Chapter 1 Application for Not Granting Patent Rights
1. Introduction
Law 1
To grant patent rights for inventions and creations, there must be It is conducive to its popularization and application, promotes my country's scientific and technological progress and innovation, and adapts to the needs of socialist modernization. Taking into account the interests of the country and society, the Patent Law has made certain restrictive provisions on the scope of patent protection. On the one hand, Article 5 of the Patent Law stipulates that inventions and creations that violate national laws, social ethics or harm the interests of the public are prohibited. Patent rights are not granted; on the other hand, Article 25 of the Patent Law stipulates the objects for which patent rights are not granted.
2. Inventions and creations for which patent rights are not granted according to Article 5 of the Patent Law
According to the provisions of Article 5 of the Patent Law, the disclosure, use and manufacture of inventions and creations violate national laws If the invention violates social ethics or harms the interests of the public, the patent shall not be granted. This is a general principle. The meanings of national laws, social ethics and public interests are relatively broad and often change with different periods and regions. Sometimes due to modifications to the original laws, certain restrictions are lifted, so the examiner is based on When reviewing Article 5 of the Patent Law, special attention should be paid to this point.
Law 5
2.1 Inventions and Creations that Violate National Laws
National laws refer to laws and regulations established by the National People’s Congress or the Standing Committee of the National People’s Congress in accordance with legislative procedures. Laws made and enacted. It does not include administrative rules and regulations.
Patent rights cannot be granted if the purpose of the invention is contrary to national laws. For example, equipment, machines or tools used for gambling; equipment for taking drugs; equipment for counterfeiting national currency, bills, official documents, seals, cultural relics, etc. are all inventions and creations that violate national laws and cannot be granted patent rights.
The purpose of the invention itself does not violate national laws, but if it violates national laws due to misuse, it does not fall into this category. For example, various poisons, narcotics, sedatives, stimulants for medical purposes, and chess and cards for entertainment purposes, etc.
Article 9 of the Patent Law Implementing Rules stipulates that inventions and creations that violate national laws as mentioned in Article 5 of the Patent Law do not include inventions and creations whose implementation is prohibited by national laws. The implication is that if the production, sale or use of an invention-created product is restricted or restricted by national law, the product itself and its manufacturing method do not constitute an invention-creation that violates national law. For example, although the production, sale and use of various weapons for national defense purposes are restricted by national laws, the weapons themselves and their manufacturing methods are still subject matter that can be patented.
Law 5
2.2 Inventions and Creations that Violate Social Morality
Social morality refers to the ethical and moral concepts and moral concepts that are generally considered legitimate and accepted by the public. Code of Conduct. Its connotation is based on a certain cultural background, continues to change with the passage of time and social progress, and varies from region to region. The so-called social morality in China's patent law is limited to the territory of China.
Inventions and creations that are objectively contrary to social morality cannot be granted patent rights. For example, designs containing violent, murderous or obscene pictures or photos, artificial sexual organs or their substitutes for non-medical purposes, methods of mating between humans and animals, and other inventions and creations that violate moral customs cannot be granted patent rights.
Law 5
2.3 Inventions and creations that harm public interests
Hindering public interests means that the implementation or use of an invention will cause harm to the public Cause harm to the public or society, or affect the normal order of the country and society.
For example, inventions and creations that cause disability or damage property, such as anti-theft devices and methods that aim to blind a thief, cannot be granted patent rights; the implementation or use of inventions and creations will seriously pollute the environment and destroy ecology. If the patent application is balanced, the patent right cannot be granted; if the text or pattern of the patent application involves major national political events or religious beliefs, hurts people's feelings or national feelings, or promotes feudal superstition, the patent right cannot be granted.
However, if the misuse of the invention and creation may harm the interests of the public, or if the invention and creation produces positive effects but also has certain shortcomings, such as having certain side effects on the human body, For medicines, patent rights cannot be refused on the grounds of "harming the interests of the public".
