The Subject of Patent Right
The subject of patent right, i.e., the patentee, refers to the person who enjoys the patent right according to the law and bears the corresponding obligations. The subject of patent right includes the following: I. Inventor or Designer The inventor or designer refers to the person who has made creative contribution to the substantive features of the invention-creation. In the process of completing the invention-creation, a person who is only responsible for organizing the work, a person who facilitates the use of material and technical conditions, or a person who engages in other auxiliary work, such as an experimenter, a tracer, or a machinist, etc., is not an inventor or a designer. Among them, the inventor refers to the person who accomplishes the invention; the designer refers to the person who accomplishes the utility model or design. The inventor or designer can only be a natural person, not a unit, collective or subject group. Invention and creation is the result of intellectual labor. The activity of invention and creation is a factual act and is not subject to the limitation of civil capacity, therefore, regardless of whether the person engaging in invention and creation possesses full civil capacity or not, as long as he has completed the invention and creation, he shall be recognized as the inventor or designer. The inventor or designer includes the inventor or designer of non-functional inventions and creations and the inventor or designer of functional inventions and creations. Non-job-related inventions and creations refer to the inventions and creations which are neither carried out by the organization nor mainly made use of the material and technical conditions provided by the organization. For non-functional inventions and creations, the right to apply for a patent belongs to the inventor or designer. The inventor or designer may not be suppressed by any unit or individual in applying for a patent for a non-functional invention-creation. After the application is approved, the inventor or designer is the patentee. If a non-functional invention-creation is accomplished by two or more inventors or designers *** together, the person who accomplishes the invention-creation shall be called *** together inventor or *** together designer. The right to apply for a patent and the right to obtain a patent for the *** same invention or creation shall belong to all *** persons *** together. Second, the inventor or designer of the unit For the duty invention and creation, the subject of the patent right is the inventor or designer of the invention and creation of the unit. Duty invention creation, refers to the implementation of the unit's tasks or the main use of the unit's material and technological conditions to complete the invention creation. The "unit" referred to here includes domestic enterprises of various types and natures of ownership and Chinese-foreign joint ventures, Chinese-foreign cooperative enterprises and wholly foreign-owned enterprises in China; in terms of labor relations, it includes both fixed work units and temporary work units. Duty invention creation is divided into two categories: 1. Invention creation accomplished by carrying out the tasks of the unit. Including three kinds of cases: (1) inventions and creations made in their own work; (2) inventions and creations made in the performance of tasks other than those assigned to them by their own units; (3) inventions and creations made within one year after retirement, dismissal or transfer of work, which are related to their own work undertaken by their own units or to tasks assigned by their own units. In (3), only at the same time have two conditions, constitute job invention: First, the invention must be the inventor or designer from the original unit of retirement, retirement or mobilization of work made within 1 year; Second, the invention is related to the inventor or designer in the original unit of the original unit of the original work or the original unit of the assigned tasks. 2. Inventions and creations accomplished mainly by utilizing the material and technical conditions of the unit. The "material and technical conditions of the organization" refers to the organization's capital, equipment, parts, raw materials, or technical data that are not open to the public. It is generally considered that if, in the process of invention creation, all or most of the unit's funds, equipment, parts and components, raw materials and technical information not open to the public are utilized, and such utilization plays an indispensable and decisive role in the completion of the invention creation, it can be deemed to be the main utilization of the unit's material and technical conditions. If only a small amount of the unit's material and technical conditions are utilized, and the utilization of such material conditions is not essential to the completion of the invention, the invention cannot be deemed to be a functional invention. For inventions and creations utilizing the material and technical conditions of the organization, if the organization and the inventor or designer have entered into a contract agreeing on the right to apply for a patent and the attribution of the patent right, the agreement shall be followed. The right to apply for a patent and the right to obtain a patent for a functional invention or creation shall be vested in the organization in which the inventor or designer works. The inventor or designer shall enjoy the right of signature and the right to receive bonus and remuneration, i.e., the inventor or designer shall have the right to state that he/she is the inventor or designer in the patent application document and the relevant patent documents; the unit to which the patent is granted shall, according to the regulations, pay the bonus to the inventor or designer of the job-related invention-creation; after the implementation of the patent for the invention-creation, the unit shall, in accordance with the scope of promotion and application of the invention-creation and the economic benefits it has achieved, grant a bonus to the inventor or designer. After the implementation of the patent, the unit shall, according to the scope of its popularization and application and the economic benefits obtained, give reasonable remuneration to the inventor or designer. The inventor's or designer's right of authorship may be waived