1. Patent rights and their subject matter; 2. Object of Patent right; 3. The essential elements of obtaining patent rights. Patent right means the exclusive right over the invention-creation that the applicant has been granted within a certain period of time after filing a Patent application with the State patent administration department for the invention-creation and passing the examination according to law. What is the patent knowledge? Please follow the legal Savior Xiaobian below to understand.
What is the knowledge of patent law
1. Patent rights and their subject matter
Patent right means the exclusive right over the invention-creation that the applicant has been granted within a certain period of time after filing a patent application with the State patent administration department for the invention-creation and passing the examination according to law. The subject of patent right is the Patentee. According to the patent Law, the patentee is divided into two kinds: one is the "patentee" as the unit of ownership of the whole people or the unit of collective ownership or the individual citizen of our country; The other is the "patentee" of a wholly foreign-owned enterprise, a Sino-foreign joint venture, a Sino-foreign cooperative enterprise or an individual in such enterprise in China, and the "patentee" of a Foreign enterprise or individual abroad.
Object of patent right
(1) Invention
Invention is the main protection object of patent law. According to Article 2 of the Patent Law, an invention means a technical solution to a product, method or improvement thereof. To obtain a patent for an invention, it must meet the conditions stipulated in the patent Law, that is, as a specific technical solution, the invention should fall within the scope of patentability; Must be novel, creative and practical; The invention shall not violate the law and the public interest.
(2) Utility models
1, the utility model is commonly known as "small invention", which is a new technical solution proposed for the shape, structure or combination of the product. It has the following characteristics: (1) the utility model product must be practical and can be applied in industry, and once it is put into practice, it can achieve some technical, economic or social effect; (2) The utility model must be for products with a certain shape, structure or combination of them, and is limited to solid products with three-dimensional shape, structure and mobility. Therefore, products with no definite shape, such as gaseous products, liquid products, and solid products in powder, paste, and granular form, should be excluded.
2, the difference between utility models and inventions is that: (1) the creativity of utility models is generally lower than that of inventions. The Patent Law stipulates that the invention shall have outstanding substantive features and significant progress, and the utility model shall have substantive features and progress; (2) The utility model is limited to the invention of the shape, structure or combination of the product, and the method does not fall within the scope of the utility model; (3) Although the patent Law stipulates the conditions that utility models should have, it also stipulates that utility model patents are only subject to formal examination rather than substantive examination, and utility model patents can be granted as long as they pass the formal examination, and whether they meet the patent conditions is generally resolved in patent infringement proceedings; (4) The term of patent protection for utility models is shorter than that for inventions.
(3) Appearance design
Appearance design refers to the shape, pattern, color or their combination of products made aesthetic and suitable for industrial application of the new design. The appearance design has the following characteristics: (1) The product carrying the appearance design must have relative independence; (2) The design must be a new design integrated with an independent specific product; (3) The design must be suitable for industrial application; (4) The appearance design must be aesthetic; (5) The appearance design is three-dimensional, but also planar.
(4) The object to which patent right is not granted
The objects to which patent law is not applicable include: (1) scientific discoveries and scientific principles; (2) Rules and methods of intellectual activity; (3) Methods of diagnosis and treatment of diseases; (4) animal and plant varieties, including naturally grown and artificially cultivated animal and plant varieties; (5) Materials obtained by means of nuclear transformation. In addition, Article 5 of the Patent Law of China stipulates that no patent right shall be granted for an invention-creation that violates the laws of the State, social morality or is detrimental to the public interest.
3. Essential elements of obtaining patent rights
(1) Essential elements for obtaining a patent right for an invention or utility model
The essential elements of a patent for an invention or utility model are novelty, creativity and practicality.
(1) Novelty According to the provisions of the Patent Law, novelty means that the same invention or utility model has not been publicly published in domestic and foreign publications before the date of filing, has been publicly used in the country, or is otherwise known to the public. Nor has the same invention or utility model been filed by another person with the national patent administration department and recorded in the patent application documents published after the filing date. However, the invention or utility model for which a patent is applied shall not lose its novelty if, within 6 months prior to the date of filing, any of the following occurs:
(1) exhibited for the first time at an international exhibition sponsored or recognized by the Chinese government;
(2) It was first published at a prescribed academic or technical conference;
(3) others disclose its contents without the consent of the applicant.
(2) Creativity means that the invention has outstanding substantive features and significant progress compared with the technology existing before the date of filing, and the utility model has substantive features and progress. There are two indispensable factors to measure inventive creativity: outstanding substantive features and significant progress. Outstanding substantive features mean that the invention is substantially different from the prior art and has obviously different technical features; A significant advance is an invention that is a significant improvement over the most advanced existing technology. The creative standard of utility model is different from that of invention, except that its creative requirement is lower than that of invention, the patent law stipulates that the application for utility model patent is not subject to substantive examination, so the assessment of utility model creativity can only be involved when the request for invalidation of utility model patent right is made.
(1) Practicality refers to the invention or utility model can be manufactured or used, and can produce positive effects. In other words, for an invention or utility model to be patented, it must be able to be applied repeatedly in industrial practice and produce positive effects. Where the invention or utility model for which a patent is applied is a product, the product must be capable of being manufactured in an industry; The patented invention is a method, and the method must be able to be used in the industry. Patented invention or practical new? "Can produce a positive effect" means that the invention can obtain new and higher benefits compared with the existing technology. (2) The following situations are not practical:
(A) The invention or utility model for which a patent is applied is not reproducible. Reproducibility refers to the ability of a technical person in the technical field to which the invention or utility model applies to be patented to repeatedly implement the technical scheme used in the patent application according to the technical content disclosed in the patent application documents;
(B) The technical scheme applied for a patent violates the laws of nature;
C, the use of unique natural conditions to complete the technical solution;
(D) the invention or utility model for which a patent is applied lacks technical means; E. The patented technical scheme cannot produce positive effects, that is, the implementation of such a technical scheme may cause environmental pollution, serious waste of energy or resources, damage human health, etc., and is not practical.
(2) The essential elements of obtaining the patent right for the design
The essential elements of design patent right are: novelty and aesthetics. Novelty means that the design for which a patent is applied is not identical or similar to the design that has been published in domestic and foreign publications before the date of filing; It is different from or not similar to the design that has been publicly used in China before the date of application. Aesthetics refers to the appearance design can make people have a sense of beauty when it is used in the product.
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