On The Improvement Of China's Patent Temporary Protection System

"Early publication,delayed review" system apply to the application of patent for invention in China.Substantive examination is sufficient and unnecessary condition for the grant of the patent for invention,and full disclosure is the precondition of substantial examination.It takes a long time for a patent for invention from public to authorize,namely,“temporary protection”.However,the application of patent for invention will be easily used by others in the temporary protection mentioned above.In order to protect the interests of the applicant for a patent for invention in the "temporary protection",article 13 the patent law in our country provides that: After the publication of patent for invention,the applicant may require the entity or individual exploiting the invention to pay an appropriate fee.This regulation is called "temporary protection" system.But,the patent law,related laws and regulations in our country are too principle and simple stipulation to the temporary protection system,this abstraction rules make the system not strong in the guidance and operability,and not conducive to reasonable to protect the interests of the applicant for a patent for invention.This article will illuminate fully the temporary protection system of invention patent in five parts:Part one: Thinking initiated by the supreme people's court No.20 guiding cases.The main problems of the invention patent of temporary protection system stipulated by the patent law of our country currently,which is not conducive to protecting the interests of the applicant for a patent for invention,have been revealed by analyzing the supreme people's court No.20 guiding cases.Part two: Overview of temporary protection system of patent for invention.This part include the main purpose and characteristics of temporary protection system,the nature of the temporary protection of right of claim,and different effects concerning temporary protection system on the applicant for a patent for invention and the social public.Part three: The deficiencies of patent temporary protection system in our country.Comb the current patent law,the implementation details of the patent law and the judicial interpretation stipulation about temporary protection system,and then point out some problems of the patent system of temporary protection for invention in China.Part four: The investigation to the patent system of temporary protection abroad and theenlightenment.Comb the patent system of temporary protection abroad and compare the similarities and differences of different national patent temporary protection system.Reasonably draw the beneficial experience from foreign patent temporary protection system according to the reality in China.Part five: The improvement for temporary protection system of patent for invention of China.In this section,temporary protection system are improved by setting up a priority review system conditionally,specifying the protection scope of the temporary protection and using the specific rules to judge people's behavior,and judging factors to determine the appropriate fee.