by a written declaration. Transferee The transferee refers to the unit or individual who obtains the patent right through contract or inheritance. The patent application right and patent right can be transferred. After the transfer of patent application right, if the patent is obtained, then the transferee is the subject of the patent right; after the transfer of patent right, the transferee becomes the new subject of the patent right. For an invention-creation accomplished by two or more units or individuals in cooperation, or an invention-creation accomplished by one unit or individual accepting a commission from another unit or individual, if both parties agree that the right to apply for a patent for the invention-creation belongs to the commissioning party, the agreement shall be followed, and after the application is approved, the unit or individual applying for the invention-creation shall be the subject of the patent right. If there is no agreement between the units or individuals, constituting a commissioned development, the right to apply for a patent as well as the patent right obtained shall belong to the commissioned party, but the commissioned party may implement the patented technology free of charge. After succeeding to the patent application right or patent right, the transferee does not thereby become the inventor or designer, nor does the inventor or designer of the invention or creation lose his or her specific personal rights as a result of the transfer of the patent application right or patent right of the invention or creation. From the perspective of the patent implementation right, the assignee also protects the assignee of the patent implementation right, that is, refers to the legal person or individual who obtains the patent implementation right through contractual agreement, including the exclusive implementation licensee, the exclusive implementation licensee and the general implementation licensee. Foreigners Foreigners include natural and legal persons with foreign nationality. A foreigner who has a regular residence or place of business in China enjoys the same right to apply for a patent and the same patent right as a Chinese citizen or organization. If a foreigner, a foreign enterprise or a foreign organization which does not have a regular residence or place of business in China applies for a patent in China, it may apply for a patent in accordance with an agreement signed between the country to which it belongs and China or an international treaty to which it is a party, or in accordance with the principle of reciprocity, but it shall entrust the application to a patent agent designated by the patent administrative department under the State Council. This in the latest revision of the Patent Law has changed, to be the latest revision of the Patent Law after the implementation of the Patent Law, shall be subject to the new revision of the Patent Law.
Object of Patent
The object of patent, also known as the object of protection of the patent law, refers to the invention and creation for which a patent should be granted according to the law. According to the provisions of article 2 of China's patent law, the object of patent law, including invention, utility model and design. I. Invention An invention is a new technical program for a product, method or its improvement. An invention must be a technical program, which is the result of the inventor's application and combination of the laws of nature in a specific technical field, rather than the laws of nature itself, and thus scientific discoveries do not belong to the category of invention. At the same time, inventions are usually intellectual achievements in the field of natural sciences, and achievements in the field of literature, art and social sciences cannot constitute inventions in the sense of patent law. According to the provisions of the patent examination system, inventions are categorized into two types: product inventions and method inventions, which can be both original and improved inventions. Product inventions are inventions concerning new products or substances. This product or substance has never existed in nature and is the result of man's utilization of the laws of nature to act on a particular thing. If an article exists entirely in its natural state without being processed or transformed by anyone, it is not a product invention as stipulated in our patent law and cannot be patented. Method invention refers to the invention of means and steps adopted to solve a particular technical problem. Methods that can be patented usually include two categories of manufacturing methods and operation and use methods, the former such as product manufacturing process, processing methods, etc., and the latter such as testing methods and product use methods. Improvement invention is a technological program of substantial innovation to the existing product invention or method invention. For example, Edison invented the incandescent lamp, incandescent lamp is an unprecedented new product, you can apply for product inventions; production of incandescent lamps can apply for method patents; incandescent lamps filled with inert gases, its quality and life are significantly improved, which is based on the original improvement, you can apply for improvement of the invention. Second, the utility model utility model refers to the shape of the product, the structure or its combination of new technical solutions suitable for practical use. A utility model patent protects only the product. The product should be an entity that occupies a certain space and is manufactured by industrial methods. All relevant methods (including the use of the product) and naturally occurring articles that have not been artificially manufactured do not belong to the object of protection of the utility model patent. The above methods include methods of manufacturing products, methods of using products, methods of communication, methods of processing, computer programs, and use of products for specific purposes. For example, a method of manufacturing a gear, a method of dust removal in a workroom, a method of data processing, and a naturally occurring rain stone are not eligible for utility model patent protection. The shape of a product is the definite spatial shape that the product has and that can be observed from the outside. The technical solutions proposed for the shape of a product may be