I. Foreign priority 1 What should I pay attention to? Prerequisite for claiming priority When applying for a patent in China, the applicant hopes to enjoy the priority of his first application in a foreign country. The prerequisite is that the country where the applicant applies for the first time has signed a bilateral agreement with China on priority matters, or * * * has participated in relevant international conventions, or mutual recognition of priority is based on the principle of reciprocity. The so-called international convention to which * * * participates actually refers to the Paris Convention. According to the provisions of the Paris Convention, nationals and residents of a contracting state can enjoy priority if they apply in other contracting States after filing their first application in their own country. So far, China has not signed special agreements with other countries on priority matters, nor has it recognized the priority claimed by applicants from non-Paris Convention countries according to the principle of reciprocity. Therefore, when judging the preconditions of foreign priority request, as long as the applicant is a national or resident of a contracting state of the Paris Convention and has filed his first application in a contracting state of the Paris Convention, his patent application filed in China can enjoy the priority of his first application. 2. Priority period According to the provisions of the Paris Convention, the priority period for an application for a patent for invention and utility model starts from the filing date of the first application, that is, from the priority date 12 months; The priority period of an application for a patent for design is six months from the priority date. The provisions of China's patent law on the duration of priority are consistent with those of the Paris Convention. 3. Basis of Priority The prior patent application as the basis of priority shall meet the following requirements: (1) The prior application as the basis of foreign priority must be the first application of the same subject, that is, the first application. If the applicant has filed several patent applications on the same subject in several countries before filing a patent application in China, he can only claim foreign priority on the basis of the first patent application. The "first application" mentioned here is not absolute. According to the provisions of the Paris Convention, the latter application can also be regarded as the first application if the following conditions are met: first, the latter application is aimed at the same subject as the first application; Second, the first application was not read by the public, leaving no rights issues, and it was abandoned, withdrawn or rejected before the subsequent application was filed; Third, the first application did not become the basis for claiming foreign priority. (2) As the basis of foreign priority, the prior application must be a formal national application. The so-called "formal national application" refers to the application submitted in accordance with the provisions of the patent law of the receiving country, which is formally accepted and the date of application is given. As long as this condition is met, it has nothing to do with the legal status of the subsequent application. Whether the application is granted a patent right in China, or whether it is withdrawn, rejected, divided or regarded as withdrawn, does not affect the validity of the application as a formal application that gives rise to priority. As long as the country that accepts the first application proves the existence of such an application and gives the date of application, it can be used as the basis for claiming foreign priority in China. In addition, any application equivalent to a formal national application can also be used as the basis for claiming priority. For example, applications filed under bilateral or multilateral treaties concluded between countries, international applications filed under PCT treaties, European applications filed under the European Patent Convention, and international deposits filed under The Hague Agreement on International Deposits of Designs. Although China is not a party to some of these treaties, its parties are also parties to the Paris Convention, so those who claim priority based on such applications should also be recognized. (3) As the basis of priority, the type of earlier application must meet certain requirements. Article 4 (e) of the Paris Convention stipulates: "(1) When an application for a design is filed with a member state based on a utility model, the priority period is the same as that of an application for a design based on priority; (2) An application for utility model may be filed in a Member State on the basis of a patent application, and vice versa. " This provision shows that the application types of invention patents and utility models can be converted to each other when claiming priority. Where an application for a patent for invention is filed for the first time, the subsequent priority application may be a utility model application; The first application is a utility model, and the latter application claiming priority can be an application for a patent for invention. In both cases, the priority period is 12 months. For utility models and designs, only one-way conversion is allowed. Where an application for utility model is filed for the first time, an application for design may be filed later, and the application for utility model shall be given priority. However, the priority period at this time is 6 months. On the other hand, if the first application is an application for design, the Paris Convention does not stipulate that it can be converted into an application for utility model, so it should be understood that conversion is not allowed. 4. Requirements for the theme of the application This article stipulates: "Anyone who files a patent application in China on the same theme may enjoy the priority according to the agreement signed between the foreign country and China or the international treaties to which * * * is a party, or according to the principle of mutual recognition of priority." Among them, the word "the same theme" is the requirement of enjoying priority in the content of invention and creation. This requirement is a matter of course. If the content of the latter patent application is different from that of the first application, it will not enjoy priority, otherwise it will obviously harm the interests of other applicants and the public. How to judge whether the last application is the same as the first application? Article 4 (h) of the Paris Convention stipulates: "The claim for priority shall not be rejected because some elements of the invention for which priority is claimed do not appear in the claims of the original application, as long as these elements are clearly disclosed in the whole of the original application." The above-mentioned provisions of the Paris Convention define the basic principles for judging whether the theme is the same, and its meaning is reflected