Frequently asked questions about registered patents
Applying for patents for technological achievements is the most conventional and effective way to obtain legal protection. After obtaining the patent right, the enterprise will enjoy the exclusive right of the patented technology within the legal time; If a patent is not applied for, the technology may become public technology after being disclosed through use, publication, reverse engineering, etc., and therefore no longer receive legal protection. Patents also often become an important weight in the business game between competitors, and are often indicators for enterprises to obtain some funding and policy preferences.
Of course, companies need to disclose their technical solutions when applying for patents, and some technologies may not be kept secret. However, the disclosure of technical solutions does not require the disclosure of all technical details of the enterprise, and the scope of disclosure is weighed by the enterprise itself. If you take a confidential approach and do not apply for a patent, it may no longer be protected once it is made public for various reasons.
At the same time, the application for a patent needs to carry out the corresponding daily management, and generate application fees, annual fees and other costs. In this regard, enterprises need to weigh comprehensively according to their own strength.
How should enterprises pay attention to intellectual property issues in research and development?
Enterprises should pay attention to research and use of intellectual property information related to their own research and development, and at the same time pay attention to the protection of independent intellectual property rights. Enterprises should pay attention to the search and research of relevant intellectual property information, such as patent literature and academic literature, when establishing research projects, developing new technologies and products, and applying for patents, which helps enterprises to make decisions on the direction of research and development, collect competitor intelligence, find partners, conduct technology trade and assess legal risks. At the same time, enterprises should also pay attention to the protection of technological achievements in the research and development stage by registering software Copyrights, applying for patents, strengthening the protection of technical secrets and other ways.
What should I pay attention to before applying for a patent?
Before applying for a patent, the enterprise should first pay attention to confidentiality, and do not easily disclose the invention to peers or customers, otherwise it may lose the novelty requirements that the patent authorization must meet because of early disclosure, or be preempted by others; Secondly, it is necessary to analyze the prospect of authorization. The usual method is to search the invention and creation to be applied by oneself or entrust intellectual property professionals, including searching domestic and foreign patent literature, consulting relevant academic journals, etc., to understand the status quo of similar technologies or products, analyze the possibility of obtaining patent authorization, and avoid the waste of human, material and financial resources. Finally, according to the results of the preliminary search and analysis, write or entrust the agency to write the patent application documents and submit the application.
What is a patent? Which kinds of patents are there in our country?
Patent refers to the invention and creation protected by patent law, that is, patented technology. China's patents include invention, utility model and design. According to the Patent Law, an invention means a new technical solution to a product, process or improvement thereof; Utility model refers to a new technical scheme which is suitable for practical use in relation to the shape, structure or combination of the product; Appearance design refers to the shape or pattern of a product or its combination, as well as the combination of color and shape, pattern to make a new design of beauty and suitable for industrial applications. The three kinds of patents are different in the protection object, the difficulty of authorization, and the stability of rights.
What is a patent? What rights does the patentee have after the patent is granted?
A patent is a right that the law grants to the patentee after the patent is granted. According to the provisions of the Patent Law, after the patent right for invention or utility model has been granted, no entity or individual may, without the permission of the patentee, manufacture, use, offer to sell, sell or import the patented product, or use the patented process, or use, offer to sell, sell or import the product directly obtained by the patented process for production or business purposes. After the grant of the patent right for a design, no entity or individual may, without the authorization of the patentee, make, offer to sell, sell or import the product patented for its design for production or business purposes.
Promise to sell means an intention to sell goods by means of advertising, display in a shop window or display at a trade show.
What kind of patent application can be patented? What are the formal and substantive requirements of a patent grant?
To obtain authorization, the formal and substantive requirements stipulated in the patent law must be met. The so-called formal requirements are to submit the patent application documents required by the Patent Law in accordance with the procedures and deadlines prescribed by the Patent Law and the relevant provisions of the State Intellectual Property Office, and pay the relevant fees on time. The so-called essential elements are the conditions that should be met for the invention patent to be authorized and the utility model and design to be free from invalidation. It usually refers to the novelty, inventiveness, and usefulness of the patent.