technical solutions proposed for the spatial shape of the three-dimensional form of the product, such as improvements made to the shape of a cam or the shape of a cutting tool, or technical solutions proposed for the two-dimensional form of the product, such as improvements made to the shape of the section of a profile. The shape of a product without a definite shape, such as a gaseous, liquid, powdered or granular substance or material, cannot be used as a shape feature of the utility model product. The construction of a product refers to the arrangement, organization and interrelationship of the various components of the product. It can be a mechanical construction or a line construction. Mechanical structure refers to the relative positional relationship, connection relationship and necessary mechanical cooperation relationship of the components constituting the product; line structure refers to the definite connection relationship between the components constituting the product. Third, the appearance of the design design, also known as industrial product design, refers to the shape of the product, pattern or its combination and color and shape, pattern combination of aesthetic and suitable for industrial application of the new design. The carrier of the design must be a product. A product is any article produced by industrial methods. Handicrafts, agricultural products, livestock products and natural objects that cannot be produced repeatedly cannot be used as the carrier of a design. Usually, the color of a product cannot independently constitute a design, unless the color variation of the product itself has formed a pattern. The combinations that can constitute a design are: the shape of a product; the pattern of a product; the shape and pattern of a product; the shape and color of a product; the pattern and color of a product; and the shape, pattern and color of a product. Shape refers to the design of the product shape, that is, the external outline of the product presented by the movement, change and combination of points, lines and surfaces on the outside of the product, i.e., the result of the simultaneous design and manufacture of the product's structure and shape, etc.; Pattern refers to the graphic formed on the surface of the product by the arrangement or combination of any lines, words, symbols and color blocks. Patterns can be produced by drawing or other means that can reflect the designer's idea of pattern design. The pattern of the product should be fixed and visible, and should not be sporadic or need to be seen under specific conditions; color refers to the color or combination of colors used on the product, the original color of the material used in the manufacture of the product is not the color of the design. Fourth, the patent law does not protect the object 1. violation of the law, social morality or harm to the public **** interests of the invention. National law means the law enacted and promulgated by the National People's Congress or the Standing Committee of the National People's Congress in accordance with the legislative procedure. It does not include administrative rules and regulations. An invention-creation whose own purpose is contrary to national laws cannot be granted a patent. For example, devices, machines or instruments used for gambling; drug-addicted paraphernalia, etc. cannot be granted patents. The purpose of the invention itself is not contrary to national laws, but if it is abused and violates national laws, it is not included in this category. 2. Scientific discovery. It refers to the revelation of objectively existing phenomena in nature, the process of change and its characteristics and laws. Scientific theory is a summary of the understanding of the natural world, is more broadly defined as a discovery. They all belong to the extension of people's understanding. These recognized substances, phenomena, processes, characteristics and laws are different from the transformation of the objective world of the technical program, is not an invention in the sense of the patent law, and therefore can not be granted a patent. 3. Rules and methods of intellectual activity. Intellectual activity refers to the movement of human thinking, which originates from human thinking, and produces abstract results through reasoning, analysis and judgment, or must be mediated by the movement of human thinking in order to indirectly act on nature to produce results, which only guides people to think, identify, judge and memorize the rules and methods of information, due to the fact that it does not adopt technical means or make use of the rules of nature, and does not solve technical problems and produce technical effects, and therefore does not constitute a patent. Because they do not employ technical means or utilize natural laws, nor do they solve technical problems or produce technical effects, they do not constitute technical solutions. For example, traffic rules, grammars of various languages, shorthand algorithms or mnemonics, methods of psychological testing, rules and methods of various games and entertainments, musical scores, recipes, chess games, computer programs themselves, and so on. 4. Methods of diagnosis and treatment of diseases. It is the process of identifying, determining or eliminating the causes and foci of a disease with a living person or animal as the direct object of implementation. The exclusion of diagnostic and therapeutic methods of diseases from the scope of patent protection is due to humanitarian considerations and social ethics, and doctors should have the freedom to choose various methods and conditions in the diagnostic and therapeutic process. In addition, such methods, which are directly implemented on living human or animal bodies, are theoretically considered not to be industrial and cannot be utilized in industry, and are not inventions in the sense of patent law. Examples include pulse diagnosis, psychotherapy, massage, various immunization methods for the prevention of diseases, and cosmetic surgery or weight loss for therapeutic purposes. But drugs or medical devices can apply for a patent. 5. Animal and plant varieties. However, the method of production of animal and plant varieties may be patented. 6. Substances obtained by means of atomic nuclear transformation. 7. Designs for graphic prints which are primarily indicative of the design, color, or combination of the two.
