再议专利申请的主动撤回程序

Reconsideration on the Withdraw Procedure of Patent Applications

根据《专利法》第 32 条,申请人可以在被授予专利权之前随时撤回其专利申请。本文结合 PCT 国际申请、欧专局对于“撤回”的相关规定,以及国内物权法、民法通则中关于权利放弃的相关规定,提出:申请人一旦向专利局提交“撤回专利申请声明”,无正当理由的,应当适用禁止反悔原则;且其撤回的生效日期应当以提交有效“撤回专利申请声明”之日为准。避免因声明存在形式瑕疵导致视为未提出,并恢复到原来的法律状态,审查程序继续。

In accordance with Article 32 of the Patent Law, an applicant may withdraw his or its application for a patent at any time before the patent right is granted. We focus on the withdraw procedure of patent applications with references from international and domestic regulations. Based on the current regulations of PCT international applications, EPO, Real Right law & Civil Law of the PRC, the principle of Prosecution History Estoppel should be applied to Article 32 of the Patent Law, when the applicants submitted the declaration of withdrawal of patent application to CNIPA unless warrant exists. The effective date of the declaration of withdrawal of patent application is the submission date of the declaration which is already conformed to relevant regulations. That could avoid coming back to the legal status before the submission of the declaration and continuing the examination procedure due to formal defects.