1. Confidential patents only involve invention patents or utility model patents, excluding design patents.
2. Confidential patents include national defense patents, or patents whose contents are considered confidential by the Intellectual Property Office because they do not involve national defense interests, but because they involve national security or vital interests. In the past, I met many applicants who took the initiative to treat their patents as confidential patents. It should be noted that whether the patent application can be handled according to the confidential patent procedure is decided by the Intellectual Property Office, not the will of the applicant. In other words, an invention cannot be applied as a confidential patent by the applicant. The correct procedure is that the applicant submits an application for a patent for invention or utility model in accordance with normal procedures. After the Patent Office accepts the application, if the examiner thinks that the invention involves national security or vital interests of the country, he will make a decision according to his functions and powers, transfer the patent application to the confidential patent application procedure, and notify the applicant.
3. The Guide to Patent Examination, which is compatible with the new Patent Law and its new detailed rules for implementation, clearly stipulates that if an application for a patent for invention has not been granted a patent right after decryption, it will be published if it meets the conditions for publication, and an application for a patent for invention will be published, which will be examined and managed in accordance with the general patent application; Where an application for a patent for utility model has not been granted a patent right after decryption, it shall be examined and managed in accordance with the general application for a patent for utility model.
Probe into secret protection
1. Confidentiality review only involves invention patents or utility model patents, excluding design patents.
2. Any unit or individual applying for a patent for invention completed in China from a foreign country needs to submit a confidentiality review to the Chinese Intellectual Property Office first.
There are two situations here: one is to apply for a foreign patent directly to a foreign patent office or submit an international patent application (PCT application) to a foreign patent office, such as applying for a US patent directly to the US Patent and Trademark Office or submitting a PCT application directly to the US Patent and Trademark Office; The other is to apply for a patent in China after applying to China Intellectual Property Office, or to submit a PCT application to a foreign patent agency. For example, first apply for a China patent to the Chinese Intellectual Property Office, then submit a US patent application to the US Patent and Trademark Office, or submit a PCT application to the US Patent and Trademark Office. In both cases, it is necessary to submit a confidentiality review request to the Chinese Intellectual Property Office in advance and explain its technical scheme in detail.
However, if the PCT application is submitted to the Chinese Intellectual Property Office, it will also be regarded as a request for confidentiality review. This is actually the usual practice of China applicants, and it is also a more convenient and time-saving way for China applicants to apply for foreign patents.
3. The new implementation rules clearly define inventions and utility models completed in China: "refers to inventions or utility models whose substantive contents are completed in China", and expand the scope of units to any unit, so as to prevent some multinational companies from agreeing that the rights of invention and creation belong to the parent company under the guise of entrustment or cooperative development, thus applying for patents overseas first and evading the provisions on confidentiality review in the Patent Law. The new regulations on confidentiality review are not only conducive to the confidentiality of technologies involving China's national security, energy, communications, biological genetics and other important fields or major interests, but also conducive to Chinese citizens, especially domestic enterprises, obtaining relevant information on inventions and creations completed in China in a timely manner, and better promoting the improvement of technical level.
4. The new "Implementation Rules" stipulates the time limit for confidentiality review, that is, after the patent applicant files an application for confidentiality review, if China National Intellectual Property Administration thinks that confidentiality may be involved, it needs to inform the applicant that its invention may be confidential within 4 months at the latest, and China National Intellectual Property Administration needs to inform the applicant of the final decision on whether confidentiality may be involved within 6 months at the latest. Even in the most complicated cases, the longest notice should not exceed four or six months. If the time limit is exceeded, the applicant is allowed to apply for a patent abroad without giving notice or making a final decision, which is a good guarantee for the legitimate rights and interests of the applicant and his need to apply for a patent abroad. The applicant may also contact the confidentiality review team of China Intellectual Property Office. The United States patent system also has similar confidentiality review provisions, and the longest period of confidentiality review is also 6 months.
5. It is clearly pointed out in the Patent Examination Guide that anyone who applies for a patent in a foreign country in violation of the provisions on confidentiality examination in the first paragraph of Article 20 of the Patent Law shall not be granted the patent right for the same invention in China. In the stage of examining and approving the applicant's application for patent confidentiality review abroad, the China National Intellectual Property Administration Patent Office finally found that in the follow-up examination of the patent application, such as preliminary examination, actual examination and invalidation, once the public has evidence to prove that the substance of the application has applied for a patent abroad without the confidential examination of the Patent Office, the patent application will not be authorized or declared invalid in China. That is to say, if there is evidence that the substantive content of a patent application has been applied for in a foreign country without confidential examination by the China Patent Office, and the public has submitted the evidence in the preliminary examination and actual examination stages of the application, the Patent Office will reject the application; If it has been authorized, the patent office will declare it invalid.