Preliminary Examination Of Application For Patent for Invention (一)
1. Introduction
It is stipulated in Art.34 of the Patent Law that where, after receiving an application for a patent for invention, the Patent Office, upon preliminary examination, finds the application to be in conformity with the requirements of this Law, it shall publish the application promptly after the expiration of eighteen months from the date of filing. Upon the request of the applicant, the Patent Office publishes the application earlier. Hence the preliminary examination of an application for a patent for invention is a necessary procedure after accepting an application for a patent for invention and before publishing that application.
The main tasks of preliminary examination for a patent for invention areas follows:
(1)Examine whether or not the application documents submitted by the applicant conform to the requirements of the Patent Law and its Implementing Regulations (hereinafter "Regulations"). Where it is found that there is any defect which could be rectified, notify the applicant to eliminate that defect by submitting rectification so as to make the application documents meet the requirements of publication; or where it is found that there is any defect which cannot be eliminated, issue an Office Action to indicate the nature of the defect and terminate the procedures of examination and approval at the possible earliest time by issuing a rejection.
(2) Examine whether or not the other documents relating to the patent application submitted by the applicant at the time of filing the patent application or thereafter conform to the requirements of the Patent Law and its Regulations. Where it is found that there is any defect in these other relevant documents, notify the applicant to eliminate the defect by submitting rectification or directly issue a decision that the other relevant documents are deemed to have not been submitted, depending on the nature of the defect.
(3) Examine whether or not the other relevant documents relating to the patent application were submitted by the applicant within the time limit provided by the Patent Law and its Regulations or prescribed by the Patent Office. Where such documents were not submitted within the time limit or were submitted after the time limit, the examiner shall issue a decision that such documents are deemed to have been withdrawn or are deemed to have not been submitted, depending on the circumstances.
(4) Examine whether or not the amount of the relevant fees paid by the applicant conforms to the relevant provisions of the Patent Law and its Regulations and whether or not the payments have been made within the time limit required by the provisions of the Patent Law and its Regulations. Where such payments have not be made or the relevant fees have not been paid in full or not paid within the time limit, a decision that the application is deemed to have been withdrawn or is deemed to have not been submitted shall be made, depending on the circumstances.
The extent of the Preliminary Examination for a patent for invention is as follows:
(1) Whether or not the application documents required by Art.26 of the Patent Law are included in the patent application, and whether or not the form of these documents obviously does not conform to the provisions of Rules 17, 18, 19, 20 or 24 of the Regulations, or does not conform to the provisions of Rules 118 or 120 of the Regulations.
(2) Whether or not an application for a patent obviously falls in the scope provided in provisions of Articles 5 or 25 of Patent Law, or does not con-form to the provisions of Articles 18 or 19.1 of the Patent Law, or obviously does not conform to the provisions of Articles 31.1 or 33 of the Patent Law or Rules 2.1, 9, 18 or 20 of the Regulations.
(3) Whether or not the other formalities and documents relating to the patent application conform to the provisions of Rules 7, 8, 14, 16, 25, 31,32, 33, 34, 37, 41, 42, 43, 45, 46, 86 and 98 of the Regulations.
(4) Whether or not the payments of relevant fees of the patent application have been made in accordance with the provisions of Rules 90, 92, 93 and97 of the Regulations.
The principles to which the preliminary examination shall conform are as follows:
(1) Opportunity of providing rectification shall be given to the applicant if there is any defect in the application documents which may be eliminated by providing rectification; and opportunity of providing observations shall be given to the applicant if there is any defect in the application documents which cannot be overcome. The decision of rejection may be made only when the defect has not be eliminated after providing rectification or observations. Where necessary, two or more such opportunities to provide rectification or observations should be given to the applicant. Under such circumstances, the examiner shall make sure that the time limit for the publication of the patent application provided in Art.34 of the Patent Law is adhered to.
(2) A comprehensive examination of the defect of form of the application documents and other related documents shall be performed so as to make the form of the published documents meet the requirements. The applicant shall be informed of and may take correct measures only when there is substantive defect obviously existing in the application documents which will affect the publication.
(3) Examiner should do his/her best to indicate all the defects of form in the application documents by one notification to make rectification unless the documents have been rejected.
(4) Where a decision that the application document is deemed to have not been submitted or is deemed to have been withdrawn or is rejected is going to be made for the documents submitted by the applicant or the started procedure does not conform to the provisions of the Patent Law and its Regulations, the applicant shall be notified of the possible follow-up procedures which may commenced.
(5) Regardless of what kind of measure the examiner has taken, the corresponding process and record shall be made in the paper file. |
