1. What are the classifications of patent priority?

Patent priority can be divided into domestic priority and international priority.

1. Domestic priority

Domestic priority, also known as "domestic priority", refers to the first time a patent applicant files an invention or utility model with the same subject in China. If you submit a patent application to the Patent Office of the State Intellectual Property Office of my country within 12 months from the date of filing the patent application, you can enjoy priority. Design patents are not included in my country’s priority system.

2. International priority

International priority, also known as "foreign priority", is the first time a patent applicant files for the same invention or utility model in a foreign country. If another patent application is filed in China within 12 months from the date of patent application, or within 6 months from the first patent application filed in a foreign country for the same design, China shall treat it as the first patent application filed in a foreign country. The date of application is the filing date, and the filing date is the priority date.

2. How to use the patent priority system

1. Foreign priority

The priority system originates from the Paris Convention for the Protection of Industrial Property. In accordance with the Paris Convention According to the provisions of Article 4, any person who has formally applied for a patent, utility model registration, design registration or trademark registration in a country of the alliance, or his successor, may freely apply again for relevant content in other countries. The first application shall enjoy priority within 12 months (for invention patent and utility model applications) or 6 months (for design applications) from the date of filing.

In addition, any application equivalent to a regular national application shall be deemed to generate priority in accordance with the national law of any country in the Union, or in accordance with bilateral or multilateral treaties concluded between countries in the Union. The "regular national application" mentioned here refers to any application sufficient to determine the filing date in the country concerned, regardless of the outcome of the application, that is, whether it has been withdrawn, abandoned or rejected.

Accordingly, any subsequent application filed before the expiration of the above-mentioned period in any other country of the Union shall not be attributable to any act done during that period, in particular the filing of another application, the invention The publication or use, the sale of copies of the design, the use of the trademark are invalid and these actions do not create any rights of third parties or any right of personal possession. Rights acquired by third parties before the date of the first application on which priority is based are retained in accordance with the domestic law of each country of the Union.

It is worth noting that in practice, some people often believe that the priority date obtained by the applicant through this system becomes the filing date of the later application. This view is wrong and does not understand the above-mentioned priority. The essence of the right. For example, for patent applications, the "priority date" is only the deadline for examining the novelty and inventiveness of subsequent applications, that is, only documents that have been published before the priority date will be considered. Only this part of the document will affect the requirements. The novelty and inventiveness of the technical content of the priority claim will not be considered, and the documents published between the priority date and the filing date of the subsequent patent application will not be considered; and the filing date of the subsequent patent application will still be based on its filing date. , will not be advanced to the priority date. Since the applicant enjoys priority after filing the first application, he or she will have ample time to make improvements, consider which countries in which to apply again, choose an agent to handle the procedures in other countries, or find potential applicants. Partners and funds, this is exactly the purpose of setting up the priority system.

However, the right of priority cannot be automatically obtained. If anyone wants to enjoy the right of priority based on an earlier application, he needs to make a statement stating the application number, date of application and acceptance of the earlier application. Country of application. These matters should be recorded in the publications of the competent authority, especially in the relevant patent certificates and specifications.

Correspondingly, Article 32, Paragraph 1, of the Implementing Rules of my country's current Patent Law stipulates that when an applicant goes through the procedures for requesting priority, he shall indicate in a written statement the filing date, application number and acceptance of the application. country; if the written statement does not indicate the filing date of the earlier application and the country that accepted the application, it will be deemed that no statement has been made.

At the same time, each country may also require the person who made the priority declaration to submit a copy of the previously filed application (description, drawings, etc.). Once the copy has been certified as correct by the authority that originally processed the application, no further authentication shall be required and may be submitted, for whatever reason, at any time within three months of the subsequent application without payment of a fee. Countries may also require that the copy be accompanied by a certificate from the above-mentioned authority stating the date of filing and a translation. Correspondingly, Article 30 of my country’s Patent Law stipulates that if an applicant claims priority, he shall submit a written statement when applying and submit a copy of the first patent application document within three months; If a written statement is made or a copy of the patent application document is not submitted within the time limit, it shall be deemed that priority has not been claimed. At the same time, Paragraph 2 of Article 32 of the Implementing Rules of my country's current Patent Law stipulates that if a foreign priority is claimed, the copy of the prior application documents submitted by the applicant shall be certified by the original accepting authority; among the certification materials submitted, the prior applicant If the name or title of the applicant is inconsistent with the name or title of the applicant who applied later, documents proving the transfer of priority shall be submitted; if the applicant claims domestic priority, a copy of the earlier application document submitted by the applicant shall be produced by the patent administration department of the State Council.

Article 4 of the Paris Convention stipulates that each country should determine the time limit for making a priority declaration. According to general regulations, this period is 12 months from the priority date for invention patent and utility model applications, and 6 months from the priority date for design applications. If you want to claim priority based on an earlier utility model application and file a design application in a country, the priority period should be the same as the priority period specified for the design, that is, 6 months from the priority date; The Paris Convention also allows a utility model application to be filed in a country based on an earlier patent application as a basis for claiming priority. The period is 12 months from the priority date, and vice versa. Correspondingly, Article 29, Paragraph 1, of my country’s current Patent Law stipulates that within 12 months from the date the applicant first files a patent application for an invention or utility model in a foreign country, or from the first date 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 the first patent application, the foreign country shall file a patent application in accordance with the agreement signed between the foreign country and China or an international treaty to which the foreign country is a party, or in accordance with the principle of mutual recognition of priority. Can enjoy priority.

