1. What to do if the patent application has expired
1. Expired 1 Within months
If the patentee fails to pay the annual fee on time or pays insufficient, there is a one-month deferment period. If you pay the annual fee back, no additional late payment fees are required.
2. Overdue for 2-6 months
Unpaid patent year for more than 1 month If you pay a fee, you will receive a "Payment Notice" issued by the patent administration department. The notice will carefully list all the fees that the patentee should pay, including annual fees, late fees, etc.
For late payment fees, if the patent expires and the annual fee is not paid for 2-6 months, you need to pay 5%, 10%, 15%, and 15% of the annual fee for the year respectively. 20% and 25% as late payment fees.
3. Failure to pay patent annual fees for more than 6 months
, you will receive a "Notice of Termination of Patent Rights", but the patentee can still keep his patent rights.
At this time, the patentee can pay the patent annual fee, 25% late payment fee, and 1,000 yuan patent right on time within 2 months from receiving the notice. For a fee, you can submit an application for restoration of rights.
4. What to do if you ignore the deadline and completely lose the patent right
Specifically: If the patent rights restoration procedures are not completed and the relevant fees are paid within 2 months after receiving the "Notice of Patent Rights Termination", the patent rights will generally be completely terminated and cannot be restored, and can be used by the public. Whether it is an invention patent, a utility model patent, or a design patent, after the expiration of the protection period, many of them no longer have the novelty required for a patent. In addition, with the loss of patent rights, the only way to save the situation is to re-apply for a patent.. After the patent right is lost, as long as you resubmit an application based on the original technical solution and add a new or improved technical solution, you can successfully obtain patent protection after being authorized.
"Patent Law of the People's Republic of China"
Article 42 The term of invention patent rights is twenty years, the term of utility model patent rights is ten years, and the term of design patent rights is fifteen years, all calculated from the date of application.
If the invention patent right is granted after four years from the date of application for the invention patent and three years from the date of request for substantive examination, the patent administration department of the State Council shall At the request of the patentee, compensation for the duration of the patent right shall be granted for unreasonable delays in the granting process of the invention patent, except for unreasonable delays caused by the applicant.
In order to compensate for the time taken up by the review and approval of new drugs, for invention patents related to new drugs that have been approved for marketing in China, the Patent Administration Department of the State Council shall, at the request of the patentee, Provide compensation for the duration of patent rights. The compensation period shall not exceed five years, and the total effective patent period after the new drug is approved for marketing shall not exceed fourteen years.
2. Can I apply for restoration if the patent right has been terminated?
If the patent right has been terminated, if the termination is justified, the patentee may request restoration of the patent right.
Article 6 of the "Implementing Rules for the Patent Law of the People's Republic of China" where a party delays the time limit specified in the Patent Law or these Rules due to force majeure or the Patent Administration Department of the State Council If the specified time limit results in the loss of rights, the person may request the patent administration department of the State Council to restore the rights within 2 months from the date when the obstacles are removed, and at the latest 2 years from the date of expiration of the time limit.
Except for the circumstances specified in the preceding paragraph, the party concerned delays the time limit specified in the Patent Law or these Rules or the time limit specified by the Patent Administration Department of the State Council due to other legitimate reasons, resulting in his/her If the rights are lost, the applicant may request the patent administration department of the State Council to restore the rights within 2 months from the date of receipt of the notice from the patent administration department of the State Council.
If a party requests the restoration of rights in accordance with the provisions of paragraph 1 or 2 of this article, it shall submit a request for restoration of rights, explain the reasons, and attach relevant certificates if necessary documents, and handle relevant matters that should be handled before the rights are lost.If you apply for restoration of rights in accordance with the provisions of paragraph 2 of this article, you must also pay a request fee for restoration of rights.
If a party requests an extension of the time limit specified by the patent administration department of the State Council, it shall explain the reasons to the patent administration department of the State Council and go through relevant procedures before the expiration of the time limit.
We can learn that in accordance with regulations,patentees fail to pay annual fees on time or do not pay enough. It is necessary to make up payment in time, otherwise the patent right will be lost. If the patent right has been terminated, you can apply for restoration if the conditions are met. The above is the content compiled by the editor. If you still have any questions, you can consult the relevant lawyers on the Legal Savior Network.
