浅谈美国专利法中的Terminal disclaimer

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Time of issue:2017-02-09 01:06
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(Summary description)中国已经成为世界知识产权大国，知识产权总量已跃居世界前列，但中国仍然不是一个知识产权强国。作为知识产权代理行业的一员，我们有责任和义务共同为把我国建设为知识产权强国出一份力。下面我们将简单介绍一下美国专利申请中一项较为重要的“期末放弃”Terminaldisclaimer原则。　　1、什么是期末放弃(Terminaldisclaimer)?　　按照美国专利法的相关规定，在美国专利申请中，为防止申请

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浅谈美国专利法中的Terminal disclaimer

Categories:最新消息
Author:
Origin:
Time of issue:2017-02-09 01:06
Views:

Information

　　中国已经成为世界知识产权大国，知识产权总量已跃居世界前列，但中国仍然不是一个知识产权强国。作为知识产权代理行业的一员，我们有责任和义务共同为把我国建设为知识产权强国出一份力。下面我们将简单介绍一下美国专利申请中一项较为重要的“期末放弃”Terminal disclaimer原则。

　　1、什么是期末放弃(Terminal disclaimer)?

　　按照美国专利法的相关规定，在美国专利申请中，为防止申请人就同一主题的发明创造不断地通过继续申请而延长专利保护期限，克服重复授权(double patenting)，在遇到某专利申请的相关权利要求和说明书与申请人自己的在先技术(可能是已授权的专利、或是已公开的专利申请)有交叠的情况下，申请人可以通过提交期末放弃(Terminal Disclaimer, 以下简称TD)的方式，声明放弃在后申请与在先技术交叠部分的末端保护期限(即若该专利申请获得授权，其专利保护期自在后申请的申请日起算，但已声明放弃部分的权益则截至在先技术的保护期限)，以便获得新的专利。

　　当然，如果两件专利申请的权利要求完全相同，提交TD也没有办法克服重复授权问题，只有在没有显著专利性差异(patentably distinct)而申请权利要求不同的两件申请时，才可以通过提交TD克服重复授权问题。

　　2、提交TD必须满足如下几点要求：

　　1) 提交的TD，需权利拥有人(申请人或受让人)或专利局备案代理人的签字;

　　2) 明确指明声明放弃的在先专利申请信息;

　　3) 说明专利、申请所有权人对于专利权、申请权所享有的比例;

　　4) 缴纳一定的官费。

　　3、提交TD需要特别注意的问题：

　　1) 对于两件或多件申请，TD需要有共同的专利权人签署，此处的共同专利权人是指：

　　a. 两件或多件申请具有相同的申请人、或共同的发明人、或同一受让人、或在共同研发合同等条件下提出申请的权利拥有人;

　　b. 两件申请的申请人可为不同的公司，但是要有共同的所有人(common ownership)，如子公司与母公司的关系。例如，在先申请人A公司及本案申请人B公司为C公司的子公司。

　　c. 两件或多件申请是按照其合作研究协议(joint research agreement)提出的，且申请在此协议范围内。

　　2) 如申请人在收到专利局审查意见通知书后，决定提交TD请求，也需要同时提交审查意见答复文本，否则将视为该审查意见未答复。

　　3) 适用TD的专利，其专利期限将等同于其在前专利，不再适用专利期限调整(PTA)，即，该专利的专利保护期限将可能少于20年。

　　4) 适用TD的专利，在专利首页会注明：“本专利受期末放弃(TD)的约束(This patent is subject to a terminal disclaimer.)”。

　　来源http://www.lungtinsz.com/index.php?c=msg&id=419

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Electronic Arts pledges free use for five accessibility patents

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