Practicality is another necessary condition for an application for a patent for invention or utility model to be granted a patent right. The patent law stipulates: "Practicality means that an invention or utility model can be manufactured or used and can produce positive effects." ?
Being able to manufacture or use means that the invention can be manufactured in large quantities in industries such as industry and agriculture, and applied to industrial and agricultural production and people's lives, and at the same time has a positive effect. It must be pointed out here that the patent law does not require that an invention or utility model has been put into production practice before applying for a patent, but it can be realized in the production of industries such as industry and agriculture through analysis and inference. ?
How to judge the creativity of an invention or utility model?
To obtain a patent right, an invention or utility model must be creative. According to the provisions of the patent law, the creativity of an invention must meet the following two conditions:
(1) has outstanding substantive characteristics compared with the prior art before the filing date; ?
(2) Compared with the prior art before the filing date, it has made remarkable progress. ?
Obviously, compared with the prior art before the filing date, this is the time standard for judging novelty. However, a novel invention is not necessarily creative. Because creativity focuses on judging the technical level, the range of existing technology determined by judging creativity is narrower than that determined by judging novelty. ?
Outstanding substantive features mean that there are obvious essential differences between inventions and existing technologies. That is to say, the invention is not an ordinary technical person in a technical field who can directly draw all necessary technical features that constitute the invention from the prior art.. ?
Remarkable progress means that the invention has made great progress compared with the nearest prior art. This progress is as follows: the invention overcomes the shortcomings and deficiencies of the prior art; Or in the new technological trend represented by invention and creation; Or reflected in the excellent or unexpected effects of the present invention. ?
According to the provisions of China's patent law, the creativity of utility model means that compared with the existing technology before the filing date, the utility model has substantive characteristics and progress. It can be seen that the "outstanding" and "remarkable" of invention and creation are the creative differences between invention and utility model.
How to judge the novelty of an invention or utility model?
Whether the invention or utility model can be granted a patent right is the first substantive condition, which is to judge whether the patent application is novel.
Before submitting a patent application, the applicant shall make an extensive investigation on the novelty of his invention and creation, and make a correct judgment on whether it is novel or not. The judgment of novelty shall meet the following conditions:
(1) Before the filing of this patent application, similar inventions had not been published in domestic and foreign publications. Publications here include not only books, newspapers and magazines, but also audio tapes, video tapes, video tapes and records. ?
(two) before the filing of the patent application, it has not been publicly used in China, or is known to the public in other ways. The so-called public use refers to the sale in the form of commodities, or the dissemination and application in the form of technical exchanges, and even the dissemination of knowledge to the public through television and radio; ?
(3) Before the filing of the application, no one else filed a patent application with the Patent Office for the same invention-creation, and it was recorded in the patent application documents published after the filing date.