Patents are not granted to inventions that violate national laws, social morality or jeopardize public **** interests. In addition, patents are not granted for the following.
(1) scientific discoveries;
(2) rules and methods of intellectual activity;
(3) methods of diagnosis and treatment of diseases;
(4) varieties of animals and plants;
(5) substances obtained by means of atomic nucleus transformation.
Patents may be granted for methods of producing the products listed in item (4) of the preceding paragraph.
What are the objects protected by the Patent Law?It refers to the inventions and creations that should be granted patents in accordance with the law. According to the provisions of Article 2 of China's Patent Law, the object of the Patent Law includes three kinds of inventions, utility models and designs.
1. Invention
An invention is a new technical program for a product, method or improvement thereof. Invention must be a technical program, is the inventor of the laws of nature in a particular technical field of application and combination of the results, rather than the laws of nature itself, and thus scientific discoveries do not belong to the category of invention. At the same time, the invention is usually the intellectual achievements in the field of natural sciences, and the achievements in the field of literature, art and social sciences can not constitute an invention in the sense of patent law.
2, utility model
Utility model, refers to the shape of the product, the structure or the combination of the proposed new technical program suitable for practical use. The utility model patent only protects 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 the natural existence of articles without artificial manufacturing does not belong to the object of protection of utility model patents.
3. Design
Design, also known as industrial product design, refers to the shape of the product, the pattern or the combination thereof, as well as the combination of colors and shapes, patterns, and the new design of aesthetics and suitable for industrial applications.
What are the objects protected by China's patent lawinventions, utility models and designs.
At present, there are three kinds of objects protected by the Chinese patent lawThere are indeed three kinds of objects protected by the Patent Law of China, which clearly stipulates that the objects protected by the Patent Law are invention patents, utility model patents and design patents.
What is the object of patent law protection?Superiorly, it is the technical program.
Specifically, for invention, it is the protection of structure, method, process, composition and so on. For the new type, it is to protect the structure, circuit and so on. For appearance, it is to protect the industrial design that can be mass-produced.
The object of patent protection
The question is a bit vague
The object of protection is the patentee, that is, the person who can enjoy the patent
That is, the applicant of the patent, which can be an individual, or a group
The content of the protection will depend on what is stated in the certificate of patent
According to the protection of what
What are the three kinds of patents protected under the Patent Law of China? What are the three types of patents protected by China's patent law?Patents for inventions, utility model patents, and design patents
Details of the protection of patents under the Patent LawThe details of the protection of patents under the Patent Law are as follows:
Article 59 The scope of protection of a patent for an invention or a utility model shall be based on the contents of the claims, and the specification and the accompanying drawings may be used to explain the contents of the claims.
The scope of protection of the patent right for a design shall be based on the design of the product represented in the picture or photograph, and the brief description may be used to explain the design of the product represented in the picture or photograph.
Article 60 The implementation of a patent without the permission of the patentee is an infringement of the patent right, and if a dispute arises, it shall be resolved by the parties concerned through consultation; if they are unwilling to do so or if the consultation fails, the patentee or the interested party may file a lawsuit with the People's Court, or request the department administering the patent to deal with the matter. Management of the patent department, the infringement of the establishment of the infringement, may order the infringer to immediately stop the infringement, the party concerned does not accept, can be received from the date of processing notice within fifteen days in accordance with the "Chinese People's *** and the State Administrative Litigation Law" to the people's court; infringement of the infringer does not prosecute the expiry of the period and does not stop the infringement, the management of the patent department may apply to the people's court for compulsory execution. The patent administration department shall handle the request of the party concerned, the amount of compensation for infringement of patent rights can be mediated; mediation fails, the party concerned may, in accordance with the "Chinese People's * * * and the National Civil Procedure Law" to the people's court.
Article 61 Patent infringement disputes involving new products manufacturing method of the invention patent, the unit or individual manufacturing the same product shall provide proof that its product manufacturing method is different from the patented method.
Where a patent infringement dispute involves a utility model patent or a design patent, the people's court or the department that administers the patent work may require the patentee or the interested party to produce a patent evaluation report made by the patent administrative department under the State Council after searching, analyzing, and evaluating the relevant utility model or design, which shall be used as the evidence for the trial and handling of the patent infringement dispute.