2.4 Applications that partially violate Article 5 of the Patent Law
An application contains content that violates national laws, social ethics or harms the interests of the public, while other parts are legal , the application is called an application that partially violates Article 5 of the Patent Law. For such an application, during examination, the examiner shall notify the applicant to make modifications and delete the parts that violate Article 5 of the Patent Law. If the applicant does not agree to delete the illegal parts, the patent right cannot be granted. For example, the invention of a "coin-operated pinball machine." If the player reaches a certain score, the machine will throw out a certain number of coins. The examiner shall notify the applicant to delete or modify the coin-throwing part to make it a pure coin-operated game machine. Otherwise, even if it is a new and creative technical solution, it cannot be granted a patent right.
3. Objects for which patent rights are not granted according to Article 25 of the Patent Law
The subject matter claimed in the patent application falls within the five categories listed in Article 25, Paragraph 1 of the Patent Law Patent rights cannot be granted if the subject matter is not subject to patent rights. The objects not granted patent rights listed in Article 25, Paragraph 1 of the Patent Law apply not only to inventions, but also to utility models.
Law 25.1(1)
3.1 Scientific discovery
Scientific discovery refers to the objective existence of phenomena, change processes, and characteristics and laws in nature. reveal. Scientific theory is a summary of the understanding of the natural world and a broader discovery. They are all extensions of people's understanding. These recognized substances, phenomena, processes, characteristics and laws are different from technical solutions to transform the objective world. They are not inventions and creations in the sense of patent law, and therefore cannot be granted patent rights. For example, the discovery that silver halide has photosensitive properties when exposed to light cannot be patented, but the photosensitive film manufactured based on this discovery and the manufacturing method of the photosensitive film can be patented. For another example, finding a previously unknown substance in a natural form from nature is just a discovery and cannot be patented. (For the review of substances that are first isolated or extracted from nature, see Section 2.1 of Chapter 10 of this Part.)
It should be pointed out that although invention and discovery are essentially different, they are closely related. Often, many inventions are based on discoveries, and in turn, inventions promote discoveries. This close relationship between invention and discovery is most prominent in the "invention of use" of chemical substances. When the special properties of a certain chemical substance are discovered, the "invention of use" that utilizes these properties comes into being.
Law 25.1(2)
3.2 Rules and methods of intellectual activities
Details 2.1
Intellectual activities refer to human thinking Movement, which originates from human thinking, produces abstract results through reasoning, analysis and judgment, or it must be used as a medium by human thinking movement to indirectly act on nature to produce results. It only guides people to think and identify information. , judgment and memory rules and methods, because they do not adopt technical means or utilize natural laws, nor do they solve technical problems and produce technical effects, they do not constitute a technical solution.
It neither complies with the provisions of Article 2, paragraph 1, of the Implementing Rules of the Patent Law, but also falls under the circumstances stipulated in Article 25, paragraph 1, item (2) of the Patent Law. Therefore, the rules and methods to guide people in carrying out such activities Patent rights cannot be granted.
When judging whether an invention patent application involving rules and methods of intellectual activity is patentable subject matter, the following principles should be observed:
(1) If an invention only Rules and methods involving intellectual activities, that is, the rules and methods of intellectual activities themselves, should not be granted patent rights.
For example:
Special methods for examining patent applications;
Methods and systems for organization, production, commercial implementation and economic management;
Traffic driving rules, time schedules, competition rules;
Methods of deduction, reasoning and operational planning;
Book classification rules, dictionary arrangement methods, information retrieval methods, patents Classification;
Calendar arrangement rules and methods;
Operation instructions for instruments and equipment;
Grammar and Chinese character encoding methods in various languages;
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Computer language and calculation rules;
Quick algorithms or formulas;
Mathematical theories and conversion methods;
Psychological test methods;
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Methods of teaching, teaching, training and animal training;
Rules and methods of various games and entertainment;
Statistics, accounting and bookkeeping methods;
Music scores, recipes, chess records;
Methods to cure diseases, strengthen and keep fit;
Methods for disease census and population statistics;
The method of expressing information;
The computer program itself.
