Do you have patent rights during the patent trial?
According to the provisions of the Patent Law , in order to obtain authorization, a patent needs to pass patent examination, whether it is preliminary examination or substantive examination. There is no patent right during the examination stage.
"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 does the content of patent rights include
1. Rights of the patentee
The patentee can independently exercise its patent rights according to its own will. If the co-owners of the patent right have an agreement on the exercise of the right, the agreement shall prevail. If there is no agreement, the co-owners can implement the patent alone or license others to implement the patent in the form of a general license; if the patent is licensed to others, the royalties collected shall be distributed among the co-owners. Except for the above circumstances, the exercise of jointly owned patent rights must obtain the consent of all co-owners.
(1) Exclusive implementation right
After the invention and utility model patent rights are granted, except as otherwise provided in this Law, no unit or individual may exploit the patent without the permission of the patentee, that is, they may not manufacture, use, or use the patent for production and business purposes. Promise to sell, sell, or import its patented products, or use its patented methods, and use, promise to sell, sell, or import products directly obtained according to the patented methods.
(2) Implementation licensing right
It means that the patentee can license others to implement its patented technology and collect patent royalties. Any unit or individual can implement other people's patents , shall enter into an implementation licensing contract with the patentee and pay patent royalties to the patentee. The licensee has no right to allow any unit or individual other than those specified in the contract to implement the patent.
(3) Right to transfer
Patent rights can be transferred. Chinese entities or individuals transfer patent rights to foreigners, foreign enterprises or other foreign organizations , the procedures shall be carried out in accordance with the provisions of relevant laws and administrative regulations.
(4) Right of labeling
It means that the patentee has the right to indicate the patent mark and patent number on its patented product or the packaging of the product.
2. Patentee The obligation of the patentee
The obligation of the patentee is mainly to pay the patent annual fee. Article 43 of the Patent Law stipulates: The patentee shall start from the year when the patent right is granted. Pay annual fees. Failure to pay annual fees as required may result in the termination of patent rights.
What is the content of patent substantive examination
(1) Whether it complies with the provisions of Article 5 of the Patent Law, that is, whether the subject matter of the patent application violates national laws, social ethics or harms public interests;
(2) Whether it complies with the provisions of Article 25 of the Patent Law, that is, whether the subject matter of the patent application falls within the scope that cannot be granted patent rights;
(3) Whether it complies with the provisions of Article 33 of the Patent Law, that is, whether the patent application meets the requirements of unity;(4) Whether it complies with the provisions of Article 31 of the Patent Law, that is, when the applicant makes amendments to the application or files a divisional application, whether it exceeds the scope recorded in the original description (including drawings) and claims;
(5) Whether it meets the definition of invention stipulated in the Patent Law and Implementing Regulations, that is, a new technical solution proposed for a product, method or improvement thereof.
(6) Whether it complies with the provisions of Article 18 of the Implementing Rules of the Patent Law, that is, whether the drafting of the invention description in the patent application meets the prescribed requirements and describes the invention to be protected. A clear and complete explanation is made so that technicians in the technical field can implement it;
(7) Whether it complies with the provisions of Article 20 of the Implementing Rules of the Patent Law , that is, whether the claims clearly and briefly state the scope of protection requested, whether the claims are based on the description, and whether the independent claims contain all the necessary technical features to solve the technical problem to be solved by the invention.
(8) Whether it is consistent with the situation where the application claims priority, if it is found that another person has filed another patent application on the same subject between the priority date and the filing date, or If it is found through the search that there are relevant documents disclosed during this period, it will be reviewed whether the priority claim is established; at the same time, the patentability of the invention patent application will be judged based on the retrieved comparative documents.The above knowledge is the editor's answer to the question "Can a patent be authorized when it reaches the substantive examination stage?" According to the provisions of the Patent Law, if a patent is to be authorized, it must pass patent examination, whether it is preliminary examination or substantive examination. There is no patent right during the review stage. If readers need legal help, they are welcome to go to the Legal Savior Network for legal consultation.