Conditions for Granting Patents
In order to obtain a patent for an invention, it is necessary to fulfill both substantive and formal conditions. Substantive conditions refer to the attributes that the invention for which a patent is sought must have in itself, while formal conditions refer to the procedural requirements of the invention for which a patent is sought, such as the application documents and formalities. The conditions for granting a patent mentioned here only refer to the substantive conditions for granting a patent. I. Conditions for Granting a Patent for Invention or Utility Model (1) Novelty Novelty means that there is no similar invention or utility model that has been published in domestic or foreign publications, used publicly in China or otherwise known to the public before the date of application. Nor has the same invention or utility model been applied for by another person to the patent office and recorded in the patent application documents published after the filing date. The invention or utility model for which a patent application is filed meets the criteria of novelty, must be different from the prior art, and must not conflict with the application. 1. Prior art. Prior art is technology that has been disclosed prior to the filing date. There are three ways of disclosure of technology: (1) Publication disclosure, i.e., public disclosure of technical information at home and abroad through publications. Its geographical standard is international scope. A publication here refers to an independently existing tangible communication carrier that records the content of the technology or design, which may be printed, typewritten, handwritten, or made by other means such as electricity, light, magnetism, or photography. The carrier is not limited to paper, but also includes various other types of carriers, such as microfilm, film, magnetic tape, CD-ROM, photographic negatives, etc. Public disclosure of technical information means that the technical content is disclosed to the unspecified relevant public who are not obliged to keep it confidential. The degree of public disclosure is subject to the extent that it can be implemented by general technicians in the technical field to which it belongs. (2) Use disclosure, i.e., disclosure of technical content through use or implementation within the country. The territorial standard is within China. (3) Disclosure by other means, i.e., disclosure by means other than publication and use, which mainly refers to disclosure by oral means, such as making the public aware of the relevant technical contents through oral conversations, lectures, reports, discussions and speeches, and broadcasting on radio or TV stations. Its geographical standard is within the country. (2) Offsetting application. An offsetting application means that before the filing date of an invention or utility model for which a patent is applied for, an application for the same invention or utility model has been filed by another person with the Patent Office, and it is recorded in the patent application document published after the filing date of the invention or utility model. The first application is known as the offsetting application of the later application. A conflict application destroys the novelty and prevents the patent from being granted repeatedly. 3. A disclosure that is not regarded as a loss of novelty. The invention, utility model and design for which a patent is applied for shall not lose its novelty if, within six months prior to the date of application, it has been: (1) exhibited for the first time at an international exhibition hosted or recognized by the Chinese government; (2) published for the first time at an academic conference or technical meeting organized by the competent department under the State Council and a national academic society; (3) disclosed by others without the applicant's consent; (4) disclosed by the applicant without the applicant's consent; (5) disclosed by the applicant without the applicant's consent. content. (ii) Creativity Creativity means that compared with the technology existing before the date of application, the invention has outstanding substantive features and significant progress, and the utility model has substantive features and progress. Patent application for invention or utility model, must be compared with the technology existing before the date of application, there are substantial differences in the composition of the technical program, must be the result of creative thinking activities, can not be the existing technology through simple analysis, induction, reasoning can be naturally obtained results. The creativity of an invention is more demanding than that of a utility model. The judgment of creativity is based on the knowledge and judgment ability of the ordinary technicians in the field to which the invention belongs. (III) Utility Utility means that the invention or utility model can be manufactured or used, and can produce positive effects. It has two meanings: first, the technology can be manufactured or used in industry. Industries include industry, agriculture, forestry, aquaculture, animal husbandry, transportation, and services. Manufacturing and utilization in industry means that it is implementable and reproducible. Secondly, it