets the specified requirements, and making a clear and complete description of the invention to be protected, so that technicians in their technical fields can realize it;
(7) Whether it complies with the provisions of Article 20 of the Detailed Rules for the Implementation of the Patent Law, that is, whether the claim clearly and concisely states the scope of protection, whether the claim is based on the specification, and whether the independent claim contains all the necessary technical features to solve the technical problems to be solved by the invention.
(eight) whether the application meets the requirements of priority, if it is found that others filed another patent application on the same subject between the priority date and the application date, or found that relevant documents were made public during this period through search, the priority requirements will be examined; At the same time, judge the patentability of the invention patent application according to the retrieved comparison file.
What are the conditions for applying for a patent for invention?
novelty
Novelty means that the invention or utility model does not belong to the prior art; No unit or individual filed an application for the same invention or utility model with the administrative department for patent in the State Council before the filing date, and it was recorded in the patent application documents published or announced after the filing date. The invention or utility model for which a patent is applied must meet the standards of novelty, must be different from the existing technology, and there shall be no conflicting applications.
(2) Creativity
Creativity means that compared with the prior art before the filing date, the invention has outstanding substantive features and remarkable progress, and the utility model has substantive features and progress. The invention or utility model for which a patent is applied must be substantially different from the existing technology before the filing date in the composition of the technical scheme, and must be the result of creative thinking activities, rather than the result that the existing technology can naturally obtain through simple analysis, induction and reasoning. Invention is more creative than utility model. Creative judgment is based on the knowledge and judgment ability of ordinary technicians in their respective fields.
(3) Practicality
Practicality means that the invention or utility model can be manufactured or used and can produce positive effects. It has two meanings: first, the technology can be manufactured or used in industry. Industry includes industry, agriculture, forestry, aquaculture, animal husbandry, transportation and service industry. Industrial manufacturing and utilization refers to feasibility and reproducibility. Second, it must be able to produce positive effects, that is, compared with the existing technology, the invention or utility model for which a patent is applied can produce better economic or social benefits, such as increasing the number of products, improving the quality of products, increasing the functions of products, saving energy or resources, preventing and controlling environmental pollution, etc.