How to distinguish creativity in patent?

Creativity is an important concept that must be involved in the patent laws of various countries. The European Patent Treaty and the Patent Cooperation Treaty stipulate that an invention is creative if it is not obvious to people in this field compared with the existing technology. The patent law of the United States stipulates: "The difference between the object applying for a patent and the existing technology is considered obvious by ordinary technicians in this technical field, and it is impossible to obtain a patent." Japanese patent law stipulates that an invention is not creative if it is easily made by a technician in this field before filing a patent application. Although the patent system has been established in western countries for hundreds of years, it should be pointed out that the above definition of creativity, whether it is "not obvious" as stipulated in the European Patent Treaty and the Patent Cooperation Treaty or "easy to manufacture" as stipulated in the Japanese Patent Law, is not comprehensive and accurate. For example, various "patchwork" inventions made up of many well-known products or methods may not be obvious, or it is difficult for technicians in this field to make and complete them easily, but such "patchwork" inventions are usually considered to be lack of creativity in patent judicial practice in various countries. On the other hand, many authorized invention patents are not obvious, or in fact they can be easily made or even completed by technicians in their respective fields. However, as long as the specified features of an invention have a qualitative change relative to the existing technology, the invention will be recognized as creative in the judicial practice of patents in various countries. The definition of creativity in China's patent law is: creativity means that the invention has outstanding substantive characteristics and remarkable progress compared with the existing technology before the filing date, and the utility model has substantive characteristics and progress. Although the above written discussion on the concept of creativity is obviously different from other countries, China's Patent Examination Guide clearly points out that "the invention has outstanding substantive characteristics, which means that it is obvious to technicians in the field relative to the existing technology". In this way, the definition of creativity in China's patent law has returned to the European Patent Treaty and other international regulations. Interestingly, although there are various loopholes or deficiencies in the definition of creativity in various countries, in the judicial practice of patents in various countries around the world, these loopholes are usually made up by specific discussions in the review guides of various countries. In other words, the specific elaboration of the concept of creativity in the review guides of all countries in the world cannot be summarized by the concept of creativity endowed by their laws and regulations. Then, how to define the concept of creativity in order to sum up the specific discussion on creativity in the review guides of all countries in the world? Marxist philosophy holds that there are only two forms of changes in the universe, one is quantitative change and the other is qualitative change. Inventions are no exception. The concept of invention and creation can be defined under the guidance of Marxist philosophy, that is, novelty refers to the quantitative change of the specified characteristics of invention and creation relative to the existing technology. Creativity refers to the qualitative change of the specified characteristics of the invention compared with the existing technology. Second, invention and creation are the unity of quality and quantity. The quality of invention and creation is the prescriptive feature that distinguishes invention from existing technology. Inventions and creations in the world are so varied because they have their own special regulations on their characteristics. The content of invention and creation is determined by the prescriptive features in the claims that are different from the prior art, and the existence of prescriptive features that are different from the prior art directly determines the quality of invention and creation. Therefore, the quality of inventions is directly equivalent to the existence of inventions. In other words, the prescriptive feature, that is, quality, is directly related to invention and creation and inseparable. Inventions and creations always have certain specified characteristics (qualities), and without them, there is no invention and creation. The prescriptive feature of invention and creation, that is, quality, is inherent in invention and creation itself, and is expressed through attributes. When the invention relates to the prior art, the attribute is a specified feature. The attribute of invention and creation is the expression of the prescriptive characteristics of invention and creation. It is by understanding the attribute of invention and creation that people realize the prescriptive characteristics of invention and creation, that is, quality. Invention and creation not only have the characteristics of stipulation and quality, but also have the characteristics of quantity. The number of inventions and creations is a specified feature, that is, inventions and creations can be expressed by numerical values relative to the existing technology. The prescriptive characteristics of the quantity of inventions and creations, like the prescriptive characteristics of the quality of inventions and creations, are inherent in inventions and creations themselves, exist objectively and are inseparable from inventions and creations. On the one hand, inventions always have a certain amount of prescriptive characteristics, and inventions without quantitative prescriptive characteristics do not exist; On the other hand, no invention is divorced from the prescriptive characteristics of quantity created by development. To understand the characteristics of invention and creation, we should pay attention to two points: First, quantity is not directly the same as the characteristics of invention and creation. The characteristics of quality are directly the same as the existence of invention. When an invention changes its own quality, it means that it has undergone creative changes. The characteristics of quantity are different, and the same invention can have different quantities. Within a certain range, the increase or decrease of the quantity does not affect the quality of the invention relative to the prior art. Second, the characteristics of quantity are various. Quantity is as varied as quality. There are connotation quantity and extension quantity, accurate quantity and fuzzy quantity, elements and structure, etc. The quantity of connotation indicates the degree of quality, such as temperature, color, hardness, etc. The denotative quantity represents the scale of quality, such as the quantity, volume and weight of things. Quality distinguishes different inventions, and quantity further distinguishes homogeneous inventions from quantity. Quantity and invention are not directly the same, and homogeneous inventions can have different quantities. In the understanding of invention and creation, determining the existing technology is the premise of understanding invention and creation, understanding the quality of invention and creation under the premise of existing technology is the basis of understanding invention and creation, and understanding the quantity of invention and creation is the deepening and accuracy of understanding invention and creation. To understand the quality of inventions, we should first determine the existing technology, and then go from quality to quantity. Compared with the prior art, any invention has quality and quantity, which is the unity of quality and quantity. There is a difference between quality and quantity. Quality makes inventions some inventions rather than others relative to the existing technology. The quality has changed, and the invention has changed creatively compared with the existing technology. However, the number is different, and similar inventions can have different numbers relative to the prior art. The change in quantity means that the present invention has a novel change compared with the prior art.. Within a certain range, the change of quantity does not affect the quality of the invention relative to the existing technology. Compared with the prior art, the quality and quantity of inventions are interrelated. Quality determines quantity. Without a certain quality, there is no certain quantity. Quantity is always a certain quantity, and quality stipulates the scope of quantity. On the other hand, a certain amount is a qualitative condition, and quality is always a certain amount of quality, and quantity restricts quality. Without quantity, there is no quality. Quality and quantity are unified, and this unity is "degree". Degree is the unity of quality and quantity of the invention relative to the prior art, and it is the quantitative boundary, range or amplitude of the invention to maintain its own quality relative to the prior art. The boundary between invention and creation relative to the prior art is called critical point or critical point. Critical point or critical point is the highest and lowest limit of the activity range of an invention relative to the amount that can be accommodated by the existing technology. The quantity of the invention relative to the prior art changes within the range of degrees, and the invention will not change qualitatively relative to the prior art, but if the quantity changes beyond the range of degrees, it will change qualitatively relative to the prior art. The principle of the degree of invention relative to the existing technology requires us to correctly choose the existing technology when analyzing and understanding the invention, and then grasp the principle of "moderation" on this basis. If we can't choose the existing technology correctly, it is impossible to master the principle of "moderation". On the basis of correctly selecting the existing technology, we should grasp the "boundary", pay attention to the "temperature" and grasp the "temperature".