Article 62 In a patent infringement dispute, if the alleged infringer has evidence to prove that the technology or design implemented by him belongs to the prior art or prior design, it does not constitute infringement of patent right.
Article 63 A counterfeit patent, in addition to civil liability, shall be ordered by the department responsible for the administration of patent work to make corrections and announcements, confiscate the illegal income, and impose a fine of up to four times the amount of illegal income; if there is no illegal income, a fine of up to two hundred thousand yuan; if a crime is constituted, be investigated for criminal responsibility according to law.
Article 64 When investigating or dealing with suspected counterfeiting of patents based on evidence already obtained, the department administering the patent work may question the parties concerned, investigate the situation relating to the suspected illegal act, conduct on-site inspection of the place where the party is suspected of committing the illegal act, inspect and copy the contracts, invoices, books of accounts and other relevant information relating to the suspected illegal act, inspect the products relating to the suspected illegal act, and conduct on-site inspection of the products and other relevant information relating to the suspected illegal act. The products related to the suspected violation of the law, there is evidence that the products are counterfeit patents, can be seized or impounded.
When the department administering patent work exercises the powers and functions stipulated in the preceding paragraph according to law, the parties concerned shall assist and cooperate with it, and shall not refuse or obstruct it.
Article 65 infringement of patent rights in accordance with the amount of compensation for the actual losses suffered by the right holder due to infringement; the actual loss is difficult to determine, the infringer can be determined in accordance with the benefits gained from the infringement. If it is difficult to determine the loss of the right holder or the benefit obtained by the infringer, the amount of compensation shall be reasonably determined by reference to the multiplier of the patent license fee. The amount of compensation shall also include the reasonable expenses paid by the right holder to stop the infringement.
The loss of the right holder, the infringer gained benefits and patent license fee are difficult to determine, the people's court may, according to the type of patent, the nature of the infringement and the circumstances and other factors, to determine to give more than 10,000 yuan to less than one million yuan of compensation.
Article 66 Where the patentee or interested party has evidence that another person is committing or about to commit an act of infringement of the patent right, and that failure to stop the act in time will cause irreparable damage to his or her lawful rights and interests, the patentee or interested party may, prior to the filing of the lawsuit, file an application with the People's Court for a measure ordering the cessation of the act in question.
The applicant shall provide security when filing the application; if no security is provided, the application shall be rejected.
The people's court shall make a ruling within forty-eight hours from the time of acceptance of the application; if there are special circumstances that require an extension, it may be extended for forty-eight hours. Ruling to order the cessation of the act in question, it shall be implemented immediately. If the parties are not satisfied with the ruling, they may apply for reconsideration once; the execution of the ruling shall not be suspended during the period of reconsideration.
If the applicant does not file a lawsuit within fifteen days from the date when the people's court takes the measure of ordering the cessation of the relevant behavior, the people's court shall lift the measure.
If there is an error in the application, the applicant shall compensate the losses suffered by the respondent as a result of the cessation of the relevant acts.
Article 67 In order to stop the infringement of patent, the patentee or interested party may apply to the people's court for the preservation of evidence before the prosecution if the evidence may be lost or difficult to obtain in the future.
The people's court to take preservation measures, may order the applicant to provide security; the applicant does not provide security, the application is rejected.
The people's court shall make a ruling within forty-eight hours from the time of acceptance of the application; the decision to take preservation measures shall be implemented immediately.
If the applicant does not file a lawsuit within fifteen days from the date of the people's court taking the preservation measure, the people's court shall lift the measure.
Article 68 The statute of limitations for infringement of patent rights shall be two years from the date on which the patentee or interested party learns or should have learned of the infringement.
After the invention patent application is published until the patent is granted for the use of the invention without paying appropriate royalties, the patentee to pay royalties for the statute of limitations for two years from the date the patentee knew or should have known that another person to use his invention, but the patentee in the patent right before the date of the grant of the patent right has been informed of, or should have been informed of, the date of the grant of the patent right.
