Patent Right, referred to as "patent", is the exclusive right to implement a specific invention and creation within a certain period of time that the inventor or its assignee enjoys in accordance with the law. It is a part of intellectual property rights. kind. my country promulgated the Patent Law in 1984 and the implementation details of the law in 1985, making specific provisions on relevant matters.

The subject of patent rights

The subject of patent rights, the patentee, refers to the person who enjoys patent rights in accordance with the law and assumes corresponding obligations. Patent rights subjects include the following types: 1. Inventor or designer An inventor or designer refers to a person who has made creative contributions to the substantive features of an invention. In the process of completing an invention and creation, those who are only responsible for organizational work, those who facilitate the utilization of material and technical conditions, or those who engage in other auxiliary work, such as testers, draftsmen, machining personnel, etc., are not inventors or Designer. Among them, the inventor refers to the person who completed the invention; the designer refers to the person who completed the utility model or appearance design. The inventor or designer can only be a natural person and cannot be an entity, collective or research group. Inventions and creations are the result of intellectual labor. Invention and creation activities are a factual act and are not subject to restrictions on civil capacity. Therefore, regardless of whether the person engaged in invention and creation has full capacity for civil conduct, as long as he completes the invention and creation, he should be recognized as the inventor or designer. Inventors or designers include inventors or designers of non-service inventions and inventions and inventors or designers of service inventions. Non-service inventions and creations refer to inventions and creations that neither perform the tasks of the unit nor are mainly completed using the material and technical conditions provided by the unit. For non-service inventions and creations, the right to apply for a patent belongs to the inventor or designer. No unit or individual may suppress an inventor or designer's application for a patent for a non-service invention. After the application is approved, the inventor or designer becomes the patentee. If a non-service invention-creation is completed jointly by two or more inventors or designers, the person who completed the invention-creation is called the co-inventor or co-designer. The right to apply for patents and the patent rights obtained for inventions and creations owned by *** are jointly owned by all ***. 2. Unit of the inventor or designer For service inventions and creations, the subject of the patent right is the unit of the inventor or designer of the invention. Service inventions and creations refer to inventions and creations that are completed while performing the tasks of the unit or mainly by utilizing the material and technical conditions of the unit. The "units" referred to here include domestic-funded enterprises of various types and nature of ownership and Sino-foreign joint ventures, Sino-foreign cooperative enterprises and wholly foreign-owned enterprises in China; from the perspective of labor relations, it includes both fixed work units and Temporary work unit. Service inventions and creations are divided into two categories: 1. Inventions and creations completed in the execution of the tasks of this unit. Including three situations: (1) inventions and creations made in the course of one's own work; (2) inventions and creations made in the performance of tasks assigned by the unit other than one's own work; (3) inventions and creations made within one year after resignation, retirement or job transfer. , inventions and creations related to the work performed by the original unit or the tasks assigned by the original unit. In case (3), a service invention-creation can only be constituted if two conditions are met at the same time: first, the invention-creation must be made within one year after the inventor or designer resigned from the original unit, retired, or was transferred to another job; Second, the invention-creation is related to the inventor's or designer's own job in the original unit or the tasks assigned by the original unit. 2． Inventions and creations mainly made use of the material and technical conditions of the unit. "The unit's material and technical conditions" refers to the unit's funds, equipment, parts, raw materials or technical data that are not open to the public. It is generally believed that if in the process of invention and creation, all or most of the unit's funds, equipment, parts, raw materials and technical data that are not disclosed to the public are used, this use plays an indispensable and decisive role in the completion of the invention and creation. , it can be determined as mainly utilizing the material and technical conditions of the unit.

