What are the substantive conditions for granting a utility model patent for an invention
The essential requirements for obtaining patents for inventions and utility models include: novelty, creativity and practicality, which are called the "three properties".
1. Novelty. According to the provisions of the Patent Law, novelty means that the invention or utility model does not belong to the existing technology (existing technology refers to technology that is known to the public at home and abroad before the date of application. The invention for which a patent is applied for: If it has been published or used in domestic and foreign publications or known to the public in other forms before the filing date, its novelty will be lost.); No one has reported the same invention or utility model to the Patent Administration of the State Council before the filing date. The department has filed an application and it has been recorded in the patent application documents or published patent documents published after the application date.
The invention-creation for which the patent is applied for is 6 years before the filing date Within one month, the novelty will not be lost if the following circumstances occur:
(1) Exhibited for the first time at an international exhibition sponsored or recognized by the Chinese government
(2) Published for the first time at academic conferences or technical conferences organized by relevant competent departments of the State Council and national academic groups
(3) Others leak the content without the Applicant’s consent. It should be noted that in these three cases, although novelty is not lost, its effect is very limited, and it does not have the effect of excluding third party applications. If someone else files an application for the same invention within these 6 months, this requirement of not losing novelty cannot compete with it.
First, conflicting application:
(1) Someone has applied for it before, but withdraws it before the patent document is made public, so that the later applicant can still obtain the patent right
(2) Someone applied for it earlier, but after the patent document was published, the application was withdrawn. At this time, the later applicant cannot obtain the patent right, because the disclosure of the former has made the technology existing technology, and the later applicant cannot obtain the patent right. The same human technology loses its novelty.
Second, conflict with the application conditions:
( 1) It must be proposed by someone else. If it is proposed by you before the patent application date, the issue of domestic priority will arise
(2) It must be filed in
(3) Filed before the filing date of the subsequent applicant must be published after the filing date of the subsequent applicant. If it is not published, it may be published after the filing date of the subsequent applicant. If the applicant's application is withdrawn before the date of application, it will not affect the later applicant's application. In addition, if it is published before the later applicant's application date, it means that the later applicant's technology is not novel and may plagiarize the earlier applicant's technology.
Third, the design patent does not conflict with the application, and only uses disclosure and publication disclosure, and there are no other forms of disclosure.
2. Creativity. Creativity means that compared with the existing technology before the filing date, the invention has outstanding substantive features and significant progress, and the utility model has substantive features and progress. The standard of inventive step for utility models is lower than that for inventions. In addition, the Patent Law does not conduct substantive examination of utility model patent applications, so the evaluation of the utility model's inventiveness may only be involved when a request for invalidation of the utility model patent right is made.
3. Practicality. Practicality means that an invention can be manufactured or used in industry and can produce positive effects. A practical invention must be able to be made or used, that is, it must be implementable and can be implemented repeatedly. In addition, it must also bring positive effects, that is, be beneficial. When judging the beneficialness, it should be noted that the positive effects brought by the invention may not have occurred at the time of application, as long as there is the possibility of producing positive effects.
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