As for the formal requirements of patent authorization, the Patent Law stipulates that where an application for a patent for invention or utility model is filed, documents such as a request, a description and its abstract, and a claim shall be submitted. The request shall state the name of the invention or utility model, the name of the inventor, the name and address of the applicant, and other matters. The specification shall give a clear and complete description of the invention or utility model, subject to the ability of a person skilled in the technical field to implement it, and, if necessary, shall be accompanied by drawings; The abstract shall briefly state the technical points of the invention or utility model; The claims shall be based on the specification and clearly and briefly define the scope of patent protection claimed; For an invention-creation that relies on genetic resources, the applicant shall state the direct source and original source of the genetic resources in the patent application documents, and if the applicant is unable to state the original source, it shall state the reasons. In addition, the Patent Law also provides that an application for a patent for a design shall submit a request, a picture or photograph of the design and a brief description of the design.
As for the essential requirements for the authorization of invention patents and the exemption from invalidation of utility model patents, the Patent Law stipulates that the inventions and utility models for which patent rights are granted shall possess novelty, creativity and practicality. Novelty means that the invention or utility model does not belong to the prior art, nor has any entity or individual filed an application with the State Intellectual Property Office for the same invention or utility model before the date of filing, and it is recorded in the patent application documents published after the date of filing or in the patent documents published after the date of filing; Creativity means that, compared with the prior art, 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; "Prior art" refers to the technology known to the public at home and abroad before the date of application. As for the essential elements of the authorization of a design patent, the Patent Law stipulates that the design for which a patent right is granted shall not belong to an existing design, nor has any entity or individual filed an application with the State Intellectual Property Office for the same design before the date of filing, and it shall be recorded in the patent documents published after the date of filing. The design for which the patent right is granted shall be markedly different from the existing design or the combination of features of the existing design; The design for which the patent right is granted shall not conflict with the lawful rights acquired by any other person before the date of filing; "Existing design" means a design known to the public at home and abroad before the date of application.
What impact does the filing of a patent application have on whether it will ultimately be granted?
The scope of protection of the patent right finally obtained is limited by the text of the authorization announcement, in which the scope of protection of the invention and utility model patent is determined by the content of its claims, and the scope of protection of the design patent right is determined by the product of the design patent represented in the picture or photograph. According to the provisions of the Patent Law, the scope of protection of the patent right for invention or utility model shall be subject to the content of the claim, and the description and the appended drawings may be used to interpret the content of the claim. The scope of protection of the patent right for design shall be subject to the design of the product represented in the picture or photograph, and a brief description may be used to explain the design of the product represented in the picture or photograph. Among them, "the scope of protection of the patent right for invention or utility model shall be subject to the content of its claims, and the specification and drawings may be used to interpret the claims", which means that the scope of protection of the patent right shall be subject to the scope determined by the necessary technical features clearly recorded in the claims, and also includes the scope determined by the features equal to the necessary technical features. Equivalent features refer to the features that are basically the same as the recorded technical features, achieve basically the same function, achieve basically the same effect, and can be associated by ordinary technical personnel in the field without creative labor.
Therefore, the submission of patent application documents is a very important and professional work, it is recommended that enterprises entrust intellectual property professionals to handle it on their behalf.
How is patent examination conducted? When does the patent come into force?
Patent examination is the procedure for the relevant departments of the State Intellectual Property Office to examine the patent application documents submitted by the applicant. Among them, the invention patent application must go through preliminary examination and substantive examination, while the utility model and design patent must go through preliminary examination only. The patent right shall take effect as of the announcement of authorization by the State Intellectual Property Office. According to the Patent Law, where it is found after examination of substance that there is no reason for rejection of an application for a patent for invention, the State Intellectual Property Office shall make a decision to grant the patent right for invention, issue the certificate of patent for invention, register and publish it at the same time, and the patent right for invention shall take effect as of the date of announcement. Where, after preliminary examination, it is found that there is no reason for rejection of the application for a patent for utility model or design, the State Intellectual Property Office shall make a decision to grant the patent right for utility model or the patent right for design, issue the corresponding patent certificate, register and publish it at the same time, and the patent right for utility model or the patent right for design shall become effective as of the date of announcement.