Article 69 Any of the following circumstances shall not be regarded as infringement of the patent right:
(1) The patented product or the product obtained directly according to the patented method is sold by the patentee or by the unit or individual licensed by the patentee, and then the product is used, licensed for sale, sold or imported;
(2) The same product has already been manufactured, the same method has been used or the manufacture or use has already been made prior to the date of the patent application; and (3) The same method has already been used or the manufacture or use has already been made. (b) the same product has been manufactured, the same method has been used, or the necessary preparations have been made for its manufacture or use, and continues to manufacture or use it only within the original scope;
(c) foreign means of transportation temporarily passing through China's territorial land, water and airspace use the relevant patent in their installations and equipments for the needs of the means of transportation in accordance with the agreement signed between the country to which the foreign means of transportation belongs and China, or the international treaties to which it is a party or in accordance with the principle of reciprocity; and
(d) the use of the patent for the sole purpose of scientific research and experimentation;
(e) the manufacture, use and import of patented pharmaceutical products or patented medical devices for the purpose of providing information required for administrative approval, and the manufacture and import of patented pharmaceutical products or patented medical devices exclusively for the purpose of the manufacture and import of patented pharmaceutical products or patented medical devices.
Article 70 for the purpose of production and management of the use, promise to sell or sell do not know is not licensed by the patentee and sold the manufacture of patent infringing products, can prove that the legal source of the product, does not bear the responsibility for compensation.
Article 71 Anyone who violates the provisions of Article 20 of this Law and applies for a patent in a foreign country, or discloses a state secret, shall be subject to administrative sanctions by the competent authority of the unit or higher authority; and if a crime is constituted, shall be held criminally liable according to law.
Article 72 infringement of the inventor or designer of the non-functional invention and creation of the patent application right and other rights and interests provided for in this Law, the unit or higher competent authorities shall be given administrative sanctions.
Article 73 The department administering patent work shall not participate in business activities such as recommending patented products to the society.
If a department that manages patent work violates the provisions of the preceding paragraph, it shall be ordered by its superior organ or the supervisory organ to make corrections and eliminate the influence, and any illegal income shall be confiscated; if the circumstances are serious, the directly responsible person in charge and other directly responsible persons shall be given administrative sanctions according to law.
Article 74 The staff of the state organs engaged in patent administration and the staff of other relevant state organs shall be investigated for criminal liability for negligence, abuse of power, favoritism and malpractice, and shall be held criminally liable in accordance with the law; and if the crime is not yet constituted, the person concerned shall be given administrative punishment in accordance with the law.
What are the objects adjusted by the Patent LawAt the Sixth Session of the Standing Committee of the Eleventh National People's Congress, it was decided that the Patent Law of the People's Republic of China should be amended as follows:
First, Article 1 should be amended to read as follows: "In order to protect the lawful rights and interests of the patentees, to encourage the invention of inventions, to promote the application of inventions, to enhance the ability of innovation and promote scientific and technological progress and economic and social development, the formulation of this Law."
Second, in Article 2, add three paragraphs as paragraphs 2, 3 and 4: "Invention, refers to a new technical program proposed for a product, method or its improvement.
"Utility model, refers to the shape, structure or combination of products proposed by the new technical program suitable for practical use.
"Design, refers to a new design that is aesthetically pleasing and suitable for industrial application made to the shape, pattern or combination thereof of a product, as well as the combination of color and shape or pattern."
Third, Article 5 shall be amended to read: "Patents shall not be granted for inventions and creations that violate the law, social morality, or are detrimental to the interests of the public ****.
"Patents shall not be granted for inventions and creations that violate the provisions of laws and administrative regulations to obtain or utilize genetic resources and rely on such genetic resources to complete."
Fourth, add a paragraph to Article 9 as the first paragraph: "Only one patent right can be granted for the same invention-creation. However, if the same applicant applies for both a utility model patent and an invention patent for the same invention-creation on the same day, and the utility model patent right obtained first has not yet been terminated, and the applicant declares that he gives up the utility model patent right, a patent for invention may be granted."
V. The second paragraph of Article 10 is amended to read: "Where a Chinese unit or individual transfers the right to apply for a patent or the patent right to a foreigner, a foreign enterprise or a foreign other organization, the procedures shall be carried out in accordance with the provisions of the relevant laws and administrative regulations."
Sixth, the second paragraph of Article 11 was amended to read: "After the patent right for a design is granted, no unit or individual shall implement the patent without the permission of the patentee, that is, shall not manufacture, promise to sell, sell, or import the patented product of its design for the purpose of production and management."
