Study On The Problem Of Invention And Utility Model Patent's Double-Patenting

The issue of double-patenting exists in most countries where both invention and utility model are both patentable. Each of the said country has its own way to deal with this issue according to its own legislation system. In China, Patent Law, Implementation Regulations of the Patent Law and the Guidelines for Patent Examination give relevant rules on this issue. However, there are some contradictions and conflicts during the patent exam practice and legal practice, which was the result of unclearness of the current specified provisions. Especially for the case that applicant filed an application for invention and an application for utility model of the same invention-creation at the same time or successively. Furthermore, both of these two applications have been granted, which was the most outstanding problems and the main topic of this article.This article had three chapters with the exception of preface, introduction, and conclusion.The preface gave a basic introduction of the topic, purpose and method of research of this article.The introduction introduced a typical case, the invalidation of Shu's invention patent, on which both practice and theory circle were having a lot of disputations. Consequently, educe the imperfect part of handling the issue of double-patenting.The first chapter presented the basic theories of the double-patenting, meanwhile analyzed the doctrine of forbidden double-patenting and relevant principles. Furthermore, the article estimated the applicable provisions of statutes of China, pointed out the contradictions and imperfections between the said statutes.The second Chapter deeply studied legal patent problems on"invention double- patenting"and"utility model double- patenting". Firstly, the article introduced sixes possibilities about double- patenting. It means that the same applicant for invention patents and utility model patents based on the very invention, which cased the most complex and the hardest-handle problem called"double- patenting". Secondly, with the above"Shu case", the article demonstrated the differences on how to identify for the same invention and different understanding on authority to prohibit duplication, which was a large difference from theory to practical. Thirdly, at present stage, the article proposed the inevitable reasons on"double application", which conformed to China's Patent Law. Fourthly, compared with the temporary protection system as well as the priority system, the article demonstrated the existence necessity about"engagement type"protection system, which issued on"Examination Guide". Finally, the article pointed out the imperfection about China's current laws and regulations regarding invention double- patenting and utility model double- patenting.The third chapter was about legal suggestions of avoiding double-patenting. Taking Japan, Korea and Germany for examples, discuss the experience of legislation on double-patenting, and abstract the useful part that can be drawn by China. At last, brought forward some suggestions to the Article 9 of the Patent Law, Article 13 of the Implement Regulations of Patent Law, and updated the Guidelines of Patent Examination.