must be able to produce positive effects, that is, compared with the existing technology, the invention or utility model for which a patent is applied for can produce better economic or social benefits, such as increasing the number of products, improving product quality, increasing the function of the product, saving energy or resources, preventing and controlling environmental pollution, and so on. (d) Other conditions, such as the specification needs to be sufficiently open to the technology for which the patent is applied. Specifically need to refer to the latest "Patent Law" and "Implementation Rules". Second, the conditions for the authorization of design patents (a) novelty The design for which the patent right is granted shall not be the same as or similar to a design that has been publicly published in a domestic or foreign publication or has been publicly used domestically before the date of application. The design must be attached to a specific product, so "not identical" refers not only to the shape, pattern, color or combination of the design itself is not the same, but also refers to the use of the design scheme of the product is not the same. The term "not similar" requires that the design for which a patent is applied for must not be a simple imitation of, or a minor change in, the shape, pattern, color or combination of existing designs. Similar designs include the following: similar shape, pattern and color, and the same product; the same shape, pattern and color, and a similar product; similar shape, pattern and color, and a similar product. (ii) Utility A design for which a patent is granted must be suitable for industrial application. This requires that the design itself, as well as the product as a carrier, can be reproduced in an industrial manner, i.e., be capable of being mass-produced in industry. (The design for which a patent is granted must be aesthetically pleasing. Sense of beauty refers to the design from the visual perception of the pleasant feeling, and product function is not necessarily related to the advanced. Aesthetic design plays an important role in expanding the market of the product. (D) shall not conflict with the prior legal rights of others The prior rights here include trademark rights, copyrights, enterprise name rights, portrait rights, and the right to use the unique packaging and decoration of well-known commodities, etc. "Prior acquisition" means that the design has the right to be used in the design of a product. "Prior acquisition" means that the design is acquired before the application date or priority date. (v) Other conditions. Specifically, you need to refer to the latest Patent Law and Implementation Rules.
[Edit]Procedures for Granting Patent Rights
I. Application for Patent (A) Principles of Patent Application 1.The principle of legal form. Apply for a patent of various formalities, should be in writing or the State Intellectual Property Office of the Patent Office of other forms. Verbal, telephone, physical and other non-written form of the various formalities, or by telegraph, telex, fax, film and other means of communication directly or indirectly produce printed, typed or handwritten documents for the various formalities are deemed not to be proposed, does not produce legal effect. 2. The principle of singularity. Refers to a patent application can only be limited to an invention. But belonging to a general idea of invention of more than two inventions or utility models, can be filed as a single application; for the same category and sets of products for sale or use of more than two designs, can be filed as a single application. 3. Principle of first-to-file. If two or more applicants apply for a patent for the same invention or creation, the patent right shall be granted to the first applicant. (II) Patent Application Documents An application for a patent for an invention or a utility model shall be filed with a request, a specification and its abstract, and the claims and other documents. The request shall state the name of the invention or utility model, the name of the inventor or designer, the name or address of the applicant, and other matters. The specification should be a clear and complete description of the invention or utility model, to the technical field of technical personnel can realize; if necessary, there should be attached drawings. The abstract should briefly explain the technical points of the invention or utility model. Claims should be based on the specification, the scope of patent protection. Application for a design patent, shall submit a request and the design of the picture or photo and other documents, and shall specify the use of the design of the product and the category to which it belongs. (III) Patent Application Date The date on which the Patent Office receives the patent application document is the application date. If the application document is mailed, the postmark date shall be the application date. If the applicant is entitled to priority, the priority date is regarded as the filing date. Article 29 of the Patent Law provides for international priority and domestic priority. International priority means that if an applicant files a patent application in China for the same subject matter within 12 months from the date