Utility model change: the formal introduction of utility model review is obviously not creative review

On January 6, 2023, the meeting of directors of the National Intellectual Property Office was held in Beijing. Shen Changyu, director of the State Intellectual Property Office, made a work report and proposed that the official introduction of the utility model review is obvious.do not haveCreative review.

In terms of the number of patents granted,In 2022, the number of invention patents granted in China will be 798000,year-on-year growth14.66%,The amount of utility model patents granted is2.804 million pieces,Year-on-year decrease10.12%, fromThe sharp decline in the number of utility model authorizations is evident in the gradual beginning of an apparently uncreative review of utility models.

Early inOn October 28, 2022, the State Intellectual Property Office issuedofThe "Opinions on Strengthening the Protection of Intellectual Property Rights" promotion plan mentions that the reform of the utility model system will be promoted, and the introduction of obviously not creative review will be introduced..On October 31, 2022, the State Intellectual Property Office issued a notice for public comments on the revised draft of the patent examination guidelines (draft for further comments). Among themAgainmentioned, to promote the utility model."Evidently creative" review. In 2022, the State Intellectual Property Office issued a letter in response to the recommendation No. 8842 of the Fifth Session of the 13th National People's Congress and the letter in response to the proposal No. 03510 (Science and Technology No. 160) of the Fifth Session of the 13th National Committee of the Chinese People's Political Consultative Conference. It was mentioned that the obvious creative review of utility models should be promoted and the quality of authorization should be improved.

After all this groundwork,6 January 2023The State Council formally proposed a review of the utility model that is obviously not creative. It is not yet known how to conduct a review that is clearly not creative,But it is foreseeable that once introduced"Obviously creative review", it is undoubtedly a disruptive change to the review and application of existing utility model patents! The high authorization rate of utility models may have become a past.

The number of utility model applications in China is very large, at present, China's utility model is used."Preliminary reviewReview system of evaluation reportThe requirement for innovation is lower than that of an invention patent, and only examining whether the application for a patent for a utility model is obviously not novel, so the utility model is more likely to be authorized than the invention. In addition to the protection period is10years, far less than the invention patent20In addition to the annual protection period, in the infringement determination, administrative litigation, project declaration and other aspects, the utility model and the invention status is equivalent, and in the process of invalidation, because the utility model for the creative standard is far lower than the invention, it is difficult to be invalid. Therefore, for small and micro enterprises, they are more inclined to apply for utility models rather than invention patents. However, in the long run, the utility model does not undergo creative review, resulting in low technical content, which is not conducive to my country's development strategy of a scientific and technological power. Obviously, the State Intellectual Property Office has noticed these problems and has begun to gradually strengthen the strict review of utility models.

So, is it the same review standard between obviously not being creative and being creative?

Under Patent Law No.According to Article 22, paragraph 3, the creativity of an invention means that the invention has outstanding substantive features and significant progress compared with the prior art; the creativity of a utility model means that the utility model has substantive features and progress compared with the prior art.. The "Guidelines for Patent Examination" stipulates that the standard of creativity for utility model patents should be lower than the standard of creativity for invention patents. Obviously, the obvious lack of creativity for utility models is lower than that of inventions.

What is the difference between the two in terms of creative criteria?

The creative distinction between inventions and utility models is mainly reflected in the existence of relevant"Technical enlightenment"; When judging whether there is technical enlightenment in the existing technology, the utility model pays more attention to two considerations, one is the field of existing technology, and the other is the number of existing technologies. Among them, in the consideration of the field of existing technology, how to treat the relationship between the field of existing technology and the specific technical field to which the utility model patent belongs, to a certain extent, affects the consideration of whether the existing technology can give technical enlightenment.^[1].

Conclusion

With the introduction of obvious creative examination, it can be predicted that the further improvement of the creative requirements for utility models is bound to reduce the authorization rate of utility models. For enterprises, it is no longer advisable to arm themselves only through utility model patents. How to improve the innovation ability and write high-quality patents has become the new goal of enterprises.

[1] State Intellectual Property Office Patent Office Review and Invalidation Division Zhai Linna