In my country’s current patent law, inventions as mentioned in the patent law refer to new technical solutions proposed for products, methods or their improvements. It refers to new solutions to various technical problems created through the inventor's ideas and using the laws of nature. Utility models as mentioned in the Patent Law refer to new technical solutions proposed for the shape, structure or combination of products that are suitable for practical use. In other words, utility model patents refer to the shape, structure, appliances or devices of machines, equipment, devices or devices. , structure or their combination to propose a new solution, and the new solution can produce products with practical value or practical use in industry. Inventions and utility models are both scientific and technological inventions. In this sense, the essence of the two is the same; but in fact, these two patents have many differences. Next, let’s take a closer look at inventions and utility models. The difference between utility model patents.

First of all, invention and utility model patents have different functions. Inventions and utility models for which patent rights are granted must possess novelty, creativity and practicality. Novelty means that the invention or utility model does not belong to the existing technology; no unit or individual has applied to the patent administration department of the State Council for the same invention or utility model before the application date, and it is recorded that it was published after the application date. In patent application documents or published patent documents. Creativity means that compared with the existing technology, the invention has outstanding substantive features and significant progress, and the utility model has substantive features and progress. Practicality means that the invention or utility model can be manufactured or used and can produce positive effects.

Second, the protection objects of invention and utility model patents are different. Invention patents protect new technical solutions proposed for products, methods or improvements. Inventions are divided into two types: product inventions and method inventions. Product inventions include all inventions made from objects created by people. Method inventions include all methods that utilize the laws of nature, and can be divided into two types: manufacturing methods and operating methods, such as inventions made on processing methods, manufacturing methods, testing methods or product usage methods. Inventions protected by patent law can also be improvements to existing products or methods. The vast majority of inventions are improvements to existing technologies, such as new combinations of certain technical features, new selections of certain technical features, etc. As long as these combinations or selections produce new technical effects, they can be obtained Patent-protected inventions. Utility model patents only protect the shape and structure of the product or the new technical solutions proposed by their combination that are suitable for practical use. They cannot be a method, such as production methods, test methods, processing methods, application methods, etc., nor can they be unfixed. Shaped products such as pharmaceuticals, chemicals, cement, etc. Therefore, utility model patents have a narrower scope of protection than invention patents.

Third, the approval procedures for invention and utility model patents are different. After the patent administration department of the State Council receives an application for an invention patent and determines that it meets the requirements of this Law after preliminary examination, it will be announced immediately after eighteen months from the date of application. Within three years from the filing date of an invention patent application, the patent administration department of the State Council may conduct a substantive examination of the application based on the request made by the applicant at any time. If no reason for rejection of the invention patent application is found after substantive examination, the patent administration department of the State Council shall make a decision to grant the invention. Upon determination of patent rights, an invention patent certificate will be issued, and the invention will be registered and announced at the same time. Therefore, the approval process for invention patent applications includes five stages: acceptance, preliminary examination, publication, substantive examination and authorization. The Patent Office accepts and examines a utility model patent application, and if no reason for rejection is found after preliminary examination, it will make a decision to grant a utility model patent right, issue a corresponding patent certificate, and register and announce it at the same time. That is, the utility model patent application will only be subject to approval during the review process. There are three stages of acceptance, preliminary review and authorization, which mainly focus on novelty and practicality issues. Therefore, the examination and search for invention patents is more stringent, and if a utility model patent is deemed to meet the requirements of the patent law after preliminary examination, it can be announced and issued a utility model patent certificate without publication and substantive examination. Therefore, utility models are more stringent than inventions. Easy to authorize.

The review cycles for invention and utility model patents are different. Since invention patents cover a wider range of technical fields, the review cycles for different technical fields vary greatly. In some technical fields, it may take 2-3 years, or even longer. Although the Intellectual Property Office has optimized patent examination in recent years and the examination time has been greatly shortened, the average authorization time for an invention is still about one and a half to two years. Utility model patents are subject to post-examination review and are authorized first. When there is a patent dispute, the novelty, creativity and practicality of the patent will be substantively examined. Therefore, utility model patents can generally obtain a patent certificate in about 6 months.