(2) If an invention as a whole is not a rule or method of intellectual activity, but a part of the invention is a rule or method of intellectual activity, it should not be completely excluded from obtaining patent rights. The possibility needs to be analyzed in detail and treated differently according to the following two situations:
(i) If the contribution of the invention to the existing technology is only part of the rules and methods of intellectual activities, it should be The invention is regarded as the rules and methods of intellectual activities, and no patent rights are granted;
(ii) If the contribution of the invention to the existing technology does not lie in or does not only lie in the rules and methods of intellectual activities , then the patent right cannot be refused based on Article 25, Paragraph 1, Item (2) of the Patent Law.
For the rules and methods of intellectual activities specified in Article 25, Paragraph 1, Item (2) of the Patent Law, please refer to the relevant content in Chapter 9 of this part as to whether an invention patent application involving a computer program falls within the category of intellectual activity.
Law 25.1(3)
3.3 Diagnosis and treatment methods of diseases
Diagnosis and treatment methods of diseases refer to the use of living human or animal bodies as Directly implement the object to carry out the process of identifying, determining or eliminating the cause or disease.
For humanitarian considerations and social ethical reasons, doctors should have the freedom to choose various methods and conditions during diagnosis and treatment. In addition, this type of method directly targets living human or animal bodies and cannot be used industrially. It is not an invention within the meaning of patent law. Therefore, methods of diagnosis and treatment of diseases cannot be patented.
However, instruments or devices used to implement disease diagnosis and treatment methods, as well as substances or materials used in disease diagnosis and treatment methods are subject matter that can be granted patent rights.
3.3.1 Diagnostic method
Diagnostic method refers to the entire process of identifying, studying and determining the cause or lesion status of a living human or animal body.
3.3.1.1 Inventions belonging to diagnostic methods
A method related to disease diagnosis is a diagnostic method that is not patentable only if it meets the following three conditions at the same time:
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(1) Targeting living human or animal bodies;
(2) Direct purpose of obtaining disease diagnosis results;
(3) Including diagnosis The whole process.
When the examiner determines whether a method invention related to disease diagnosis truly belongs to a disease diagnosis method, he should not only consider whether the method contains all the above conditions in the form of expression, but also analyze Whether the invention substantially satisfies the above conditions. For example, an invention only involves a method of obtaining physiological parameters from the human body. In terms of expression, it does not meet the above three conditions. However, if based on the medical knowledge in the existing technology, as long as the physiological parameters are known, it can If the diagnostic results of a disease are directly obtained, then the invention is essentially a diagnostic method and still cannot be granted patent rights.
According to the above rules, the following methods are examples of methods that cannot be granted patent rights:
Pulse diagnosis method, foot diagnosis method, X-ray diagnosis method, ultrasonic diagnosis method, gastrointestinal imaging diagnosis method , endoscopic diagnostic method, isotope tracer diagnostic method, infrared light non-destructive diagnostic method.
3.3.1.2 Inventions that are not diagnostic methods
Not all diagnostic-related inventions and methods are not exempt from patent protection. Some inventive methods appear to be related to disease diagnosis, or the ultimate purpose is still to diagnose diseases, but their direct purpose is not to diagnose diseases, so the grant cannot be refused based on the provisions of Article 25, Paragraph 1, Item (3) of the Patent Law. Patent rights, this is the case for the following types of invention methods:
(1) The direct purpose is not to obtain diagnostic results, but only to obtain information and/or processing as intermediate results from living human or animal bodies Information (physical parameters, physiological parameters or other parameters) methods (it should be noted that only when the diagnosis of the disease cannot be directly derived from the information itself based on the medical knowledge in the existing technology, this information can be can be considered as intermediate results);
(2) Methods for processing or detecting tissues, body fluids or excreta that have been separated from the human or animal body;
(3) In Pathological anatomy performed on dead human or animal bodies.
