General protector: the term of the invention patent right is 20 years, the term of the utility model patent is 10 years, and the design patent right is valid for 15 years, all calculated from the date of application. The filing date here is the actual filing date, in the case of priority does not mean the priority date.
Types of Patents
Types of patents include invention patents, utility model patents, and design patents.
A patent for invention is a new technical solution for a product, method, or improvement thereof. It can be a product or a method.
Utility model patents refer to new technical solutions for the shape, structure or combination of products that are suitable for practical use. Utility model patents protect only products, not methods or natural articles.
Appearance design refers to a new design that is aesthetically pleasing and suitable for industrial application in respect of the whole or part of the product in terms of its shape, pattern or combination thereof, as well as the combination of color and shape or pattern. The conditions for granting a design require that the design applied for be novel, practical, aesthetically pleasing, and not in conflict with the prior rights of others. Novelty means that it is not prior art and does not conflict with the application.
Only one patent can be granted for the same invention. 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, the invention patent right may be granted.
Scope of Protection of Patent Rights
The scope of protection of a patent right for an invention or a utility model is based on the contents of its claims.
The scope of protection of a design patent right is based on the design of the product as represented in the picture or photograph.
Infringement
(1) Direct Infringement: The act of implementing another person's patent for the purpose of production and business without authorization.
(2) Indirect infringement: abetting infringement and aiding infringement, with willfulness as an element, and joint and several liability with the direct infringer.
(3) Bona fide infringement: 1. bona fide sales and authorized sales to be stopped without compensation; 2. bona fide users who have paid a reasonable consideration not to be stopped without compensation.
Not regarded as infringement of the patent:
(1) exhaustion of the patent: patent products or products obtained directly in accordance with the patented method, by the patentee or its licensee, the unit or individual sold, used, promised to sell, sold, imported
the product. The word "import" here legitimizes the parallel importation of patents.
(2) Prior-use right holder: The person who has already manufactured the same product, used the same method, or made the necessary preparations for the manufacture or use of the same product prior to the date of filing the patent application, and who continues to manufacture or use the same product only within the scope of the original patent application.
(3) Provisional transit: a foreign means of transportation that temporarily passes through the territory, territorial waters and airspace of China, and uses the relevant patent in its installations and equipment 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, for the purpose of the means of transportation's own needs.
(4) Non-commercial use: the use of the patent exclusively for scientific research and experimentation.
(5) administrative approval: for the purpose of providing information required for administrative approval, the manufacture, use, import of patented drugs or patented medical devices, as well as specifically for the manufacture and import of patented drugs or patented medical devices.
(6) Prior art defense: the defendant proves that the technology it implemented is prior art and does not infringe. The defendant can also solve the problem once and for all through the patent invalidation system.
Legal basis
Article 42 of the Patent Law The term of the patent right for inventions is twenty years, the term of the patent right for utility models is ten years, and the term of the patent right for designs is fifteen years, all of which shall be calculated as of the date of application.
If the patent for invention is granted after four years from the date of application for patent for invention and three years from the date of request for substantive examination, the patent administrative department under the State Council shall, at the request of the patentee, grant compensation for the term of the patent right for the unreasonable delay of the patent for invention in the process of granting the invention patent, except for the unreasonable delay caused by the applicant.