The term of invention patent rights in China is twenty years, and the term of utility model patent rights and design patent rights is ten years, both calculated from the date of application.
The term of patent rights is calculated from the date of application. Article 45 of the Patent Law stipulates that the term of invention patents is 20 years, and the term of utility model patents and design patents is 10 years. All are calculated from the date of application. This provision explains that patent rights are different from movable and immovable property.
Ownership of both movable and immovable property is unlimited in time, but patent rights are only valid within the time frame specified by law. This characteristic of patent rights is determined by its essence and purpose. The purpose of establishing a patent system is to encourage invention and creation by protecting and using inventions. It must seek a balance between the interests of inventors and the interests of the public. In the past ten years, the protection period of invention patents, especially for inventions such as medicines that require large investments and take a long time, has tended to be extended. For example, the United States stipulates that the protection period for medicines is 17 years from the date of approval. It can be extended for 5 years. The European Commission has also made a similar decision. The protection period for drugs is 20 years from the date of application and can be extended for 5 years.
The "Supplementary Treaty to the Paris Convention for the Protection of Industrial Property" and the "Uruguay Round of the General Agreement on Tariffs and Trade" and the "Trade-Related Aspects of Intellectual Property Rights Agreement" both clearly stipulate that the protection period for invention patents is at least 20 years from the date of application. In 2006, the Dunker text also stipulated that the protection period of a design is at least 10 years from the date of application. In order to adapt to the trend of international harmonization of patent laws, the 1992 amendments to my country’s Patent Law extended the terms of invention, utility and invention in my country’s 1984 Patent Law. The protection period of three types of patents: new type and design.
According to my country's patent law, patent rights "are calculated from the date of application." However, this does not mean that the patentee has the exclusive right to implement it from the date of application. According to Article 8 of the Patent Law, a patent application shall be subject to demerit review and approval. The patent right shall be officially issued after the Patent Office grants the patent right. The patentee shall have the right to prohibit others from manufacturing, using, selling, and importing the patent right for production and business purposes without his permission. Patented products or the use of patented methods. As far as invention patents are concerned, since the content of the invention has been published before the grant decision is made (18 months from the date of application), the applicant's competitors may already know the content claimed in the patent application and have an interest in the patent rights. Therefore, Article 13 of the Patent Law stipulates: “After the invention patent application is published, the applicant may require the unit or individual who implements the invention to pay appropriate fees.
1. Drugs Regulations on the protection period of invention patents
At the end of 1992, the State Administration of Medicine promulgated the "Regulations on the Administrative Protection of Drugs", which provides a retroactive administrative protection to drug inventions before 1993. The period of administrative protection of drugs 7 years and 6 months. In 1993, China revised its patent law to implement patent protection for drugs and chemical substances, and extended the protection period of invention patents from 15 years to 20 years. On April 12, 1999, the National Drug Administration p>
At the end of 1992, the State Administration of Medicine promulgated the "Regulations on the Administrative Protection of Drugs", which provides a retroactive administrative protection to drug inventions before 1993. The period of drug administrative protection is 7 years and 6 months.
In 1993, China revised its patent law to implement patent protection for drugs and chemical substances, and extended the protection period of invention patents from 15 years to 20 years.
April 12, 1999. , the State Food and Drug Administration issued the "Regulations on New Drug Protection and Technology Transfer", which clarified that the protection periods for various new drugs are: 12 years for Category I new drugs; 8 years for Category II and III new drugs; and 6 years for Category IV and V new drugs. Year. For new drugs with a trial production period, their protection period includes the trial production period.
Since China officially joined the WTO on December 11, 2001, it has complied with the requirements of the Agreement on Trade-Related Aspects of Intellectual Property Rights. Effective protection is provided for undisclosed data of drugs and agricultural chemical products containing new chemical ingredients submitted for market authorization. The protection period is 6 years after the drug administration department approves marketing.
On April 12, 2018, my country announced that “a data protection period of up to 6 years will be set for innovative chemical drugs. During the protection period, the same variety will not be approved for marketing; innovative drugs that apply for marketing simultaneously in China and overseas Provide compensation for the patent protection period of up to 5 years."
China will extend the patent protection period for pharmaceuticals from the current 20 years to 25 years starting in May, bringing it in line with developed countries. At the same time, import tariffs on anti-cancer drugs and other drugs will be eliminated. The purpose is to strengthen patent protection and cultivate the domestic new drug market.
