* * * Does the failure of negotiation necessarily lead to the invalidation of the patent?
Adopting the first application system can overcome many disadvantages of the first invention system, that is, it avoids the complicated evidence investigation to determine who is the first inventor and greatly simplifies the conflict procedure; At the same time, it can urge inventors to apply for invention-creation patents as soon as possible, so as to make advanced technologies public as soon as possible. Because of this, some countries that originally adopted the first invention system changed to the first application system at the beginning of this century. Since the implementation of 1985, China's patent system has adopted the first application system. Article 9 of the Patent Law stipulates: "Where two or more applicants apply for a patent for the same invention-creation, the patent right shall be granted to the first applicant." It can also be seen from this regulation that the key to adopting the first application system is to judge the order of application time.
Theoretically, judging the sequence of application time can be accurate to minutes, seconds or even smaller time units. However, in practical work, due to the limitation of objective factors such as traffic and communication, it is impossible to be so accurate. At present, there are two standards to judge the application sequence in the world: one is based on time and the other is based on days. In Germany, France and other places, the order of evaluating applications is based on time. This practice is very accurate, but it increases the workload of the patent office. Especially when submitting application documents by mail, it is very difficult to prove the specific time of application. Therefore, most countries judge the application order by day. From the very beginning, China's patent system took the filing date as the time standard to judge the filing order. This is in line with China's current communication technology and the examination and management level of patent offices. At the same time, it is convenient to coordinate the priority date in international applications.
In terms of time unit, it is generally impossible to apply for a patent for the same invention and creation at the same time. If the filing date is taken as the unit, different people may apply for a patent on the same technical scheme on the same day. For example, an hour after Bell filed a telephone patent application, someone applied for a telephone invention patent (of course, the United States implemented the first invention system, and decided whether to authorize it according to the order of application). If the date of filing is the time standard, those who apply for a patent on the same day shall be deemed to have applied at the same time. So how to solve the conflict caused by this simultaneous application?
The easiest way to solve this conflict is to draw lots. But this method often leads to more serious unfairness behind seemingly fairness, which is detrimental to the seriousness of the patent system. Therefore, it was unanimously opposed. Another way is to make mandatory provisions for each application, that is, it is legally stipulated that the same invention and creation shall be regarded as the same invention at the same time. This compulsory system seems to be slightly better than lottery, but it is still too rigid in operation. In reality, although the same invention-creation for which a patent is applied at the same time is the same in general inventive concept, it is definitely different in specific technical level. Because the number and level of embodiments are different, the writing level of application documents is different, and so on. , which directly affect the actual value of the application. In this case, it is a difficult problem whether to force all parties * * * and * * * to own shares, or to determine that * * * owns shares of all parties. No matter how the patent office handles it, there may be dissatisfied parties, so the forced system is not the best solution. At present, the common practice is the negotiation system, that is, when two or more applicants file an application for the same invention and creation on the same day, the applicants shall settle it through consultation on their own after receiving the notice from the Patent Office. Through consultation, or to determine their respective * * * shares, the invention-creation shall have the patent right of the invention-creation as * * *; Or one party gives up the application after receiving the corresponding remuneration, and the other party applies separately. However, if the applicant's opinions are always different and no agreement can be reached, the Patent Office will reject the applications of all parties. At first glance, it seems unreasonable to refuse applications from all parties, but it is this method that will eventually force all applicants to reach a consensus, because if the negotiations fail, it will not benefit any applicant. In other words, the failure of negotiations is the worst result for all participants. Paragraph 2 of Article 39 of the Japanese Patent Law clearly stipulates: "When two or more patent applications are filed for the same invention on the same day, the patent applicant shall determine the applicant through consultation, and the only person can obtain the patent for the invention. When negotiations fail or negotiations fail, no one will grant a patent. " The same applies to conflicts between utility models or between inventions and utility models. China's patent law also adopts the principle of consultation on this issue. Although there is no express stipulation in the legal provisions that the patent shall not be granted after negotiation, this method is also used in practical work to facilitate the applicant to reach an agreement. This can be seen from article 13 of the detailed rules for the implementation of the patent law.