Will the patent be authorized after it has reached the substantive examination stage?
The patent has reached the substantive examination stage After the stage, it may not be authorized by the patent management department. Only if no reason for rejection is found during the substantive examination, it will be authorized by the patent management department.
"Patent Law of the People's Republic of China"
Article 39: If no reason for rejection of an invention patent application is found after substantive examination, the patent administration department of the State Council shall make a decision to grant the invention patent right and issue an invention patent certificate. be registered and announced at the same time. The invention patent right shall take effect from the date of announcement.
Article 40 If no reason for rejection is found after preliminary examination of a utility model or design patent application, the patent administration department of the State Council shall make a decision to grant the utility model patent right or design patent right. The decision on the design patent right shall be issued with a corresponding patent certificate, and shall be registered and announced at the same time. Utility model patent rights and design patent rights take effect from the date of announcement.
What are the characteristics of invention patents
Proprietary ：
Proprietary is also called "exclusiveness". The so-called exclusivity refers to the exclusive manufacture and use of the patentee's invention and creation. , sales and import and export rights. In other words, no other unit or individual may manufacture, use, sell, offer for sale, import or export its patented products, use its patented methods, or use its patented methods for production or business purposes without the permission of the patentee. Manufacture, use, sale, offer for sale, and import and export of products directly obtained according to the method for production and business purposes. Otherwise, it is patent infringement.
Regionality:
According to the principle of patent independence, the regional characteristics of patent rights refer to the patents granted by a country in accordance with its own patent law. The right is only valid within the jurisdiction of the laws of that country and does not have any binding force on other countries. Foreign countries do not assume the obligation to protect its patents. If an invention-creation only obtains patent rights in our country, then the patentee can only Our country enjoys patent rights or exclusive rights. If someone produces, uses or sells the invention in other countries and regions, it is not an infringement. It is very meaningful to understand the regional characteristics of patent rights, so that our country’s units or If an individual develops an invention with international market prospects, he or she must not only apply for a domestic patent in a timely manner, but also seize the opportunity to apply for a patent in other countries and regions with good market prospects, otherwise the foreign market will not be available. Protection.
Temporality:
The so-called temporality refers to the patentee’s All exclusive rights granted by law to inventions and creations are only valid within the time specified by law. After the expiration of the time period, the patentee no longer has the exclusive rights to manufacture, use, sell, offer for sale, and import his inventions and creations. At this point, the inventions and creations originally protected by law have become the public wealth of society, and any unit or individual can use it free of charge.
Term:
Patent laws of various countries have clear regulations. The protection period for invention patent rights generally ranges from 10 to 20 years from the date of application; for utility model and design patents The term of patent rights is 5-10 years in most countries. The protection terms of invention patents, utility model patents and design patents stipulated in China's current patent law are 20 years, 10 years and 10 years respectively from the date of application.
Intangibility:
Patent rights are intangible. Many people often regard patent rights as One characteristic is regarded as the object of protection - the technology protected by patent rights. In fact, the intangibility is the patent itself. Otherwise, for a trademark, the object is a pattern, which is obviously not intangible.
How to determine invention patent infringement
The scope of protection of an invention or utility model patent is determined by the claims. The content shall prevail, and the description and drawings may be used to interpret the claims. This provision means that the scope of protection of the rights shallThe scope determined by the necessary technical features clearly stated in the claims shall prevail, and of course, the scope determined by features identical to the necessary technical features shall also be included.
The so-called equivalent features refer to the technical features recorded in the claims of the invention patent or utility model patent that are implemented by basically the same means and are basically the same. Function, so as to achieve basically the same effect, and at the same time require features that technicians in the technical field can associate without creative work.
The principle of equivalence in judging infringement of invention patents and utility model patents is based on the methods mentioned above and the claims, descriptions, drawings, etc. content, and a method to determine whether the product sued by the plaintiff constitutes patent infringement. The people's court uses the principle of equivalents to determine whether the product in litigation is infringing in the following ways:
(1) After a simple shift of product parts or a simple change in the sequence of method steps , if a person of ordinary skill in the field of the product or method believes that there is no essential difference between the two and is basically the same as the resulting patented technology, the product can basically be determined to be infringing;
(2) Equivalent replacement. It means that a certain technical feature recorded in the claim also has a corresponding technical feature in the product or method accused of infringement, and the two technical features play basically the same role or effect in the product or method, and Ordinary technicians in the technical field generally know that these two technical features can be interchanged, and the people's court can determine that the product in litigation is infringing;
(3) Decomposition Or incorporate technical features. Decomposition means replacing a certain technical feature recorded in the claim of the infringed product with two technical features of the allegedly infringing product or method; merging means replacing the rights of the infringed product with one technical feature of the allegedly infringing product or method. If two technical features recorded in the request can be combined or decomposed and ordinary technicians in the technical field can achieve the positive effects of the patented technology without creative work, the people's court may determine it as equivalent infringement.
The above knowledge is the editor's answer to the question "Can a patent be authorized when it reaches the substantive examination stage?" After the patent reaches the substantive examination stage, it may not be authorized. Authorized by the patent management department, only if no reason for rejection is found in the substantive examination, it will be authorized by the patent management department. If readers need legal help, they are welcome to go to the Legal Savior Network for legal consultation.
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