in the following two aspects: First, for the later application, the so-called "theme" refers to "invention claiming priority", more specifically, it refers to the technical scheme required to be protected by the claims of the later application. Therefore, for the latter application, the "subject" to be compared is neither the whole content of the specification nor one or several technical features in the claims. When judging whether the priority claim is established, each claim applied later is the smallest unit of judgment, and the content of one claim cannot be further divided, and it is concluded that some technologies can enjoy priority and another technical feature cannot enjoy priority. Secondly, for the first application, the so-called "theme" refers to the technical content disclosed in the whole application document, including the specification, drawings and claims. When judging whether the priority claim is established, it is not required that the technical scheme required by the claim in the latter application be fully reflected in the claim in the first application, as long as all the factors of the claim are disclosed as a whole in the first application. As can be seen from the above analysis, as far as the application content is concerned, the way to judge whether the priority claim is established is basically the same as the way to judge novelty. More specifically, when judging whether the priority claim is established, the first application can be regarded as a comparison document to judge whether the claim applied later is novel. If the judgment shows that the later applied claim is not novel, the claim can enjoy priority; If it is novel, the creditor's rights cannot enjoy priority. Because the content of each claim in a patent application is different, some contain less technical features, and some contain more technical features, it is possible that some claims can enjoy priority in later applications, while others cannot. This naturally introduces the concepts of partial priority and multiple priority. Paragraph (f) of Article 4 of the Paris Convention stipulates: "Any member country of the Union shall not refuse to grant priority or reject a patent application on the grounds that the patent applicant claims multiple priorities, even if these priorities arise in different countries, nor shall it refuse to grant priority or reject a patent application on the grounds that the patent application claiming one or more priorities contains one or more factors that are not recorded in the patent application claiming priority, as long as the patent application conforms to the invention of the member country in the above two cases. When the applicant applies for a patent in other countries within the priority period after submitting the first application, the contents of the instructions may be different from those of the first application. This is very normal, because on the one hand, the applicant may further develop his invention and creation during this period, so he hopes to include newly developed contents in future applications; On the other hand, in order to save the funds for applying for a patent in a foreign country, the applicant can also combine the contents of several previous applications to form a patent application under the condition of meeting the requirements of invention singularity. The Paris Convention provides that priority can still be claimed and obtained in these two cases, which provides great convenience for the applicant. When adding new content in the later application, whether you can enjoy the priority depends on the writing of the claim. If the contents of a claim are recorded in the first application, the claim can enjoy priority; If a claim also includes new contents in the later application, the claim cannot enjoy priority, and the actual application date can only be used as the application date. In the case of adding new contents to the specification, the applicant usually writes at least two or more claims, and the technical features in one claim are all the features already recorded in the first application, so as to ensure that the claim can enjoy priority; In another claim, new technical features are added to reflect the significance of adding relevant contents in the subsequent application. This is called "partial priority". It is obvious that claims with new contents cannot enjoy priority. The patent laws of all countries have the same principle, that is, the revision of the application documents cannot go beyond the scope recorded in the original application documents. If the claim of the new content applied for later is allowed to have priority, even if it is beyond the scope of the original application, it is tantamount to taking the original application date as the application date, which obviously violates the above principles. As a separate application, the applicant should be allowed to add new contents in the subsequent application, but in the case of claiming priority, it is necessary to judge whether different claims can enjoy priority according to the contents of the first application. In this way, the principle of priority and the principle that the amendment shall not exceed the scope of the original application are unified with each other. When the latter application combines the contents of several earlier applications, different claims can enjoy the priority of different earlier applications. For example, the applicant filed a patent application for a new product in the United States, another patent application for the manufacturing method of the product in Japan, and then filed a patent application for the product and its manufacturing method in China. At this time, if the patent application filed in China includes two claims, one is a product claim and the other is a manufacturing method claim, the product claim can enjoy the priority of the American application, and the method claim can enjoy the priority of the Japanese application. This is the so-called "multiple priorities". The conditions for obtaining multiple priorities are as follows: first, the creditor's rights applied for later meet the requirements of oneness; Second, each previous application is the first application corresponding to the content; Third, the filing date of each earlier application is within the priority period. According to Article 4 (f) of the Paris Convention, it is also allowed to combine partial priority with multiple priority. In this case, the writing of the claims can be analogized and need not be repeated. 