How to conduct substantive examination of invention patent?
The substantive examination of the invention patent shall be submitted by the applicant within the prescribed time limit, and requires the applicant to make a statement in response to the examination opinions issued by the State Intellectual Property Office or modify the application documents already submitted. According to the Patent Law, the State Intellectual Property Office may, at the request of the applicant at any time within three years from the date of filing of an application for a patent for invention, conduct substantive examination of the application; If the applicant fails to request a substantive examination within the time limit without justifiable reasons, the application shall be deemed to have been withdrawn. The State Intellectual Property Office may, on its own, conduct substantive examination of an application for a patent for invention when it deems it necessary. When the applicant for a patent for invention requests substantive examination, he or she shall submit reference materials related to his or her invention prior to the filing date. Where an application for a patent for invention has been filed in a foreign country, the State Intellectual Property Office may require the applicant to submit, within a specified time limit, the information on the search conducted for the purpose of examining the application or the information on the results of the examination in that country; If the application is not submitted within the time limit without good reason, the application shall be deemed to have been withdrawn. Where, after conducting substantive examination of an application for a patent for invention, the State Intellectual Property Office finds that the application is not in conformity with the provisions of the Patent Law, it shall notify the applicant and require it to state its views or amend its application within a specified time limit; If a reply is not made within the time limit without justifiable reasons, the application shall be deemed to have been withdrawn.
How long is the term of patent protection and from when?
According to the Patent Law, the term of patent right for invention shall be twenty years, and the term of patent right for utility model and patent right for design shall be ten years, counted from the date of filing.
What is the difference between patent application right and patent right?
The right to apply for a patent is the right to apply for a patent, and the patent right is the right enjoyed by the right holder after the patent is granted, usually the applicant is the right holder. The two rights are both related and distinct, and the right to patent application is often overlooked.
How to apply for a patent abroad?
Chinese enterprises can apply for patents abroad through the Paris Convention or PCT (Patent Cooperation Treaty). By means of the Paris Convention, a national application based on the Chinese application is submitted to the applicant country within a certain period of time (12 months for inventions and 6 months for utility models and designs) for the filing of the corresponding Chinese patent application. An application made in the manner prescribed by the PCT is called an international application and may be made to more than one treaty member at a time. When an applicant wishes to protect an invention in more than one country (typically more than five), it is cheaper and simpler to file a PCT international application because it requires only one international application through the PCT route, eliminating the hassle of filing a national application in each country separately.
Under normal circumstances, if a Chinese individual or entity wants to file a patent application abroad, it may first file a national application with the State Intellectual Property Office of China after making an invention or creation, and then file an international application within the 12-month priority period and claim the priority. In this way, the applicant has 12 months to consider whether it is necessary to apply for a patent in a foreign country, by what means, and to make the necessary preparations for filing the application. According to relevant regulations, Chinese individuals or units can also directly file an international application with the State Intellectual Property Office of China as the receiving office after making an invention or creation, but China must be designated as the country to be entered in the application.
Who shall have the right to apply for a patent for an invention or creation jointly developed by both parties?
If there is an agreement between the two parties, the agreement shall apply; If there is no agreement, in the case of cooperative development, the application right belongs to the parties; in the case of commissioned development, the application right belongs to the agent. According to the Patent Law, for an invention-creation made jointly by two or more entities or individuals, or for an invention-creation made by an entity or individual on the commission of another entity or individual, the right to apply for a patent belongs to the entity or individual that made the invention-creation or made it jointly, unless otherwise agreed upon. After the application is approved, the entity or individual that applied for it shall be the patentee. According to the contract law, unless otherwise agreed by the parties, the right to apply for a patent for an invention-creation resulting from a joint development belongs to the parties to the joint development. Where one of the parties assigns its common right to apply for a patent, the other parties shall have the priority to grant the right under the same conditions. Where one of the parties to the joint development declares that it renounces its common right to apply for a patent, the other party may apply separately or jointly. Where the applicant obtains the patent right, the party that waives the right to apply for the patent may exploit the patent free of charge. Where one of the parties to the cooperative development does not agree to apply for a patent, the other party or parties may not apply for a patent.
