Legal analysis
An invention patent refers to a new technical scheme proposed for a product, method or its improvement. Such as the manufacturing method or technology of products, the formula of materials, the formula of drugs, etc. A patent for utility model refers to a new technical scheme for the shape, structure or combination of products, which is suitable for practical use. The "new technical scheme" is mentioned in both invention and utility model patents. Simply put, it is more creative and advanced than the existing technology. In view of the fact that patent right is an intangible property right, which is different from ordinary property right, there is no problem of natural termination of rights due to the disappearance of objects. Therefore, the reasons why patent laws in various countries stipulate the term of patent right are as follows: ① Patent technology itself has the characteristic of gradually losing its property value with the passage of time and the improvement of technical level; (2) The long-term monopoly of patent rights is not conducive to the scientific and technological progress of the whole society and the development of the industry. The term of patent right refers to the legal term and termination time of patent right. If the patent right has not been terminated for other reasons since the announcement of the authorization of the patent right, the patent right shall be terminated on the expiration of the patent right period. According to the provisions of the patent law, the term of invention patent is 20 years; The term of utility model patent and design patent is 10 year, counting from the date of application. The first day of the semester (start date) is not included in the entrance period. If calculated in years or months, the expiration date shall be the corresponding day of the last month; If there is no corresponding day in the current month, the last day of the current month shall be the due date.
legal ground
Article 13 and Article 45 of the Decision of the NPC Standing Committee on Amending the Patent Law of People's Republic of China (PRC) are amended as: "The term of the invention patent is 20 years, and the term of the utility model patent and the design patent is 10 years, all of which are counted from the date of application."
Article 45 of the Patent Law of People's Republic of China (PRC) Since the date when the patent administration department in the State Council announced the grant of the patent right, any unit or individual may request the patent administration department in the State Council to declare the patent right invalid if it considers that the grant of the patent right is not in conformity with the relevant provisions of this Law.