The purpose of the invention itself does not violate national laws, but if it violates national laws due to misuse, it does not fall into this category. 2. scientific discovery. It refers to the revelation of objective phenomena, change processes, and characteristics and laws in nature. Scientific theory is a summary of the understanding of the natural world and a broader discovery. They are all extensions of people's understanding. These recognized substances, phenomena, processes, characteristics and laws are different from technical solutions to transform the objective world. They are not inventions and creations in the sense of patent law, and therefore cannot be granted patent rights. 3. Rules and methods of intellectual activity. Intellectual activity refers to the movement of human thinking. It originates from human thinking and produces abstract results through reasoning, analysis and judgment, or it must be used as a medium to indirectly act on nature to produce results. It is only The rules and methods that guide people to think, identify, judge and remember information do not constitute a technical solution because they do not use technical means or utilize natural laws, nor do they solve technical problems or produce technical effects. For example, traffic driving rules, grammar of various languages, speed algorithms or oral judgments, psychological test methods, various games, entertainment rules and methods, music scores, recipes, chess scores, computer programs themselves, etc. 4． Diagnosis and treatment methods of disease. It is the process of identifying, determining or eliminating the causes and lesions of living people or animals. Excluding disease diagnosis and treatment methods from the scope of patent protection is based on humanitarian considerations and social ethics. Doctors should have the freedom to choose various methods and conditions during the diagnosis and treatment process. In addition, this type of method directly uses living human or animal bodies as the implementation object. It is theoretically considered that it does not belong to the industry and cannot be used industrially. It is not an invention in the sense of patent law. For example, pulse diagnosis, psychotherapy, massage, various immunization methods to prevent diseases, plastic surgery or weight loss for therapeutic purposes, etc. But drugs or medical devices can be patented. 5． Animal and plant species. However, patent rights may be granted for methods of production of animal and plant varieties. 6. Substances obtained by nuclear transformation methods. 7. Designs made from the patterns, colors, or a combination of the two on graphic prints that serve primarily as logos.

Conditions for granting patent rights

To obtain a patent right for an invention, the substantive conditions and formal conditions must be met. Substantive conditions refer to the attribute requirements that an invention-creation applying for a patent must possess, while formal conditions refer to the procedural requirements for an invention-creation applying for a patent in terms of application documents and procedures. The conditions for granting patent rights mentioned here only refer to the substantive conditions for granting patent rights. 1. Grant conditions for invention or utility model patents (1) Novelty Novelty means that before the filing date, the same invention or utility model has not been published in domestic or foreign publications, publicly used in China, or otherwise used in other ways. Public knowledge. There is no application filed with the Patent Office by others for the same invention or utility model and recorded in patent application documents published after the filing date. In order for the invention or utility model to be patented to meet the novelty standard, it must be different from the existing technology and must not conflict with the application. 1． existing technology. Prior art is technology that has been published before the filing date. There are three ways of technology disclosure: (1) Publication disclosure, that is, the public disclosure of technical information at home and abroad through publications. Its geographical standard is international in scope. Publications here refer to independent tangible communication carriers that record technical or design content. They can be printed, printed, handwritten, or made by other means such as electricity, light, magnetism, photography, etc. Its carrier is not limited to paper, but also includes various other types of carriers, such as microfilm, film, tape, CD, photographic film, etc. Public disclosure of technical information refers to the disclosure of technical content to unspecified relevant public who are not obligated to maintain confidentiality. The degree of disclosure shall be subject to what a person of ordinary skill in the technical field can implement. (2) Usage disclosure, that is, technical content is disclosed in the country through use or implementation. Its geographical standard is within the territory of my country.

