Paragraph 1 of Article 9 of the Patent Law. The same invention can only be granted a patent right. However, if the same applicant applies for a patent for utility model and a patent for invention at the same time for the same invention-creation on the same day, and the previously obtained patent right for utility model has not been terminated, and the applicant renounces the patent right for utility model, the patent right for invention may be granted.
Article 22 An invention or utility model that has been granted a patent right shall be novel, creative and practical.
Novelty means that the invention or utility model does not belong to the prior art; Before the filing date, no unit or individual filed an application for the same invention or utility model with the administrative department for patent in the State Council, and it was recorded in the patent application documents published or announced after the filing date.
Creativity means that compared with the prior art, the invention has outstanding substantive features and remarkable progress, and the utility model has substantive features and progress.
Practicality means that the invention or utility model can be manufactured or used and can produce positive effects.
The term "the same invention-creation" in the Patent Law means that the scope of protection of the claims is different. And as long as the second application is submitted before the first application is made public, the first application will not affect the creativity of the second application. The standard of novelty depends on whether the scope of protection of the claims is the same.
Remember to pay attention to the core technology as a separate application and submit the application before the first application is made public. When defending rights, we should follow the principle of whether the infringing product or method "completely covers" the scope of protection required by the claims. If the core technology is authorized, it has the least functions and the widest scope, so it is best to use it. However, if the patent of the core technology is invalidated, the other two are authorized and can still play a protective role in a certain range.