Will a patent that enters substantive examination be granted?

In order to obtain authorization from the patent management department, a patent application needs to pass patent review, and patent review has two procedures: preliminary review and substantive review. Invention patents need to pass substantive review before they can be authorized, so patents that enter substantive review will definitely Authorized? Below, the editor of Legal Savior Network will provide readers with relevant answers.

1. Will a patent that enters substantive examination be authorized

After the invention patent undergoes substantive examination, it may not be authorized. Only items that are not rejected during the substantive examination of the invention patent will be authorized by the patent management department.

"Patent Law of the People's Republic of China"

Article 37 Patent Administration Department of the State Council After conducting a substantive examination of an invention patent application, if it is found that it does not comply with the provisions of this Law, the applicant shall be notified and required to state its opinions within a specified time limit or make modifications to the application; if the application is not responded to within the time limit without justifiable reasons, the application shall be deemed to be invalid. considered withdrawn.

Article 38 If the patent administration department of the State Council still considers that the application for an invention patent does not comply with the provisions of this Law after the applicant has stated its opinions or made modifications, it shall revoke the application. turn down.

Article 39: If no reason for rejection of an invention patent application is found after substantive examination, the patent administration department of the State Council shall make a decision to grant the invention patent right and issue the invention The patent certificate shall be registered and announced at the same time. The invention patent right shall take effect from the date of announcement.

2. Situations in which substantive examination is rejected

Substantial What are the situations in which the examination is rejected and the substantive examination cannot be passed?

(1) The subject of the application is not an invention;

(2) The subject matter of the application violates national laws, social ethics or harms public interests; the subject matter of the application belongs to a technical field in which patent rights are not granted; 

(3) The application topic is not novel, creative and practical;

(4) The subject matter of the application does not meet the requirement that "only one patent can be granted for the same invention and creation";

(5) The applicant is not the first patent applicant for the invention; 

(6) The application description does not clearly and completely describe the invention. Explanation; The claims of the application are not based on the description to explain the scope of patent protection required; 

(7) The subject matter of the application does not meet the requirements of the invention patent application stipulations on the unity requirement;

(8) The modification of the application document or the divisional application exceeds the scope recorded in the original description or claims.

3. What are the contents of trademark substantive examination

Trademark The substantive examination during registration is the key to determining whether the applicant's trademark can be granted exclusive rights. The substantive examination of a trademark registration application is conducted from five aspects:

( 1) Whether the trademark has legal constituent elements

Article 8 of China's Trademark Law stipulates the constituent elements of a trademark, that is, a trademark should consist of words, graphics, letters , numbers, three-dimensional logos and colors, as well as the combination of the above elements.

(2) Whether the trademark violates the prohibition clause, that is, review the trademark applied for registration Whether it violates the trademark prohibition clauses stipulated in Articles 10, 11, 12, 13 and 16 of China's Trademark Law and other laws and regulations that cannot be registered and/or used as a trademark Situation.

(3) Examine whether the trademark complies with Article 9 of China’s Trademark Law: the trademark applied for registration should have distinctive features.

(4) Examine whether the trademark is identical or similar to others’ trademarks that have been previously registered or preliminarily approved and announced; and whether it infringes upon others’ legitimate prior rights.

(5) Examine whether the trademark is identical or similar to someone else’s trademark that has expired but has not expired more than one year.

In the rightDuring the review process of a trademark registration application, if the trademark registration applicant finds that there are obvious errors in the trademark application documents, he or she may apply for correction. The Trademark Office may also make corrections within the scope of its powers in accordance with the law and notify the applicant. This kind of correction does not involve the substantive content of the trademark application document, such as the name of the trademark registration applicant, the words, graphics, colors used in the trademark, etc.

The above knowledge is the editor's answer to the question "Will a patent that enters substantive examination will definitely be authorized?" After the invention patent undergoes substantive examination, It is not necessarily authorized. The patent management department will only authorize items that are not rejected during the substantive examination of the invention patent. If readers need legal help, they are welcome to go to the Legal Savior Network for legal consultation.