分案申请制度研究

Research on Divisional Application System

近年来,随着申请人和社会公众对专利制度的进一步了解,申请人和代理人越来越多地利用分案申请制度对专利申请寻求保护。但是,随着分案申请量的不断增加,存在个别申请人在较短时间提出大量分案申请的非正常现象。另外,在专利审查实践中也发现了申请人滥用分案申请制度,从而导致重复申请、申请超范围等现象。上述现象的产生,说明我国现行分案申请制度尚存在亟需解决的问题。如何在现行分案申请制度的基础上进行进一步规范,实现专利申请人和社会公众之间的利益平衡,从而提高分案申请的质量,是当前面临的一个难题。鉴于国外分案申请制度并结合本国国情,提出了在立法层面上,加强对分案申请的规定;在政策层面上,推动专利从量到质的转变;在操作层面上,加强系统建设,将分案纳入非正常申请制度等具体建议,以期能够有效解决目前分案申请的非正常状态,维护专利制度的公正性和严肃性。

In recent years, with the applicants and the public learning more about the patent system, the applicants and agents are increasingly using divisional application system for sought of patent protection. However, with the continuously increasing of divisional application quantity, there exists a phenomenon that lot’s of divisional applications were applied by some applicants in a short time. In addition, during the patent examination, one abnormal phenomenon is also found that some applicants abused divisional application system to obtain repeated application, exceed the scope, etc. Such phenomena described above show that the current divisional application system of our country still exists some problems to be solved urgently. It is a current dififculty how to further regulate the divisional application system on the basis of the current system and realize the interest balance between the patent applicants and the public, so as to improve the quality of divisional application. Given the foreign divisional application system and its own national conditions, presented at the legislative level, to strengthen the provisions of the divisional application; at the policy level, promoting patent transformation from quantity to quality;at the operational level, to strengthen the system construction, will speciifc recommendations included the divisional application system and other non-normal, in order to effectively address the current state of the non-normal divisional applications, and the justice and seriousness of patent right can be maintained.