Which categories of patent applications do not undergo substantive examination?

At present, my country's patents can be divided into three categories, and the examination of the three categories of patents is different. Some patents need to pass both preliminary examination and substantive examination, while some patents only require preliminary examination, so there is no substantive examination in the Patent application. What categories are reviewed? Below, the editor of Legal Savior Network will provide readers with relevant answers.

What categories of patent applications do not undergo substantive examination

Utility model and design patent applications adopt a formal examination system, also known as a registration system.

Patent Law

Article 40: If no reason for rejection of a utility model or design patent application is found after preliminary examination, the patent administration department of the State Council shall make a decision to grant a utility model patent right or a design patent right, and issue it to The corresponding patent certificate shall be registered and announced at the same time. Utility model patent rights and design patent rights take effect from the date of announcement.

Preliminary examination

After the Intellectual Property Office receives the invention patent application, it enters the preliminary review stage. The so-called preliminary examination is to examine whether the patent application complies with the formal requirements stipulated in the Patent Law and its implementing regulations as well as obvious substantive defects.

①Formal review

It is mainly to review whether various application documents are complete and used. The prescribed format, whether the document was written in the prescribed form, etc. This part of the review does not involve technical content. The main contents of the review include:

Whether the patent request is The prescribed format is used, and whether the filling in meets the requirements;

Whether the description, abstract and claims are written in compliance with the prescribed formal requirements, and whether the drawings comply with Requirements for drawing;

If the applicant entrusts a patent agency to handle the patent application, whether there is a power of attorney;

If a foreigner who does not have a habitual residence or business office in China applies for a patent, whether it meets the requirements of the Patent Law and whether he is qualified to apply for a patent in China;

Whether the foreign applicant has entrusted a prescribed foreign-related patent agency to handle its patent application or other patent matters;

Whether the application fee has been paid, etc.

②Obvious substantive defect review

The main purpose is to review whether the content of the patent application obviously does not comply with legal regulations . This part of the review actually involves the substantive content of the patent application, but unlike the substantive review, it does not evaluate the novelty, creativity and practicality of the patent. The content of this part includes:

Whether the invention clearly violates the laws of the country and harms social morality and public interests;

Clear the subject matter of the patent Whether it is obviously not within the scope of patent protection;

Whether the patent application meets the unity requirements;

Whether the applicant’s modifications to the application documents clearly exceed the scope recorded in the original description and claims.

After preliminary examination, the patent application did not meet the formal requirements If required or if there are obvious substantive defects, the Intellectual Property Office shall notify the application of its opinions, and the applicant shall make corrections within the stipulated or designated time limit. If no reply is made within the time limit, the application shall be deemed to have been withdrawn, and the application shall be submitted to the patent within the specified time. The reexamination committee proposes a reexamination.

After the preliminary examination procedure of the invention patent application is completed, if the preliminary examination meets the requirements of the patent law, 18 months have passed since the application date. Even after the application is announced, the Intellectual Property Office can also announce it in advance according to the applicant's request.

Substantial Examination Procedure for Invention Patent Applications

Within three years from the filing date of an invention patent application, the patent administration department of the State Council may conduct a substantive examination of the application upon request made by the applicant at any time; if the applicant does not have justifiable reasons If a substantive examination is not requested within the time limit, the application will be deemed to have been withdrawn. When the patent administration department of the State Council deems it necessary, it may conduct a substantive examination of the invention patent application on its own.check.

(1) In accordance with the provisions of this article, the substantive examination of invention patent applications under my country's Patent Law shall be carried out by the applicant filing a request for examination within the statutory period. Once activated, the patent administrative department generally does not take the initiative to conduct substantive examination of patent applications; persons other than the patent applicant do not have the right to request substantive examination of other people's patent applications. The period during which a patent applicant requests for substantive examination is within three years from the date of filing the patent application. During this period, the applicant may request the patent administrative department for substantive examination at any time. If three years have passed since the date of application, the application If the person fails to submit a request for substantive examination, the application will be deemed to have been automatically withdrawn.

This provision of the law is beneficial to patent applicants. For substantive examination, the applicant must pay an examination fee. If, after filing the application, the applicant believes that his invention is immature, or that his invention has lost its novelty, or that his invention lacks economic value, he may no longer request substantive examination and does not need to pay the substantive examination fee. Second, it can greatly reduce the burden of examination work on the patent administrative department. Substantive examination of invention patent applications is quite complicated. If the patent administration department has to proactively conduct substantive examination of every invention patent application, it will inevitably lead to an excessive workload of patent examination and is not conducive to improving the efficiency of examination work.

(2) If the patent administration department of the State Council deems it necessary, it may also take the initiative to conduct a substantive examination of an invention patent application. If it is believed that an invention for which a patent is applied for has a significant impact on national interests and social interests, the patent administration department of the State Council can conduct a substantive examination of the invention patent application on its own without requiring a request from the patent applicant.

Contents of patent substantive examination

(1) Whether Comply with the provisions of Article 5 of the Patent Law, that is, whether the subject matter of the patent application violates national laws, social ethics or harms public interests;

(2) Whether Comply with the provisions of Article 25 of the Patent Law, that is, whether the subject matter of the patent application falls within the scope that cannot be granted patent rights;

(3) Whether it complies with Article 25 of the Patent Law The provisions of Article 33, that is, whether the patent application meets the requirements of unity;

(4) Whether it meets the provisions of Article 31 of the Patent Law, that is, When the applicant makes amendments to the application or files a divisional application, does it exceed the original description (including drawings) and rights?The scope recorded in the request;

(5) Whether it meets the definition of invention stipulated in the Patent Law and Implementing Regulations, that is, the invention proposed for products, methods or their improvements New technical solutions.

(6) Whether it complies with the provisions of Article 18 of the Implementing Rules of the Patent Law, that is, whether the drafting of the invention description in the patent application meets the prescribed requirements and describes the invention to be protected. The invention is clearly and completely described so that a person skilled in the technical field can realize it;

(7) Whether it complies with Article 20 of the Implementing Rules of the Patent Law stipulations, that is, whether the claims clearly and briefly state the scope of protection requested, whether the claims are based on the description, and whether the independent claims contain all necessary technical features to solve the technical problem to be solved by the invention.

(8) Whether it is consistent with the application claiming priority, if it is found that another person filed another application on the same subject between the priority date and the filing date. If a patent application is filed, or if relevant documents disclosed during this period are found through search, the priority claim will be reviewed to see if it is established; at the same time, the patentability of the invention patent application will be judged based on the comparative documents retrieved.

Within three years from the filing date of an invention patent application, the State Intellectual Property Office may conduct a substantive examination of the application upon request made by the applicant at any time; the applicant has no If substantive examination is not requested within the time limit due to justifiable reasons, the application will be deemed to have been withdrawn. When the State Intellectual Property Office deems it necessary, it may conduct a substantive examination of the invention patent application on its own.

The above knowledge is the editor's answer to the question "What are the patent applications that do not undergo substantive examination?" According to the provisions of the Patent Law, utility model patents Patents and appearance invention patents do not require substantive examination, only invention patents require substantive examination. If readers need legal help, they are welcome to go to the Legal Savior Network for legal consultation.