| During substantive examination of an invention patent application, if an invention or creation is found to be the subject of both an invention and a utility model patent application (“one invention two applications”), according to Paragraph 2 of Article 31 applicable mutates mutandis under Paragraph 4 of the same Article, the applicant will be notified to select one of the applications. If the applicant opts the invention application, the utility model application will be deemed withdrawn, and the invention application will proceed with the substantive examination; on the other hand, if the applicant opts the utility model application, the invention application will be deemed withdrawn, and the utility model application will proceed with the formality examination. If neither were chosen, the invention application will violate Paragraph 2 of Article 31 applicable mutates mutandis under Paragraph 4 of the same Article, and the utility model application will violate Paragraph 2 and 4 of Article 31 applicable mutates mutandis under Article 108. As a result, both applications will be rejected, and deemed non-existent ab initio. An applicant for a utility model application should especially note that Article 105 regulates the liability for exercising the patent right prior to the revocation. If someone applies for the technical evaluation report of the said utility model application, an evaluation indicating the possibility that the utility model violates Paragraph 2 of Article 31 applicable mutates mutandis under Paragraph 4 of the same Article will be made. If the applicant opts the utility model application and withdraws the invention application at the same time, the substantive examination for the invention application will not be conducted. Lastly, if the applications were filed by different applicants, the applicants have to reach an agreement instead of simply selecting one of the two applications. The rest of the procedures remain the same. |