In addition, the protection periods for invention and utility model patents are different. Article 42 of the Patent Law stipulates that the term of invention patent rights 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. In contrast, the protection period of a utility model patent is much shorter than that of an invention patent. This is mainly because in general, the utility model creation process is simpler and easier than the invention creation process, and the time to exert benefits is also shorter. Therefore, the legal provisions on the protection period of utility models are correspondingly shorter.

Also, the application fees for invention and utility model patents are different. The application fee must be paid within two months from the date of application or within 15 days from the date of receipt of the acceptance notice. Fees paid at the same time as the application fee also include publication printing fees and application surcharges. If priority is requested, the priority request fee should be paid at the same time. If payment is not made or paid in full within the prescribed time limit, the patent application will be deemed to have been withdrawn. According to the latest charging standards released by the State Intellectual Property Office in 2019, it can be seen that for certain types of fees, the amount of payment for invention patents is less than that for utility model patents. For example: application fee: 900 yuan for invention patents and 500 yuan for utility models. ;Reexamination fee: 1,000 yuan for invention patent, 300 yuan for utility model; annual fee: 900 yuan for invention patent for 1-3 years (per year), 1,200 yuan for 4-6 years (per year), 2,000 yuan for 7-9 years, 10-12 years (per year) 4,000 yuan, 13-15 years (per year) 6,000 yuan, 16-20 years (per year) 8,000 yuan, utility model 1-3 years (per year) 600 yuan, 4-5 years (per year) 900 yuan, 6- 1,200 yuan for 8 years (per year) and 2,000 yuan for 9-10 years (per year). In addition, due to the different approval procedures between the two, invention patents also need to pay publication printing fees and actual examination fees, while utility model patents do not.

The next point is that the later patent protection for invention and utility model patents is different. Since invention patents have greater protection and have undergone substantive examination, they have a great advantage in later patent rights protection. However, since there is no prior examination for utility model patents, the fatal flaw of utility models that are quickly authorized is that they cannot be modified once they are formed. This also leads to a very high possibility that utility model patents will be invalidated after authorization. According to Article 61 of the Patent Law, if a patent infringement dispute involves an invention patent for a new product manufacturing method, the unit or individual manufacturing the same product shall provide proof that its product manufacturing method is different from the patented method. If a patent infringement dispute involves a utility model patent or a design patent, the people's court or the department administering patent affairs may require the patentee or interested party to issue a document after the patent administration department of the State Council has searched, analyzed and evaluated the relevant utility model or design. The patent right evaluation report shall be used as evidence for hearing and handling patent infringement disputes. Therefore, if you use an invention patent to file a lawsuit, you do not need to provide a patent rights evaluation report, but if you use a utility model, you must provide a rights evaluation report. In the actual litigation process, utility model applications for pre-litigation injunctions are very weak and can easily be terminated by litigation during the application process. Finally, I would like to add that according to Article 9 of the Patent Law, only one patent right can be granted for the same invention and creation. However, if the same applicant applies for both a utility model patent and an invention patent for the same invention and creation on the same day, and the utility model patent right obtained first has not yet expired, and the applicant declares that he has given up the utility model patent right, the invention patent right may be granted.

That is to say, technologies involving shape, structure and their combination can apply for both invention patents and utility model patents. Generally when encountering this kind of technology, applicants may consider applying for invention and utility model patents on the same day, indicating the same content when applying and applying for both utility model and invention patents at the same time. In this way, when the invention patent is not authorized, the utility model patent can be used to protect the invention and creation first. If the invention patent is not authorized due to novelty and inventiveness issues, it can be guaranteed that there is a utility model patent to protect the invention and creation. You can also try to extend the patent protection time as much as possible. If a utility model is authorized first, it can obtain a 10-year protection period. If the invention patent is also authorized, the applicant can give up the previous utility model patent and obtain an invention patent authorization. The same invention created by The protection period is extended to 20 years. Invention patents that have undergone substantive examination can protect inventions more effectively than utility model patents.