1. Whether the patent application is an administrative license
Patent applicant applies for a patent The right does not belong to administrative licensing, but administrative confirmation. The patent management department confirms whether the applicant's application meets the conditions for granting patent rights.
"Patent Law of the People's Republic of China"
Article 39 Invention patent application procedures If no reason for rejection is found during the substantive examination, the patent administration department of the State Council will make a decision to grant the invention patent right, issue an invention patent certificate, and register and announce it at the same time. The invention patent right shall take effect from the date of announcement.
Article 40 If no reason for rejection is found after preliminary examination of a utility model or design patent application, the patent administration department of the State Council shall make a decision to grant the utility model patent right or design patent right. The decision on the design patent right shall be issued with a corresponding patent certificate, and shall be registered and announced at the same time. Utility model patent rights and design patent rights take effect from the date of announcement.
"Administrative Licensing Law of the People's Republic of China"
Article 3
This Law shall apply to the establishment and implementation of administrative licenses. This law does not apply to the review and approval of personnel, financial, foreign affairs and other matters by relevant administrative agencies of other agencies or public institutions directly managed by them.2. What are the main characteristics of administrative licensing
1. Administrative licensing is an administrative act applied for in accordance with the law. The administrative counterpart's application to the administrative subject for specific matters is a prerequisite for the administrative subject to implement administrative licensing behavior. No application, no permission.
2. AdministrationPermitted content is activities generally prohibited by the state. Administrative licensing is based on general prohibition and is based on individual lifting of prohibitions. That is, under the premise of general state prohibition, the administrative counterparty that meets specific conditions is lifted from the prohibition so that it can enjoy specific qualifications or rights and be able to perform a specific act.
3. Administrative licensing is a specific administrative act in which the administrative subject confers certain legal qualifications or legal rights on the administrative counterpart. Administrative licensing is a specific administrative act that is beneficial to specific people and specific things.
4. Administrative licensing is an external administrative act. Administrative licensing is a management behavior of administrative agencies directed at administrative counterparts and an external behavior of administrative agencies in managing economic and social affairs in accordance with the law. The internal management actions of administrative agencies that review and approve other administrative agencies or the public institutions directly managed by them do not constitute administrative licensing.
5. Administrative licensing is an important administrative act. Administrative permission must follow a certain legal form, that is, it should be an express written permission and should be recognized and certified by formal documents, seals, etc. The most common forms of administrative licensing in practice are permits and licenses.
Through the above analysis, we know that according to the provisions of the Patent Law, the applicant's application for patent rights to the patent management department does not belong to administrative licensing, but to administrative confirmation. . The patent management department shall confirm whether the applicant's application meets the conditions for granting patent rights. If you need legal help, readers can go to the Legal Savior Network for consultation.
