Patent Application Authorization and Other Possible Outcomes

After the patent application passes the review procedure, it enters the authorization stage. However, not all patent applications can be granted as patents. In general, there may be four different outcomes for a patent application undergoing a review process: the application is voluntarily withdrawn, the application is considered withdrawn, the application is rejected and the application is granted with a patent. For different outcomes, applicants may need to make different melons or handle different procedures.

1. Patent application was voluntarily withdrawn

After the applicant has filed his application, due to changes in circumstances, the applicant may initiate a withdrawal of the patent application. E.g:

(1) It is found that the content of the application does not belong to the scope of patent protection;

(2) It is found that there are serious defects in the writing of application documents, which may result in the application being unable to be approved, or the scope of protection will be severely restricted;

(3) Finding that the application lacks patentability and that it is meaningless to carry out a one-step procedure;

(4) The applicant requested to apply for a confidential patent. The competent department of the State Council disagreed. The applicant considered that it would be more advantageous to keep the invention confidential.

If a request for withdrawal of a patent application is filed, it shall submit a “claim for withdrawal of patent application” in duplicate, indicate the application number, the title of the invention and the applicant for the application for which the request was withdrawn, and shall sign and seal all the applicants. Where a patent agency is entrusted, procedures may be handled by a patent agency, but a certificate for the withdrawal of the application shall be issued with all applicants.

Once the patent application is withdrawn, the applicant and its successors may no longer request restoration.

If an application for a patent for invention is withdrawn prior to the publication preparation process, it will not be announced after it is withdrawn. However, if it is withdrawn prior to entering the publication preparation process, the application will be announced as usual. The preparation procedure for publication is generally started at the 15th month from the filing date. However, if the request is not announced in advance, the publication preparation process is accepted after the formal examination, and if there is a request for priority, the publication preparation procedure is entered from the 15th month of the priority record.

The withdrawal of a patent application statement shall be made prior to the processing of the patent right registration. After the registration process is completed, the Patent Office immediately enters the announcement preparation procedure. Even if the applicant requests to withdraw the patent application, the Patent Office will announce the authorization as usual and publish the patent specification.

Before the application for a patent for invention is withdrawn before the publication of the application for a utility model or design, the Patent Office shall keep the file of the application confidential; and it shall be managed in the same manner as the application file before publication and publication until the file is destroyed.

2. The application is considered withdrawn and its recovery

In the review procedure, if the applicant fails to apply for a certain examination and approval formality within the time limit prescribed by the law or within the time limit specified by the Patent Office, the application will be deemed as withdrawn.

Some of these are caused by the applicant's unwillingness to go through the procedures on the basis of time, energy, and economic considerations, and deliberately failing to go through the formalities. Some of the applicants are ignorant of the mistakes caused by the legal and approval procedures that delayed the formalities; It is a justified reason to delay the deadline.

In practice, the Patent Office cannot distinguish between these different situations. Therefore, a notice deemed to be withdrawn must be issued for those who have not gone through the prescribed procedures within the time limit. The notice states the reason for withdrawal. Where the applicant has a valid reason, he shall, within two months from the date of receipt of the notification of withdrawal, explain to the Patent Office the right to request restoration of rights.

In the case of a request for restoration of rights, it is necessary to submit a "request for restoration of right" in duplicate to explain the justification for the delay; to re-apply for various procedures that should not be completed because of obstacles to legitimate reasons, and to make up for the fees payable. . Subsequent repayment procedures should generally be completed within the above two months. If it is indeed difficult to complete within two months, the Patent Office shall be requested to extend the time limit; if it is requested to restore the right, it shall also pay the prescribed fee. For example, if the applicant is hospitalized due to illness, the time limit for processing the request for substantive examination is delayed. Therefore, the application is deemed to have been withdrawn. At this time, if the applicant requests a resumption of the application, the request for restoration of the right should be submitted in duplicate, and the fee for restoration should be paid. The formal examination request procedure shall cover the actual examination request fee.

The right to request restoration is subject to the approval of the Patent Office. The main basis for examination and approval by the Patent Office is:

1The restoration of claims and the restoration of claims and other procedures that should be renewed and the fees that should be paid are completed within two and a half months of the issuance of the notice of withdrawal;

2 Whether or not the justified reasons are justified. In general, only the fact that the applicant has no fault or negligence can be forgiven can be considered as a just cause.

If the Patent Office does not agree with the restoration, the applicant will be informed of the decision. If the applicant is dissatisfied with this, he may file an administrative reconsideration with the administrative reconsideration office of the Patent Office within 15 days of receiving the notice of disapproval of the restoration.

3. Rejection of application and request for review

In the review procedure, after the applicant has requested an opinion from the examiner or made any amendments or corrections, the Patent Office shall make a decision on rejecting the application and notify the applicant in writing if it considers that the application still does not comply with the provisions of the Patent Law and its implementing rules.

If the applicant is dissatisfied with the decision of the Patent Office to reject the application, it may request the review office of the Patent Office within 3 months from the date of receipt of the notification.

