Intellectual Property Law Unit Four

Patent Right Unit Four

The acquirement of Patent right Lesson Twelve

Intellectual Property Law Unit Four: Patent Right Key points Requirements for acquiring patent right 1 The documents for patent application 2 The Procedures for acquiring patent right 3

Intellectual Property Law Unit Four: Patent Right A. Requirements for acquiring patent right  Patent right is granted only when an invention- creation meets the requirements provided by the patent law. An invention and utility model for which patent right may be granted must possess novelty, inventiveness and practical applicability. That is to say, an invention or utility model may acquire patent right only when it meets all the three substantial requirements, and the lack of any them will cause failure in acquiring patent right. 新颖性 创造性实用性

Intellectual Property Law Unit Four: Patent Right  Novelty means that the invention or utility model is not an existing technology, and prior to the date of application, no entity or individual has filed an application heretofore with the patent administrative department of the State Council for the identical invention or utility model and recorded it in the patent application documents or patent documents released after the said date of application. 在 … 之前 迄今为止 国务院 已发布的

Intellectual Property Law Unit Four: Patent Right  The term “existing technology” refers to the technologies known to the general public both at home and abroad prior to the date of application.

Intellectual Property Law Unit Four: Patent Right  Inventiveness means that, as compared with the technology existing before the date of application the invention has prominent substantive features and represents a notable progress and that the utility model has substantive features and represents progress.  Practical applicability means that the invention or utility model can be made or used and can produce effective results. 突出的 代表显著的 有效的

Intellectual Property Law Unit Four: Patent Right  Any design for which a patent is granted shall not be attributed to the existing design, and no entity or individual has, before the date of application, filed an application with the patent administrative department of the State Council on the identical design and recorded it in the patent documents published after the date of application. The term “existing design” refers to a design known to the general public both at home and abroad prior to the date of application. 归属于

Intellectual Property Law Unit Four: Patent Right  As compared with the existing design or combination of the existing design features, the design for which a patent is granted shall have distinctive features.  The patented design may not conflict with the lawful rights that have been obtained by any other person prior to the date of application. 获得

Intellectual Property Law Unit Four: Patent Right B. The documents for patent application  Where an application for a patent for invention or utility model is filed, a request, a description and its abstract, and claims shall be submitted.  An application shall expressly specify the name of the invention or utility model, name of the inventor, name and address of the applicant, and other matters. 请求书 说明书 摘要权利要求书 清楚地详细说明 地址 申请人

Intellectual Property Law Unit Four: Patent Right  The description shall clearly and completely describe the invention or utility model so as to enable a person skilled in the relevant field of technology to carry it out; where necessary, drawings are required. The abstract shall state briefly the main technical points of the invention or utility model.  The claims shall clearly and concisely state the requested patent protection scope in accordance with the specifications. 实现 简略地 简洁地 范围 说明书

Intellectual Property Law Unit Four: Patent Right request and description

drawing of patent application

Intellectual Property Law Unit Four: Patent Right  To apply for patenting a design, the applicant shall submit an application, pictures or photos of the design, a brief introduction to the design, and other documents.  The relevant pictures or photos submitted by the applicant shall clearly show the product’s design for which the patent protection is requested.

File of application 2. description 1. request 3. claims 4. drawings 5. abstract 6. claims the right of priority

C. Procedures for acquiring patent right

Intellectual Property Law Unit Four: Patent Right The procedure of examination & approval of application  Our “patent law” adopts the early publication and delayed examination system for the application for patent for invention,and makes detailed provisions concerning the time of publication, the time limit for requesting substantial examination and provisional protection. 采取 延迟的 临时的

Intellectual Property Law Unit Four: Patent Right

Intellectual Property Law Unit Four: Patent Right 1. Preliminary examination  Preliminary examination, also known as formal examination, is one in which the Patent Office and the State Council, after accepting an application for a patent, examines whether the formalities, documents and form comply with the requirements of the law. 预先的 形式的 手续

Intellectual Property Law Unit Four: Patent Right 2. The early publication of an application  Where, after having received an application for patenting an invention, the patent administrative department of the State Council finds, upon preliminary examination, that the application is in conformity with the requirements of this Law, it shall publish the application promptly after the lapse of eighteen full months from the date of application. Upon the request of the applicant, the patent administrative department of the State Council may publish the application earlier. 推移

Intellectual Property Law Unit Four: Patent Right 3. Substantial examination  Upon the request of the invention patent applicant made at any time within three years from the date of application, the patent administrative department of the State Council will make a substantive examination on the application. If, without any justifiable reason, the applicant fails to request a substantive examination within the limit, the application shall be deemed to have been withdrawn. 有正当理由的 认为 撤回

Intellectual Property Law Unit Four: Patent Right 4. The grant of the patent right  Where it is found after a substantive examination that there is no reason to reject the patent invention application, the patent administrative department of the State Council shall make a decision to grant a patent for the invention, issue an invention patent certificate, and register and announce it. The patent right for invention shall become effective as of the date of announcement. 拒绝 发给 证书 有效的

File of application First examination Publication Substantive examination Announcement of grant Publication of grant Amendment Rejection Review 18 months In 3 years Rejection Review Action Examination in form Examination according to criteria

Intellectual Property Law Unit Four: Patent Right The procedure for utility model or design application  Where it is found after the preliminary examination that there is no reason to reject the application for patenting a utility model or design, the patent administrative department of the State Council shall make a decision to grant a patent for the utility model or design, issue the relevant patent certificate, and register and announce it. The patent right for utility model or design shall become effective as of the date of announcement.