Article 4 of the Paris Convention stipulates that no country in the Union may claim multiple priorities due to the applicant (even if these priorities arise from different countries), or due to claiming one or more priorities. One or more factors in the application are not included in the application that is the basis for priority, and the priority is refused or the patent application is refused, but only to the extent that in both cases there is unity of invention stipulated in the law of the country . Regarding matters not included in the application that is the basis for the right of priority, subsequent applications shall generate priority under the usual conditions. Correspondingly, Paragraph 1 of Article 33 of the Implementing Rules of my country's current Patent Law stipulates that in a patent application, an applicant may claim one or more priorities; if multiple priorities are claimed, the application shall The priority period is calculated from the earliest priority date. Article 4 of the Paris Convention stipulates that patents applied for the same invention by nationals of the alliance countries are independent of each other. That is to say, each patent applied for during the priority period is independent of each other in different countries and should not affect each other in terms of the reasons for its invalidity and loss of rights and its normal period.

Article 4 of the Paris Convention stipulates that in the countries of the Union, the validity period of a patent obtained because of priority is the same as the validity period of a patent applied for or granted assuming that there is no priority.

For example, for an invention patent application, regardless of whether it enjoys priority, the protection period after authorization is 20 years from the filing date. The protection period should not be shortened from the priority date just because it enjoys priority. Actual protection time.

The priority system of the Paris Convention applies to situations where the earlier application and the later application are filed in different Paris Convention member states, but does not apply to nationals’ requests for later patent applications filed in their own country. Priority status of earlier patent applications filed in the home country. Therefore, the priority system of the Paris Convention is also called the "foreign priority" system. With the development of the patent system, many countries have drawn on the priority system of the Paris Convention to formulate a "domestic priority" system. The principle of priority is further extended to apply to domestic applicants. That is, after the applicant files an earlier patent application in his or her country, the applicant shall, under the provisions of If you file another application for the same subject in your home country during the period, you can also enjoy the priority based on the earlier application, which is called "domestic priority".

2. Domestic priority

With reference to the provisions of the Paris Convention on priority, my country added a domestic priority system when it revised its patent law in 1992. Paragraph 2 of Article 29 of the current Patent Law stipulates that if an applicant files another patent application for the same subject with the Patent Administration Department of the State Council within 12 months from the date of first filing a patent application for an invention or utility model in China, Can enjoy priority. Paragraph 2 of Article 33 of the Implementing Rules of the Patent Law stipulates that if the applicant claims priority in his or her country and the earlier application is an invention patent application, he or she may file an invention or utility model patent application on the same subject; the earlier application is a utility model patent application. Yes, you can file a utility model or invention patent application on the same subject. However, when filing a later application, if the subject matter of the earlier application falls under any of the following circumstances, it shall not be used as the basis for claiming domestic priority:

(1) Foreign priority or domestic priority has been claimed;

(2) The patent right has been granted;

(3) It is a divisional application filed in accordance with regulations.

If the applicant claims domestic priority, his or her earlier application will be deemed to have been withdrawn from the date of filing of the later application.

In practice, due to limitations in literature retrieval methods, language, funding, time, etc., applicants often are not very sure about the novelty and creativity of their inventions and creations, and do not know whether they are When applying for a patent, I am worried that it will not be authorized and will result in the disclosure of my technology. Using the above-mentioned domestic priority system, you can first submit a preliminary application to obtain the filing date, so that disclosure by others will not affect the novelty and creativity of your own achievements, and then improve the technology to further improve the novelty and creativity. When the conditions are met, you can submit another application and claim the priority of the earlier application; if due to various reasons, the novelty and creativity cannot be improved within 12 months and the requirements for patentability cannot be met, you can still Withdraw the earlier application to avoid disclosure of its technology. Arguably, this is the greatest advantage of our country’s priority system.

In addition, because my country’s utility model patent applications have the characteristics of “easy and fast authorization, but unstable after authorization”, invention patent applications have the characteristics of “difficult and time-consuming to authorize, but relatively unstable after authorization”. Stable" characteristics, when the applicant is not very sure about the novelty and creativity of his technology, he can submit a utility model patent application first, and then submit an invention patent application after improving the technical solution, and require a prior utility model patent application. The priority of the patent application, thereby converting the utility model patent into an invention patent and extending the protection period; if the applicant believes that his technical solution meets the authorization conditions for an invention patent and first submits an invention patent application, but considering the market for the product If the invention has a short lifespan and other factors, and you want to authorize it as soon as possible, you can submit another utility model patent application and request the priority of the earlier invention patent application, so that the invention patent can be converted into a utility model patent and the protection period can be shortened. It can be seen that the priority system not only fully protects the interests of applicants, but also promotes the enthusiasm of inventors to improve their technical solutions, thus promoting the technological progress of the entire society.