Q: Article 1 of the "Notice" stipulates that if the same applicant applies for both a utility model patent and an invention patent for the same invention and creation on the same day, he must fill in the form formulated by the State Intellectual Property Office "Statement on Application for Invention Patent and Utility Model Patent on the Same Day". What is the legal basis for this approach? What are the requirements for filling in the "Declaration"?
Answer: The specific basis for this approach is Article 9 of the revised Patent Law: Only one patent right can be granted for the same invention. This provision is referred to as the “one invention, one patent principle” and is a basic principle of patent law. The same applicant applies for both a utility model patent and an invention patent for the same invention and creation on the same day. It is a product of my country's specific economic and social development conditions and has a positive effect on promoting the establishment and improvement of a patent system that is both consistent with WTO rules and has Chinese characteristics. . To this end, it has been solidified in legal form in the newly revised Patent Law. At the same time, in order to strictly implement the provisions of the Patent Law on "one patent for one invention", the State Intellectual Property Office has studied and formulated the "Declaration of Application for Invention Patent and Utility Model Patent on the Same Day" form, which stipulates: after October 1, 2009 (including the day), if the same applicant applies for both a utility model patent and an invention patent for the same invention-creation on the same day, he should fill in two corresponding "Declaration" forms as required, that is, fill in one form when submitting the request for invention patent application, and submit When applying for a utility model patent, fill in another form to indicate that another patent has been applied for the same invention. When a utility model patent application is granted patent authorization, the State Intellectual Property Office will announce it in the Patent Gazette, together with the above statement. It can be said that in terms of procedures, from patent application to authorization, barriers to "prohibiting repeated authorization" have been built. In addition, as the implementation details of the new patent law are still being revised, other relevant provisions need to be further clarified. In order to protect the interests of relevant applicants, it is recommended that such applicants submit a "Declaration" when going through the patent application procedures.
Q: Article 2 of the "Notice" stipulates that if an invention or utility model completed in China applies for a patent in a foreign country, the "Request for Confidentiality Review of Patent Application from a Foreign Country" must be filled in ", what is the legal basis for this approach?
Answer: The specific basis for this approach is Article 20 of the revised Patent Law: Any unit or individual Applications for patents in foreign countries for inventions or utility models completed in China must be submitted to the patent administration department of the State Council for confidentiality review in advance. for the sake of regulationTo standardize confidentiality review requests and facilitate applicants to apply for foreign patents, the State Intellectual Property Office has studied and formulated the "Request for Confidentiality Review of Patent Applications from Foreign Countries" form. When submitting a request for confidentiality review to a foreign application, the applicant only needs to fill in the form carefully as required. At the same time, Article 20 of the Patent Law also stipulates that the procedures and time limits for confidentiality review shall be implemented in accordance with the regulations of the State Council. What the specific regulations are will be clarified after the newly revised Implementing Rules of the Patent Law are promulgated, but it is certain that the final regulations will definitely focus on better serving applicants while protecting national interests.
