Is the patent authorized directly after review?
According to the provisions of my country's patent law , Utility model and appearance invention patents must pass preliminary examination before the patent can be authorized, while invention patents must pass substantive examination before they can be authorized.
"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 circumstances under which patent rights are not granted
According to The Patent Law stipulates that an invention can obtain patent rights as long as it meets the substantive conditions for obtaining a patent. However, in order to protect the interests of the country, society and the public and promote the development of the national economy, my country's patent law has made exceptions for some subjects that cannot obtain patent rights based on the characteristics of patent protection and my country's economic and technological development conditions. my country's Patent Law stipulates that the following items are not granted patent rights:
1. Scientific discoveries. Scientific discovery is an unprecedented scientific understanding of the laws of nature and the characteristics of natural phenomena that help explain the laws of nature. However, scientific discovery is only the understanding of the laws of nature, rather than inventions and creations made by using the laws of nature. It cannot directlyIt is used in production practice and has no industrial practicality, so no patent rights are granted.
2. Rules and methods of intellectual activities. Intellectual activity refers to human thinking activities, which originate from human thinking. Through reasoning, analysis and judgment, abstract results are produced, or human thinking movements must be used as a medium to indirectly act on natural results. It only guides people to think, identify, judge and remember the information it expresses. It does not require the use of technical means or the observance of natural laws. It does not have technical characteristics and therefore cannot be granted patent rights.
3. Diagnosis and treatment methods of diseases. Disease diagnosis and treatment methods refer to the process of identifying, determining or eliminating the causes or lesions of living humans or animals. Considering that doctors’ bounden duty is to save lives and heal the wounded, doctors should have the freedom to choose various methods in the process of diagnosing and treating diseases; on the other hand, the diagnosis and treatment methods of diseases are directly implemented on living human or animal bodies. It cannot be used industrially, is not practical, and is not an invention within the meaning of the patent law. Therefore, such methods cannot be patented.
4. Animal and plant species. Animal and plant varieties refer to the animal and plant varieties themselves and do not include the methods for producing the animal and plant varieties. The production methods mentioned here refer to non-biological methods, excluding mainly biological methods for producing animals and plants. Whether a method is a "mainly biological method" depends on the degree of intervention of artificial technology in the method. If the intervention of artificial technology plays a major controlling or decisive role in the purpose or effect of the method, Then this method does not belong to a "primarily biological method" and can be patented.
5. Substances obtained by nuclear transformation. Since substances obtained by nuclear transformation methods can be used for military purposes, the Patent Law stipulates that patent rights are not granted due to considerations of vital national interests. It should be pointed out that not only the substances obtained by the nuclear transformation method cannot obtain patent protection, but also the nuclear transformation method itself cannot obtain patent protection.
Under what circumstances can a compulsory license for patent implementation be applied for?
According to the provisions of my country’s Patent Law and related laws, compulsory patent licensing can be implemented in the following situations:
1. A unit that meets the conditions for implementation requests an invention under reasonable conditions Or the utility model patentee has given permission to implement the patentIf such license cannot be obtained within a reasonable time, a compulsory license to implement the invention patent or utility model patent may be requested in accordance with relevant regulations. According to regulations, a compulsory license for patent implementation can only be filed three years after the patent right is granted.
2. A patented invention or utility model is a major technological advancement of significant economic significance compared to a previously patented invention or utility model, and the If the implementation depends on the implementation of the previous invention or utility model, the patentee may request a compulsory license to exploit the previous patent in accordance with relevant regulations, and the previous patentee may also request a compulsory license to exploit the later patent.
3. In the event of a national emergency or extraordinary situation, or for the purpose of public interest, the relevant competent authorities of the State Council have the right to request the grant of patent rights in accordance with the relevant provisions of the Patent Law. Compulsory license to implement invention patents or utility model patents.
Of course, the Patent Law imposes relatively strict restrictions on compulsory licensing. Before the Patent Administration Department of the State Council approves compulsory licensing, it must first be approved by an entity that has the conditions to implement the patent. To apply, the applicant must provide proof that it has failed to sign an implementation license contract with the patentee on reasonable terms. The unit that has obtained the compulsory license does not enjoy the exclusive right to implement and has no right to allow others to use it, and must pay a reasonable fee to the patentee. fee. Compulsory licensing only applies to inventions or utility model patents, and does not apply to design patents.
The above knowledge is the editor’s answer to the question “Can the patent be authorized directly after review?” According to the provisions of my country’s patent law, utility models and appearance inventions Patents can be authorized after passing preliminary examination, while invention patents need to pass substantive examination before they can be authorized. If you need legal help, you are welcome to go to the Legal Savior Network for legal consultation.
