According to China's patent law, the subject of utility model patent protection is a product with a fixed shape. The theme of invention patent protection is: products with fixed shape, products without fixed shape and technical methods. Among them, products with no fixed shape are: gas, liquid and powder. Because most of the inventions made by inventors in Shanghai are products with fixed shapes, some inventors mistakenly think that they can only apply for utility model patents, but not invention patents, so all product inventions with fixed shapes apply for utility model patents, which will inevitably lead to a large number of utility model patents and a small number of invention applications.
Because the patent law stipulates that the examination procedures of utility model patents and invention patents are different, utility model patents are only preliminary examination, not substantive examination; Invention patents should go through both preliminary examination and substantive examination. The preliminary examination only requires relative novelty, that is, the examiner only needs to judge whether there is novelty by experience, and does not need to judge by retrieval. The invention patent requires absolute novelty, and the examiner should judge whether it is novel by searching domestic and foreign public publications and patent documents. This makes it easy to approve utility model patents and difficult to approve invention patents. In order to obtain patent approval, the inventor applied for a patent for utility model; This has also resulted in a large number of utility model patent applications and a small number of invention applications.
Because the examination procedures of utility model patents and invention patents stipulated in the patent law are different, when the inventor consults with the patent agency, the agent will say: apply for utility model patents, and ensure that they can be approved; There is no guarantee that the invention patent will be approved. This is true, but it also gives the inventor an impression that it is difficult to get an invention patent, so he applied for utility model patent insurance.
First, we must understand the law accurately. The subject of invention patent protection includes products with fixed shapes, so products with fixed shapes can also apply for invention patents. Recently, I contacted many invention friends in Shanghai, recommended the same product invention with fixed shape to them, and applied for invention patent and utility model patent at the same time, which is what we call two applications in one case. It should be noted that two patent application documents for invention and utility model should be submitted on the same day, whether they are submitted to the patent office, mailed or applied for electronic documents, they should be submitted on the same day. If the application is not filed on the same day, the Patent Office will reject the latter application on the principle of first application. I recently encountered such a case. I applied for the invention patent two days after applying for the utility model with the same technical scheme. As a result, the examiner found that the law decided that even if the invention level was higher, it could not be approved. If the application is filed on the same day, the patent for utility model will be given priority approval due to different examination procedures. When the patent office examines that the invention patent can also be approved, the examiner will inform the inventor to give up the patent right of utility model, so that you can obtain the invention patent right. This method is a double insurance method, and you can get a patent certificate at any time. At the same time, the number of applications for invention patents increases, and inventors can also obtain invention patents.
Secondly, besides making products with fixed shapes, inventors should also try to broaden the theme of the invention; Invention of gas, liquid, powder, paste, technical method, etc. Can be manufactured. In particular, that invention of chemical composition covers a wide range, such as the invention of various cosmetics, shampoos, creams, perfume, fertilizers, cement, ink and the like. The professors in the chemistry department of the university I contacted and the engineers of Shanghai Institute of Chemical Technology both applied for invention patents for their inventions.
To achieve the above two points, the number of applications for invention patents will increase, and the phenomenon of more utility models and less invention patents will be changed. ◆ Yang Jiemin, Director of Shanghai Invention Association