What is the substantive examination process for invention patents
Substantial examination is also called complete examination System, founded in the United States in 1836. With the continuous advancement of science and technology, the number of inventions and creations is increasing day by day. The registration system often allows applications without any scientific and technological value to obtain patent rights. This has caused dissatisfaction among many patent users. Therefore, public opinion requires a substantive examination of the content of the invention. , that is, in addition to the formal examination, a substantive examination of novelty, inventiveness, and practicality must be conducted before determining whether to grant a patent right. The substantive review system is divided into two types: immediate review system and delayed review system.
1. Instant review system, also known as one-time review system Sexual censorship. That is, after the Patent Office conducts a formal examination of the application, without the applicant requesting a substantive examination, it will immediately examine the contents of the patent application for novelty, inventiveness and practicality to determine whether to grant the patent right. The advantage of the instant review system is that it can ensure the quality of the patent rights granted and reduce litigation disputes, which simplifies the review process to a certain extent. The disadvantage is that the approval time is long and a large patent examination agency is required. Currently, this censorship system is implemented in the United States, the Soviet Union, Canada, Sweden, India and other countries.
2. Delayed review system, also called early public request review system. That is, after the Patent Office conducts a formal examination of a patent application, it does not immediately conduct a substantive examination. Instead, it first makes the application public. The applicant can request a substantive examination at any time within a period of time from the date of application. After the applicant submits the substantive examination, After the request for examination, the Patent Office will only conduct a substantive examination if it has been disclosed. If the applicant does not submit a request for substantive examination within the statutory time limit, the application will be deemed to have been automatically withdrawn. The statutory time limit for requesting substantive examination varies from country to country, ranging from 2 to 7 years. It takes 7 years in Japan, West Germany, and the Netherlands, 5 years in Australia and other countries, 2 years in Brazil, and 3 years in my country. The advantages of early disclosure of the delayed examination system are: it speeds up the exchange of patent information; it gives applicants sufficient time to consider whether to request substantive examination and when to file for substantive examinationAccording to the request, some of the applicants will give up the request for substantive examination based on the actual situation. From the applicant's point of view, it will avoid rejection and save examination costs. From the patent office's point of view, it will reduce the workload of examination and approval, allowing the examiner to concentrate on Examine and handle patent applications for which substantive examination requests are made. However, this review system takes too long, leaving patent applications pending for a long time and easily causing disputes. In addition, the period from early disclosure to the issuance of a patent certificate is a legal temporary protection period, during which the applicant's rights and interests cannot be fully and reliably protected. In general, the early public delayed examination system combines the advantages of formal examination and prompt examination, solves the sharp contradictions that have arisen in the history of the development of the patent system, and is adopted by more and more countries.
Verification of application documents and preparation for practical examination
( 1) Check the international patent classification number of the application
1. After receiving the application, regardless of whether it will be examined in the near future, the examiner should first check the international patent classification number of the application. Patent classification number.
2. If the examiner believes that the application does not fall within the scope of the classification he is responsible for examining, he should handle it in a timely manner in accordance with the provisions of patent classification coordination to avoid delaying the examination.
3. If the examiner believes that the classification number is inaccurate but still falls within the scope of his/her responsibility, he shall correct the classification number on his own.
(2) Check the application documents
The examiner is responsible for reviewing the Applications within the classification scope, or applications allocated to oneself, regardless of whether they will be reviewed in the near future, the application documents should be checked in a timely manner. For formal documents that should be handled by other departments and other documents that are not related to the substantive examination, the examiner should transfer them to the corresponding departments in a timely manner to avoid delays.
1. Check the basis for initiating the procedure
The examiner should check the application documents Whether there is a request for substantive examination, whether it was submitted within three years from the filing date (for divisional applications, please refer to Section 5.1.2, Chapter 1, Part 1 of this Guide), whether there is an invention patent application published and entering substantive examination Procedural Notice: If the Patent Office decides to conduct substantive examination of the invention patent application on its own, whether there is a notice signed by the Director and a record of notification to the applicant.
2. Check application documents
The examiner should check the documents required for substantive examination (including original application documents and published The application documents (if the applicant has made active modifications to the application documents or made modifications at the request of the Patent Office during the preliminary examination, it should also include whether the modified application documents) are complete.
3. Check the information related to priority
If the applicant requests foreign priority, the examiner should check whether there are requirements in the application documents Priority statement and a copy of the earlier application document issued by the competent authority of the country or intergovernmental organization that accepted the earlier application; if the applicant claims priority in his or her country, the examiner should check whether there is a priority statement in the application document and A copy of the first patent application document filed in China.
4. Check other relevant documents
If a patent application has been filed for an invention in a foreign country, the examiner shall check whether the application document contains the information submitted by the applicant for the country's search for the purpose of examining the application or the information on the examination results.
5. What to do if the application document is defective
If the examiner finds that the application document lacks the above-mentioned item (1) If the basis, documents or information mentioned in any of Sections to (3), or some documents do not comply with the provisions of the Patent Law and its Implementing Regulations, the application shall be returned to the process management department and the reasons shall be explained. If the examiner finds If the application documents lack the information mentioned in Section (4) above, and you are convinced that the applicant has obtained such information, you can fill in a notification for submission of information and require the applicant to submit relevant information within the specified two-month period; the applicant does not have If the application is not submitted within the time limit for justifiable reasons, the application will be deemed to have been withdrawn.
In addition, before the substantive examination, it is best for the examiner to first read the application documents to check whether Applicants are required to submit relevant reference materials. If necessary, they can fill in a submission notice and notify the applicant to submit it within the specified two-month period. Doing this work in advance will help speed up the review process.
(3) Establishing a personal review fileAfter checking the application documents, the examiner should start to establish a personal review file Files that record the importance of the cases I revieweddata, and supplement relevant information during the subsequent review process, so as to keep abreast of the review process and basic situation of each application case at any time.
(4) Sequence of review
1. General principles
For invention patent applications received, except for the special circumstances described in Section 3.4.2 of this chapter, they shall be examined in the order in which they are received, but similar applications received successively may be The patent applications are examined together at the same time.After the applicant responds to the first notice of office action, when the examiner continues to examine the application, the examiner should generally follow the order of the responses.
2. Special treatment
Special treatment can be done for the following situations:
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① Applications that are of great significance to national interests or public interests, upon request by the applicant or its competent authority, may be reviewed with priority upon approval by the Director of the Patent Office, and will be prioritized during the subsequent review process.
②Patent applications for which the Patent Office initiates substantive examination on its own can be processed with priority.
③A divisional application that retains the original filing date can be reviewed together with the original application.
The above is the relevant knowledge about patent substantive examination compiled by the editor. The substantive examination procedure is very strict and must follow three basic principles: the principle of request and the hearing Principle, program economy principle. The results must be recognized before they can be used more widely. If you still have questions, you can consult the professional lawyers of the Legal Savior Network online to answer your questions. Your consultation is welcome.
