1. What does the preliminary patent examination include?
According to the Patent Law According to the regulations, the contents of the preliminary examination of invention patents are:
1. Whether the applicant’s application documents are complete and whether they are written in compliance with the Patent Law and its Implementing Rules 》Provisions;
2. Whether the applicant's identity is legal and whether all supporting documents are complete. If the applicant is a foreigner, has he or she entrusted an agent in accordance with the law?
3. Whether the invention and creation for which the patent is applied for violates national laws, social ethics or harms public interests and belongs to Objects to which patent rights are not granted;
4. Whether the applicant has paid the application fee, etc.
According to the provisions of the Patent Law, the main contents of the Patent Office’s preliminary examination of utility model patents and design patents are:
1. Whether the writing of the application documents meets the requirements;
2. Whether the modification of the documents exceeds the legal limit;
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3. Whether the applicant's qualifications are legal and whether the foreign applicant has entrusted a legal agency to handle the patent application;
4. Whether the utility model or design violates the law, social ethics or harms public interests, and whether it is an invention not granted patent protection;
5. Whether the application meets the requirements of unity;
6. Is there any possibility of repeated authorization?
7. Are the applications for two identical utility model or design patentsPlease wait for subsequent applicants.
2. Relevant legal provisions
"Implementing Rules for the Patent Law of the People's Republic of China"Article 44 Patent Law Article 34 The term "preliminary examination" as mentioned in Article 40 refers to the examination of whether the patent application has the documents specified in Article 26 or Article 27 of the Patent Law and other necessary documents, whether these documents comply with the prescribed format, and the examination of the following Items:
(1) Whether the application for an invention patent obviously falls within the circumstances stipulated in Articles 5 and 25 of the Patent Law, and whether it does not comply with Article 25 of the Patent Law. Whether the provisions of Article 18, Paragraph 1 of Article 19, Paragraph 1 of Article 20, or Paragraph 2 of Article 16 and Article 26 of these Rules are obviously inconsistent with Paragraph 2 of Article 2 of the Patent Law , Paragraph 5 of Article 26, Paragraph 1 of Article 31, Article 33 or Articles 17 to 21 of these Rules;
(2) Whether the utility model patent application obviously falls under the circumstances stipulated in Articles 5 and 25 of the Patent Law, and whether it does not comply with Articles 18, 19, paragraph 1, and Whether the provisions of Paragraph 1 of Article 20 or Articles 16 to 19 and 21 to 23 of these Rules are obviously inconsistent with Article 2, Paragraph 3 and Article 20 of the Patent Law? Paragraph 2 and Paragraph 4 of Article 2, Paragraph 3 and Paragraph 4 of Article 26, Paragraph 1 and Article 33 of Article 31 or Article 20 and Article 43 of these Rules According to the provisions of the first paragraph, whether the patent right cannot be obtained in accordance with Article 9 of the Patent Law;
(3) Whether the design patent application clearly falls under Article 5 of the Patent Law; Whether the circumstances specified in Article 25, Paragraph 1, Item (6) are inconsistent with Article 18, Article 19, Paragraph 1 of the Patent Law or Articles 16, 27, Are the provisions of Article 28 clearly inconsistent with Article 2, paragraph 4, Article 23, paragraph 1, Article 27, paragraph 2, Article 31, paragraph 2, and 3 of the Patent Law? 13 or the first paragraph of Article 43 of these Rules, whether the patent right cannot be obtained in accordance with Article 9 of the Patent Law;
(4) Whether the application documents comply with the provisions of Article 2 and Article 3, Paragraph 1 of these Rules.
The patent administration department of the State Council shall notify the applicant of the examination opinions and require him to state his opinions or make supplements within a specified time limit.If the applicant fails to respond within the time limit, his or her application will be deemed to have been withdrawn. After the applicant has stated its opinions or made corrections, if the patent administration department of the State Council still considers that the application does not comply with the provisions listed in the preceding paragraph, it shall reject it.
The above knowledge is the editor’s answer to relevant legal issues. The content of preliminary patent examination depends on the type of patent. For example, the content of invention patent examination is Whether the information is complete, whether the applicant meets the requirements, etc. If you need legal help, readers can go to the Legal Savior Network for consultation. The Legal Savior Network has professional lawyers to answer your questions.