What are the legal consequences of patent counterfeiting?
From the relevant provisions and the situation in practice, the following acts belong to the act of counterfeit patent: (1) without permission, the manufacture or sale of products, product packaging marked with counterfeit patent number; (2) Using counterfeit patent numbers in advertisements or other promotional materials without permission, so that the technology involved is mistaken for a patented technology; (3) Using a fake patent number in the contract without permission, so that the technology covered by the contract is mistaken for the patented technology; (4) Forging or altering the patent certificate, patent document or patent application document.
As for the consequences of counterfeiting a patent, the Patent Law stipulates that, in addition to bearing civil liabilities according to law, the administrative department for patent affairs shall order the counterfeiters to make corrections and make a public announcement, confiscate the illegal income, and may concurrently impose a fine of not more than four times the illegal income; If there are no illegal gains, a fine of not more than 200,000 yuan may be imposed; If the case constitutes a crime, he shall be investigated for criminal liability according to law, and if the case is serious, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also, or shall only, be fined.
What countermeasures can be taken if someone else has infringed a patent right?
Generally, it is necessary to conduct infringement analysis first, and if it is determined that the possibility of infringement is very high, the evidence is fixed in time. After that, it can first negotiate with the other party, or entrust a lawyer to issue a warning letter, a lawyer's letter and other legal documents to the infringing party, asking it to stop the infringement and compensate for the loss, or it can directly file a lawsuit to the people's court or request the local intellectual property office to deal with it without consultation. If the local intellectual property office finds that the infringing act is established, it may order the infringer to stop the infringing act immediately. If the party refuses to accept the decision, it may bring a suit in a people's court within 15 days from the date of receipt of the notice of disposition. Where the infringer neither brings a suit nor stops the infringing act within the time limit, the local intellectual property office may apply to the people's court for compulsory execution. The local intellectual property office may, at the request of the party concerned, mediate the amount of compensation for patent infringement; If mediation fails, the parties may bring a suit in a people's court.
Before the formal prosecution, according to the specific objectives of the lawsuit, comprehensive consideration can be given to whether pre-lawsuit injunction, property preservation, evidence preservation and other measures are needed to cooperate with the lawsuit to achieve better success.
What can I do if I am accused of patent infringement?
Generally, it is necessary to conduct infringement analysis first to judge the possibility of infringement. On the other hand, it is necessary to actively collect the evidence of non-infringement (such as the existing technical defense, etc.), and actively respond to the lawsuit and prevent compulsory measures; If the possibility of infringement is large, it is necessary to request the Patent Reexamination Board of the State Intellectual Property Office to declare the plaintiff's patent invalid within the statutory time limit. Once the patent invalidation is successful, the other party loses the right base to accuse infringement; At the same time, filing an invalid claim may also lead to the suspension of the lawsuit, so that the party can more fully respond to the lawsuit and buy time.
Of course, if it is indeed a violation of the patent rights of others, and they still want to implement the patented technology, and the other party's patent rights foundation is solid, you can take the initiative to settle with the other party, in exchange for patent license or technical cooperation by paying patent license fees.
What is the liability for patent infringement? Is it criminal liability?
According to China's patent law and criminal law, patent infringement shall bear civil liability and administrative liability, and shall not bear criminal liability. This is different from the liability for counterfeit patents.
In terms of civil liability, according to the general principles of civil law, the tortfeasor should bear the responsibility to stop the infringement, eliminate the impact and compensate for the loss. According to the provisions of the Patent Law, the amount of compensation for the infringement of the patent right shall be determined according to the actual losses suffered by the right holder as a result of the infringement. If the actual loss is difficult to determine, it may be determined according to the benefits the infringer has obtained as a result of the infringement. Where it is difficult to determine the loss of the right holder or the benefit obtained by the infringer, it shall be reasonably determined by reference to the multiple of the license fee of the patent. The amount of compensation shall also include the reasonable expenses paid by the right holder to stop the infringing act. Where it is difficult to determine the loss of the right holder, the benefits gained by the infringer, and the royalty of the patent license, the people's court may, in the light of such factors as the type of the patent right, the nature and circumstances of the infringing act, determine the compensation of not less than 10,000 yuan but not more than one million yuan.