Provisions on the protection period of pharmaceutical invention patents
2. What is the procedure for pharmaceutical patent application?
(1) Materials required for pharmaceutical patent application:
1. When applying for an invention patent, the application documents shall include: invention patent request, abstract, summary drawings (when applicable), description, claims, description drawings (when applicable), each in duplicate.
2. When applying for a utility model patent, the application documents shall include: utility model patent request, abstract, abstract drawings (when applicable), description, claims, description drawings, each in duplicate. .
3. When applying for a design patent, the application documents should include: a design patent request, pictures or photos (if color protection is required, color pictures or photos should be submitted) and a brief description of the design. , each in duplicate. If you submit pictures, both copies should be pictures. If you submit photos, both copies should be photos. Pictures or photos should not be mixed.
(2) Process of drug patent application:
1. Confirm the type of patent to be applied for.
2. To search for patents of the same type, you can search independently or entrust an agency to conduct a more comprehensive search.
3. Prepare the application documents and submit them to enter the application step.
4. Obtain the acceptance notice.
(3) Preliminary review of drugs. (If it is an invention patent application, the invention patent application must first undergo a confidentiality review before the preliminary examination. If confidentiality is required, it shall be handled according to confidentiality procedures. In the preliminary examination, it is necessary to examine whether there are obvious defects in the application, which mainly includes whether the content of the examination falls within the scope of the "Patent Law" The scope of not granting patent rights, whether there is an obvious lack of technical content that cannot constitute a technical solution, whether there is a lack of unity, whether the application documents are complete and whether the format meets the requirements. If the foreign applicant fails to pass the qualification review and application procedures. The Patent Office will notify the applicant to make corrections or state opinions within the prescribed time limit. If the application fails to respond within the time limit, the application will be deemed to have been withdrawn. If the deficiencies have not been eliminated after the reply, the application will be rejected. If the invention patent application passes the preliminary examination, it will be sent to the preliminary examination. Notification of conformity. For utility model and design patent applications, in addition to the above review, it is also necessary to review whether they are obviously the same as existing patents and are not a new technical solution or new design. If no reason for rejection is found after the preliminary examination. Directly enter the authorization order)
(4) Publication stage (especially invention patent application). An invention patent application enters the publication stage from the issuance of the preliminary examination qualification notice. If the applicant does not make a request for early disclosure, it will not enter the public preparation process until 15 months from the filing date. If the applicant requests early disclosure, the application will immediately enter the disclosure preparation process. After format review, editing and proofreading, computer processing, typesetting and printing, the summary of the specification will be published in the Patent Gazette and a single volume of the specification will be published in the Patent Gazette about three months later. After the application is published, the applicant obtains the right to temporary protection. Obtain patent authorization letter.
(5) Substantive examination (especially invention patents). Conduct a comprehensive review of whether the patent application has novelty, creativity, practicality and other substantive conditions stipulated in the patent law. If upon review it is determined that the authorization conditions are not met or there are various deficiencies, the applicant will be notified to state their opinions or make modifications within the specified time. If no reply is made within the time limit, the application will be deemed to have been withdrawn. The application still does not meet the requirements after multiple replies. , be dismissed. The actual review period is long. If authorization has not been granted within two years from the date of application, the application maintenance fee must be paid every year from the third year. If it is not paid within the time limit, the application will be deemed to have been withdrawn.
If no reason for rejection is found during the substantive examination, the authorization procedure will be entered in accordance with regulations.
(6) Authorization stage. Utility models and designs can directly enter the authorization stage after passing the fifth step of review.
Legal basis:
Article 45 of the Patent Law of the People's Republic of China. From the date when the patent administration department of the State Council announces the grant of patent rights, any unit or individual If it is believed that the grant of the patent right does not comply with the relevant provisions of this Law, it may request the Patent Reexamination Board to declare the patent right invalid.
Article 77 of the "Implementing Rules of the Patent Law" The unit to which the patent right has been granted has neither agreed with the inventor or designer nor stipulated the provisions of Article 16 of the Patent Law in its rules and regulations formulated in accordance with the law. If the method and amount of the reward are different, the bonus shall be paid to the inventor or designer within 3 months from the date of announcement of the patent right. The minimum bonus for an invention patent is not less than 3,000 yuan; the minimum bonus for a utility model patent or design patent is not less than 1,000 yuan.
For inventions and creations completed because the suggestions of the inventor or designer are adopted by the unit to which they belong, the unit that is granted the patent right shall pay preferential bonuses.