The request for review shall be submitted in two copies of the "Review Request", in which the reasons for the review are explained and the reasons for the review shall be appealed against the matters requested in the rejection decision of the Patent Office. Otherwise, the application will not be accepted. In order to support the reasons for reexamination or to eliminate the defects in the application documents, the applicant may request the re-examination and may attach relevant certification documents or materials, and may also modify some of the contents involved in the rejection decision of the application documents. Reexamination requests should be jointly submitted by all applicants. The request for review shall also be subject to the prescribed fee.

If the reexamination request does not conform to the prescribed format, or if the reconsideration does not meet the requirements, the reexamination requester shall make corrections within the time limit specified by the Patent Reexamination Board. If the requisition is not rectified, the reexamination request shall be deemed not to have been filed.

After the reexamination request is accepted, it is generally necessary to submit the reexamination request and its attachments, in particular the application documents modified by the applicant, to the original examination department for review. This is called the preemption review. The reexamination committee will review the information on the basis of this. And make a decision. The review decision may have two different conclusions:

(1) The original refusal decision was upheld and the refusal of the request for review was resumed.

(2) Confirming the reason for the reexamination request or confirming that after the applicant has modified it, the application document has overcome the defect pointed out in the original refusal decision, and decides to cancel the original refusal decision and apply for return to the original examination department for reexamination.

The reexamination decision shall be notified in writing to the applicant. If the applicant for an invention patent application is not satisfied with the reexamination decision, it may file a suit in the Beijing Intermediate People's Court within 3 months from the date of receipt of the decision. However, the decision of the Patent Reexamination Board on the review of applications for utility models and design patents is final.

Where an application for a patent for invention shall pay for the application maintenance fee, the application maintenance fee shall still be paid in accordance with the regulations during the review period. If the maintenance fee has not yet been paid after the overdue period, the application shall be deemed as withdrawn and the review procedure shall be terminated.

4. Grant of patents and registration

If the invention patent application has not been found to be grounds for refusal after the preliminary examination by the Patent Office and the substantive examination has not found any reason for rejection of the utility model or design patent application after the preliminary examination, the Patent Office will issue a "Notice of Granting the Patent Right" and "Registration Procedure "Notice" to inform the applicant to register. If the applicant goes through the registration formalities on schedule, the Patent Office will grant the patent right, issue a patent certificate, and make an announcement. The patent right comes into effect on the date of issue of the certificate. Those who fail to complete the registration procedures at the expiration of the time limit shall be regarded as giving up the right to obtain the patent right.

Therefore, the registration process is a necessary procedure for the applicant to record in the patent authorization stage. The explanation is as follows:

(1) The deadline for registration

The registration procedure starts on the date of the issuance of the authorization notice by the Patent Office and the notification of the registration procedure. After receiving these notices, the applicant shall start the registration process within two and a half months from the date of posting the article stamped by the Patent Office at the upper right of the notice. If the application is not completed at the expiration of the time limit, the Patent Office will issue a notice deemed to have waived the patent right.

(2) Impact on other programs after registration is started

After the registration procedure is initiated, the patent application that is to be granted the patent right will be notified and shall not be used as the basis for claiming domestic priority; nor will it be used as the parent case for the new divisional application. After the issuance of the notice of authorization of the application, the application is based on the request for a national priority declaration, and the Patent Office will consider the declaration of priority as not addressed. The divisional application filed as the parent case will be rejected by the Patent Office.

After the registration formalities are initiated, the change procedures for the bibliographic items proposed by the applicant will be suspended except for the change of address, and will be processed after the authorization procedure ends. Therefore, these changes will not be reflected in the patent certificate, but will be recorded in the patent register and announced in the patent gazette.

(3) Determination of Issuance Date

The patent application notified of the grant of a patent right shall be on the same day as the date of registration and date of grant on the patent register. In accordance with the procedures of the Patent Office, the date of grant of the patent application for registration within the prescribed time limit shall be determined according to the following formula: Issue date = date of issuance of authorization notice + 3 months

(4) At the time of registration, there is no need to submit any documents. Applicants only need to pay the patent registration fee (including the printing fee for announcement) and the annual fee for the year of authorization. The amount of annual fee for the year of authorization is the annual fee for the year in which the authorization (or award date) is located. However, if an invention patent application has already paid the maintenance fee for the year in which the authorization date was issued before the issuance of the notice of registration, it will no longer pay the annual fee for the authorized year. The annual fee for the year of authorization can be reduced, but it cannot be delayed.

(5) Recovery of rights after deemed to have waived the right to obtain a patent

If the applicant fails to complete the registration within the prescribed time limit, he is deemed to have given up the right to obtain the patent right. If the applicant delays the deadline is justified, you can request restoration of rights.

Requests for restoration of rights shall be filed within two months after receipt of a notification of patent office's waiver of the acquisition of a patent right, and registration procedures (paying patent registration fee and annual fee in the year of the authorization) shall be supplemented, and a request for restoration of the prescribed rights shall be requested. fee. The procedures and requirements that are deemed to be abolished after the restoration of rights are the same as the procedures and requirements for the application to be considered as a revocation of rights.