Whether a patent is granted based on the first application or the second application
Patent authorization should be based on the time of the first application. After the patent application is withdrawn, the re-application should be regarded as the first application.
"Patent Law of the People's Republic of China"
Article 34: After the patent administration department of the State Council receives an invention patent application, and upon preliminary examination determines that it meets the requirements of this Law, it shall be eighteen months from the date of application. Will be announced immediately. The patent administration department of the State Council may publish the application as early as possible upon the applicant's request.
Article 35 Within three years from the date of application for an invention patent, the patent administration department of the State Council may conduct substantive review of the application upon request made by the applicant at any time. Review; if the applicant fails to request substantive review beyond the time limit without justifiable reasons, the application will be deemed to have been withdrawn.
When the patent administration department of the State Council deems it necessary, it may conduct a substantive examination of an invention patent application on its own.
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 the invention The patent certificate shall 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 patent right 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 right to implement
After the invention and utility model patent rights are granted, Except as otherwise provided in this Law, no unit or individual may exploit its patent without the permission of the patentee, that is, it may not manufacture, use, offer for sale, sell or import its patented products for production and business purposes, or use its patented products. Methods and the use, offering for sale, sale, and import of products obtained directly in accordance with the patented method.
(2) Implementation license
It means that the patentee can license others to implement Its patented technology and collects patent royalties. Any unit or individual that exploits someone else's patent shall enter into an implementation license 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 exploit the patent.
(3) Transfer right
Patent rights can be transferred. When Chinese entities or individuals transfer patent rights to foreigners, foreign enterprises or other foreign organizations, they must go through the procedures in accordance with the provisions of relevant laws and administrative regulations.
(4) Labeling rights
It refers to the rights that the patentee enjoys in its patented products. or the right to display the patent mark and patent number on the packaging of the product.
2. Obligations of the patentee
The obligation of the patentee is mainly to pay the patent fee annual fee. Article 43 of the Patent Law stipulates: The patentee shall pay annual fees starting from the year when the patent right is granted. Failure to pay the annual fee as required may result in the termination of the patent right.
What are the main characteristics of patent rights?
(1) It has exclusivity. The so-called exclusivity is also called monopoly Or exclusivity. Patent right is an exclusive right granted to the applicant or his legal assignee by the competent government department based on the application of the inventor or applicant and deeming that the invention meets the conditions stipulated in the patent law. It It is owned exclusively by the patentee, and the patentee has the right to possess, use, benefit from and dispose of the object of its rights (i.e. invention and creation).
(2) Having Temporality. The so-called temporality of patent rights means that patent rights have a certain time limit, that is, the protection period stipulated by law. The patent laws of various countries have their own regulations on the effective protection period of patent rights, and the calculation of the protection period The starting time is also different. Article 42 of China’s Patent Law stipulates: “The term of invention patent rights is 20 years, and the term of utility model and design patent rights is 10 years, both calculated from the date of application. ”
(3) It is regional. The so-called regionality refers to the spatial restriction of patent rights. It refers to the patent rights granted and protected by a country or a region. Patent rights are only valid within the scope of that country or region and have no legal effect on other countries and regions, and their patent rights are not recognized and protected. If the patentee wants to enjoy patent rights in other countries, he must follow the Patent applications must be filed separately under the laws of other countries. Unless otherwise stipulated in international treaties and bilateral agreements, no country will recognize patent rights granted by other countries or international intellectual property agencies.
The above knowledge is the editor's answer to the question "Whether the patent right is based on the first application or the second application". The authorization of the patent should be based on the first application. The time shall prevail, and after the patent application is withdrawn, the re-application should be regarded as the first application. If readers need legal help, they are welcome to go to the Legal Savior Network for legal consultation.
