| The purpose of establishing patent system is for protect patent right, encourage invention creation, to promote the management and appliance of invent creation; enhance independent innovation ability, advance Scientific and technological progress and economic and social development, to innovation-oriented country. With the Progress and development of technology, the Chinese medicine technology as our national gems is more and more technology and international; it has received the whole world attention and been developed and used widely. In this process the patent system protects the spreading and development of The Traditional Chinese Medicine (TCM). However, because of specificity of the TCM and Patent law as an international legal system, there are still many issues in the field of application of the TCM invention application. Many terms of patent law and patent law certain provisions' inappropriate appliance will lead to the patentee's patent right scope inappropriate, and will bring fundamental influence in the judicial phase about cognizance the scope of the patent infringement. It is adverse for patent system to encourage and protect the invention creation.This paper is trying to combine with the characters of application for a patent for CTM invitation and then discuss about the appliance which used in the application process for patent law and the implementing regulations of the patent law. In the discussing process, the proper condition of researched item will be expatiated through some classical cases, and personal views about patent law items that are being disputed now will be put to make some advices in the paper, which are available for the juristic appliance of application for a patent for Chinese traditional medicine invitation administrative licensing procedures, is my total intention. The administrative licensing procedures include the patent review process of Patent Office and the review procedures of the SIPO. In this paper, I have looked up 319 files authorized from 2002 to 2008, then summarize and induce the files number and classic cases which have related to the material terms of patent law and patent law certain provisions in the administrative documents (including Office Action and Office decision). Among them, the Article 22 paragraph 2 and paragraph 3, as well as Article 26 paragraph 3 and paragraph 4 involve the most centralized cases. There are many disputes in the process of arising or responding the Office Action about the four articles. Then I will look up the existing application norms about the four articles in the field of TCM through literature, and I find that in the existing data there are many researches about how to write a patent application file in order to meet the patent law as an applicant, but there are less applicable researches about the law films from the point of view of administrative license process. In practice because the appliance conditions for the law films mentioned above unclear or inadaptable to the specificity of TCM, so there are so many controversies. Withal this paper mainly study inscapes of the above-mentioned articles , combining with a classic case to discuss the application of the articles in the field of TCM, especially the more controversial issues through interviews with experts, and according to my experience writing the patent versions and answering the Office Action, to look forward to providing reference for administrative license process.This paper is to make a summary of practical experiences about application for a patent for CTM invitation, and provide advice about correctly apply the main terms in administrative license process, and these terms mention the paper consists of the acquirement of patent right, the conformability of interest field, the change of interest field and civil acts of effective relief for interest field. The result of this research will provide reference in practice of patent application. |
PDF Full Text Request