VII. Article 12 was amended to read: "Any unit or individual who implements another person's patent shall enter into an implementation license contract with the patentee, and pay the patent royalties to the patentee. The licensee does not have the right to allow any unit or individual other than the contract to implement the patent."
VIII. Delete the second paragraph of Article 14.
IX. Add a new Article as Article 15: "If the patent application right or the patent right **** someone has an agreement on the exercise of the right, it shall follow its agreement. If there is no agreement, the *** person may implement the patent alone or license others to implement the patent by way of general license; if others are licensed to implement the patent, the royalties collected shall be distributed among the *** persons.
"Except for the cases stipulated in the preceding paragraph, the exercise of the right to apply for a patent or the patent right of a ****owner shall obtain the consent of all ****owners."
X. Articles 15 and 17 are combined as Article 17: "The inventor or designer has the right to state in the patent document that he is the inventor or designer.
"The patentee has the right to mark the patent mark on his patented product or the package of such product."
XI. The first paragraph of Article 19 is amended to read: "Foreigners, foreign enterprises or foreign other organizations that do not have a regular residence or place of business in China shall entrust patent agents established in accordance with law to apply for patents and handle other patent matters in China."
The second paragraph is amended to read: "Chinese units or individuals applying for patents and other patent matters in the country, may entrust the patent agency established by law to handle."
Twelve, the first paragraph of Article 20 was amended to read: "Any unit or individual who applies for a patent in a foreign country for an invention or utility model that has been completed in China shall submit it to the patent administrative department under the State Council for confidential examination in advance. The procedure and duration of the confidentiality examination shall be carried out in accordance with the provisions of the State Council."
An additional paragraph is added as the fourth paragraph: "Where an invention or utility model for which a patent application has been filed in a foreign country in violation of the provisions of the first paragraph of this Article is applied for a patent in China, no patent right shall be granted."
xiii. Add a paragraph to Article 21 as paragraph 2: "The patent administrative department under the State Council shall issue complete, accurate and timely patent information and publish patent bulletins on a regular basis."
xiv. Article 22(2) is amended to read: "Novelty means that the invention or utility model does not belong to the prior art; and no unit or individual has filed an application for the same invention or utility model with the patent administrative department under the State Council prior to the date of filing, which has been recorded in the patent application documents published after the date of filing, or in the patent documents published."
xiii. document."
The third paragraph is amended to read: "Creativity means that the invention has outstanding substantive features and significant progress compared with the prior art, and the utility model has substantive features and progress."
One paragraph is added as paragraph 5: "Prior art, as referred to in this Law, refers to the technology that is known to the public at home and abroad before the date of application."
XV. Article 23 is amended as follows: "A design for which a patent right is granted shall not be a prior design; nor has any unit or individual filed an application for the same design with the patent administrative department under the State Council before the date of filing, which has been recorded in a patent document published after the date of filing.
"The design for which a patent right is granted shall be clearly distinguishable from an existing design or a combination of features of an existing design.
"A design for which a patent right is granted shall not conflict with the legal rights of others which have been acquired before the date of filing.
"The existing design referred to in this Law means a design that is known to the public at home and abroad before the date of application."
XVI. One item is added to the first paragraph of Article 25 as item (6): "A design that mainly serves as a logo for the pattern, color, or the combination of the two, of a graphic printed matter."
Seventeen, the second paragraph of Article 26 is amended to read: "The request shall state the name of the invention or utility model, the name of the inventor, the name or name and address of the applicant, and other matters."
Paragraph 4 is amended to read: "The claim shall be based on the specification, and clearly and briefly limit the scope of the claimed patent protection."
One paragraph is added as paragraph 5: "For inventions that rely on genetic resources, the applicant shall state in the patent application document the direct source and the original source of the genetic resources; if the applicant is unable to state the original source, he or she shall state the reasons."
XVIII. Article 27 is amended to read: "Where an application for a design patent is filed, the application shall be submitted with a request, pictures or photographs of the design, and a brief description of the design and other documents.
"The relevant pictures or photographs submitted by the applicant shall clearly show the design of the product for which patent protection is sought."
19. Article 31(2) is amended to read: "A design patent application shall be limited to one design. Two or more similar designs of the same product, or two or more designs for the same category of products sold or used in sets, may be filed as one application."
