According to Article 42 of the Patent Law of People's Republic of China (PRC), the term of invention patent is 20 years, the term of utility model patent is 10 year, and the term of design patent is 15 year, all of which are counted from the date of application.
Article 43 stipulates that the patentee shall pay the annual fee from the year when the patent right is granted.
Article 44 stipulates that in any of the following circumstances, the patent right shall terminate before the expiration of the time limit:
(a) failing to pay the annual fee in accordance with the provisions;
(2) The patentee waives his patent right in writing.
Where the patent right is terminated before the expiration of the time limit, it shall be registered and announced by the patent administration department of the State Council.
Article 45 stipulates that any unit or individual who thinks that the grant of the patent right is not in conformity with the relevant provisions of this Law may request the Patent Reexamination Board to declare the patent right invalid from the date when the patent administration department of the State Council announces the grant of the patent right.
I. Scope of protection
1. The scope of protection of the patent right for invention or utility model shall be subject to the content of the claim, which may be explained by the specification or attached drawings. How to determine the content of patent protection shall be subject to the scope determined in the claims. The scope of protection of the patent right of design shall be subject to the patented product of design shown in pictures or photographs. The patent protection right granted by a country or region is only valid within the scope of that country or region, and other countries and regions have no legal effect, so the patent protection right is not recognized. Term of patent protection: 20 years for invention patents, and 10 year for utility model patents and designs from the date of filing. If the patent protection period expires, the annual fee is not paid or the patent is voluntarily abandoned, the patent right will no longer be protected. The independent claim includes a preamble part and a characteristic part. The preface shall indicate the name of the technical scheme of the invention or utility model, the necessary technical features of the existing technology closest to the theme of the invention or utility model, and the technical features different from the closest existing technology shall be indicated in the feature part. The technical features of the characteristic part are combined with the technical features of the preamble part to define the scope of protection required by the invention or utility model.
For example, in a technical claim, a product consists of A and B, and is characterized by C and D. The technical scheme required to be protected in the claim includes complete A, B, C and D, not just technical features C and D. If someone else's product only contains technical features, examples A, B, C or A, B and D are not infringement, only when all technical features of A, B, C and D are covered.
2. The scope of protection of the patent right of design shall be subject to the patented product of design shown in pictures or photographs. The application for design does not need to submit written documents such as claims and specifications, but it needs to submit pictures or photographs. The criteria for judging whether there is infringement are: using the same or similar design on the same or similar product as the patented product is regarded as infringement, and the same product means the same use and function; Similar products refer to products with the same purpose but different specific functions.
Second, the protection method
After the patent right is infringed, the patentee can protect his patent right in three ways.
1, negotiation;
2. Request the patent administration department to mediate;
3. file a patent infringement lawsuit.
Third, characteristics
sovereign right over territory
The so-called regionality is the space (national) restriction of patent protection right. It means that the patent protection right granted by a country or region is only valid within the scope of that country or region, and other countries and regions have no legal effect, so the patent protection right is not confirmed and recognized. If the patentee wants to enjoy the patent protection right in other countries, he must file a patent application again according to the relevant laws of other countries. But if it is outside the provisions of international treaties and bilateral agreements, the situation is another matter! Otherwise, no country or region will recognize the patent protection right granted by other countries or international intellectual property institutions.
target
The object of patent protection refers to the object of patent protection, that is, inventions and creations that can be protected by patents. According to the provisions of China's patent law, the objects of patent protection refer to inventions, utility models and designs. These three are collectively called "invention and creation". In China, although utility models and designs are protected by patents, they should not be considered as "patents" as mentioned in the Paris Convention. Therefore, different countries have different regulations on the object of patent protection.
Term and termination
Duration of patent protection
From the date of application
Invention patent: 20 years
Patent for utility model: 10 year.
Termination of patent right
Natural termination: the patent protection period expires.
Early termination: failure to pay annual fee or voluntary abandonment.
Fourth, the protection of works.
Different protection contents
Copyright law protects forms, while patent law protects creativity. Copyright law protects the source code of software, and the innovation of technical scheme, the core content of software, can be patented and protected by patent law. The combination of the two can make the software more fully protected.
Different protection conditions
Copyright is automatically acquired, and the time of acquisition is based on the time of completion of development. Copyright is automatically obtained as soon as it is completed and protected by copyright law. No matter how the software source code is written, copyright/copyright is automatically obtained and protected by copyright law. A patent must meet the requirements of patent application and need to apply to the Patent Office. Whether to grant a patent right requires the approval of the Patent Office.
Protection time is different
The term of protection of an invention patent is 20 years, counting from the date of application. However, the patent right is obtained after the application for examination and approval, and the patent examination procedure is complicated. It usually takes about 3 years from the application to the patent certificate. The software copyright protection period is 50 years, and it is protected by copyright from the date of development. Software has been protected by copyright law before obtaining patent right. Applying for a patent does not affect its protection by copyright law. You have enough patience to wait for patent approval.
Verb (abbreviation of verb) medical field
In the field of medicine, many drugs are also protected by patents, and often when the patents are about to expire, there will be a research boom on this product. In China, a large number of groups have a weak awareness of intellectual property rights and pay little attention to patent protection. This phenomenon will also occur in the pharmaceutical industry. There is no doubt that this is a bad phenomenon. We can pay attention to specialist protection from the following aspects:
First, improve the legal protection system of intellectual property rights of traditional Chinese medicine with patent protection as the main body to form a complete and comprehensive protection system.
Second, improve the awareness of intellectual property protection of traditional Chinese medicine.
Third, strictly determine the scope of patentability in the field of Chinese medicine.
Fourth, improve the examination standards of Chinese medicine invention patents.
Fifth, establish specialized institutions and industrial intellectual property protection organizations for intellectual property protection of traditional Chinese medicine.
In today's knowledge economy era, with the popularization and improvement of intellectual property knowledge, people will pay more and more attention to using patents as weapons to protect their intellectual property rights, and Chinese medicine patents will have great development.
legal ground
patent law of the people's republic of china
Article 41 If an applicant for a patent refuses to accept the decision of the patent administration department in the State Council to reject the application, he may, within 3 months from the date of receiving the notice, request a reexamination from the patent administration department in the State Council. After the review, the patent administration department in the State Council shall make a decision and notify the patent applicant.
If the patent applicant refuses to accept the reexamination decision of the patent administrative department of the State Council, he may bring a lawsuit to the people's court within three months from the date of receiving the notice.
Article 42 From the date of filing, the term of patent right for invention is 20 years, that for utility model is 10 year, and that for design is 15 year.
Where a patent for invention is granted for four years from the date of application for a patent for invention and three years from the date of request for substantive examination, the patent administration department of the State Council shall, at the request of the patentee, compensate for the unreasonable delay of the invention patent in the process of authorization, except for the unreasonable delay caused by the applicant.
In order to compensate for the time occupied by the review and approval of new drugs, the patent administration department of the State Council shall compensate the patentee for the patent term of new drug-related invention patents that have been approved for listing in China. The compensation period shall not exceed five years, and the total effective patent right period after the new drug is approved for marketing shall not exceed fourteen years.
Article 43 The patentee shall pay the annual fee from the year when the patent right is granted.