In terms of administrative responsibility, according to the Patent Law, the local intellectual property office may deal with the patent infringement at the request of the patentee or interested party, and if the infringement is found to be established, the local intellectual property office may order the infringer to stop the infringement immediately, and if the infringer does not bring a lawsuit in response to the treatment and does not stop the infringement, the local intellectual property office may apply to the people's court for enforcement; In addition, local intellectual property offices may, at the request of the parties concerned, mediate the amount of compensation for patent infringement.
Will I be held liable for using patent infringing products?
According to the patent Law and relevant civil laws, anyone who uses a patent infringing product for production and business purposes without knowing that it is manufactured and sold without the permission of the patentee shall first bear the responsibility to stop using it. If it can be proved that the patent infringing product used has a legal source, he shall not bear the responsibility to compensate for the loss; otherwise, he shall pay for the loss. For use for non-production and business purposes, it is generally believed that it does not constitute infringement.
What legal responsibility should be borne by agents selling patent infringing products?
Agent sales of patent infringement products to bear the responsibility for stopping sales and compensation for losses, if it can prove that the legitimate source of the product, do not bear the liability for compensation, otherwise need to compensate for losses. This is the legal source defense in patent infringement litigation.
What is the process of patent invalidation? What happens if a patent is invalidated?
If any entity or individual considers that an authorized patent does not have the formal or substantive requirements provided for in the Patent Law, it may file an application for patent invalidation with the Patent Reexamination Board of the State Intellectual Property Office for the patent. If the patent is declared invalid, the patent right will be forfeited, but it will not affect the contract that has been performed before the declaration and the effective judgment that has been executed.
The Patent Law provides that, from the date of the announcement of the grant of a patent right by the State Intellectual Property Office, any entity or individual that considers that the grant of the patent right is not in conformity with the relevant provisions of the Patent Law may request the Patent Reexamination Board to declare the patent right invalid. The Patent Reexamination Board shall promptly examine and make a decision on the request for invalidation of the patent right. Where any party is dissatisfied with the decision of the Patent Reexamination Board declaring the patent right invalid or maintaining the patent right, it may, within three months from the date of receipt of the notification, institute legal proceedings in the people's court. The people's court shall notify the other party to the invalidation request procedure to participate in the proceedings as a third party.
As for the consequences of the invalidation of a patent, the patent law provides that a patent that is declared invalid is deemed to have never existed in the first place. The decision to declare the patent right invalid shall not have retroactive effect on the judgments or rulings of patent infringement made and executed by the people's court before the declaration of the patent right invalid, the decisions on the settlement of patent infringement disputes that have been performed or enforced, and the patent licensing contracts and patent right assignment contracts that have been performed. However, compensation shall be paid for any loss caused to others by the patentee's malice. If the patentee or the assignor of the patent right does not return the patent royalty or the transfer fee to the licensee or the transferee of the patent right, and this obviously violates the principle of fairness, the patentee or the transferee of the patent right shall return all or part of the patent royalty or the transfer fee to the licensee or the transferee of the patent right.
Under what circumstances can a patent be declared invalid?
If one of the following circumstances is found to exist, the patent will be declared invalid: (1) the granted invention-creation does not meet the "novelty, creativity, practicality" of the patent Law on invention and utility model patents or does not meet the patentability of the design patent; (2) the patent application documents do not comply with the law; (3) the classification is not clear, and the invention-creation granted a patent does not meet the definitions of the relevant invention, utility model, or design; (4) falls within the scope of non-grant of patent right; (5) repeated licensing, in violation of "the same invention can only be granted one patent"; (6) Violation of the principle of "prior application"