(3) Disclosure in other ways, that is, disclosure in ways other than publications and use, mainly refers to oral disclosure, such as through oral conversations, lectures, reports, discussion speeches, broadcasts on radio or television stations, etc., to make the public understand Regarding technical content. Its regional standard is domestic. 2. Conflict application. A conflicting application refers to an invention or utility model for which a patent is applied for. Before the filing date, another person has filed an application for the same invention or utility model with the Patent Office, and the patent application is recorded in a patent application published after the filing date of the invention or utility model. in the file. Applying first is called a conflicting application that applies later. Conflicting applications will destroy novelty and prevent repeated granting of patents. 3. Disclosure is not considered as loss of novelty. If the invention, utility model and design for which a patent is applied for falls under any of the following circumstances within 6 months before the filing date, the novelty will not be lost: (1) It is exhibited for the first time at an international exhibition sponsored or recognized by the Chinese government; (2) Published for the first time at an academic conference or technical conference organized by the relevant competent departments of the State Council and national academic groups; (3) Others leak the content without the applicant's consent. (2) Creativity Creativity means that compared with the existing technology before the filing date, the invention has outstanding substantive features and significant progress, and the utility model has substantive features and progress. The invention or utility model applied for a patent must be substantially different in the composition of the technical solution compared with the existing technology before the filing date. It must be the result of creative thinking activities and cannot be the result of simple analysis and analysis of existing technology. Results can be obtained naturally through induction and reasoning. The inventive step of an invention is more demanding than that of a utility model. The judgment of inventive step shall be based on the knowledge and judgment ability of ordinary technicians in the relevant field. (3) Practicality Practicality means that the invention or utility model can be manufactured or used and can produce positive effects. It has two meanings: First, the technology can be manufactured or used in industry. Industries include industry, agriculture, forestry, aquaculture, animal husbandry, transportation and service industries. Manufacturing and utilization in industry refer to implementability and reproducibility. Second, it must be able to produce positive effects, that is, compared with existing technologies, the invention or utility model applied for patent can produce better economic benefits or social benefits, such as increasing product quantity, improving product quality, and increasing product functions. , save energy or resources, prevent and control environmental pollution, etc. (4) Other conditions, such as the specification needing to fully disclose the technology for which the patent is applied for, etc. Please refer to the latest Patent Law and Implementing Rules for details. 2. Conditions for granting design patents (1) Novelty The design for which patent rights are granted shall be different from and similar to designs that have been publicly published in domestic and foreign publications or publicly used domestically before the filing date. The design must be attached to a specific product, so "different" not only means that the shape, pattern, color or combination thereof is different, but also means that the products using the design are also different. "Not similar" requires that the design applied for patent cannot be a simple imitation or slight change of the shape, pattern, color or combination of existing designs. Similar designs include the following situations: similar shapes, patterns, and colors, and the products are the same; similar shapes, patterns, and colors, but the products are similar; similar shapes, patterns, and colors, and the products are also similar. (2) Practicality The design for which patent rights are granted must be suitable for industrial application. This requires that the design itself and the product as a carrier can be reproduced repeatedly in an industrial way, that is, it can be mass-produced in industry. (3) Aesthetic designs The designs for which patent rights are granted must be aesthetically pleasing. Aesthetics refers to the pleasant visual perception of the design and is not necessarily related to whether the product function is advanced or not. Aesthetic appearance design plays an important role in expanding product sales. (4) It shall not conflict with the legal rights previously obtained by others. The prior rights here include trademark rights, copyrights, corporate name rights, portrait rights, and the right to use unique packaging and decoration of well-known products, etc. “Earlier acquisition” means acquisition before the filing date or priority date of the design.

(5) Other conditions. Please refer to the latest Patent Law and Implementing Rules for details.

