Steps to judge creativity: 1. Whether the invention is creative or not, only novelty will be considered; 2. Overall judgment: to judge creativity, we should treat the solution, the technical problems solved and the technical effects produced as a whole. 3. Combination judgment: When examining creativity, different technical contents in one or more comparison documents can be combined for evaluation. Creativity means that compared with the prior art, the invention has outstanding substantive characteristics and remarkable progress. In the review guide, it is stipulated that the invention has outstanding substantive characteristics, which means that the invention is not obvious to the technical personnel in the technical field (hereinafter referred to as the technical personnel in the technical field), that is, if the technical personnel in the technical field can obtain it only through logical analysis, reasoning or limited experiments on the basis of the existing technology, the invention is obvious and does not have outstanding substantive characteristics; The remarkable progress made by the invention means that compared with the prior art, the invention can produce beneficial technical effects, such as overcoming the shortcomings and deficiencies existing in the prior art, or providing a technical scheme with different ideas for solving a technical problem, or representing a new technical development trend.
Legal basis:
patent law of the people's republic of china
Article 11 After the patent right for invention and utility model is granted, except as otherwise provided in this Law, no unit or individual may exploit the patent without the permission of the patentee, that is, it may not manufacture, use, promise to sell, sell or import the patented product for production and business purposes, nor may it use the patented method and use, promise to sell, sell or import the product directly obtained according to the patented method. After the design patent is granted, no unit or individual may exploit its patent without the permission of the patentee, that is, it may not manufacture, promise to sell, sell or import its patented product for production and business purposes.
Article 63 If the patentee refuses to accept the decision of the patent administrative department of the State Council on compulsory license, and if the patentee and the unit or individual that obtained the compulsory license refuse to accept the decision of the patent administrative department of the State Council on compulsory license fee, they may bring a lawsuit to the people's court within three months from the date of receiving the notice.
Derivative problem:
What is the nature of patent right?
The nature of the patent right includes:
(1) exclusivity. Patent right is an intangible property right, which is exclusive. Unless otherwise provided by law, anyone who exploits a patent must obtain the permission of the patentee and pay the royalties according to the agreement of both parties, otherwise it will constitute infringement. (2) timeliness. It means that the patent right is only valid during the authorization period. After the expiration or termination of the term, the invention will become the common wealth of the whole society, and anyone can use it for free. The duration of the patent right is stipulated by the patent law. (3) regionality. It means that the patent right granted by a country is only valid within the geographical scope of the granting country or region, and is not legally binding on other countries or regions. The patent rights granted by each country or region are independent of each other.