With the patent certificate issued by the state, the patentee who is granted the patent right enjoys the exclusive right to manufacture, use and sell (including importing patented inventions or designs from some countries) within the time limit prescribed by law. Others must obtain the consent of the patentee to do the above acts, otherwise it is infringement.
I. Relevant provisions of Article 20 of the Patent Law:
Any unit or individual that applies to a foreign country for a patent for invention or utility model completed in China shall file a confidentiality review with the patent administration department of the State Council in advance. The procedures and time limit for confidentiality review shall be implemented in accordance with the provisions of the State Council.
Units or individuals in China may file an international patent application in accordance with the relevant international treaties to which People's Republic of China (PRC) is a party. The applicant who files an international application for a patent shall abide by the provisions of the preceding paragraph.
The patent administration department of the State Council shall handle international patent applications in accordance with the relevant international treaties to which People's Republic of China (PRC) is a party, this Law and the relevant provisions of the State Council.
Where an invention or utility model that violates the provisions of the first paragraph of this Article is applied for a patent in a foreign country, the patent right shall not be granted in China.
Two, for this article, there are three special instructions:
(a) As long as the invention is completed in China, whether an application for a patent has been filed in China or not, before applying for a patent for the invention in a foreign country, a request for confidentiality review shall be made and permission shall be obtained;
(2) Anyone who directly applies for a patent abroad without confidentiality review and then seeks patent protection in China through the Paris Convention or PCT will be denied authorization for violating this Law;
(3) This article is the reason for declaring a patent invalid (see Article 65 of the Detailed Rules for the Implementation of the Patent Law). In other words, if an authorized patent is found to have applied for a patent abroad without permission, anyone can request that the patent be declared invalid on the grounds that it violates Article 20 of the Patent Law.
Legal objectivity:
The patent right is only valid within the statutory time limit. If this period is exceeded, the patentability of inventions will be absolutely eliminated, and inventions will enter the public domain and become the common property of all mankind. The term of the patent right shall be counted from the date of application. According to Article 45 of the Patent Law, the term of invention patent is 20 years, and the term of utility model patent and design patent is 10 years, all of which are counted from the date of filing. This article explains that patent right is different from movable property and immovable property. The ownership of movable and immovable property has no time limit, but the patent right is only valid within the time limit prescribed by law. This feature of patent right is determined by its essence and purpose. The purpose of establishing a patent system is to encourage inventions through the protection and use of inventions, and it must seek a balance between the interests of inventors and the public. From the last decade, the protection period of invention patents, especially those inventions with large investment and long time consumption, such as medicines, has a tendency to be extended. For example, the United States stipulates that the protection period of drugs is 17 years from the date of approval, which can be extended by 5 years. The European Union has also made a similar decision, and the protection period of drugs is 20 years from the date of application, which can be extended by 5 years. The Paris Convention for the Protection of Industrial Property, the Supplementary Treaty to the Uruguay Round of GATT and the Agreement on Trade-related Intellectual Property Rights clearly stipulate that the protection period of the invention patent shall be at least 20 years from the date of application, and the dunkel Text also stipulates that the protection period of the design shall be at least 10 year from the date of application. In order to adapt to the trend of international harmonization of patent law, China's 1.992 patent law amendment expanded China's 65438+. According to the provisions of China's patent law, the patent right is calculated from the date of application, but it does not mean that the patentee enjoys the exclusive right of exploitation from the date of application. According to the provisions of Article 8 of the Patent Law, a patent application shall be examined and approved by the record, and it can only be formally produced after the patent office grants the patent right. The patentee has the right to prohibit others from manufacturing, using, selling or importing the patented product or using the patented method for production and business purposes without his permission. As far as the invention patent is concerned, because the invention content has been made public before the authorization decision is made (from the date of application 18 months), the competitor of the applicant may already know the content required to be protected in the patent application, which poses a threat to the interests of the patentee. Therefore, Article 13 of the Patent Law stipulates: "After the publication of an application for a patent for invention, the applicant may require the entity or individual who exploited the invention to pay an appropriate fee." Article 77 of the Detailed Rules for the Implementation of the Patent Law stipulates: "If an organ that uses an invention after the publication of an application for a patent for invention fails to pay an appropriate mediation fee before being granted a patent right, it may also directly bring a lawsuit in a people's court." According to China's Patent Law (1984), the system of preliminary examination plus objection is implemented for utility models and designs, and the objection system for patent applications is abolished in the amendment to the Patent Law (1992), and the date when the Patent Office makes the examination decision is the date of patent authorization.