3.3.2 Treatment methods
Treatment methods refer to blocking, alleviating or eliminating the cause of disease or disease in order to restore or obtain health or reduce pain in a living human or animal body. process of the lesion.
Treatment methods include various methods that are for the purpose of treatment or have therapeutic properties. Methods to prevent disease or immunize are considered treatments.
For methods that may have both therapeutic and non-therapeutic purposes, it should be clearly stated that the method is used for "non-therapeutic purposes", otherwise patent rights cannot be granted.
3.3.2.1 Inventions belonging to treatment methods
Treatment methods that cannot be granted patent rights refer to methods that are implemented on living human or animal bodies with the direct purpose of treating or preventing diseases. method.
The methods listed in the following items all belong to or should be regarded as treatment methods that cannot be granted patent rights:
(1) Surgical treatment methods, drug treatment methods, and psychological therapy ;
(2) Acupuncture, anesthesia, massage, massage, scraping, qigong, hypnosis, medicinal baths, air baths, sun baths, forest baths and nursing methods for therapeutic purposes;
(3) Methods of using electricity, magnetism, sound, light, heat and other types of radiation to stimulate or irradiate the human or animal body for the purpose of treatment;
(4) Using coating, Treatment methods such as freezing and diathermy;
(5) Various immunization methods to prevent diseases;
(6) Surgical treatment methods and drug treatments Auxiliary methods used in the method, such as processing methods for returning organs or tissues to the same subject, hemodialysis methods, anesthesia depth monitoring methods, internal drug administration methods, drug injection methods, drug external application methods, etc.;
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(7) Conception, contraception, increasing sperm count, in vitro fertilization, embryo transfer and other methods for the purpose of treatment;
(8) Plastic surgery, limb stretching, etc. for the purpose of treatment Methods for losing weight and increasing height;
(9) Methods for treating wounds on human or animal bodies, such as wound disinfection methods and bandaging methods;
(10) Other methods for the purpose of treatment, Such as artificial respiration methods and oxygen delivery methods.
It should be pointed out that although the method of using drugs to treat diseases cannot be patented, the drugs themselves can be patented. For examination of patent applications for medicinal uses of substances, see Section 3.5.2 of Chapter 10 of this Part.
3.3.2.2 Inventions that are not therapeutic methods
If a method that uses human or animal bodies as its object is not intended to be treated, or its direct purpose is not treated, then The patent right shall not be refused based on the provisions of Article 25, Paragraph 1, Item (3) of the Patent Law. For example, the following types of methods:
(1) Methods for manufacturing prostheses or prostheses for the purpose of treating limb or organ defects, and measurement methods implemented for the manufacture of such prostheses or prostheses. For example, a method of manufacturing dentures includes making a dental mold in the patient's mouth and manufacturing the dentures outside the body. Although the ultimate purpose is treatment, the purpose of the method itself is to manufacture suitable dentures.
(2) Livestock production methods that involve non-surgical manipulation of animal bodies to alter their growth characteristics. For example, by applying certain electromagnetic stimulation to live sheep to promote their growth, improve mutton quality or increase wool production.
(3) Animal slaughter methods.
(4) Disposal methods for dead human or animal bodies. For example, methods of anatomy, organization of remains, embalming of corpses, and preparation of specimens.
(5) Pure cosmetic methods, that is, cosmetic methods that do not involve the human body or cause trauma, including local, non-therapeutic treatments on skin, hair, nails, and teeth that can be seen externally. A method of deodorizing, protecting, decorating or modifying the body for the purpose.
(6) A method of transporting oxygen, negative oxygen ions, and moisture to make non-sick people or animals feel comfortable and happy, or to deliver oxygen, negative oxygen ions, and moisture under special circumstances such as diving and anti-virus.
