|
关于专利法确实有很多广泛的误解，本文提到了其中最为常见的情形： 1. 虽然专利的有效期是从申请日起计算的，但是，专利却是在授权以后才获得专利权的，所以，只有授权日以后才能行使专利权，而并非自申请日起就可以主张专利权，当然，在专利公开日和授权日之间，如果别人使用了你的专利技术，你可以要求对方予以适当补偿。 2. 从来没有什么”国际专利“，只有”国际专利申请“，即PCT国际专利申请，PCT国际专利申请只是一个简化的在不同国家进行专利申请的途径，如果想在各个国家获得专利权，必须在提交PCT国际专利申请之后，再到各个国家提交进入该国的申请，如果后续获得授权，才能在该国受到保护。 3. 虽然产品上没有标注是”专利产品“或标注专利号，但是，如果你仿制该产品仍然会侵犯专利权。专利侵权是根据授权的专利文件来判断的，不是根据专利产品来判断的。 4. 获得专利，只是获得了排除别人使用专利技术的权利，并不意味着自己拥有了自由使用该专利技术的权利。这是最为常见，也最为隐蔽的一个误解。很多人都认为一旦自己获得了专利权，当然就意味着自己可以随便使用这项专利技术，而别人要使用这项专利技术，则需要经过自己的同意。其实，专利权只是一项排他权，即禁止他人实施专利的权利。你获得的专利可能是基于别人的专利技术改进而成的，你要使用这项专利技术，还需要经过拥有基础技术的专利的那个人的同意。例如，假如你基于两轮的自行车发明了一个三轮车，那么，你要想制造、使用或销售三轮车，必须要经过两轮的自行车的专利权人的同意。 5. 本文中提到的第2点是有关于美国临时申请不是正式的专利申请而言，并不适用于中国。根据我个人的经验，在中国还有一类很大的误解，就是很多人认识到专利的保护范围以权利要求为准，因而，在权利要求中写入了很多内容。实际上，侵权比对要覆盖权利要求中的每一个特征，所以，专利的权利要求写的越短越概括，其实保护范围越大；权利要求写的越长越具体，反而增加了过多的限制，导致保护范围会非常狭窄。 不要以为这些是基础知识，其实大部分人都不知道，即便是专业人士，也往往忽视这些基本原理。So，现在就分享给更多人吧。 5 Commonly Misunderstood Patent ConceptsJanuary 10, 2019Jennifer J. Wang, Jason M. HoneymanPatent law is consistently misunderstood by inventors and business people. This article outlines some of the most commonly misunderstood patent concepts and the truth behind the concepts. This article is co-authored by Jason Honeyman. In most situations, a patent is the only way to deter a competitor from taking and using a company's innovations. However, there are many aspects of patent law that are misunderstood by inventors and business people. Outlined below is a list of some of the most commonly misunderstood patent concepts. 1. A patent application is not enforceable until it issues as a patent.The phrase 'patent pending' does not mean anything beyond the fact that a patent application has been filed. Just because someone has filed a patent application on something does not necessarily mean that a patent ultimately will be granted. A patent application is not the same as a patent. Inventors often think they have a granted patent when in reality they only have a patent application. In the U.S., a patent must first undergo substantive examination by the U.S. Patent and Trademark Office – and grant of a patent is in no way guaranteed. One or more examiners will search the 'prior art' – essentially anything that came before the filing date of the patent application – to determine whether the invention that is claimed in the patent application is new and non-obvious. Most patent applications will be rejected at least once, after which an applicant will typically narrow the scope of the patent claims, or otherwise convince the examiner that the specified invention patentably distinguishes over the prior art. If the patent office agrees, then a patent will be granted. 2. Provisional patent applications are not enforceable patents.There is no such thing as a 'provisional patent' – only a provisional patent application. A provisional patent application is merely an early filing date placeholder. It automatically expires in 12 months; it does not, by itself, ever directly mature into a patent. Within a year of filing a provisional patent application, a non-provisional patent application or a Patent Cooperation Treaty (PCT) application must be filed, claiming priority to the provisional application (more detail regarding the PCT is provided in the next section). 3. There is no 'international patent' that covers all countries worldwide.There is no such thing as an 'international patent' – only an international patent application, called a PCT application. A PCT application does not, by itself, directly mature into an enforceable patent. Similar to a provisional patent application, a PCT application is a placeholder that preserves applicants' ability to file the application in many countries, including the United States. Patents are territorial rights. U.S. patents, generally speaking, only cover the U.S. If you are interested in protecting the Chinese market, for example, you need to file for patents in China. After a PCT application is filed, the applicant must take active steps within a set period of time to submit subsequent follow-on filings in each country of interest to eventually obtain enforceable patents in those countries. If these follow-on filings are not done, the PCT application automatically expires. 4. Products that are not marked with a patent number may still be under patent protection.With physical products, marking them with the applicable patent number(s) is good practice because it can greatly increase a patent-holder's damages award. However, patent marking is not a requirement for infringement. Thus, just because a product lacks patent marking, it does not rule out the possibility that the product is protected by one or more patents. To mark a product, the product itself should be marked with the word 'patent' or 'pat,' followed by the patent number. If, due to the nature of the product, the product itself cannot be physically marked, marking can be done on the product's packaging instead. For increased flexibility in adding or removing patent numbers, virtual marking is an option for patent holders. With virtual marking, the product can be marked with 'patent' or 'pat,' followed by an internet address to a website that lists the patent number(s) associated with the product. 5. A patent does not grant the patent holder freedom to operate.The dichotomy between freedom to operate (FTO) and patentability is frequently misunderstood. A patent to an invention does not give the patent holder the right to make, use or sell that invention. We often hear the phrase 'I should be able to sell my invention because I have a patent on it!' It may be surprising to hear that this statement is wrong. Let's look at an example of a tricycle versus a bicycle. In this hypothetical, you invented the tricycle, and only the bicycle (e.g., prior art) existed prior to your invention.The U.S. Patent Office agrees that your tricycle is new and non-obvious over the bicycle, and grants you a patent to a transportation device with first, second and third wheels. With your patent in hand, can you go out and freely sell your patented tricycle without fear of being accused by someone else of patent infringement? In other words, does the patent give you freedom to operate? In short, the answer is no.The U.S. Patent and Trademark Office examines a patent application to determine if it is new and unobvious over the prior art – but the patent office does not evaluate whether the subject matter of the application infringes any issued patents. In fact, examiners at the Patent Office are prohibited from discussing questions of infringement. One of the prior-art patents to a bicycle may broadly cover a transportation device with a first wheel and a second wheel. Your tricycle product does in fact have a first wheel and a second wheel. The fact that your tricycle also has a third wheel does not matter. In most circumstances, one cannot add features to avoid infringement. So, in this example, although the tricycle was patentable over the bicycle, the tricycle still would infringe the earlier bicycle patent. At the same time, the bicycle patent-holder cannot make a tricycle because a tricycle would infringe your three-wheeled device patent. In the real world, when such a situation occurs, the two parties can engage in cross-licensing (i.e. allow one or both parties to make the tricycle without fear of being sued under the patents) so that a tricycle could be made and sold. Again, a patent to an invention does not give you the right to make, use or sell that invention. Instead, the patent only gives you the right to stop others from making, using or selling the invention. Originally published by Business.com Source:https://www./articles/understanding-patent-concepts/ Each article is copyrighted to their original authors. The news is for informational purposes only and does not provide legal advice. --End-- |
|
|
