(2) Where a foreign priority is claimed, the first application must be formally filed by the foreign patent office, including the purpose of the application; Where domestic priority is claimed, the first application must be a formal application accepted by the China Patent Office and reserved for the purpose of application.
(3) The time between the last application and the previous application complies with the law.
(4) The latter application shall have the same subject matter as the first application.
Priority means that an applicant can apply to other contracting States for protection of the same subject within a certain period of time after filing an application for the first time in one contracting state, and his later application is regarded as being filed on the filing date of the first application in some aspects.
Article 29 of the New Patent Law Where an applicant applies for a patent for invention or utility model for the first time in a foreign country within twelve months, or for a patent for design for the first time in a foreign country within six months, and applies for a patent on the same subject in China, he may enjoy the priority according to the agreement signed between the foreign country and China or the international treaties to which he is a party, or according to the principle of mutual recognition of priority.
An applicant who files an application for a patent for invention or utility model with the administrative department for patent in the State Council within 12 months from the date when he first filed an application in China may enjoy priority.
Explain the foreign priority and domestic priority stipulated in this article.
I. Overview
In the patent law promulgated by 1984, this article contains two paragraphs, the first paragraph stipulates the foreign priority of the application for patent for invention, utility model and design, and the second paragraph stipulates the applicant's claim for priority. In case of any of the circumstances listed in Article 24 of the Patent Law, the period of priority shall be counted from the date when such circumstances occur. 1992 when the patent law was revised for the first time, the word "foreign" in the word "foreign applicant" at the beginning of the original paragraph 1 was deleted, so that domestic people can also apply this article to claim foreign priority. At the same time, the phrase "the date of foreign application is the date of filing" at the end of the original clause 1 was deleted, and some textual changes were made. In addition, the second paragraph of the Patent Law promulgated by 1984 stipulates: "If the applicant claims priority, the priority period shall be counted from the date when this happens." Article 24 of the Patent Law stipulates that an invention-creation for which a patent application is filed shall not lose its novelty if it is exhibited for the first time at an international exhibition, published for the first time at an academic conference or made public within six months before the filing date against the will of the applicant. Because this provision is about the grace period of not losing novelty, which is different from the effect of priority, the above situation should not be used as the starting point of the priority period. The provisions of the original paragraph 2 not only shorten the time limit for the applicant to claim priority, but also bring confusion to the calculation of other time limits stipulated in the patent law, which is not in line with international practice. Therefore, when 1992 first revised the Patent Law, the original paragraph 2 was deleted.
When the Patent Law was revised for the first time, the second paragraph of this article was added, which stipulated domestic priorities.
In the second revision of the patent law, the provisions of this article have not changed.