5. Where the transfer of priority requires foreign priority, the applicant shall submit a copy of the previous application certified by the original accepting authority to China National Intellectual Property Administration. "Original accepting institution" refers to the national patent office or the patent office of a certain region or organization that accepts the first patent application. Generally speaking, the applicant of a patent application filed in China is the same as the applicant of the first patent application filed earlier. In the documents submitted, if the name of the applicant in the earlier application is inconsistent with the name of the applicant in the later application, a certificate of priority transfer shall be submitted. Priority is an independent right. Although it is based on and attached to the first application, it is not inseparable from the first application. The first application filed in one contracting state can be used as the priority basis for filing patent applications in all other contracting States. Because of the regionality of patent right, the right to file a patent application with other different States parties and claim priority can be transferred to different people or people from different countries, but the precondition is that the transferor should be the legal right holder of the first application at the time of transfer. 6. The effectiveness of priority According to the provisions of the Paris Convention, the effectiveness of priority is mainly manifested in the following two aspects: (1) making the patent application filed by others on the same subject within the priority period not patentable. Another patent application filed by a third person for the same invention-creation within the priority period shall not conflict with the patent application filed later by the priority applicant. If there is a conflict between the two applications, the patent application filed by the third party shall be rejected or declared invalid. (2) After the priority date, the public publication or public use of the invention, utility model or design with the same theme as the first application, whether completed by the applicant himself or by a third party, will not damage the novelty and creativity of the later patent application which enjoys priority, nor will it bring any rights to the third party. Second, the domestic priority 1 what problems need to be paid attention to. 1992 when the patent law was revised for the first time, the reasons for stipulating domestic priority were added. There are three main reasons: first, foreign applicants can claim priority according to the Paris Convention and enjoy all kinds of benefits brought by priority. If domestic applicants cannot enjoy similar treatment, they are obviously at a disadvantage. Second, when 1992 first revised the Patent Law, China's accession to the PCT Treaty was already on the agenda. Once China becomes a member of PCT, an applicant who submits an international application on the same subject after submitting his first application in China can claim the priority of his first application in China. If the international application specifies China, and it is followed by the China National Phase, according to the provisions of the PCT Treaty, the applicant can use it to replace his original application in China. This situation is equivalent to the fact that the applicant has already enjoyed the priority of the first application in his own country. In this case, if this provision is not amended, there will be an unreasonable phenomenon that whether domestic priority can be enjoyed depends on the application channel. Third, the patent laws of many countries in the world stipulate the domestic priority system. 2. The role of domestic priority. Domestic priority, like foreign priority, can bring the following convenience to the applicant: first, under the condition of meeting the requirements of oneness, the applicant can combine several earlier applications into one later application by claiming domestic priority, thus reducing the patent fees to be paid every year in the future and achieving the purpose of saving costs. Second, the applicant can realize the mutual conversion between invention and utility model patent application within the priority period. Third, the applicant can use the domestic priority system to extend the protection period. Even if there is no such need, the applicant can resubmit an application completely consistent with the first application after the first application and before the expiration of the priority period, claiming the priority of the first application, thus actually extending the protection period of his patent right for one year. One view is that the use of domestic priority can supplement and improve the purpose of the first application. In this regard, we should pay attention to avoid confusion. In the later patent application for domestic priority, the applicant can indeed supplement and supplement the contents not included in the first application, but if the technical scheme for protecting the new contents, that is, the technical features added by the author in a claim, the claim cannot enjoy priority, and the actual filing date shall prevail. This point has been explained in detail when explaining foreign priority, and it also applies to domestic priority. Therefore, for the new content, there is no difference between the later application and the ordinary patent application submitted by the applicant alone. Therefore, when we say that the use of domestic priority can supplement and improve the initial application, its significance is only to allow new content to be written in the specification of the subsequent application. Of course, even so, it may be of some value to the applicant to claim domestic priority in this way. 3. Basis of domestic priority The scope of application of domestic priority is limited to the application for a patent for invention or utility model. An application for a patent for design cannot give rise to domestic priority. The subject of the earlier application shall not be used as the basis for claiming domestic priority under the following circumstances: (1) An application that already enjoys foreign or domestic priority shall not be used as the basis for claiming domestic priority, because the application that serves as the basis for priority shall be the earlier application, and the application that already enjoys foreign or domestic priority does not meet this requirement; (2) those who have been approved to grant patent rights shall not be used as the basis for claiming domestic priority to avoid repeated authorization; (3) The divisional application filed in accordance with regulations shall not be used as the basis for claiming domestic priority, because the divisional application is separate from the original application, which is the first application, and the divisional application is not the first application, so it cannot be used as the basis for claiming domestic priority. Domestic priority is the same as foreign priority in terms of priority period, the applicant's qualification to claim priority and the conditions for establishing priority claim. However, it should be pointed out that if an applicant claims domestic priority, his earlier application shall be regarded as withdrawn from the date when the latter application is filed, so as to avoid repeated authorization. 4. Transfer of domestic priority Domestic priority can be transferred like foreign priority, but it can only be transferred together with the patent application right.
Typing is not easy. If you are satisfied, please adopt it.