ABSTRACT
The patent is one of the intellectual property rights, by which the invention gets unique rights or legal ownership is permitted to an individual or a firm to make use or sell or replicate and eliminate others from doing so. The petty patent is a formal document furnished by the government to preserve only the innovations and not the design of the product. A patent should be profitable to society in some or the other way.
Chinese patent was validated in 1984 and came into force in 19985. It is more familiar to the Japanese system than the United States system of the patent. The Chinese patent system consists of three stages. There are three types of Chinese patents: invention patents, utility models and design patents. Whereas, German patent was formed in 1877 and came into force in 1976. There are mainly three applications of German patents: patent convention treaty, national patent & European patent.
This article is written by Salvee of BVDU, NEW LAW COLLEGE, PUNE. It discusses the concept of petty patents from the perspective of China and Germany in detail and it also provides a comparative analysis as far as the practice of law is concerned.
Introduction
A patent is a unique right permitted for an innovation which is a product or a procedure that furnishes, in general, a new method of doing something, or recommends a new technical clarification to a problem. To get a patent, technical details about the innovation must be revealed to the civic in a patent application.
Patents are a colonial entitlement. In general, the unique rights are only suitable in the country or area in which a patent has been filed and permitted, in conforming with the law of that country or region.
A patent should be profitable to society in some or the other way. The utmost essential thing relating to a patent is the verity that the details about the product or the procedure must not be in civic acquaintance. The documents constructing an Intellectual property development plan for enterprises and the part of IPRs in the furtherance of competitiveness & growth of enterprises give some perception on how to grow a patent plan.
A petty patent is a formal document furnished by the government to safeguard only innovation and not the product design. A petty patent can be permitted to innovation only if the following conditions are being fulfilled:
If the innovation is new and,
It is competent of industrial plea.
China
China’s first patent law was validated in 1984 and came into force in April 1985. Normally, the Chinese patent system is more familiar with the Japanese system than with that of the United States system. As the main motive of China's patent law is to ease the spreading of the new automation, which is, displayed by the three types of patents, their minuscule span of sustainability, the acquiring of the principle of “first-to-file", rather than “first-to-invent", public revelation of innovation after 18 months and mixed need of single and multiple advantage claims.
Historical background of the development of the patent system in China
China’s patent system is divided into three major phases. The first phase-the establishment of China’s IPR system was from 1985 AD to 1992 AD. Earlier in 1985, China only had an administrative system of Science & Technology attainment, which is owned by the nation and could be liberally used. While China’s first patent law made it feasible for each person to file a patent. At the same time, without consent from the admissible management departments in the government, state-owned enterprises cannot deal with their patents freely. These obstructions decrease the eagerness of state-owned enterprises, along with their technical staff, who were leading participants in industrial research & development. The first patent law also eliminated chemicals, drugs, food from the patent description.
Whereas, in the second phase, from 1992 AD to 2000 AD. China’s patent system made remarkable advancements. In the first alteration of the patent law in 1992 the period of patent defence for innovation was prolonged from 15 to 20 years and, the period of utility model & designs patent was prolonged from 5 to 10 years. Food flavouring, drugs all were concealed by the patent defence and these also comprise domestic precedence for filing applications.
The third phase is from 2000 AD to the present. China’s patent law encountered a second vital alteration in 2000 AD, in which, state-owned & privately possessed enterprises were served as equivalent for acquiring patent rights. Other modifications, especially those in the trade-related facet of the Intellectual Property Rights agreement. Chinese jurisdiction also boosts endeavour in IPR defence, with some achievement.
Kinds of Patents in China
There are mainly three kinds of Chinese patents:
Invention patents
Utility model
Design patents
The acquisition of “petty patents” like utility model and designs of patents are mostly planned to motivate moderate innovation which is often very essential for domestic candidates. There are two petty patents: -
Utility Models: These are intellectual property rights, in regions, it is also called utility innovations, utility guarantees, short-lived patents or petty patents.
China issues a utility model patent system, with the utmost period of defence of 10 years. It should be administered to, “the shape, the form, or their amalgamation of a product”, which eliminates non-fixed structures like powder or liquid and molecular form or configuration of a substance. Utility models are permitted to follow a preparatory examination, which will generally take place between a few months and one year. Utility models do not go through the formal examination. A utility model is applicable instantly after permission, and unauthorized data specifies that utility models are the core of over half the patent infringement cases perceived by the Chinese court.
Utility models are just supportive to innovation patents because utility models can also deliberately play as a “shadow striker” other than the innovation patent. The patentee may appeal a patent estimation report from China National Intellectual Property Administration (CNIPA) at any point in time concerning their utility model patent. CNIPA will perform an inquiry to ascertain whether the utility model patent fulfill the needs of the patent law.
Design Patent: A Chinese Design patent safeguards the optional aspect of a product and is equal to an Australian recorder design to be authentic the design must be new and significantly distinct from the previous design or a mixture of the earlier design. To be authentic, the design must be new and significantly distinct from previous designs or a mixture of earlier designs. A design patent could be used to safeguard the presence of a bottle, medical device, customer product.
Design patents are permitted after passing an initial examination, which will mainly take three to six months. The then design is printed. A design patent is applicable instantly after permission.
The patentee may appeal a patent estimation report from CNIPA at any given point of time about their design patent. CNIPA will do an inquiry to ascertain whether the designed patent fulfils the need of the patent law. If the patentee brings a civilized action for infringement, the court will mainly need the patentee to yield a patentability estimation report delivered by the CNIPA.
Germany
The formation of a German patent administration was laid down in the Patent Act, 1877. That administration was named Imperial patent office & was started to administer in Berlin, on 1st July 1877. The German patent came into presence in 1976, which was extracted from the European patent convention of 1973. Germany is in 2nd position in filing patents and as per reports, it shares 16% of the total application in 2016. German patent became a member of the Patent Cooperation Treaty (PCT) in January 1976.
German intellectual property law mostly comprises the Copyright Act (UrhG), Patent Act (PatG), Trademark Act (MarkenG), Utility Model Act (GebrMg) and Design Right Act (GeschMG), bounded by some laws of Civil Code (BGB) and the Act against Unfair Competition (UWG). Mainly, the period of the patent is about 20 years.
German patent system is one of the limited systems in which patent infringement and patent sustainability demonstrate with distinct courts. Patent infringement is also demonstrated with the federal patent court, and it is called a “bifurcation system”.
There are three types of patent applications:
European Patent: It is a single straight national filing, and it is relevant in European member states and permitted by the European Patent office.
Patent Convention Treaty: It is a single international patent filing, and it is relevant in all regions accompanied by either national patent or European patent filing in less than 30 months.
National Patent: It is a prompt application done with the German patent & trademark office. Patent permitted by Deutsches Patent-und Markenam (DPMA), affect the consolidated governance of Germany.
Conclusion
The knowledgeable utilization of patent information, which is a distinctive source of technical, work and legal facts, contributes to the accomplishment of any organization, large or small. Today’s speedy growth has opened up new directions for smart businesses to utilize patented details to upgrade their business plans in the domestic and export markets. The low cost of obtaining patent details makes it a particularly attractive option for small and medium-sized companies.
References
Priyanka Budime, Pooja Agarwal, Germany Patent System – An Overview, vol 05(2), IJDRA, 13, 13, 2017.
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