[Edit this paragraph] Procedure for granting patent rights

1. Patent application (1) Principles of patent application 1. Formal legal principle. All procedures for applying for a patent must be handled in writing or in other forms prescribed by the Patent Office of the State Intellectual Property Office. All procedures that are handled in non-written forms such as verbally, over the phone, or in kind, or through telegrams, telexes, faxes, films, and other means of communication that directly or indirectly produce printed, typed, or handwritten documents are deemed not to have been filed. , does not produce legal effect. 2. The principle of unity. It means that a patent application can only be limited to one invention. However, two or more inventions or utility models belonging to a general inventive concept can be filed as one application; two or more designs for products of the same category that are sold or used in sets can be filed as one application. 3. First apply principle. If two or more applicants apply for patents for the same invention, the patent right shall be granted to the person who applies first. (2) Patent application documents When applying for an invention or utility model patent, a request, description, abstract, claims and other documents must be submitted. The request shall state the name of the invention or utility model, the name of the inventor or designer, the name and address of the applicant, and other matters. The description shall provide a clear and complete description of the invention or utility model, which shall be subject to the ability of a person skilled in the technical field to realize it; when necessary, there shall be accompanying drawings. The abstract should briefly describe the technical key points of the invention or utility model. The claims should be based on the description and describe the scope of patent protection required. When applying for a design patent, a request and documents such as pictures or photos of the design should be submitted, and the products using the design and their categories should be clearly stated. (3) Patent application date The date when the Patent Office receives the patent application documents is the application date. If the application documents are mailed, the postmark date shall be the date of application. If the applicant enjoys the right of priority, the priority date shall be regarded as the filing date. Article 29 of the Patent Law stipulates international priority and domestic priority. International priority refers to the date when the applicant first files a patent application for an invention or utility model in a foreign country within 12 months, or from the date when a design is filed in a foreign country. If a patent application is filed in China on the same subject within 6 months from the date of filing a patent application, the foreign country shall comply with the agreement signed by the foreign country with China or an international treaty to which China is a party, or in accordance with the principle of mutual recognition of priority. , can enjoy priority. Domestic priority means that if an applicant files another patent application for the same subject with the Patent Office within 12 months from the date of first filing a patent application for an invention or utility model in China, he or she can enjoy priority. 2. Approval of patent applications (1) Approval of invention patents 1. Initial review. The patent authority shall ascertain whether the application complies with the requirements of the Patent Law on application form. 2. Early disclosure. After the Patent Office receives the application for an invention patent, if it is deemed to meet the requirements after preliminary examination, it will be published 18 months from the date of application. The Patent Office may publish an application early upon the applicant's request. 3. Substantive review. Within 3 years from the filing date of an invention patent application, the Patent Office may conduct a substantive examination of the application based on the request made by the applicant at any time; if the applicant fails to request a substantive examination beyond the time limit without justifiable reasons, the application will be deemed to have been withdrawn. When the Patent Office deems it necessary, it may conduct a substantive examination of the invention patent application on its own. 4． Authorized Registration Announcement. If no reason for rejection is found after substantive examination of an invention patent application, the Patent Office shall make a decision to grant the invention patent right, issue an invention patent certificate, and register and announce the application at the same time. The invention patent right shall take effect from the date of announcement. (2) Approval of Utility Model and Design Patents If a utility model or design patent application does not find a reason for rejection after preliminary examination, the Patent Office shall make a decision to grant a utility model patent or design patent and issue the corresponding patent Certificate, registered and announced at the same time.

Utility model patent rights and design patent rights take effect from the date of announcement. 3. Patent reexamination and invalidation The State Intellectual Property Office establishes a Patent Reexamination Committee. If a patent applicant is dissatisfied with the Patent Office's decision to reject the application, he may request a reexamination to the Patent Reexamination Board within 3 months from the date of receipt of the notice. After review, the Patent Reexamination Board will make a decision and notify the patent applicant. If a patent applicant is dissatisfied with the reexamination decision of the Patent Reexamination Board, he may file a lawsuit with the People's Court within 3 months from the date of receipt of the notice. After an invention is granted a patent right, any unit or individual that discovers that it does not comply with the relevant provisions of the Patent Law may apply to declare the patent invalid from the date of patent authorization. To request a patent invalidation, an application and corresponding documents must be submitted to the Patent Reexamination Board in accordance with the law, and the reasons must be stated. If the Patent Reexamination Board believes that the request complies with legal provisions, it shall make a decision to declare the patent right invalid or maintain the patent right in accordance with legal procedures. If the party concerned is dissatisfied with the decision, it may file a lawsuit in accordance with the law. After a patent right is declared invalid, the patent right is deemed to have ceased to exist from the beginning. The decision to declare the patent right invalid, the judgment or ruling on patent infringement made by the People's Court and executed before the declaration of the invalidity of the patent right, the decision to resolve the patent infringement dispute that has been executed or enforced, and the executed patent license contract and patent The rights transfer contract has no retroactive effect. However, compensation should be provided for losses caused to others due to the bad faith of the patentee. If, in accordance with the above provisions, the patentee or patent transferor fails to return the patent royalties or patent transfer fees to the licensed patentee or patent transferee, which is a clear violation of the principle of equity, the patentee or patent transferor shall Return all or part of the patent royalties or patent rights transfer fees to the licensed patentee or patent transferee.