Author: Long Zhenhao Time: 10.06.2020
On June 5, 2008, the State Council issued the “National Intellectual Property Strategy Outline”, marking the rise of intellectual property as a national strategy. With the advancement of policies, the vitality of social innovation has also been stimulated, and the position of enterprises as the main body of innovation has become more clear. Technology companies are increasingly recognizing the importance of research and development innovation and intellectual property protection.
For large and medium-sized technology enterprises, the implementation of intellectual property protection usually relies on the establishment of intellectual property management departments. In building a system for R&D and protection, it is necessary for intellectual property professionals and R&D personnel to have a positive interaction and cooperate effectively. For small and micro enterprises, the protection of intellectual property rights is often outsourced, and R&D personnel only provide technical disclosure. R&D personnel lack professional knowledge in intellectual property, especially patents. As key contributors to innovative technological solutions, R&D personnel (inventors) who have knowledge of patent knowledge can greatly benefit intellectual property protection. The author has been in contact with various inventors for a long time, and in the process of interacting with inventors, I have also found many common questions raised by inventors. I have specifically sorted them out and summarized them as basic knowledge for answering patent related questions for R&D personnel.
[Question 1]: Does submitting an application grant patent rights?
Patent application is an approval and authorization system, and submitting an application does not necessarily grant authorization. The types of patent applications include invention, utility model, and design. After the invention patent is published, if the applicant applies for substantive examination and meets the authorization conditions, the invention patent right will be granted. Whether to authorize or not depends on the results of substantive examination.
[Question 2]: Is it okay to apply for patents for independently developed products and technologies?
R&D personnel believe that as long as it is independent innovation, there will be independent intellectual property rights. In fact, patents are a form of monopoly, and if independently developed technological achievements do not apply for patents, they will not receive legal recognition and protection. In China, patent applications follow the first to file principle. Therefore, if R&D personnel do not apply in a timely manner and are preemptively applied for and granted patent rights by others, R&D personnel cannot hold others legally responsible.
[Question 3]: Currently, we only have ideas, can we apply?
Some R&D personnel feel that the technical solution has not yet been put into production and there is no product available, so it is too early to apply for a patent. It is more appropriate to wait until the product is put into large-scale production before applying for a patent. The basis for patent application is not necessarily a product that already exists in the market, nor is it necessarily a product that has already been formed. As long as you have practical and feasible ideas that meet the conditions of utilizing natural laws, solving technical problems, having technical solutions, and being industrially applicable, you can start applying for a patent.
[Question 4]: The product has already been shipped, can we still apply for a patent?
The inventor was in a hurry to complete the production task, only to realize that it had already been shipped before thinking about applying for patent protection. In fact, this is quite inappropriate. Even if they were lucky enough to obtain authorization, the patent would still be in an unstable state because its novelty may have been compromised. If someone is found to have infringed and a lawsuit is filed at this time, the infringer is more likely to argue that the technology has already been made public on the date of the patent application. If the defense is successful, all the energy, time, and money previously spent will be in vain. Patent applications should be filed as early as possible.
[Question 5]: When can the patent application be granted?
The approval of utility model patents is fast, and corresponding protection can be obtained as soon as possible, usually taking about one year; Invention patents usually require 2-5 years for examination and approval. With the increasing level of intellectual property rights in the country, the time for patent examination and approval has also been relatively shortened. Based on the examination results in the past two years, utility model patents usually take about 9 months to be granted; Invention patents usually take about 2 and a half to 4 years; Design patents usually take about 6 months.
[Question 6]: As long as authorization is granted, can my product or technology be protected?
Not necessarily, the scope of patent protection refers to the technical features and technological magnitude of the invention or creation covered by the effectiveness of the patent right. Therefore, the scope of patent right is the protection scope of patent right. Although patents are authorized, there may also be situations where the scope of patent protection cannot protect the product or technology. Therefore, the acquisition of a reasonable scope of patent rights is not only influenced by the level of product design or technology, but also by the degree of control of patent agents in writing the scope of patent rights. Choosing a high-quality agent is crucial. In addition, patent rights are an exclusive right of implementation, and the inventor’s product may still fall within the scope of someone else’s basic patent, or there is still a risk of infringement.
