Understanding of the second paragraph of Article 2 of the Patent Law

China's patent law was introduced and formed on the basis of drawing lessons from other countries' laws. Therefore, some provisions in the patent law still need our serious discussion and study in order to be better applied to actual judicial practice. Let's take a look at the second paragraph of Article 2 of the Patent Law.

1. What is the patent law?

Patent law is the sum total of legal norms to adjust certain social relations arising from inventions and promote technological progress and economic development. As far as its nature is concerned, patent law is both a domestic law and a foreign-related law; It is not only a substantive law that establishes the rights and obligations of the patentee, but also a procedural law that stipulates a series of procedural systems for patent application, examination and approval. It is not only a law to adjust the vertical relationship between patent application, examination, approval and patent implementation management, but also a law to adjust the horizontal relationship between patent ownership, patent transfer and license. It is not only a law to adjust the patent personal relationship, but also a law to adjust the patent property relationship.

Second, what is stipulated in the patent law?

The qualification of the applicant for a patent for invention, the object protected by the patent law, the patent application and examination procedures, the conditions for obtaining a patent, the patent agent, the ownership of the patent right, the occurrence and extinction of the patent right, the protection period of the patent right, the rights and obligations of the patentee, the license for the implementation, transfer and use of the patent, and the protection of the patent right.

Three. Understanding of the second paragraph of Article 2 of the Patent Law

Paragraph 2 of Article 2 of the Patent Law stipulates that "invention" refers to a new technical scheme proposed for a product, method or its improvement.

1. The "technical scheme" stipulated in the second paragraph of Article 2 of the Patent Law shall have three elements: technical means, technical problems and technical effects. A scheme that does not use technical means to solve technical problems in order to obtain technical effects that conform to the laws of nature does not belong to the object stipulated in the second paragraph of Article 2 of the Patent Law.

2. When judging whether the pre-protection scheme is a technical scheme or not and whether it meets the object of invention patent protection, we should accurately stand in the perspective of the technical personnel in this field and judge whether the scheme in the claim is adopted as a whole by technical means conforming to the laws of nature, thus solving technical problems and producing technical effects. We can't directly identify it as a technical solution just because it contains technical features, nor can we identify it as a non-technical solution just because it contains non-technical content. It is necessary to combine many factors, such as theme, technical means, technical problems, technical effect and even existing technology, and analyze specific cases to judge whether the scheme can apply for an invention patent, so as to protect the invention patent corresponding to the protected object according to the second paragraph of Article 2 of the Patent Law.

To sum up, the second paragraph of Article 2 of the Patent Law is about the definition of invention, which is mainly used to judge the object of patent protection. We should accurately judge the claim scheme from the perspective of the technicians in this field.