of the first filing of a patent application in a foreign country for an invention or utility model, or within 6 months from the date of the first filing of a patent application in a foreign country for a design, the applicant shall be entitled to priority according to the agreement signed between the foreign country and China, or according to the international treaty to which the foreign country has participated, or according to the mutual recognition of the right of priority. treaty with China, or in accordance with the principle of mutual recognition of priority, may enjoy priority. Domestic priority means that the applicant may enjoy priority if he files another patent application for the same subject matter with the Patent Office within 12 months from the date of the first filing of the patent application for the invention or utility model in China. Examination and Approval of Patent Application (I) Examination and Approval of Patent for Invention 1. Preliminary Examination. The patent competent authority shall ascertain whether the application complies with the provisions of the Patent Law regarding the formal requirements of the application. 2. Early disclosure. After the Patent Office receives an application for a patent for invention, if the preliminary examination finds that the application meets the requirements, it shall be published after 18 months from the date of application. The Patent Office may, at the request of the applicant for early publication of its application. 3. Substantive examination. Within 3 years from the filing date of a patent application for invention, the Patent Office may, at the request of the applicant at any time, conduct a substantive examination of the application; if the applicant fails to request a substantive examination without justifiable reasons, the application shall be deemed to be withdrawn. When the Patent Office deems it necessary, it may conduct substantive examination of the invention patent application on its own. 4. Authorized registration notice. If no reason for rejection is found in the substantive examination of a patent application for invention, the Patent Office shall make a decision on granting a patent for invention, issue a certificate of patent for invention, and at the same time register and publicize the application. The invention patent right takes effect from the date of announcement. (B) the approval of utility model and design patent utility model and design patent application after preliminary examination did not find wizard dismissal reasons, the Patent Office to make a decision to grant a utility model patent or design patent, issued the corresponding patent certificate, and at the same time to be registered and announced. The utility model patent right and the design patent right take effect from the date of announcement. Re-examination and Invalidation of Patents The State Intellectual Property Office (SIPO) establishes the Patent Re-examination Committee. If the patent applicant is not satisfied with the decision of the Patent Office to reject the application, he may, within three months from the date of receipt of the notice, apply to the Patent Re-examination Board for re-examination. The Patent Re-examination Board makes a decision after re-examination and notifies the patent applicant. If the patent applicant is dissatisfied with the decision of the Patent Reexamination Board, he/she may file a lawsuit with the People's Court within three months from the date of receipt of the notice. After an invention or creation has been granted a patent, any unit or individual who finds that there is any non-compliance with the relevant provisions of the Patent Law may apply for the invalidation of the patent on the date of the grant of the patent. A request for invalidation of a patent must be submitted to the Patent Reexamination Board in accordance with the law, together with the corresponding documents and reasons. If the Patent Reexamination Board considers that the application is in conformity with the provisions of the law, it shall make a decision of declaring the patent invalid or maintaining the patent right in accordance with the statutory procedures, and if the party concerned is not satisfied with the decision, it may file a lawsuit according to law. After the patent right is declared invalid, the patent right is deemed to have ceased to exist from the beginning. Decision to declare invalid the patent right, the people's court before declaring invalid the patent right and has executed the patent infringement of the judgment, decision, has been performed or enforcement of the patent infringement disputes, as well as has been performed in the patent license contract and patent transfer contract, does not have the retroactive effect. However, the losses caused to others due to the patentee's malice shall be compensated. If, in accordance with the above provisions, the patentee or the assignor of the patent right does not return the patent royalties or patent transfer fees to the licensee or the assignee of the patent right, in clear violation of the principle of fairness, the patentee or the assignor of the patent right should be to the licensee or the assignee of the patent right to return all or part of the patent royalties or patent transfer fees.