What is patent priority? Patent priority assessment

Basic classification

Patent priority can be divided into domestic priority and international priority.

1. Domestic priority

Domestic priority, also known as "domestic priority", means that if an applicant files an invention patent application or a utility model patent application with the Patent Office within twelve months from the date of the first patent application in China for the same invention or utility model subject matter based on the invention patent application, or if an applicant files a utility model patent application or an invention patent application with the Patent Office based on the utility model patent application, the applicant can enjoy priority.

2. International priority

International priority, also known as "foreign priority", means that if a patent applicant files a patent application in China for the same subject matter within twelve months from the date of first filing a patent application for invention or utility model in a foreign country, or within six months from the date of first filing a patent application for design in a foreign country, he or she may enjoy priority in accordance with the agreement signed between that foreign country and China or the international treaty jointly participated in by them, or in accordance with the principle of mutual recognition of priority.

Features

1. Priority is an ancillary right of the patent application right. Without the patent application right, there is no priority right.

2. Only after the patent applicant files a patent application can the patent application right generate priority.

3. The right of priority has a strict time limit, that is, the right of priority is only valid within the priority period prescribed by law, and it will be invalid after the expiration.

4. If the two consecutive applications filed by the patent applicant are in the same country, the priority enjoyed by the patent applicant is the domestic priority; if they are in different countries, it is the foreign priority.

5. Priority cannot be generated automatically. That is, if a patent applicant claims priority when filing a subsequent application, he must file a priority claim application at the same time as filing the subsequent application and submit corresponding valid supporting documents as required. Priority can only be generated after passing the examination.

6. The subsequent application claiming priority must have the same subject matter as the prior basic application, but the subject matter of the subsequent application may be an improvement of the prior basic application.

effect

1. Encourage inventors to apply for patents in a timely manner

Patent priority can encourage inventors to apply for patents in a timely manner. Once an invention is made, the inventor can apply for a patent in a timely manner, which is conducive to protecting the initiative of inventors to the greatest extent possible and more fully reflects the "first to file" principle stipulated in my country's Patent Law.

The consequences of applying for a patent too late are obvious, as it is easy for others to apply first. In addition, some patent technology thieves steal technological achievements through some improper means, apply for patents first, and even sue the real inventors in return.

2. Urge inventors to speed up their research process

The priority period is 12 months, which requires the inventor to improve and perfect the invention of the same subject within 12 months after the first application. Many people set the completion date of their next research and development plan before the expiration of the priority period after filing their first patent application. This is the positive impact of the priority system.

3. It is conducive to the conversion of patent application types

Because the drafting and claims of utility model and invention patents are often different for some inventions, inventions can protect methods, but utility models cannot. With the priority system, applicants can choose whether to protect their inventions with utility models or invention patents within the prescribed one-year period. If the original application is for a utility model, the utility model patent can be converted into an invention patent by requesting priority, and vice versa, the invention patent can be converted into a utility model patent.

4. It is conducive to strengthening patent protection

The Implementing Rules of the Patent Law of my country stipulate that "the application date referred to in the Patent Law, if there is a priority, refers to the priority date." This provision itself is beneficial to patent holders and thus helps to strengthen patent protection. In addition, since the first patent application has been modified, supplemented and improved by claiming priority, the reliability and stability of the patent are relatively better. Once infringement occurs, the chances of winning the lawsuit are usually greater.

Rights use

According to the relevant provisions of the Patent Law and the Implementing Regulations of the Patent Law, if an applicant files a patent application in China for the same subject matter within twelve months from the date of first filing a patent application for an invention or utility model in a foreign country, or within six months from the date of first filing a patent application for a design in a foreign country, he or she may enjoy the right of priority in accordance with the agreement signed between that foreign country and China or the international treaty jointly participated in by them, or in accordance with the principle of mutual recognition of priority; if an applicant files a patent application for the same subject matter with the patent administration department of the State Council within twelve months from the date of first filing a patent application for an invention or utility model in China, he or she may enjoy the right of priority.

Where an applicant claims domestic priority, if the prior application is an invention patent application, the applicant may file an invention or utility model patent application for the same subject matter; if the prior application is a utility model patent application, the applicant may file a utility model or invention patent application for the same subject matter. However, when filing a subsequent application, if the subject matter of the prior application falls under any of the following circumstances, it shall not be used as the basis for claiming domestic priority:

(1) Where foreign priority or domestic priority has been claimed;

(2) where a patent right has been granted;

(3) An application for division filed in accordance with the relevant regulations.

If the applicant claims domestic priority, his earlier application shall be deemed withdrawn from the date on which the subsequent application is filed.

An applicant may claim one or more priorities in a patent application; if multiple priorities are claimed, the priority period of the application shall be calculated from the earliest priority date.

If an applicant claims foreign priority in accordance with Article 30 of the Patent Law, the copy of the prior application document submitted by the applicant shall be certified by the original acceptance agency. In accordance with the agreement signed between the Patent Administration Department of the State Council and the acceptance agency, if the Patent Administration Department of the State Council obtains a copy of the prior application document through electronic exchange or other means, the applicant shall be deemed to have submitted a copy of the prior application document certified by the acceptance agency. If the applicant claims domestic priority, if the applicant indicates the application date and application number of the prior application in the application, it shall be deemed to have submitted a copy of the prior application document.

References