20.
二十、将第四十七条第二款修改为："宣告专利权无效的决定，对在宣告专利权无效前人民法院作出并已执行的专利侵权的判决、调解书，已履行或强制执行的专利侵权纠纷处理决定，以及已履行的专利实施许可合同和专利权转让合同，不具有 Retrospective effect. However, the losses caused to others due to the malice of the patentee shall be compensated."
The third paragraph is amended to read: "In accordance with the provisions of the preceding paragraph does not return the patent infringement damages, patent royalties, patent transfer fees, a clear violation of the principle of fairness, shall be returned in whole or in part."
Twenty-one, Article 48 was amended to read: "In one of the following cases, the patent administrative department under the State Council, according to the implementation of the conditions of the unit or individual's application, can be given to the implementation of invention patents or utility model patents of compulsory licensing:
"(a) the patentee from the date of grant of the patent right was granted (a) the patentee has completed three years from the date of grant of the patent right and four years from the date of filing of the patent application, without a valid reason for failure to implement or not fully implement its patent;
"(b) the patentee's exercise of the patent right has been recognized by law as a monopoly, in order to eliminate or reduce the adverse effects of this behavior on competition."
XXII, an additional article as Article 50: "For public **** health purposes, the patent administrative department of the State Council may grant a compulsory license to manufacture and export the patented pharmaceutical products to countries or regions in conformity with the provisions of the relevant international treaties to which the People's Republic of China *** and the State are parties."
XXIII, an article is added as Article 52: "If the invention-creation involved in the compulsory license is semiconductor technology, its implementation is limited to the purpose of public **** interest and the circumstances stipulated in Article 48(2) of this Law."
XXIV, add a new Article as Article 53: "In addition to the compulsory licenses granted in accordance with the provisions of Article 48 (2) and Article 50 of this Law, the implementation of compulsory licenses shall be primarily for the purpose of supplying the domestic market."
25, Article 51 was changed to Article 54, amended to read: "In accordance with the provisions of Article 48 (1) and Article 51 of this Law, the unit or individual applying for compulsory licensing shall provide evidence to prove that it has requested the patentee to license the patent to implement the patent under reasonable conditions, but has failed to obtain a license within a reasonable period of time. "
Twenty-six, Article 54 was changed to Article 57, amended to read: "to obtain the implementation of compulsory licensing units or individuals shall pay reasonable royalties to the patentee, or in accordance with the provisions of the Chinese people's *** and the country's participation in the relevant international treaties to deal with the issue of royalties. Payment of royalties, the amount of negotiation between the two sides; both sides can not reach an agreement, by the patent administrative department of the State Council ruling."
XXVII. Article 56 shall be changed to Article 59, and amended to read: "The scope of protection of a patent right for invention or utility model shall be subject to the contents of its claims, and the specification and accompanying drawings may be used to explain the contents of the claims.
"The scope of protection of the patent right for a design shall be subject to the design of the product as represented in the picture or photograph, and the brief description may be used to explain the design of the product as represented in the picture or photograph."
Twenty-eight, the second paragraph of Article 57 shall be changed to Article 61, and amended to read: "Where a patent infringement dispute involves a patent for an invention of a method of manufacturing a new product, the unit or individual manufacturing the same product shall provide proof that the method of manufacturing its product is different from the patented method.
"Where a patent infringement dispute involves a utility model patent or a design patent, the people's court or the department administering the patent work may require the patentee or the interested party to produce a patent evaluation report made by the patent administrative department under the State Council after searching, analyzing and evaluating the relevant utility model or design as evidence for the trial and processing of the patent infringement dispute. infringement disputes."
Twenty-nine, add an article as Article 62: "In a patent infringement dispute, if the alleged infringer has evidence to prove that the technology or design implemented by him belongs to the prior art or the prior design, it does not constitute infringement of patent right."
Thirtieth, Article 58 and Article 59 shall be combined into Article 63, and amended as follows: "Where a patent is counterfeited, in addition to civil liability according to law, the department administering the patent work shall order correction and public announcement, confiscate the illegal proceeds, and may impose a fine of not more than four times the illegal proceeds; and if there is no illegal proceeds, a fine of not more than two hundred thousand yuan may be imposed; Constitutes a crime, shall be investigated for criminal responsibility according to law."
