"Priority" as one basic concept in the field of intellectual property has long been deeply rooted in people's minds. And priority earns ample revision time for the applicant, greatly enhancing the success chances of authorization.But in the real operation of the priority, the applicant often has a lot of questions.The following are detailed answers to three questions frequently encountered by applicants in the process of claiming priority
Question 1:The prior application document scheme of the applicant claiming priority is complete, and only some technical details are missing in the specification. The later application claims priority, and some missing technical features are added in the specification. Is this partial priority feasible? Will creativity be judged on the basis of priority date demarcation, taking into account the technical characteristics added later?
Answer:First of all, it is feasible for the applicant to add technical details in the specification to make the later application more perfect and overcome the problem that the claim is not based on the specification.
Secondly, the judgment of creativity is based on the technical scheme recorded in the claim. For the technical features added later, although the added technical features do not enjoy priority, if the scheme recorded in the claim is still the scheme in the original claim, this part of the content can enjoy priority.Then the review of the later application claim is still based on the original filing date to make a creative judgment.
Question 2: According to national charge standard, the PRIORITY fee is each 80 yuan, how is this item number determined?
Answer:In fact, the number of priorities is based on the number of prior applications requested by the applicant, which is only related to the number of prior applications, and has nothing to do with other numbers.For example, if the later application is based on the priority of the first three patents, then the three priority claim fees will be required.The actual payment of the priority claim fee only needs to be made according to the figures given on the notice of approval of fee mitigation or the notice of payment of application fee. The figures given on the notice are generally not wrong.
Question 3:Is it too early to apply for a patent when a technical solution developed by the applicant has not been fully developed and has not yet been put into production and no product has been produced?Is it more appropriate to apply for a patent after the scheme is fully perfected or the product is put into large-scale production?
Answer: Many applicants believe that as long as it is the technical solution of independent innovation, there are independent intellectual property rights, they can apply for patents sooner or later, or they should not apply for patents until all the details of the technical solutions are perfect or after the use of large-scale production. In fact, it is not the case.Patent is a kind of monopoly right, if the technical achievements of independent research and development do not apply for patent, they will not be recognized and protected by law.When others misappropriate their research achievements, because the developer does not have the patent right to the achievements, without legal protection, it is impossible to investigate the legal liability of the embezzler.
At the same time, patent application adopts the principle of first application, and patent rights are granted to those who apply first for invention and creation of creativity, novelty and practicality.Therefore, if the developer does not apply in time, and is preemptively applied by others and others are granted the patent right, the developer can not investigate the legal liability of others.
In fact, when some details of the technical solution are not yet perfect, the applicant can first submit a patent application to obtain the right to apply. After the technical details are perfected in the later stage, the claim shall be rearranged and adjusted by claiming the priority applied earlier within the priority period.Because in accordance with the provisions of the review guide, whether the claims of the later application meet the priority, that is, to judge whether the technical solutions described in the claims of the later application are clearly recorded in the documents of the earlier application.Therefore, in principle, as long as the contents recorded in the specification and claim filed earlier can be rearranged in the claim filed later.