(7) A method of killing bacteria, viruses, lice, and fleas on the outside of the human or animal body (on the skin or hair, but excluding wounds and infected parts)
3.3.2.3 Surgical methods
Surgical methods refer to the use of instruments to perform invasive procedures such as incision, resection, suturing, and tattooing on living human or animal bodies. Or interventional treatment or treatment methods, such surgical methods cannot be patented. However, as long as the method does not violate Article 5 of the Patent Law, surgical methods performed on dead human or animal bodies are patentable subjects.
Surgical methods for the purpose of treatment are treatment methods, and the patent rights are not granted according to the provisions of Article 25, Paragraph 1, Item (3) of the Patent Law.
Law 22.4
For review of surgical procedures for non-therapeutic purposes, see Chapter 5 of this part.
Law 25.1(4)
3.4 Animal and plant varieties
Animals and plants are living objects. According to the provisions of Article 25, Paragraph 1, Item (4) of the Patent Law, patent rights cannot be granted for animal and plant varieties. Animals as mentioned in the patent law refer to organisms that cannot synthesize their own carbohydrates and can only rely on the intake of natural carbohydrates and proteins to maintain their lives.
Plants as mentioned in the patent law refer to organisms that can use photosynthesis to synthesize carbohydrates and proteins from inorganic substances such as water, carbon dioxide and inorganic salts to maintain their survival, and usually do not move. Animal and plant varieties can be protected through laws other than patent law. For example, new plant varieties can be protected through the Regulations on the Protection of New Plant Varieties.
According to the provisions of Article 25, Paragraph 2 of the Patent Law, patent rights can be granted for production methods of animal and plant varieties. But the production methods mentioned here refer to non-biological methods and do not include mainly biological methods for producing animals and plants.
Whether a method is a "mainly biological method" depends on the degree of human technical intervention in the method; if human technical intervention plays a major role in the purpose or effect of the method, If the method has a controlling or decisive effect, then this method does not belong to a "mainly biological method" and can be patented. For example, the method of using irradiation feeding to produce high-yield dairy cows; the method of improving feeding methods to produce lean pigs, etc. can be granted invention patent rights.
The so-called microbial invention refers to the invention that uses various bacteria, fungi, viruses and other microorganisms to produce a chemical substance (such as antibiotics) or decompose a substance. Microorganisms and microbiological methods can obtain patent protection. Regarding the review of patent applications for microbial inventions, please refer to the relevant content in Chapter 10 of this part.
Method 25.1(5)
3.5 Nucleus transformation method and substances obtained by this method
Nuclear transformation method and substances obtained by this method are related to The major interests of the country's economy, national defense, scientific research and public life are not suitable for unit or private monopoly, so patent rights cannot be granted.
3.5.1 Atomic Nucleus Transformation Method
Atomic Nucleus Transformation Method refers to the process of splitting or aggregating one or several atomic nuclei to form one or several new atomic nuclei, for example: completing the nucleus The magnetic mirror trap method, closed trap method of fusion reaction, and various types of reactor methods to achieve nuclear fission, etc. These transformation methods cannot be patented. However, particle acceleration methods that increase particle energy in order to achieve atomic nucleus transformation (such as electron traveling wave acceleration method, electron standing wave acceleration method, electron collision method, electron circular acceleration method, etc.) do not belong to atomic nucleus transformation methods and are grantable inventions. The subject matter of patent rights.
Various equipment, instruments and components for realizing nuclear transformation methods are all objects that can be granted patent rights.
3.5.2 Substances obtained by nuclear transformation methods
Substances obtained by nuclear transformation methods mainly refer to various substances produced and manufactured by accelerators, reactors and other nuclear reaction devices. radioactive isotopes, these isotopes cannot be granted invention patents.
However, the uses of these isotopes and the instruments and equipment used are subject matter that can be patented.
2001-10-25
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