Thirty-one: One Article is added as Article 64: "When investigating or dealing with suspected counterfeiting of patents based on the evidence already obtained, the department administering the patent work may question the parties concerned, investigate the situation related to the suspected illegal act; conduct on-site inspection of the place where the party is suspected of having violated the law; inspect and copy the contracts, invoices, account books, and other documents related to the suspected illegal act; and make a copy of the contract, invoice, account book, and other documents related to the suspected illegal act. The investigation may inquire into the relevant parties and investigate the circumstances relating to the suspected illegal act; conduct on-site inspection of the premises of the party suspected of the illegal act; inspect and copy the contracts, invoices, account books and other relevant information relating to the suspected illegal act; inspect the products relating to the suspected illegal act; and seize or detain the products which are proved to be counterfeit patents.
"When the department administering the patent work exercises the authority provided for in the preceding paragraph in accordance with law, the party concerned shall assist and cooperate with it, and shall not refuse or obstruct it."
Thirty-two, Article 60 shall be changed to Article 65, and amended to read: "The amount of compensation for infringement of patent rights shall be determined in accordance with the actual loss suffered by the right holder due to the infringement; if the actual loss is difficult to determine, it may be determined in accordance with the benefits obtained by the infringer due to the infringement. If it is difficult to determine the loss of the right holder or the benefit gained by the infringer, the amount shall be reasonably determined by reference to the multiplier of the patent license fee. The amount of compensation shall also include the reasonable expenses paid by the right holder to stop the infringement.
"Where the loss of the right holder, the benefit gained by the infringer, and the patent license royalty are difficult to determine, the people's court may determine, based on the type of patent right, the nature of the infringing act and the circumstances and other factors, to grant a compensation of 10,000 yuan or more to less than one million yuan."
Thirty-three, Article 61 shall be changed to Article 66, and amended to read: "Where the patentee or interested party has evidence that another person is committing or about to commit an act of infringement of the patent right, and that failure to stop the act in a timely manner will result in irreparable damage to his lawful rights and interests, the patentee or interested party may, before filing the lawsuit, apply to the people's court for a measure ordering the stopping of the relevant act. .
"The applicant shall provide security when filing the application; if no security is provided, the application shall be rejected.
"The people's court shall make a ruling within forty-eight hours from the time of acceptance of the application; if there are special circumstances that require an extension, it may be extended for forty-eight hours. Where the ruling orders the cessation of the act in question, it shall be implemented immediately. If the parties are not satisfied with the ruling, they may apply for reconsideration once; the execution of the ruling shall not be stopped during the period of reconsideration.
"If the applicant does not file a lawsuit within fifteen days from the date of the people's court taking the measure of ordering the cessation of the relevant behavior, the people's court shall lift the measure.
"If there is an error in the application, the applicant shall compensate the losses suffered by the respondent as a result of the cessation of the act in question."
Thirty-four, add an article as Article 67: "In order to stop the patent infringement, in the case that the evidence may be lost or difficult to obtain in the future, the patentee or the interested party may apply to the people's court for the preservation of the evidence before prosecution.
"The people's court takes preservation measures and may order the applicant to provide security; if the applicant does not provide security, the application shall be rejected.
"The people's court shall make a ruling within forty-eight hours from the time it accepts the application; if it rules on the adoption of preservation measures, it shall be implemented immediately.
"If the applicant does not sue within fifteen days from the date of the people's court's adoption of the preservation measure, the people's court shall lift the measure."
Thirty-five, the first paragraph of Article 63 shall be changed to Article 69, and item (a) shall be amended to read as follows: "Where a patented product or a product directly obtained in accordance with a patented method is sold by the patentee or by a unit or individual licensed by the patentee, and the product is used, promised for sale, sold, imported;"
Add an item as item (e): "for the provision of information required for administrative approval, the manufacture, use, import of patented drugs or patented medical devices, as well as specializing in the manufacture and import of patented drugs or patented medical devices."
36, the second paragraph of Article 63 to Article 70, amended to read: "for the purpose of production and management of the use, promise to sell or sell do not know is without the permission of the patentee to manufacture and sell the patent infringing products, can prove that the legal source of the product, will not bear the responsibility for compensation."