[Question 7]: The core technology of the invention belongs to someone else. Can we apply for an improvement patent?
Sure, if improvements are made on the basis of existing patents to achieve new technological effects, a new patent can be applied for. If you discover problems in the original patent and can make improvements to form a new patented technology, you can apply for a patent, which belongs to the type of improved invention and is a common type of invention and creation.
Can a product or project apply for multiple items? Does the improvement of the invention only require reapplication?
If the research and development process of a product or project involves multiple technological improvements or innovations, targeted analysis of innovation points can be conducted to explore and layout, in order to form a solid patent portfolio or patent package. Some inventors believe that after applying for a patent, there is no need to lay out patents again, even if iterative products or new improvements are developed, they will no longer apply for patents. The consequences of this approach are equivalent to not applying for a patent, because when others make improvements to the product and apply for a patent, it in turn restricts the original patent holder’s product updates, which can inadvertently turn the original patent holder into an infringer.
[Question 9]: Can only one type of patent be applied for a technological achievement?
Not necessarily, some inventors believe that a technological achievement can only apply for one type of patent at a time, that is, only invention patents, utility model patents, or design patents can be applied for. A product invention can apply for multiple patents simultaneously, and a technical solution can also apply for both utility model and invention patents simultaneously. For some important product inventions, if the inventor only applies for an invention patent while others are simultaneously applying for both an invention patent and a utility model patent, they will first obtain a utility model patent and have the patent rights for the product. If the inventor uses this product, it actually constitutes infringement.
[Question 10]: The product has only been patented in China, but can it be protected if it is sold to other countries such as the United States?
Cannot be protected, patents have territorial characteristics, and patents are only valid in the country or region where they are applied for. So a product will be sold to multiple countries, and its patent application also needs to consider the layout in multiple locations.
[Question 11]: The product has already been patented, do we still need to confirm patent infringement issues?
Patent right, also known as exclusive implementation right, means that others are not allowed to implement it without the permission of the patentee. Therefore, even if the product has been patented, it cannot be ruled out that it falls within the scope of someone else’s basic patent and constitutes infringement. Therefore, a patent risk assessment must be conducted before selling the product. Patents are used to restrict others from using them, not just for oneself. Therefore, researching the deployment of corresponding patents around competitors’ products in advance, and then using patents to restrict and combat competitors, sometimes achieving a striking and restrictive effect on competitors that other traditional means of competition do not have.
[Question 12]: Is patent application the only way to protect technological achievements?
There are two ways to protect technological achievements: applying for patents to protect them through law, and protecting them through trade secrets by the technology holders themselves, both of which have their own advantages and disadvantages. If a technological achievement has applied for a patent, the infringer can be legally sanctioned to protect the interests of the patent holder when others infringe; The disadvantage is that the technical solution must be fully disclosed to the extent that ordinary technical personnel in this field can implement it through the disclosed technical solution, which provides opportunities for others to further develop based on this technical solution. If the technological achievements are protected by trade secrets, there is no need to disclose the technical solution like applying for a patent. If the protection measures are appropriate, it will be difficult for others to understand.
[Question 13]: Does having a patent certificate make the patent right valid?
Not necessarily, the patent term refers to the statutory expiration and termination time of the patent right. From the date of announcement of patent authorization, if there are no other reasons causing the termination of the patent right, the patent right shall terminate on the date of expiration of the patent right period. According to the Patent Law, the term of an invention patent is 20 years; The term of utility model patents and design patents is 10 years, both calculated from the date of application. Once the patent expires, the patent right terminates. It is also common for patent rights to terminate prematurely due to unpaid fees on the Patentcloud platform（ https://app.patentcloud.com/index.html ）Searching for patents can quickly obtain the latest legal status of patent rights. For example, as shown in the following figure:
The above patent knowledge is positive for enhancing the patent protection awareness of R&D personnel, but it is still not enough for enterprises or R&D personnel to create core patents to promote economic transformation or the development of emerging industries. Enterprises or R&D personnel still need to rely on dedicated intellectual property personnel to explore and promote.
