1. Definition:
♦ Filing an invention and utility model on the same day;
♦ Filing invention and utility model on the same day is not available for Chinese national stage cases;
♦ Patentee can get a utility model patent quickly and enforce it
♦ Choose which one to keep once the invention patent becomes mature to grant.
Thus, the patentee can enforce a utility model very quickly and can extend the enforceable time on essentially the same invention.
2. Pros and cons:
(1) Pros：
♦ The patentee can obtain patent protection for a new type of invention in a shorter period and subsequently convert it into a patent for an invention with a longer period of protection.
♦ Compared with the applicant who only applies for an invention patent, the patentee can obtain the right to use the patent earlier, and because of the succession of rights system, there is further protection for both the patentee and the licensee.
♦ Before the approval of the invention patent, if the market situation is not satisfactory, the applicant can also choose to give up the invention patent, and at this time, the applicant still retains the new type of patent right, to provide flexibility in the control of costs.
(2) Cons:
♦ Application fee is high
Since it is necessary to apply for both invention and new type patents at the same time, the cost is higher than that of applying for invention or new type patents alone.
♦ Strict compliance with regulations
Article 9 of the Patent Law of the People's Republic of China provides that "if the same applicant applies for both utility model and invention patents for the same invention-creation on the same day, and the patent right of utility model granted first has not yet been terminated, and the applicant declares that he/she renounces his/her patent right of the utility model, a patent right for the invention may be granted; Article 41 of the Implementation of the Patent Law of the People's Republic of China stipulates that "where the same applicant applies for both a utility model patent and an invention patent for the same invention-creation on the same day, he shall state separately in the application that he has applied for another patent for the same invention-creation" and "the patent right for a utility model patent shall be terminated as of the date of the announcement of the granting of a patent for an invention.
Strict compliance with the above regulations is required, otherwise dual filing cannot be claimed.
