In order to understand the relevant provisions of creativity, the applicant needs to carefully study the specific contents of Section 3.2 of Chapter 4 of Part II of the Patent Examination Guide. Usually, the examiner will adopt the "three-step method" mentioned in this part when analyzing whether the claim is creative:
The first step is to determine the closest existing technology;
The second step is to determine the distinguishing features of the invention and the technical problems it actually solves;
The third step is to judge whether the claimed invention is obvious to those skilled in the art..
In addition, when analyzing the creativity of the claim, the examiner usually adopts the auxiliary examination benchmark set in the Patent Examination Guide, that is, to judge whether the invention defined in the claim has solved the technical problem that people have been eager to solve but have never succeeded; Whether technical prejudice has been overcome; Whether it has achieved unexpected technical effects; Or whether it is commercially successful.
Candidates can also learn from the above when answering questions about creativity? The essence of "three-step method" is to judge whether the examiner's opinion is reasonable, so as to make an appropriate reply in the opinion statement. The general steps are as follows:
First, it is judged whether the comparison document as the basis of the examiner's examination discloses the prior art closest to the present invention.
Secondly, if the examiner's comparison file as the basis for examination is indeed the closest to the comparison file of the prior art of the present invention, the technical features of the differential claim shall be found out from the comparison file, and the technical effects brought by these differential features, the technical problems solved and the improvements made to the prior art shall be analyzed.
Thirdly, after determining the distinguishing features and the technical problems actually solved, it is necessary to judge whether the technical scheme defined in the claim is obvious.
The specific method to judge whether it is obvious is to check whether another or more comparison documents cited by the examiner give enlightenment. According to this enlightenment, the technicians in this field can apply this distinguishing feature to the closest comparison document to solve the technical problems existing in the closest comparison document and obtain the technical effect of the invention, thus forming the technical scheme defined in the claims of this application. If there is no such revelation, the technical scheme defined in the claim has the creativity as stipulated in the patent law. At this time, you can not modify the claim, but you should state your opinions to the examiner and explain in detail the reasons for supporting your views. When necessary, we should also strive for the opportunity to meet with the examiner, and strive to persuade the examiner to change his point of view and accept the applicant's creative opinions on the right claim. If, after analysis, it is found that the examiner has sufficient reasons and it is difficult to convince the examiner not to amend the claim, the claim shall be amended according to the examiner's suggestion or the actual situation of the invention.
After the modification of the claim, if necessary, it is necessary to adaptively modify the invention name, technical field, background technology, invention content and description abstract.