How does the law stipulate the date of patent application?
"The People's Republic of China" Article 28 of the Patent Law stipulates: "The date when the patent administration department of the State Council receives the patent application documents is the date of application." refers to the date when the applicant files an application with the patent office. When a patent applicant submits relevant application documents to the Patent Office, it means that he has formally filed a patent application. After receiving the application documents, the Patent Office shall also determine the filing date and application number for the relevant application and notify the applicant. If a patent right is obtained, the protection period of the patent right is also calculated from the filing date. Determining the first filing date of a patent application is of great significance to patent applicants. First of all, if you later apply for a patent for the same invention, you will not be able to obtain a patent because of the loss of novelty. Secondly, since the first filing date, the inventor or applicant can implement the invention or publish the relevant technical information in publications, which will not destroy the novelty of the patent application. Third, in subsequent patent examinations, the "prior art" used to determine novelty and inventiveness will be based on the technology before the first filing date. Fourth, when an applicant claims international priority in the patent application process, the first filing date can be regarded as the "priority date".
Importance
The patent application date is of great significance to the patent applicant and is directly related to whether the patent applicant can obtain the patent right. Therefore, determining the filing date is the key date for a patent applicant to be granted patent rights.
Except Article 20 of the "Patent Law of the People's Republic of China" stipulates: "The date when the patent administration department of the State Council receives the patent application documents is the filing date." Article 28 also stipulates: “If the application documents are mailed, the postmark date shall be the date of application.” In other words, the day when the applicant submits the application documents to the post office is the date of application.
In actual work, there are often situations where the postmark is unclear and cannot or is difficult to read. In this case, if the applicant can submit the application documents In addition to the evidence of the exact date of the post office, the date of application is generally the time when the patent administration department of the State Council receives the applicant's mail. Article 4 of the "Implementing Rules for the Patent Law of the People's Republic of China" stipulates: "For various documents mailed to the Patent Administration Department of the State Council, the postmark date shall be the date of submission. If the postmark is not clear, unless the party concerned can provide proof, the date of submission shall be the date of submission of the documents mailed to the Patent Administration Department of the State Council. The date of receipt by the patent administration department is the date of submission.
Legal significance
The date of patent application is of great legal significance: it determines the order in which applications are submitted. When there are multiple applications with the same content, the order of applications determines who is granted the patent right; it is the basis for determining whether an invention-creation is It has a novelty date standard because it determines the time limit for searching prior art; this date is also the starting date of a series of important deadlines in the examination procedure and the patent protection period after the patent application is granted, and it starts from the filing date Before authorization, the applicant's rights will also be subject to "temporary protection". Applications with the same subject after the filing date will lose their novelty because they conflict with it, and patent rights cannot be granted.
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